text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Per Curiam.
Defendant appeals as of right from a February 21, 1984, order of the Oakland County Circuit Court which compelled defendant to produce certain corporate tax records for examination pursuant to 1941 PA 122, § 3, as amended by 1980 PA 162 and 1981 PA 138; MCL 205.3(a); MSA 7.657(3)(a). Defendant objects to plaintiff’s use of defendant’s former bookkeeper as an assistant to its treasury agents in their examination of defendant’s records. We affirm.
Initially, defendant refused to comply with a subpoena duces tecum, issued by plaintiff on November 15, 1983, for production of certain financial records of defendant covering the calendar years 1979-1982, to be delivered to plaintiff’s offices for examination. Plaintiff filed an action on January 6, 1984, to enforce its subpoena. A hearing was held on February 1, 1984, in the circuit court. The subsequent order, which is the basis of this appeal, provided that defendant produce the following records for examination on defendant’s premises:
"[F]or the calendar years 1979, 1980, 1981 and 1982: general ledger, check register, cash disbursements, cash receipts income records, day book, bank statements, cancelled checks, payroll records, commission payments (1099), employee expense and income records.”
The order further stated that defendant’s former bookkeeper, Gladys Johnson:
"may assist the treasury agents in their examination of the books, records and papers of the Defendant, by personal access to same on the premises of the Defendant.”
Although not clear from the record on appeal, the examination of defendant’s records apparently occurred on May 4, 1984, and was conducted by Byrl Claxton, an assistant administrator with the Special Investigation Division of the Michigan Department of Treasury. We assume for purposes of this appeal that Johnson did assist Claxton in his examination, as provided for in the lower court order.
Defendant raised two main objections to plaintiff’s subpoena below. First, defendant argued that no ongoing investigation was being conducted by plaintiff concerning defendant, and that such an investigation was a prerequisite to plaintiff’s subpoena power under MCL 205.3(a); MSA 7.657(3)(a). Defendant has chosen not to pursue this objection on appeal; therefore, we will not further address this issue.
Defendant’s second objection to the subpoena below is the sole question on appeal. The specific objection was to plaintiff’s intention to permit Johnson to assist treasury agents in their examination of the records. Johnson had embezzled $31,-000 from defendant during her employment with defendant as a bookkeeper from April, 1979, to July, 1980. Johnson was prosecuted for embezzlement and convicted of this offense. A second criminal prosecution was brought against Johnson for tax evasion in which she pled guilty to embezzlement and received probation. Plaintiff has indicated that an investigation was commenced involving defendant upon allegations by Johnson that she only embezzled from defendant because "they” had been cheating on "their” taxes. She apparently claimed that the books and records of defendant, if properly shown in relation to each other, would expose and lead to proof of tax fraud by defendant, its officers and shareholders.
Defendant argues on appeal that the lower court erred in entering its order because Johnson is not authorized by statute to assist plaintiff in its examination.
MCL 205.3(a); MSA 7.657(3)(a) states in pertinent part:
"The commissioner or any of the duly appointed agents of the commissioner may examine the books, records, and papers touching the matter at issue of any person or taxpayer subject to any tax, unpaid account, or amount the collection of which is charged to the department.” (Emphasis supplied.)
Since Johnson is neither a commissioner of the Department of Treasury nor a duly appointed agent of the commissioner, defendant argues that the court erred in allowing her to assist in the examination of defendant’s records. To support its position, defendant relies upon the statutory interpretation maxim of "Expressio unius est exclusio alterius”, which means that the expression of one thing is the exclusion of another. When certain persons are specified in a statute, an intention to exclude all others from the statute’s operation may be inferred. Sebewaing Industries, Inc v Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953). This maxim, however, is only an aid to interpreting legislative intent. It cannot govern when the legislative intent is opposed to its application. Chesapeake & O R Co v Public Service Comm, 59 Mich App 88; 228 NW2d 843 (1975), lv den 394 Mich 818 (1975).
When applied to the instant case, the above-cited maxim does not aid defendant. The primary object of judicial interpretation of statutes is to ascertain and give effect to the intention of the Legislature. Franks v White Pine Copper Div, Copper Range Co, 122 Mich App 177, 183; 332 NW2d 447 (1982). When a statute is unambiguous on its face, interpretation and construction of its terms are unnecessary. However, if an ambiguity exists, this Court must give effect to the intention of the Legislature in enacting the statute. Sneath v Popiolek, 135 Mich App 17, 23; 352 NW2d 331 (1984).
The language of the statute is the best source for ascertaining the legislative intent. Statutes must be construed according to the ordinary and approved usage of the language. A resort to a dictionary definition is an appropriate method of achieving this result. In re Condemnation of Lands, 133 Mich App 207, 211; 349 NW2d 261 (1984). The operative word in the statute, with regard to this appeal, is "examine”. "The commissioner or any of the duly appointed agents of the commissioner may examine the books * * *.” MCL 205.3(a); MSA 7.657(3)(a). Webster’s Seventh New Collegiate Dictionary (1975) defines "examine” as "a: to inspect closely b: to test the condition of c: to inquire into carefully”. Johnson cannot examine defendant’s records within the meaning of the statute if she is not the commissioner or a duly appointed agent of the commissioner. However, there is nothing in the statute to prohibit Johnson’s presence to aid the agents in their examination.
Expression of the commissioner’s or his agents’ authority does exclude similar authority on the part of others. Had the court here ordered Johnson to examine the records and report to the commissioner or duly appointed agents, the statute’s express intent clearly would have been violated. However, Johnson was not permitted to examine the books, but was only allowed to aid those who did have the authority to examine them.
Even if MCL 205.3(a); MSA 7.657(3)(a) were considered ambiguous, defendant would not be entitled to relief. Where statutory language is of questionable meaning, this Court must render a reasonable construction and reconcile apparent inconsistencies. If one section of a statute is ambiguous or susceptible to more than one interpretation, the entire statute must be read as a whole, and the meaning given to one section should be determined by considering the other sections. Berry v Dep’t of Corrections, 117 Mich App 494, 499; 324 NW2d 65 (1982).
The statute here states that the commissioner or agents of the commissioner have authority to issue:
"a subpoena requiring a person to appear and be examined with reference to a matter within the scope of the inquiry or investigation being conducted by the department and to produce any books, records, or papers. The commissioner or any of the duly appointed agents, referees, or examiners of the commissioner, may administer an oath to a witness in any matter before the department. The department may invoke the aid of the circuit court of this state in requiring the attendance and testimony of witnesses and the producing of books, papers, and documents, and the circuit court of the state within the jurisdiction of which an inquiry is carried on, in case of contumacy or refusal to obey a subpoena, may issue an order requiring the person to appear before the department and produce books and papers if so ordered and any evidence touching the matter in question, failure to obey the order of the court may be punished by the court as a contempt. No person shall be excused from testifying or from producing any books, papers, records, or memoranda in any investigation, or upon any hearing when ordered to do so by the commissioner, upon the ground that the testimony or evidence, documentary or otherwise, may tend to incriminate or subject him to a criminal penalty; but no person shall be prosecuted or subjected to any criminal penalty for or on account of any transaction made or thing concerning which he may testify or produce evidence, documentary or otherwise, before the board or its agent. No person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.”
With regard to defendant’s books, records and papers, plaintiff could subpoena Johnson, the bookkeeper who prepared them, and examine her with regard to their preparation. Plaintiff should not be deprived of the information Johnson had to offer because she cooperated voluntarily.
A reading of MCL 205.3(a); MSA 7.657(3)(a) as a whole does not reflect an intention to exclude all persons other than the commissioner and duly appointed agents of the commissioner from contact with defendant’s books, records and papers. The statute clearly reflects an intent to permit the commissioner or duly appointed agents of the commissioner to utilize information from persons involved in the matter being investigated to aid in their investigation. This Court must give effect to the express intention of the Legislature.
Johnson has alleged that defendant has been evading taxes. As a bookkeeper for defendant, her testimony could focus the agent’s examination. As convincingly argued by plaintiff, it is a commonplace of criminal tax investigations that even skilled examiners can miss tax evasion in the books and records of a defendant if that evasion was cleverly concealed. The assistance of someone who prepared, in whole or in part, those records immediately unlocks the evasion, enabling the investigation to quickly establish the ”paper trail” which is the principal method of proof in a criminal tax evasion case.
Accordingly, we find that the lower court order here did not violate either the express language or the legislative intent of MCL 205.3(a); MSA 7.657(3)(a).
Affirmed.
Note that only persons who are subpoenaed may be immune from prosecution under the statute. People v Parsons, 142 Mich App 751; 371 NW2d 440 (1985). | [
5,
1,
26,
14,
-6,
36,
-44,
8,
-23,
26,
6,
-31,
9,
-21,
12,
-12,
8,
44,
17,
-18,
6,
-6,
35,
62,
-20,
0,
13,
13,
-21,
-5,
-28,
-10,
8,
-19,
0,
4,
77,
12,
40,
-24,
-23,
15,
-4,
-6,
-66,
-28,
22,
-1,
15,
-44,
34,
21,
-28,
24,
6,
16,
28,
-81,
21,
-20,
-24,
23,
44,
12,
16,
13,
-6,
-2,
23,
3,
-17,
13,
14,
13,
3,
-27,
-24,
0,
24,
28,
-15,
-16,
-1,
-29,
3,
0,
-8,
-9,
5,
-18,
-14,
6,
-50,
-23,
29,
13,
18,
-28,
53,
8,
-17,
16,
26,
-10,
34,
11,
29,
-9,
-21,
-12,
41,
-53,
-11,
-21,
-25,
-2,
3,
-4,
-22,
-57,
-33,
8,
34,
-9,
-1,
23,
-12,
-39,
1,
25,
-10,
55,
-11,
-7,
-10,
30,
28,
-34,
27,
30,
-15,
4,
28,
-7,
27,
-37,
6,
-10,
8,
2,
-25,
2,
50,
42,
2,
19,
-18,
-34,
27,
-33,
-27,
19,
-25,
-39,
19,
7,
1,
28,
16,
-30,
15,
7,
-28,
-19,
-49,
-44,
0,
44,
2,
-4,
-23,
-12,
36,
-26,
-12,
3,
2,
-11,
36,
-19,
22,
5,
9,
11,
37,
23,
21,
61,
0,
-3,
-29,
-24,
43,
6,
27,
-82,
31,
-73,
-58,
-24,
-15,
-6,
-7,
-25,
-46,
-43,
-2,
-10,
-20,
58,
2,
26,
27,
4,
1,
5,
-17,
8,
0,
-1,
28,
21,
52,
-10,
-49,
30,
75,
-43,
36,
-3,
-81,
4,
23,
-31,
12,
16,
-28,
8,
10,
-1,
26,
-11,
-36,
19,
34,
-35,
13,
3,
-13,
-9,
-5,
-5,
-27,
25,
-6,
-24,
47,
39,
-27,
-56,
-12,
12,
40,
-10,
3,
-45,
4,
5,
-48,
3,
-32,
-12,
34,
-39,
-64,
13,
-8,
16,
54,
23,
-15,
-30,
-45,
2,
32,
31,
8,
-29,
-11,
19,
-16,
0,
33,
-16,
25,
-34,
-12,
-12,
-24,
-27,
77,
-19,
-9,
-48,
21,
7,
-22,
-23,
18,
-11,
23,
2,
-13,
16,
-7,
3,
1,
-41,
33,
-1,
7,
25,
15,
-1,
-7,
-4,
7,
-3,
16,
25,
-11,
-13,
-9,
27,
-2,
-24,
-24,
-14,
-8,
0,
7,
-3,
-10,
56,
54,
27,
23,
-24,
-6,
39,
31,
32,
-2,
-21,
-17,
1,
-38,
-8,
58,
26,
-8,
-47,
-11,
2,
-36,
-20,
-32,
-8,
7,
7,
3,
-69,
0,
-6,
-8,
-17,
21,
-6,
0,
3,
-9,
10,
50,
25,
-46,
-21,
14,
62,
-7,
43,
-6,
-1,
20,
58,
-18,
-16,
12,
6,
-6,
78,
-16,
13,
-25,
34,
-14,
-6,
51,
0,
28,
-19,
-7,
-25,
-50,
10,
36,
-7,
-8,
52,
1,
4,
-24,
-19,
21,
-58,
-10,
33,
-21,
-4,
6,
-9,
-1,
-5,
-43,
3,
14,
2,
-10,
-21,
16,
11,
-1,
7,
10,
-17,
-28,
37,
33,
-24,
-15,
-5,
28,
-19,
17,
9,
31,
19,
8,
-20,
34,
-5,
-11,
0,
-33,
34,
-55,
-3,
-16,
-14,
20,
23,
2,
44,
-40,
46,
-41,
-5,
-39,
-22,
2,
25,
-13,
-18,
-38,
-6,
27,
25,
-43,
-31,
26,
8,
1,
-23,
48,
40,
16,
-30,
-46,
-6,
-25,
25,
-37,
-21,
43,
22,
-64,
-1,
39,
21,
16,
27,
42,
-39,
5,
-11,
-23,
9,
1,
5,
13,
24,
13,
43,
15,
-22,
-6,
-23,
22,
-1,
-47,
12,
-4,
11,
-11,
18,
-7,
-5,
-21,
-16,
9,
-11,
-3,
-29,
20,
-6,
-5,
9,
55,
-5,
-11,
-30,
-73,
-4,
18,
-20,
45,
-28,
-52,
31,
19,
0,
11,
14,
30,
-16,
47,
60,
7,
-11,
-10,
-8,
33,
23,
12,
-26,
-18,
0,
27,
-6,
15,
-13,
-36,
-39,
-3,
-1,
44,
-23,
-95,
-57,
28,
-20,
49,
-8,
-44,
9,
0,
6,
1,
46,
-16,
-59,
50,
-1,
-32,
-23,
-61,
4,
-41,
-46,
21,
-5,
4,
29,
9,
-8,
14,
32,
2,
15,
-6,
-4,
46,
-37,
26,
-13,
33,
-20,
-9,
-12,
-21,
-28,
11,
18,
-2,
-15,
20,
2,
28,
-46,
47,
21,
31,
36,
34,
-1,
-3,
-7,
27,
-27,
31,
-47,
7,
-67,
-25,
54,
32,
34,
-13,
-3,
81,
31,
4,
-20,
-22,
-24,
24,
-45,
-46,
-33,
7,
-83,
-7,
21,
14,
5,
27,
-49,
19,
22,
-23,
-18,
22,
15,
-20,
14,
-16,
-37,
-23,
1,
7,
-32,
-2,
25,
6,
34,
4,
6,
-39,
0,
-5,
55,
-25,
-44,
0,
31,
-8,
-17,
-42,
15,
22,
-38,
-14,
-29,
17,
-15,
-2,
-2,
26,
-13,
-6,
-19,
13,
27,
39,
10,
-23,
4,
-13,
11,
-40,
43,
27,
38,
-21,
-43,
8,
-24,
18,
-10,
-53,
42,
50,
43,
-24,
44,
-51,
29,
30,
-24,
-23,
-19,
-17,
26,
-4,
-4,
3,
1,
-21,
9,
-11,
-16,
-9,
0,
28,
-11,
-39,
-4,
-65,
0,
56,
-16,
45,
15,
-11,
8,
38,
-29,
-38,
-10,
-35,
29,
24,
-77,
-29,
-66,
0,
41,
-1,
65,
44,
20,
5,
34,
24,
-4,
4,
41,
-28,
-3,
-4,
33,
12,
0,
-20,
-57,
18,
-35,
-19,
-5,
-18,
-63,
-6,
9,
-17,
-1,
-56,
20,
33,
6,
4,
33,
7,
14,
-46,
-13,
-4,
-27,
-1,
-18,
-16,
-19,
6,
24,
-50,
21,
-2,
30,
-30,
28,
-9,
-24,
9,
17,
-13,
-21,
36,
3,
34,
-11,
-3,
13,
22,
66,
-54,
-14,
-3,
21,
-54,
21,
65,
31,
-30,
25,
13,
30,
-2,
-6,
34,
21,
-7,
-2,
-32,
17,
18,
-44,
35,
-15,
36,
0,
5,
-21,
-3,
18,
-18,
-7,
6,
-17,
-1,
-33,
4,
-1,
16,
1,
10,
22,
23,
59,
-7,
-26,
-54,
31,
-11,
21,
13,
-27,
-24,
-6,
-6,
15,
32,
18,
50,
33,
-31,
12,
14,
-35,
54,
-35,
-14,
12,
25,
-58,
33,
7,
7,
-59,
26,
-37,
37,
-6,
-31,
-64,
-40,
4,
-14,
2,
-61,
39,
28,
-36,
-21,
-68,
-29,
14,
-49,
33,
-9,
-42,
-14,
-18,
0,
29,
20,
31,
-22,
-28,
19,
-36,
27,
49,
-20,
-25,
-3,
-34,
16,
-11,
-12,
38,
5,
-28,
1,
-43,
0,
19,
-13,
10,
-22,
-7,
-14,
-18,
65,
-16,
19,
-33,
16,
50,
-13,
-16,
24,
-9,
-10,
-9,
7,
28,
0,
-16,
8,
-8,
-5,
32,
17,
3,
9,
-17,
-5,
-14,
10,
3,
-44,
-15,
-42,
0,
-64,
18
] |
Per Curiam.
In this matter of first impression we are asked to decide the sufficiency of notice given plaintiff of a proposed special assessment district for a water improvement project to be constructed by the township under MCL 41.721 et seq.; MSA 5.2770(51) et seq. On June 8, 1984, the trial court found the notice to be insufficent and issued an order enjoining defendants from proceeding with the project, the preparation of the assessment roll based upon the creation of a special assessment district, and declaring the resolution establishing the special assessment district void. From the order so issued, defendants appeal as of right.
Defendant Keith M. Decker is the township supervisor of defendant Union Township, a township of more than 2,000 persons in Isabella County. On April 4, 1984, defendant township initiated proceedings under 1954 PA 188, as amended, MCL 41.721 et seq.; MSA 5.2770(51) et seq., by adopting a resolution to design and build a water system in the eastern portion of the township, which district included the property owned by the plaintiff, the cost of which water system would be paid through a special assessment levied against the properties located in the district. On the same date, after receiving their engineer’s report, the township adopted a resolution to hold a public hearing on the proposed plan.
On May 4, 1984, plaintiff received notice of the proposed improvement and assessment district and the fact that a public hearing would be held on May 15, 1984. However, the notice did not inform plaintiff of her right to referendum under MCL 41.723(l)(b); MSA 5.2770(53)(l)(b). Under that section the proposed improvement could not be made "if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections thereto with the township board at or before the hearing”.
Plaintiff attended the public hearing on May 15, 1984, and objected to the proposed improvement. At the meeting plaintiff for the first time learned of the right to a referendum on the proposed project. At the meeting the township board adopted a resolution to proceed with the improvement and directed defendant supervisor to prepare a special assessment roll. Thereafter, plaintiff contacted an attorney who advised her that the right to referendum could only be effective if the written objections of 20% of the property owners were filed at or before the public hearing of May 15, 1984.
On May 29, 1984, plaintiff filed her complaint to enjoin the township and the township supervisor from creating a proposed special assessment district for water improvements and from preparing a special assessment roll. The complaint alleged both that the notice sent to property owners in the proposed district, including plaintiff, did not comply with the applicable statutory requirements and that the notice of the proposed district and improvements denied plaintiff due process of law under the federal and state constitutions.
On June 5, 1984, a hearing was held on plaintiff’s order to show cause why an injunction should not be issued, restraining defendants from proceeding with the water improvement project. At the hearing plaintiff testified and the parties stipulated to the facts hereinbefore recited. On June 8, 1984, the trial judge issued an opinion enjoining defendants from proceeding with the project. The basis of the court’s decision was that the notice given plaintiff was misleading and denied plaintiff due process of law. At the same time the court found that the notice complied with the require ments for notice set forth in § § 4 and 4a of the statute. MCL 41.724a; MSA 5.2770(54a). As explained by the court:
"In the case here under consideration, plaintiff would have had to file her written objections at or before the May 15, 1984 public meeting, and she would have had to have had sufficient co-objections (record owners of land) to constitute 'more than 20%’ of the total land area in the special assessment district. Was there anything — any wording whatsoever — contained in the Notice she was mailed which told her either of those things? The answer is obvious. Not only was she not told of these two requirements, but the statutory language contained in the notice is so inherently deceptive and misleading as to lead her to believe to the contrary: 'All objections and comments pertaining to said improvement will be heard at said hearing.’ Like the taxpayer in Alan v Wayne County, 388 Mich 210, 331 (1972) she was ’lulled to sleep’ by being told that 'all objections * * * will be heard.’ Plaintiff in the case here under consideration could no more make an informed judgment about the fact that her objections needed to be in writing and about whether she should start organizing her friends and neighbors to file such objections 'to prevent the imposition of a potentially enormous additional tax buden’ than the Plaintiffs in the Alan case.” (Emphasis supplied by the trial court.)
One issue is raised on appeal, viz.: Was plaintiff denied due process of law by the notice informing her of the right to object to proposed water improvements because the notice did not include information not legislatively mandated to be included in the notice? Shortly before October 2, 1985, the date set for oral argument on appeal, plaintiffs trial counsel filed a "Motion to Dismiss Appeal as Moot” together with a supporting brief. At the request of this Court, plaintiffs counsel appeared at oral argument. Counsel argued that the case was rendered moot because Union Town ship, by two resolutions adopted August 7, 1985, proposed a different special assessment district which did not include plaintiffs property and set August 22, 1985, as the date for hearing thereon.
Attached to counsel’s brief was a copy of the resolutions establishing a new proposed district, the last paragraph of which stated that "all resolutions and parts of resolutions insofar as they conflict with the provisions of this resolution be and the same hereby are rescinded”. Counsel argued that the township board’s action on August 7, 1985, effectively cancelled the water improvement district proposed on April 4, 1984. Furthermore, counsel noted that the notice of the public hearing given residents of the proposed new district contained all of the information which plaintiff contended should have been included in the notice of the public hearing of May 15, 1984.
In response defendants’ counsel argued, and at the request of the Court subsequently filed a brief, that the resolution adopted August 7, 1985, was expressly worded as "a tentative determination” and that no final decision had yet been made by the township board to abandon the special accessment district created by the board’s resolution of May 22, 1984. Counsel explained that the reason why the first proposed assessment district had not been abandoned was because 20% of the record property owners had filed objections to the project at the public hearing and the board was waiting to see if a petition containing signatures of 51% of the proposed district petitioning the township to proceed with the project would be filed. Attached to defendant’s brief as Exhibit A was a copy of the township board’s resolution adopted October 2, 1985, reading in relevant part:
"NOW THEREFORE, BE IT RESOLVED THAT:
"1. No final decision has been made by the Township Board to abandon the special assessment district created by this Board’s 'Resolution No. 3’ adopted on May 22, 1984. Depending on the outcome of the appeal concerning this special assessment district, and whether owners of land constituting at least 51% of the special assessment district created by adoption of 'Resolution No. 2’ by the Township Board on August 7, 1985, petition the Township to proceed with the proposed improvements, the Township Board may elect to prepare an assessment roll and proceed with the water improvement project created by 'Resolution No. 3’, adopted on May 22, 1984.
"2. The Township Board instructs Miller, Canfield, Paddock and Stone to continue to prosecute the Township’s appeal concerning whether the special assessment district created by 'Resolution No. 3’ on May 22, 1984, was created in a lawful manner.
"3. All resolutions and parts of resolutions insofar as they conflict with the provisions of this resolution be and the same hereby are rescinded.”
Based on the above facts we conclude that a final decision has not yet been made to abandon proceeding with the water project initially proposed and involved in the instant case. Accordingly, we hold that the present appeal is not moot and deny plaintiffs motion.
The establishment of township special water improvement districts is governed by 1954 PA 188 as amended, MCL 41.721 et seq.; MSA 5.2770(51) et seq. Under § 3(b) of the statute water main improvements may be instituted in two ways: (1) by petition signed by owners of 51% of the land area in the proposed district, (2) in townships exceeding 2,000 in population, on the township board’s own initiative, "but an improvement shall not be made without petition if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections thereto with the township board at or before the hearing described in section 4 of this act”. MCL 41.723; MSA 5.2770(53).
Section 4 of the statute requires: (1) that a notice fixing a time and place for a meeting to hear objections to the improvement and special assessment district be prepared; (2) publication of the notice of the hearing as to the proposed district two times before the hearing; (3) a statement in the notice that plans and estimates for the project are on file with the township clerk for public examination; and (4) that a description of the proposed assessment district be included in the notice. In addition, § 4a of the act, MCL 41.724a(2); MSA 5.2770(54a)(2), mandates that the notice of the proposed improvement district be mailed by first class mail to owners of properties to be included in the assessment district at least ten days prior to the hearing on whether the district should be established.
The published and mailed notice of the public hearing to be held May 15, 1984, advised plaintiff and the other affected property owners within the proposed district of the proposed special assessment district and of the time and place of the public hearing at which objections could be heard but did not contain any reference to the fact that the improvement could not be made "if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections thereto with the town ship board at or before” the hearing May 15, 1984. The notice sent to plaintiff and other residents within the district read as follows (emphasis added):
"NOTICE OF HEARING ON SPECIAL ASSESSMENT IMPROVEMENT BY UNION TOWNSHIP BOARD
"TO THE OWNERS OF ALL LOTS AND PARCELS OF PROPERTY ABUTTING THE FOLLOWING DESCRIBED IMPROVEMENT:
"WHEREAS, the Union Township Board has tentatively determined to make certain water improvements consisting of water mains together with necessary attachements and appurtenances thereto; and
"WHEREAS, this Board having tentatively declared its intention to make such improvement and tentatively designated the above described premises as a special assessment district against which the cost of said improvement is to be assessed; and
"WHEREAS, this Board has caused to be prepared plans showing the improvement, the location thereof and an estimate of the costs thereof which have been filed with the Union Township Clerk, Union Township, Isabella County, Michigan, for public examination.
"Public notice is hereby given that this Board will meet on May 15, 1984, at 8:00 p.m., Eastern Standard Time, at the West Intermediate School, 440 S. Bradley, Mt. Pleasant, Michigan, to hear objections to the petition, to the improvement and to the special accessment district therefore.
"All objections and comments pertaining to said improvement will be heard at said hearing.
"/s/ Marion L. McDonald Union Township Clerk”
The thrust of plaintiff’s argument at the hearing of June 5, 1984, was that the notice was deficient in that it failed to include a specific reference to the statutory provision that the proposed improvement could not be made if objections of 20% of property owners within the district were filed on or before the date set for the public hearing. Without such notice, counsel argued, his client was shut off and her attendance at the meeting was without avail:
"Mrs. Trussell went out there, ready, willing and able to object, unfortunately for her, she either didn’t go to law school, or hadn’t talked to a lawyer, or wasn’t sophisticated enough to read the Public Acts of this State, so she didn’t know that her objections had to be in writing, had to be signed by owners of more than 20 per cent of the area involved, and of those objection [sic] had to be filed at or before that meeting, 8:00 p.m., May 15th because if they weren’t your Honor, then her appearance at that hearing and every man, woman and child who owned that property showed up and said we don’t want it, the Board could of, in fact, in substance did say, 'We don’t care.’
"Because her rights and the rights of all her neighbors were then shut-off, they have no further recourse.
"The most critical factor, that it must state, is that the Township is proceeding by it’s own Resolution and that is Mrs. Trussell and other persons in the affected area want to object then their objections must be in writing and must be filed at or before the meeting and signed by, oh, 20 per cent owners of the record of 20 per cent of the area involved. Now, had the notice set forth that information, Mrs. Trussell would have then been armed as would her neighbors with the information necessary to know that it’s not the attendance at the meeting that makes any difference, it’s getting the objections in the proper form.” (Emphasis supplied.)
In effect, counsel’s argument is that the only way plaintiff could object to the improvement was to file petitions of 20% of the property owners of the proposed district at or before the public hear ing, and, accordingly, without an express reference in the notice to the remedy available to plaintiff in § 3(b) of the statute, plaintiff was deprived of due process of law, or the statute itself was unconstitutional. In reply, defendants contend that the statute requires notice of a public hearing — not notice that an organized minority of affected property owners could halt the proposed project — and that the Michigan Supreme Court has never held that the citizenry is entitled to special notice of all of its rights arising out of a given governmental action.
We decline to hold that notice of hearing is insufficient and a denial of due process unless the notice contains a reference to other statutory provisions available to the person affected. With the possible exception of Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972), plaintiff cites no authority, nor have we found any, which requires a notice to contain a cross-reference to other remedies. Municipal authorities have enough trouble implementing needed public improvements without the Court’s further complicating the process.
Further, we disagree with plaintiff’s argument that if Mrs. Trussell wanted to object, her objections "had to be in writing, had to be signed by more than 20% of the area involved” and "had to be filed at or before 8:00 p.m., May 15” because if they were not, she was shut off. Plaintiff’s right to object at the hearing was not dependent upon the filing of a written petition. Under the statute she was entitled to appear and voice objections. This she did and apparently with some success since two of the five-member township board changed their votes to "No” on going ahead with the proposed improvement. ___
However, our conclusion in the above respect does not necessarily indicate that the trial court erred. For the trial court’s decision does not rest solely upon the lack of a specific reference to the 20% written objection provision in § 3(b). The trial court also found that the notice actually given contributed to the plaintiff’s and other property owners’ not pursuing all of their statutory rights. In any proceeding involving notice, due process requires that the notice given be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”, Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950).
In Ridenour v Bay County, 366 Mich 225, 242; 114 NW2d 172 (1962), a special assessment project was set aside on grounds that the notice was insufficient because it was not given by mail but only by publication. Recently, in Alan, supra, notice that the county proposed to raise $371,000,000 through the issuance of revenue bonds for the construction of a downtown stadium was found insufficient because it misrepresented how and from what sources the funds to pay the bondholders would be raised. Although Alan is factually different from the instant case, primarily because it involved a situation where the local government misrepresented the nature of the issue rather than, as here, an omission of what could be done at or before the public meeting to delay or defeat the proposed improvement, the Alan Court stressed that a notice must be worded in a manner which would not mislead a taxpayer or voter in deciding how to respond to the notice given:
"In giving notice to taxpayers regarding public securities, to comport with due process the notice must be phrased with the general legal sophistication of its beneficiaries in mind. As phrased it must not make any misleading or untrue statement; [sic] or fail to explain, or omit any fact which would be important to the taxpayer or elector in deciding to exercise his right. In short, the notice may not be misleading under all the circumstances.” 388 Mich 353.
Applying the above case law to the instant situation, we now inquire whether notice given plaintiff was sufficient. We think it was not for two reasons. First, the notice published in the newspaper and sent to plaintiff and other residents did not clearly state that the proposed project was a township board initiated project rather than a project undertaken following receipt of a petition signed by 51% of the landowners in the area. Without definitely knowing under which of the two ways authorized under § 3(b) of the statute the improvements were being instituted, the property owner would not know the manner in which he or she should respond prior to the date set for public hearing.
Second, the final sentence in the notice indicates that all objections and comments pertaining to the water project would be heard at the hearing. Not only did it not inform plaintiff that her objections should be presented in writing at or before the hearing in order to preserve her right under the statute to join with 20% of the landowners in stopping the project, the notice implied that the only available forum for objections to the water project was to be present at the May 15 hearing and voice objections.
Although persons sophisticated in the law, such as lawyers, judges and elected officials, might well realize, or at least suspect, that they have rights under statutes other than those set forth in a public notice, the average resident of Union Township reading the notice might well conclude that his only right, at least until the date and time of the public hearing, was to attend the public hearing and voice his objections. This is particularly so because of the last sentence in the notice which stated that all objections and comments concerning the proposed project would be heard at the meeting.
Accordingly, we conclude that the trial court correctly determined that the notice given in the instant case denied due process and was insufficient. Not only must the notice comply with the requirements of the statute, it must not be worded in such a way that it precludes the people affected from discovering or exercising other rights they may have under other applicable statutes.
Affirmed. No costs, a question of public importance being involved.
"The foregoing improvements may be made by the township board without petition providing that the record owners of lands constituting more than 20% of the total land area described above do not file written objections thereto with the township board at or before the hearing to be held August 22, 1985. In the event of the filing of such petiton, the foregoing improvements may not be undertaken without a petition signed by the record owner of lands constituting at least 51% of the special assessment district as finally thereafter established by the township board.”
MCL 41.723; MSA 5.2770(53).
All five members of the township board approved the proposed assessment district on April 4, 1984. Following the public hearing on May 15, 1984, the board voted three to two to proceed.
While the notice did state that the township board had "determined to make certain water improvements”, and had "declared its intention to make such improvements”, it is unclear whether such decision was made on the board’s own initiative or in response to petitions received from 51% of the district’s landowners. | [
-16,
10,
-20,
-29,
-43,
34,
30,
18,
-18,
26,
14,
-70,
37,
50,
-2,
-33,
-5,
-15,
-34,
25,
-5,
-24,
13,
89,
-30,
38,
3,
3,
32,
3,
12,
-21,
-47,
22,
44,
-55,
46,
23,
25,
19,
20,
28,
5,
-53,
-68,
-9,
28,
-16,
4,
4,
9,
37,
8,
-17,
11,
1,
-29,
-37,
-29,
-10,
-55,
26,
-29,
33,
40,
31,
-33,
-9,
-1,
-38,
-41,
41,
-11,
-33,
24,
16,
-3,
14,
-17,
-2,
-23,
-13,
0,
-31,
-11,
5,
-38,
-5,
36,
22,
20,
-24,
4,
8,
28,
17,
26,
-63,
15,
5,
-10,
20,
43,
0,
-10,
-5,
-11,
3,
26,
-21,
-7,
-23,
-11,
-40,
-45,
-11,
-8,
39,
6,
-18,
19,
7,
27,
-2,
-19,
3,
29,
2,
-31,
31,
5,
4,
-2,
40,
37,
25,
20,
-12,
30,
2,
1,
24,
26,
-44,
39,
15,
7,
-40,
-5,
10,
-6,
33,
26,
19,
4,
15,
30,
-81,
20,
-12,
31,
40,
-34,
-35,
-44,
-14,
7,
20,
-2,
1,
26,
21,
-3,
-7,
-5,
-45,
26,
53,
0,
-18,
-11,
-60,
37,
14,
-30,
10,
-22,
1,
-32,
-30,
18,
-27,
-11,
-35,
14,
9,
7,
31,
-14,
-10,
1,
4,
54,
46,
-18,
-72,
-49,
-46,
-64,
-22,
-19,
0,
-67,
26,
21,
-19,
94,
20,
11,
30,
42,
23,
39,
-20,
-9,
38,
-34,
21,
2,
-77,
27,
10,
51,
21,
-29,
45,
-25,
12,
-16,
-18,
-10,
24,
-25,
0,
-54,
38,
28,
-31,
33,
13,
16,
-22,
-26,
-28,
-13,
-18,
-52,
13,
28,
-14,
37,
28,
-3,
2,
-53,
30,
-33,
-14,
-81,
27,
-51,
61,
33,
-13,
-37,
-20,
-10,
-41,
2,
10,
22,
-7,
12,
13,
-28,
61,
10,
32,
7,
37,
-11,
-26,
-43,
30,
46,
-51,
-11,
-60,
24,
-31,
-10,
18,
43,
-42,
44,
-20,
-18,
-4,
8,
0,
33,
15,
-35,
-6,
-56,
-13,
-31,
0,
1,
-33,
8,
-35,
13,
-21,
-26,
-9,
31,
41,
-17,
29,
-8,
17,
2,
12,
44,
19,
14,
-17,
-41,
-13,
65,
-32,
-5,
71,
-3,
48,
-53,
1,
-18,
-14,
-9,
2,
49,
30,
16,
17,
5,
-39,
0,
6,
36,
40,
-28,
-29,
11,
0,
-3,
-25,
21,
13,
-2,
-36,
9,
27,
-25,
-34,
3,
80,
-23,
20,
-4,
-25,
14,
-12,
47,
-2,
-8,
5,
13,
-28,
-21,
-57,
-9,
58,
-21,
-25,
27,
27,
1,
12,
26,
-5,
-28,
37,
-48,
13,
1,
-52,
-26,
50,
-11,
5,
-11,
-29,
-15,
-24,
66,
-4,
16,
-27,
11,
-11,
-23,
-60,
-16,
-46,
23,
6,
35,
25,
-36,
44,
3,
-7,
22,
-3,
-1,
-17,
-34,
-20,
-41,
38,
-9,
-29,
-38,
-49,
-43,
-1,
10,
-19,
9,
36,
-37,
-53,
6,
14,
26,
-29,
40,
-12,
-8,
-7,
-48,
23,
-27,
1,
-49,
21,
29,
-22,
-65,
29,
-10,
-3,
28,
-30,
9,
33,
23,
-13,
56,
-28,
-26,
-57,
0,
-5,
18,
51,
-16,
25,
16,
0,
0,
-66,
38,
25,
-35,
-24,
39,
20,
20,
27,
15,
6,
-55,
52,
-67,
15,
4,
20,
-12,
-8,
23,
-19,
-35,
15,
36,
-72,
7,
13,
-7,
-31,
-51,
-52,
4,
16,
-20,
-14,
48,
24,
38,
-32,
48,
-36,
-9,
-24,
-47,
37,
-39,
-23,
25,
-3,
15,
-2,
18,
9,
-72,
-22,
-11,
43,
-27,
-69,
-2,
4,
27,
5,
-20,
-20,
17,
-14,
-35,
17,
-6,
1,
23,
12,
5,
-13,
18,
-14,
2,
-7,
16,
1,
6,
28,
-11,
-41,
8,
54,
28,
4,
16,
-26,
-12,
12,
33,
-26,
-1,
-13,
-3,
-70,
9,
12,
1,
44,
-25,
-6,
-19,
-27,
12,
-23,
-44,
-7,
2,
-7,
22,
-40,
-1,
-40,
-28,
-5,
14,
32,
-26,
21,
4,
-15,
38,
-27,
-9,
62,
42,
17,
22,
18,
-14,
39,
15,
71,
9,
-52,
-14,
-20,
21,
-5,
-3,
4,
25,
25,
-7,
-24,
-14,
-31,
-12,
-37,
-23,
11,
21,
16,
7,
63,
13,
-83,
-2,
21,
-21,
-39,
7,
-59,
18,
-11,
26,
38,
-12,
26,
0,
1,
11,
29,
16,
20,
-20,
-19,
-5,
0,
0,
7,
49,
-2,
-23,
-17,
-31,
25,
9,
-68,
31,
45,
25,
-41,
50,
-11,
6,
-2,
-21,
-63,
-22,
34,
-58,
-12,
10,
7,
-19,
38,
-54,
38,
26,
-12,
-24,
20,
-14,
-7,
-36,
24,
19,
30,
2,
-9,
-5,
14,
-13,
2,
-45,
-23,
-6,
2,
17,
3,
-9,
-1,
-23,
81,
7,
22,
27,
8,
17,
17,
19,
-40,
42,
-15,
1,
3,
0,
4,
6,
4,
-33,
80,
-20,
3,
-23,
16,
-32,
-12,
0,
11,
7,
3,
1,
-17,
-21,
10,
15,
-42,
-4,
-12,
22,
29,
10,
1,
19,
-54,
0,
-28,
-34,
-29,
29,
-34,
-17,
21,
-10,
-19,
-8,
-36,
-21,
-23,
0,
3,
-35,
2,
-19,
-3,
8,
62,
39,
49,
27,
-23,
1,
33,
11,
35,
0,
37,
-55,
6,
7,
-3,
29,
17,
10,
29,
81,
-31,
-52,
38,
-4,
-41,
12,
44,
-15,
-12,
-10,
-1,
52,
11,
6,
18,
51,
-11,
-27,
3,
28,
-60,
-11,
55,
5,
1,
-4,
-86,
-17,
-27,
-35,
-37,
-37,
36,
64,
25,
-13,
41,
-38,
-21,
69,
30,
-15,
2,
-19,
55,
63,
82,
-14,
12,
-72,
-22,
-3,
0,
7,
12,
-10,
-15,
-26,
-3,
26,
19,
-69,
-29,
5,
-24,
-55,
-16,
70,
-59,
-28,
-43,
-2,
40,
70,
29,
61,
35,
2,
52,
-11,
-15,
15,
-4,
-31,
-19,
-19,
-17,
24,
3,
-11,
-21,
27,
44,
-4,
16,
-25,
-17,
18,
-6,
26,
-37,
2,
-32,
60,
35,
35,
11,
-26,
-29,
-21,
19,
-5,
21,
-27,
25,
9,
5,
0,
3,
24,
1,
14,
-25,
10,
19,
17,
-43,
-30,
10,
-9,
7,
-11,
10,
2,
-23,
-20,
-35,
37,
-6,
-17,
12,
-32,
4,
-55,
0,
-29,
-27,
31,
25,
-27,
-34,
36,
-44,
-6,
50,
-32,
1,
-20,
-37,
30,
13,
-14,
-3,
24,
2,
6,
-38,
34,
-15,
-33,
-13,
40,
-20,
10,
-47,
39,
6,
16,
-58,
-19,
16,
-50,
-20,
55,
2,
38,
35,
-18,
38,
17,
-5,
53,
-44,
-7,
4,
19,
64,
14,
-17,
13,
-13,
-44,
3,
-22,
-2,
36,
16,
-30,
-1
] |
Per Curiam.
On June 21, 1982, defendant was convicted by a jury of two counts of first-degree murder, MCL 750.316; MSA 28.548. Sentenced to concurrent life prison terms, he appeals as of right.
This case involves an early morning fire bombing and shooting in the sixth-floor hallway of the Douglas wing of Bursley Hall, a predominantly freshman dormitory at the University of Michigan in Ann Arbor. Michael Neumann testified at trial as to how the incident began. He had stayed up Thursday night to type a paper so that he could go home for the Easter weekend. About 3 a.m. Friday, April 17, 1981, Neumann heard defendant enter the hallway and saw him pass by the study-room door. About 6 a.m., Neumann went down the hall to his room to get something with which to kill a bee in the study room. As he passed defendant’s room, he met defendant standing in the doorway and asked if defendant was allergic to bees. Defendant replied no and slammed the door. Neumann returned to the study room and stopped at the doorway to look for the bee. Defendant then came running out of his room with a flaming bottle which he threw at Neumann. The bottle bounced, careened off Neumann and broke against the end wall. Neumann yelled and fled down the stairway exit at the end of the hall. A series of fires sprang up in the hallway where the bottle had spilled burning gasoline.
Peter Doerr, a student in one of the rooms near the end of the hallway, heard the glass break and someone yell. He got out of bed and went into the hallway where he saw several fires burning and defendant standing with a sawed-off shotgun held across his body. The gun discharged and Doerr fled back into his room.
Other students in the end rooms were awakened by the commotion and, upon going into the hallway, immediately gave their attention to the fires. Defendant fired two more shots, scattering these students but not wounding any. Other students who were awakened or entering the hallway apparently were unaware that a gun was being fired, but assumed the bangs were explosions. Someone pulled a fire alarm. While some left the hall, others ran about in confusion and still others went from door to door to warn those still oblivious to what was happening. Neumann’s roommate awoke Edward Siwick, who in turn began helping to awake others. In the meantime, Douglas Mc-Greaham, a resident advisor, arrived on the floor in response to the fire alarm with another advisor and the supervisor.
Defendant fired two more shots and Siwick and McGreaham fell dead. Defendant then returned to his room where he was arrested. A search warrant was issued and numerous items seized, including a shotgun, ammunition, a gas mask and materials that could be used in the preparation of "Molotov cocktails”.
I
Defendant gave notice of an insanity defense. He was examined regarding criminal responsibility at the Center for Forensic Psychiatry and he claimed that he was suffering amnesia as to the 18 hours immediately preceding his arrest. Defendant did not cooperate with the Forensic Center doctors’ wishes to interview him under the influence of sodium brevitol or hypnosis. For that and other failures to cooperate, the prosecutor filed a motion to strike the insanity defense. The proceedings eventually resulted in defendant’s agreeing to take a polygraph examination as an initial screening device to test his veracity with respect to the claim of amnesia.
The lie detector test was administered and defendant was questioned only about his claim of amnesia, not about his guilt or sanity. The two Forensic Center doctors assigned to evaluate defendant observed the test and concluded that no further tests were required.
Defendant moved to exclude the results of the polygraph examination and to disallow the testimony of the two doctors, Lynn Blunt and Harley Stock. The court ruled that the doctors could testify as to their opinions formulated prior to the test, but could not "render any opinions based to any extent on the polygraph”. The test results were accordingly excluded.
Defendant now contends that the court erred by compelling defendant to submit to the polygraph test and by allowing the doctors to give "tainted” testimony. Defendant argues that the polygraph results effectively reached the jury through the doctors’ testimony, and in the worst possible way because the jury was unaware of the doubts which the doctors sought to dispel through the polygraph test.
Defendant was not affirmatively ordered to submit to the polygraph examination. However, if he had refused to take the test, he would have been barred from presenting testimony on insanity at trial. MCL 768.20a(4); MSA 28.1043(1X4). See People v Hayes, 421 Mich 271; 364 NW2d 635 (1984). We are presented with no sufficient reason, though, why the center may not include a polygraph test in its battery of exams.
Defendant claims the test violated his Fifth Amendment right against self-incrimination. The privilege against self-incrimination turns "upon the nature of the statement or admission or the exposure it invites”. Estelle v Smith, 451 US 454, 462; 101 S Ct 1866; 68 L Ed 2d 359 (1981). "A plea of not guilty by reason of insanity is not a plea that incriminates.” People v Martin, 386 Mich 407, 427; 192 NW2d 215 (1971), cert den sub nom Lewis v Michigan 408 US 929; 92 S Ct 2505; 33 L Ed 2d 342 (1972). The psychiatric evaluation at the Forensic Center following such a plea is not for the purpose of determining guilt but criminal responsibility. Accordingly, the psychiatric evaluation as mandated by the statute does not itself violate defendant’s Fifth Amendment rights. 386 Mich 426-427. Defendant injected the issue of insanity into the case, and his full cooperation at the evaluation is necessary if the prosecutor is to have effective means of meeting defendant’s proofs. Estelle, supra, p 466.
Defendant claims that the polygraph test was an unreasonable search and seizure violating his Fourth Amendment rights. We remain unconvinced. Rochin v California, 342 US 165; 72 S Ct 208; 96 L Ed 2d 183 (1952), and People v Scott, 145 Cal Rptr 876; 578 P2d 123 (1978), which defendant cites, are readily distinguishable as involving substantial intrusions of the defendants’ privacy and dignity, in one case the forcible extraction of stomach contents and in the other the prolonged massage of the prostate gland through the rectum.
On the record before us, we do not perceive that the administration of the polygraph examination was unlawful. Nor do we perceive that it tainted the trial. People v Towns, 69 Mich App 475; 245 NW2d 97 (1976); People v Dockery, 65 Mich App 600; 237 NW2d 575 (1975), and People v Liddell, 63 Mich App 491; 234 NW2d 669 (1975), are not on point. In each of those cases, evidence of polygraph results was injected into the proceedings and it was reasonably likely that the court relied on the evidence in sentencing, determining competency or reaching a plea. In this case, there is no likelihood that the jury relied on the polygraph testing or results because that evidence was suppressed. On the one occasion the court might have relied on the evidence, it chose not to grant the prosecution’s motion to strike.
We are persuaded on our review of the record that the testimony of the two Forensic Center doctors was independent of the polygraph testing. The mere fact that they knew of suppressed evidence did not render them incompetent to testify.
II
Defendant asserts that the trial court erred in denying his motions for change of venue. He argues that he was denied his rights to due process of law and an impartial jury where massive prejudicial pretrial publicity was known to the jury array.
We review for abuse of discretion. People v Duby, 120 Mich App 241, 246; 327 NW2d 455 (1982), lv den 418 Mich 967 (1984). The existence of pretrial publicity alone does not necessitate a change of venue. People v Prast (On Rehearing), 114 Mich App 469, 477; 319 NW2d 627 (1982). A juror, although having formed an opinion from reading newspaper reports, is competent upon swearing that he or she is without prejudice and can try the case impartially according to the evidence and the court is satisfied that the juror will do so. People v Gibbs, 120 Mich App 485, 491; 328 NW2d 65 (1982).
In this case, the court took extraordinary care in the jury voir dire. First, general questions were asked of the jurors together and their answers noted. Individual voir dire followed. The jury selection consumed four days during which about 80 jurors were individually questioned, 30 were dismissed for cause and the 20 defense and 15 prosecution peremptories were all exercised. Upon defense counsel’s final motion for change of venue following the completed selection of the jury, the court concluded that the jury was "not contaminated in any way by pre-trial publicity or the existence of the Hinckley trial”. The court further concluded that the jury met every test that the law provided and could decide the issues based on the evidence produced in open court and the law as the court instructs it. See People v Gerald Hughes, 85 Mich App 8, 16; 270 NW2d 692 (1978).
We have reviewed the jury voir dire and agree with the court below that defendant was not prejudiced in the selection and make-up of the jury.
Ill
Defendant contends that he was denied his constitutional right to a jury drawn from a representative cross section of the community. We can grant defendant no relief because his claim is merely a conclusory allegation not supported by record facts.
A challenge to a jury array must be filed in writing before the jury is sworn. People v McCrea, 303 Mich 213; 6 NW2d 489 (1942), cert den 318 US 783; 63 S Ct 851; 87 L Ed 1150 (1943); People v Stephen, 31 Mich App 604; 188 NW2d 105 (1971), lv den 384 Mich 843 (1971). Defendant concedes that no such challenge was filed.
On the last day of jury voir dire, defense counsel stated his dissatisfaction with the small number of blacks on the jury panel, acknowledged that he understood that Washtenaw County in general did not have a problem with placing blacks on the jury, but expressed his desire to investigate further. After a discussion with the jury commissioner, counsel conceded that he could find no evidence indicating overt or intentional racial exclusion. Nevertheless, counsel stated his belief that jury selection from voter registration lists consistently and repeatedly over-excluded blacks. Counsel did not offer any proofs or request a hearing.
To establish a prima facie violation of the right to a jury drawn from a representative cross section of the community, a defendant must show (1) that the allegedly excluded group is a "distinctive” group in the community, (2) that the group is unfairly and unreasonably underrepresented in venires from which juries are drawn, and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v Missouri, 439 US 357; 99 S Ct 664; 58 L Ed 2d 579 (1979). The people agree that blacks are a distinctive group in Washtenaw County. We find no record support for the latter two requirements, however.
IV
Defendant also contends that he was denied a fair trial by the prosecutor’s use of peremptory challenges to exclude each of the five blacks who were individually voir dired. One was excused after the prosecutor’s challenge for cause was denied. The prosecutor stated flatly to the trial court that race was not a consideration and that, indeed, he had passed the jury for both cause and peremptory challenges while the jury included the jurors in question.
Defendant acknowledges that present law provides him with no relief. Swain v Alabama, 380 US 202; 85 S Ct 824; 13 L Ed 2d 759 (1965); People v Roxborough, 307 Mich 575; 12 NW2d 466 (1943), cert den 323 US 749; 65 S Ct 80; 89 L Ed 600 (1944), and People v Hence, 110 Mich App 154; 312 NW2d 191 (1981). Nevertheless, defendant argues that Swain and Roxborough should be re-examined in light of People v Wheeler, 22 Cal 3d 258; 148 Cal Rptr 890; 583 P2d 748 (1978), and Commonwealth v Soares, 377 Mass 461; 387 NE2d 499 (1979), cert den 444 US 881; 100 S Ct 170; 62 L Ed 2d 110 (1979). As an intermediate appellate court, we do not view it as our function to perform the overhaul of the law that defendant requests.
V
Defendant contends that the trial court failed to instruct the jury on the insanity defense prior to expert testimony on the issue as required by MCL 768.29a(l); MSA 28.1052(1)(1). Our review of the record reveals that the appropriate instructions were given on the first day of trial after the medical examiners testified but before any evidence was offered as to sanity. Therefore, this issue affords defendant no relief.
VI
Defendant argues that the court’s remarks during jury voir dire left the jurors with the erroneous impression that the defendant had the burden of proving insanity and that the correct instructions at the end of trial were too little, too late to dispel the jury’s earlier confusion. We disagree. First, we note as in issue V, supra, that the court gave an instruction on the insanity defense on the first day of trial which correctly stated that the prosecutor carried the burden of proof. Second, while certain remarks of the court might be construed as suggesting that defendant had the burden of proof, the remarks were made during individual voir dire of jurors who were later excused for cause. Accordingly, we find no merit in defendant’s claim that the jury was confused.
VII
Defendant lastly assigns error to the admission into evidence of several photographs of his books and of two items lawfully seized from his room. In each instance, defendant claims that the probative value of the evidence was so minimal and its prejudicial effect so great that the trial court abused its discretion in admitting the evidence. See MRE 403. The people respond that the evidence was probative both of premeditation and sanity and was "prejudicial” only in the sense that it tended to prove that defendant was guilty of first-degree murder.
We find no abuse of discretion on the part of the trial court. The photographs displayed defendant’s books. Most of the books were textbooks and other books for defendant’s classes. Defendant objected to the few which were on marksmanship and the martial arts and those on black-oriented sociological and historical materials. After admission of the photographs, defendant acknowledged that the books shown were his own.
One of the items admitted was a list of handwritten names, including Michael Neumann’s and Edward Siwick’s. Defendant testified that the list was a memory aid, and that he added names as he met people in the dormitory.
The second item was a single page with "Civil Rights Movement 1950-1964, Brown v Board of Education, Topeka, Kansas” written on it as well as the underscored note "It’s all meaningless. This is it.” Defendant identified the item as the title page from a political science paper he was writing but he could not recall the additional note written on it.
The above evidence had some tendency to prove defendant’s state of mind. Unlike the evidence considered in People v DeRushia, 109 Mich App 419; 311 NW2d 374 (1981), this evidence did not lack temporal proximity to the murders. Nor did the exhibits inject evidence of another crime into the trial, as occurred in People v Roeder, 79 Mich App 595; 262 NW2d 872 (1977). The evidence was not attenuated from proof of the elements of the crime charged, as was true in People v Morris, 92 Mich App 747; 285 NW2d 446 (1979), lv den 408 Mich 919 (1980). We remain unpersuaded that admission of the evidence constituted an abuse of discretion.
Affirmed. | [
13,
-1,
38,
10,
-1,
-16,
-38,
6,
-27,
-29,
0,
9,
27,
-41,
-5,
-44,
26,
28,
-30,
-32,
13,
-16,
-35,
-16,
5,
-47,
25,
-31,
6,
18,
47,
-15,
40,
-88,
-6,
-19,
55,
-33,
25,
54,
48,
-7,
41,
-61,
-23,
-10,
17,
27,
50,
78,
58,
14,
45,
-24,
-28,
-57,
6,
24,
25,
21,
-1,
26,
28,
16,
-35,
4,
12,
12,
-68,
37,
2,
-28,
-24,
45,
-43,
-16,
-46,
65,
-11,
-2,
21,
13,
19,
23,
-41,
-77,
-16,
-3,
-51,
-6,
-11,
-14,
-33,
7,
40,
-41,
-12,
28,
25,
8,
25,
-14,
-18,
19,
-28,
-20,
9,
-40,
6,
-64,
-27,
58,
4,
52,
20,
-46,
-18,
46,
-67,
84,
-17,
-2,
10,
-39,
34,
3,
-44,
11,
15,
-17,
-67,
8,
-19,
54,
-59,
-9,
59,
56,
15,
-54,
-24,
14,
-3,
2,
-17,
32,
0,
15,
27,
0,
-10,
-32,
-72,
0,
35,
19,
49,
-1,
-46,
26,
18,
-61,
-11,
-25,
0,
-38,
-15,
-9,
-27,
-32,
-7,
24,
60,
29,
75,
11,
-41,
27,
-7,
-25,
-19,
31,
13,
15,
34,
16,
-10,
-13,
15,
37,
1,
3,
-32,
-21,
41,
36,
-1,
26,
7,
-6,
76,
-40,
-1,
-43,
40,
2,
54,
21,
47,
-17,
0,
34,
-24,
-5,
21,
-37,
-44,
-25,
-4,
-24,
-94,
-65,
-26,
-16,
1,
-48,
-34,
0,
-35,
-11,
52,
-45,
-46,
25,
22,
-72,
-38,
-5,
67,
-15,
31,
18,
24,
44,
45,
50,
-34,
3,
-3,
-21,
-23,
15,
8,
0,
8,
55,
-44,
-42,
17,
8,
-50,
-32,
-18,
24,
-3,
110,
-52,
-17,
-52,
43,
-15,
0,
-10,
14,
-23,
-27,
16,
-1,
43,
1,
63,
20,
-16,
-8,
0,
-3,
-26,
30,
-54,
-65,
31,
15,
-11,
-36,
53,
-35,
4,
-27,
6,
0,
45,
22,
-23,
-48,
10,
36,
49,
-29,
-14,
-1,
-22,
-10,
-34,
-11,
20,
-58,
-4,
56,
40,
0,
-15,
-78,
-41,
-7,
-18,
-20,
7,
17,
24,
54,
-18,
55,
23,
79,
-16,
12,
-36,
38,
53,
3,
24,
21,
0,
45,
-22,
26,
16,
39,
-49,
-74,
32,
-20,
-27,
-29,
-15,
-20,
-32,
32,
45,
9,
15,
-5,
-73,
37,
-1,
3,
15,
-3,
-1,
15,
-41,
-54,
-5,
31,
10,
89,
41,
-30,
-14,
61,
12,
11,
59,
-40,
-8,
11,
13,
-32,
23,
44,
-38,
-29,
-6,
-86,
39,
-85,
2,
3,
2,
-2,
28,
-7,
24,
7,
15,
27,
-32,
25,
-55,
-17,
-37,
35,
32,
-21,
-18,
-28,
11,
23,
12,
-22,
18,
-34,
1,
24,
1,
-19,
-5,
0,
-22,
3,
-9,
-16,
-17,
20,
-26,
-26,
-82,
14,
-17,
-10,
-23,
-27,
-103,
-47,
8,
9,
-34,
7,
35,
-21,
-15,
-24,
-26,
0,
-7,
52,
-46,
-18,
-17,
3,
-45,
-50,
8,
-2,
-12,
-19,
-28,
-4,
-8,
19,
12,
-72,
-56,
10,
14,
-15,
18,
47,
-26,
35,
11,
-42,
-13,
-36,
-60,
-29,
14,
-1,
8,
-49,
5,
25,
21,
33,
-28,
97,
54,
-26,
-10,
-4,
-19,
1,
-56,
26,
24,
-2,
86,
-34,
-45,
-26,
4,
-13,
-42,
23,
30,
20,
13,
-61,
-17,
21,
-16,
19,
28,
36,
-57,
-26,
49,
-41,
-62,
37,
59,
-32,
37,
-30,
25,
-1,
-12,
-20,
-39,
-56,
14,
-43,
97,
28,
-7,
19,
15,
9,
28,
18,
28,
-10,
-44,
-27,
-16,
8,
10,
-5,
-30,
-30,
-22,
-44,
35,
0,
-54,
-34,
-20,
64,
52,
-19,
16,
50,
11,
12,
-32,
29,
0,
43,
-5,
77,
-18,
43,
34,
37,
-17,
-9,
17,
20,
-44,
74,
5,
32,
35,
1,
-28,
-40,
18,
1,
52,
16,
-11,
-50,
0,
13,
16,
44,
9,
-5,
7,
1,
45,
17,
9,
-22,
-37,
45,
-46,
18,
-27,
-3,
-25,
-44,
-45,
50,
21,
-23,
-16,
-27,
22,
-55,
-84,
-8,
-18,
34,
-8,
-20,
71,
-13,
-23,
-2,
-14,
9,
-14,
-11,
-27,
25,
-20,
-11,
-16,
-26,
-25,
-52,
-17,
-5,
8,
-80,
-75,
24,
51,
-56,
-25,
59,
11,
-9,
-15,
7,
49,
-119,
-40,
-25,
28,
41,
-13,
-51,
11,
45,
-47,
-10,
17,
-4,
1,
15,
16,
10,
44,
42,
-14,
-9,
-19,
-50,
-17,
-44,
92,
0,
116,
-16,
-9,
-8,
-28,
8,
-3,
-19,
-21,
9,
-9,
-11,
96,
-18,
-12,
-33,
-1,
49,
66,
-20,
-36,
-78,
16,
-81,
-38,
51,
-29,
20,
64,
8,
8,
-23,
24,
30,
55,
-32,
-18,
-78,
-48,
1,
25,
60,
9,
17,
13,
17,
-31,
-40,
-41,
-49,
-42,
5,
7,
-44,
92,
-26,
-27,
2,
47,
-18,
28,
29,
11,
-26,
-36,
4,
31,
-24,
-28,
-68,
-43,
4,
52,
-9,
40,
-41,
19,
24,
-21,
28,
-59,
9,
0,
-50,
23,
13,
-3,
38,
-59,
-66,
37,
-6,
-40,
-5,
36,
15,
0,
61,
-17,
11,
-19,
41,
7,
21,
18,
11,
35,
-3,
4,
32,
-26,
-64,
6,
-42,
-11,
25,
41,
56,
15,
0,
-21,
62,
21,
-68,
39,
34,
5,
30,
19,
-7,
29,
26,
0,
-83,
-9,
-47,
-28,
11,
66,
24,
-24,
-33,
-28,
-10,
-15,
79,
-18,
-30,
33,
17,
1,
-25,
36,
40,
23,
28,
0,
-21,
-26,
-12,
-19,
-3,
0,
74,
38,
12,
-12,
0,
-10,
53,
-20,
57,
2,
28,
15,
5,
-18,
-98,
63,
8,
-29,
9,
-72,
-57,
7,
21,
36,
-28,
35,
-29,
65,
10,
-16,
-48,
-16,
0,
-7,
16,
-15,
-14,
-23,
30,
19,
4,
6,
-34,
20,
-35,
35,
6,
26,
6,
38,
-30,
8,
-25,
-25,
-1,
7,
38,
28,
16,
-10,
53,
15,
-30,
-46,
25,
11,
19,
14,
59,
12,
-26,
-17,
45,
-5,
-2,
15,
-19,
8,
21,
12,
-27,
88,
5,
7,
42,
-42,
50,
7,
55,
36,
-43,
20,
20,
-15,
25,
-46,
43,
-14,
35,
17,
10,
-21,
-40,
0,
-26,
-21,
0,
14,
-39,
0,
27,
22,
-41,
8,
-36,
2,
5,
23,
-8,
-48,
77,
34,
3,
-41,
-48,
43,
-45,
27,
29,
49,
-36,
-40,
-32,
-48,
35,
-77,
66,
33,
-7,
15,
-1,
7,
-46,
-27,
14,
21,
22,
-32,
-25,
11,
4,
10,
16,
0,
6,
31,
-59,
-15,
38,
-58,
-14,
-30,
70,
-23,
54,
-25,
71
] |
V. J. Brennan, J.
Plaintiff, the trustee in bankruptcy for St. Clair Excavating Company (St. Clair), brought this action to recover monies which he alleged were owed to St. Clair pursuant to a contract entered into on June 15, 1981, by St. Clair and defendant, the City of Holland, a municipal corporation. On September 20, 1983, defendant filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(5), asserting that plaintiffs claim was barred because of previous payment of the sum sought by plaintiff. Plaintiff responded by filing a motion for summary judgment pursuant to GCR 1963, 117.2(3), claiming that there was no genuine issue as to any material fact and that plaintiff was entitled to two specific sums of money. After a hearing held on the motions on December 5, 1983, the trial court took the matter under advisement. On January 25, 1984, the trial court granted defendant’s motion for accelerated judgment and denied plaintiffs motion for summary judgment. Plaintiff files this appeal as of right.
On June 15, 1981, St. Clair entered into a contract with the City of Holland under which it was to perform excavating work on Project S-264, a sanitary sewer project in the City of Holland. As required by statute, St. Clair and defendant executed a lien bond with the National Bonding and Accident Insurance Company to guarantee payment of the subcontractors and materialmen on this public project. Work on the project commenced soon after the execution of the contract. We note that most of the facts set forth here are taken from the statements of fact contained in the parties’ briefs, as little relevant information can be gleaned from the record itself. We point out that St. Clair went into bankruptcy after the completion of the Holland project and that this action is being prosecuted by the trustee in bankruptcy.
Pursuant to the contract between St. Clair and the City of Holland, St. Clair could request partial payment as work on the project progressed. Under the payment agreement, defendant could pay St. Clair 90% of the value of the work performed and retain 10% of the amount earned until after completion of the entire project and its final acceptance. On July 13, 1981, the project engineers, Moore and Bruggink, recommended that St. Clair be paid $24,299. Thereafter, St. Clair was paid 90% of this sum, or $21,869.28, with $2,429.92 being retained by defendant. A second recommendation for payment was made on August 17, 1981. Pursuant to this recommendation, defendant paid St. Clair $26,234.06 and retained $2,914.90, or 10% of the amount earned by St. Clair.
On September 1, 1981, defendant received notice from several entities which had supplied materials to St. Clair that they had not received payment from St. Clair for the materials supplied. The total amount which St. Clair owed its material suppliers was $40,870.21. St. Clair’s nonpayment was reported to the surety, National Bonding and Accident Insurance Company. On September 24, 1981, the project engineers made the third and final recommendation for payment to St. Clair in the amount of $12,964.17. This payment was based upon the value of the work which St. Clair performed from August 6, 1981, to September 21, 1981 ($7,619.35), and the total amount which defendant had retained pursuant to the contract ($5,344.82).
On October 8, 1981, defendant received a request from the bonding company to hold the money owed to St. Clair until the materialmen’s claims had been satisfied. On November 10, 1981, defendant was notified that a total of $40,870.21 had not been paid to various subcontractors and suppliers. Shortly thereafter, two of St. Clair’s creditors, Brewer’s City Dock and Nagel Construction Company, filed suit against St. Clair and the bonding company. Defendant then received a request from the bonding company to disburse the final payment which it owed to St. Clair to Brewer’s City Dock and to the bonding company so that it could pay Nagel Construction Company. Pursuant to this request, defendant paid Brewer’s City Dock $10,-000 and Nagel Construction Company received $2,770.89 from the bonding company. Pursuant to this payment, both creditors dismissed their suits against St. Clair and the bonding company.
St. Clair filed its petition in bankruptcy on July 19, 1982. The trustee in bankruptcy brought this claim alleging that St. Clair performed all the work it was required to do pursuant to its contract with defendant and, therefore, defendant still owed St. Clair its final payment of $7,619.35 despite the fact that defendant had already disbursed this money to satisfy St. Clair’s debts.
Pursuant to both parties’ stipulation filed in this Court on November 9, 1984, plaintiff’s claim for $5,344.82 accumulated retainage was abandoned. We hereby formally dismiss that claim. On appeal, plaintiff argues that it was improper for defendant to disburse to St. Clair’s creditors the funds ($7,619.35) it owed to St. Clair. Thus, plaintiff claims that the grant of accelerated judgment in defendant’s favor was improper.
A motion for accelerated judgment provides a method by which certain disputed issues can be adjudicated at an early stage with the possibility of ending the cause and avoiding an expensive trial. Robinson v Emmet County Road Comm, 72 Mich App 623, 638; 251 NW2d 90 (1976). In reviewing motions for accelerated judgment, courts must accept all well pled allegations as true. Kircos v Goodyear Tire & Rubber Co, 108 Mich App 781; 311 NW2d 139 (1981). It is improper to grant a motion for accelerated judgment where factual issues exist.
In the instant case, this Court is called upon to review the trial court’s interpretation of a provision of the project contract executed by defendant and St. Clair. As a general rule, where a contract is open to construction, it is the duty of the court to determine, if possible, the true intent of the parties. In determining true intent, the court should consider the language employed in the contract, its subject matter and the circumstances surrounding the making of the agreement. It should attempt to effectuate the intent of the parties when the agreement was consummated. Stroud v Glover, 120 Mich App 258, 262; 327 NW2d 462 (1982). The contractual provision under review in the instant case is section 1.09.06 of the project specifications which were incorporated by reference into the contract between the parties. That section of the contract states:
"Acceptance and Final Payment — When the work has been completed and the Engineer has ascertained that each and every part of the work has been performed in accordance with the Plans and Specifications or such modifications thereof as have been approved, the same will be accepted and the Engineer will make a final estimate, as soon as practicable, but not more than one month after acceptance, for the completed work, and the total amount due the Contractor less the total amount of all previous payment will be paid.
"Final payment will not be made until the Contractor has filed with the City the consent of the surety to payment of the final estimate and satisfactory evidence by affidavit or otherwise that all his indebtedness by reason of the contract has been fully paid or satisfactorily secured. In case such evidence is not furnished, the Engineer may retain out of any amount due said Contractor, sums sufficient to cover all lienable claims unpaid.
"The acceptance by the Contractor or by anyone claiming by or through him of the final payment, whether such payment be made pursuant to any judgment of any court or otherwise, shall constitute and operate as a release of the City from any and all claims of and liability to the Contractor for anything theretofore done or furnished for or relating to or arising out of this contract, and the work done hereunder, and for any prior act, neglect or default on the part of the City or any of its officers, agents or employees, excepting only a claim against the City for the amount deducted or retained in accordance with the terms and provisions of this contract.”
The present controversy centers on language employed in the second sentence of the second paragraph of section 1.09.06, which allows the engineer to retain out of any amount due to the contractor sums sufficient to cover "all lienable claims unpaid”.
In the instant case, the contractor, St. Clair, had sought the final payment which it was owed after completion of the sewer project. Prior to defendant’s submission of payment to St. Clair, however, it became known to the parties that St. Clair owed various subcontractors and materialmen $40,870.21 for material and services which had been supplied to it. Upon learning of St. Clair’s unsatisfied debts, the bonding company made a demand upon defendant to hold the final payment and retainage owed to St. Clair pending resolution of claims made against it as surety for St. Clair. Defendant retained these sums pursuant to section 1.09.07. Two of St. Clair’s creditors filed suit against St. Clair and the bonding company seeking to recover the amounts owed to them. Pursuant to a request from the bonding company, defendant disbursed the final payment and retainage it was holding for St. Clair to the bonding company and one of the creditors who filed suit. After receiving the payments (one directly and one indirectly) from defendant, both of St. Clair’s creditors dismissed their suits against St. Clair. The trustee in bankruptcy then commenced suit against the defendant claiming that defendant had no authority to disburse the final payment to pay St. Clair’s creditors and that such disbursement did not release defendant from liability under the contract.
The problematic language employed in the contract is that it allows the engineer to retain out of any amount due the contractor sums sufficient to cover "all lienable claims unpaid”. It is plaintiff’s argument that because this is a public works contract, materialmen are prohibited from filing liens against defendant. Therefore, there were no "lienable claims” pending against defendant and defendant had no authority to retain the final payment to pay St. Clair’s subcontractors. The basis for plaintiff’s assertion is that pursuant to MCL 129.201 et seq.; MSA 5.2321(1) et seq., a contractor is required to secure a performance bond which provides some protection to subcontractors, laborers and materialmen who perform labor or furnish materials for an improvement where protection is not afforded by the mechanic’s lien law. See Adamo Equipment Rental Co v Mack Development Co Inc, 122 Mich App 233, 236; 333 NW2d 40 (1982).
In the instant case, while the trial court recognized that the "all lienable claims” language in section 1.09.06 did not directly apply to the situation because subcontractors could not file liens in a public works contract, the court interpreted the language to give effect to the provision rather than to render section 1.09.06 a nullity.
In its opinion, the court stated:
"Finally, the contract provides that final payment should not be made except with the consent of the surety and satisfactory evidence that all the contractor’s indebtedness by reason of the contract has been fully paid or satisfactorily secured. In case such evidence is not furnished, the engineer may retain out of any amount due said contractor, sums sufficient to cover all lienable claims unpaid. Obviously, the purpose of this clause is to protect both the subcontractors and the surety. The fact that the subcontractors cannot file a lien in public works contracts does not render the clause of the contract a nullity. It merely gives definition to the types of claims for which satisfaction of payment must be made as a condition precedent to the final payment of monies by the City.”
The trial court correctly interpreted the agreement between the parties and properly effectuated the intent of the parties as it existed when the agreement was consummated.
Our reading of section 1.09.06 leads us to conclude that strictly interpreting the provision would, indeed, have rendered the section a nullity and would have been contrary to the intent of the parties as it existed when the agreement was consummated. We believe that the following lan guage in 1.09.06 does, in fact, evidence a clear intent to protect the materialmen and subcontractors who are not covered by the mechanic’s lien law:
"Final payment will not be made until the Contractor has filed with the City the consent of the surety to payment of the final estimate and satisfactory evidence * * * that all his indebtedness by reason of the contract has been fully paid or satisfactorily secured.”
The court went on to say:
"The final paragraph of that section of the contract releases the City from any claims and liabilities to St. Clair for the acceptance of payment by 'anyone claiming by or through him of the final payment, whether such payment be made pursuant to any judgment of any court or otherwise.’ In this case National Bonding and Accident Insurance Company claimed the payments by virtue of its contractual relationship with St. Clair and accepted the payments made by the City to the various subcontractors and itself. As such the City’s obligation to St. Clair is discharged and the trustee in bankruptcy’s claim is satisfied by reason of prior payment. Accordingly, the defendant’s motion for accelerated judgment must be granted.
"The plaintiff’s motion for summary judgment is denied.
"The defendant’s motion to add a third party defendant is denied.”
We affirm the trial court’s findings. To hold otherwise would unjustly enrich plaintiff. | [
10,
73,
-18,
0,
-33,
45,
-39,
11,
32,
19,
27,
-30,
41,
-14,
-14,
-31,
-34,
-40,
-16,
17,
-14,
4,
-37,
33,
-7,
9,
59,
-82,
16,
-3,
3,
-50,
-13,
-21,
-22,
5,
14,
-15,
29,
6,
37,
-39,
-9,
-35,
-9,
-30,
40,
-7,
16,
-36,
1,
28,
8,
-9,
22,
-3,
-15,
-18,
-36,
-32,
-14,
-19,
35,
41,
13,
13,
9,
50,
18,
37,
-53,
27,
24,
-25,
-23,
-7,
13,
25,
35,
-42,
3,
-2,
-5,
6,
-63,
24,
-28,
-25,
-17,
-3,
-2,
25,
3,
54,
-35,
40,
-26,
-13,
32,
0,
-2,
15,
-37,
-3,
7,
22,
14,
-119,
-19,
-13,
5,
24,
49,
-56,
-48,
-18,
-8,
-14,
-12,
-15,
-20,
-1,
10,
-11,
7,
25,
6,
-7,
-36,
53,
2,
3,
-56,
16,
9,
29,
5,
0,
26,
77,
32,
-28,
-22,
-10,
-46,
34,
12,
-70,
2,
-8,
-56,
-3,
25,
21,
25,
26,
33,
-29,
50,
-12,
35,
6,
0,
19,
-35,
-46,
-3,
45,
36,
6,
-19,
-10,
9,
-16,
50,
-25,
0,
-50,
36,
-44,
-7,
14,
18,
27,
40,
-50,
-14,
24,
44,
-25,
52,
-3,
-52,
11,
-26,
44,
25,
-1,
22,
33,
44,
-36,
49,
3,
-15,
29,
55,
-4,
0,
-5,
46,
9,
-16,
4,
-28,
-28,
46,
1,
0,
-56,
0,
26,
-48,
16,
-21,
19,
-20,
-27,
8,
-55,
0,
4,
13,
11,
-6,
13,
19,
61,
-3,
21,
15,
3,
-54,
-32,
-1,
-32,
-58,
-81,
-35,
23,
-49,
-24,
-16,
-10,
-18,
25,
16,
-3,
-10,
31,
13,
48,
-56,
7,
-30,
14,
-59,
-3,
-16,
29,
10,
-42,
18,
-20,
-2,
-40,
-17,
-1,
-31,
64,
-20,
-42,
-14,
-12,
4,
-8,
-9,
23,
-59,
60,
17,
-25,
3,
21,
36,
-19,
47,
-43,
49,
-4,
-7,
-40,
-13,
30,
14,
41,
-19,
37,
3,
31,
11,
-33,
-25,
-7,
89,
-13,
-9,
-21,
39,
-12,
38,
-3,
-30,
28,
30,
10,
21,
8,
-55,
-1,
-15,
13,
-8,
4,
2,
-31,
-15,
-23,
10,
34,
18,
40,
5,
-28,
-8,
6,
26,
-44,
4,
7,
-7,
-3,
-9,
25,
-9,
21,
19,
3,
-29,
32,
47,
-8,
29,
-9,
-5,
-38,
-22,
-4,
4,
73,
-2,
12,
-42,
-4,
0,
-5,
5,
26,
-73,
63,
-8,
-39,
14,
-11,
47,
5,
-10,
-27,
-32,
1,
-31,
-27,
34,
-3,
-7,
-10,
13,
-14,
-11,
-21,
14,
16,
14,
22,
-19,
-50,
16,
0,
35,
33,
-6,
-7,
-34,
13,
-36,
-30,
42,
-22,
50,
-23,
65,
11,
6,
-25,
21,
-25,
29,
-51,
-32,
1,
1,
29,
20,
-41,
41,
7,
-45,
5,
-49,
-21,
9,
52,
44,
-35,
37,
24,
7,
-19,
10,
25,
25,
56,
11,
-1,
-46,
-10,
-12,
-33,
58,
36,
0,
9,
14,
-13,
-22,
3,
15,
21,
26,
3,
-39,
50,
28,
0,
-3,
-6,
20,
-5,
-50,
49,
44,
0,
1,
-19,
-16,
-22,
49,
-22,
-36,
-21,
19,
-11,
-41,
3,
7,
16,
3,
16,
36,
-13,
-43,
-24,
-60,
30,
6,
-22,
11,
0,
-21,
31,
-1,
2,
14,
12,
-37,
3,
-17,
-12,
27,
67,
-10,
28,
6,
-29,
-19,
35,
-29,
-4,
7,
-7,
0,
-55,
-3,
-1,
-22,
-76,
39,
-2,
-41,
-16,
2,
20,
13,
-24,
2,
-4,
-12,
35,
-8,
-7,
-22,
-42,
3,
44,
-24,
2,
14,
-21,
11,
-28,
-53,
38,
20,
-5,
32,
-23,
24,
-7,
56,
-49,
-30,
69,
-6,
-2,
25,
37,
-19,
-24,
27,
21,
-15,
-18,
-30,
-12,
-24,
11,
90,
7,
26,
34,
-8,
-28,
17,
-69,
-43,
26,
-34,
39,
-15,
38,
5,
-65,
-28,
-19,
-14,
-25,
10,
-16,
8,
12,
30,
-30,
-38,
-21,
35,
-9,
0,
-63,
5,
27,
-6,
-16,
8,
-24,
-23,
29,
-16,
-3,
-38,
66,
0,
-17,
-28,
40,
9,
29,
16,
-2,
0,
39,
-12,
15,
-10,
-12,
-27,
-27,
6,
21,
4,
4,
-31,
43,
37,
49,
18,
21,
25,
-13,
-11,
-55,
34,
13,
-23,
21,
2,
28,
24,
42,
2,
24,
7,
-25,
10,
-32,
15,
-60,
-14,
38,
12,
-27,
0,
-4,
13,
-23,
-23,
-47,
-25,
24,
9,
-20,
1,
3,
-69,
8,
24,
-30,
34,
-9,
3,
-36,
-66,
6,
36,
27,
-62,
41,
31,
18,
-3,
12,
55,
-23,
-1,
27,
8,
55,
-6,
2,
-54,
-27,
15,
-28,
11,
59,
15,
-1,
-19,
-11,
-33,
1,
3,
18,
-15,
26,
-14,
34,
4,
-4,
-87,
-10,
9,
-32,
-18,
-26,
6,
-49,
-4,
24,
-63,
-30,
-61,
33,
34,
31,
-2,
-6,
-30,
-27,
-28,
54,
-34,
-7,
10,
25,
25,
1,
55,
19,
7,
-33,
-61,
17,
-36,
-28,
-22,
16,
18,
26,
22,
8,
37,
14,
71,
30,
-40,
-29,
12,
-21,
12,
-9,
-72,
16,
38,
-36,
-61,
33,
14,
22,
24,
-38,
28,
12,
-8,
25,
0,
-6,
-22,
-10,
13,
5,
-36,
-6,
0,
-10,
13,
57,
-57,
11,
8,
14,
-70,
38,
-65,
-12,
-16,
-15,
18,
-43,
-14,
12,
27,
7,
-25,
24,
-21,
-31,
16,
62,
-48,
-7,
-43,
-64,
-36,
11,
10,
21,
-28,
-2,
5,
5,
-34,
-24,
18,
-12,
24,
19,
-74,
-42,
-2,
24,
6,
21,
-57,
51,
33,
29,
-37,
-44,
23,
-23,
-8,
43,
-49,
1,
1,
-22,
-15,
-10,
42,
-6,
-14,
46,
59,
6,
6,
21,
1,
20,
19,
85,
-2,
0,
13,
-2,
-19,
-39,
14,
10,
36,
22,
50,
-27,
17,
-14,
-59,
-14,
-57,
-15,
-1,
25,
-33,
-13,
18,
4,
-12,
79,
-7,
0,
4,
69,
-8,
24,
-12,
6,
30,
5,
-12,
-2,
-17,
11,
3,
-2,
26,
36,
-20,
1,
9,
-53,
31,
9,
31,
-87,
-49,
18,
9,
-36,
32,
-8,
23,
28,
-4,
16,
27,
-11,
4,
2,
-19,
4,
4,
-57,
68,
39,
-37,
-21,
66,
-12,
16,
-30,
-8,
26,
-58,
-36,
-53,
-49,
-14,
-30,
30,
-30,
31,
-14,
4,
-39,
-7,
67,
-11,
-13,
10,
-12,
-2,
-12,
52,
-3,
40,
-37,
20,
-77,
0,
-35,
38,
-1,
-17,
16,
15,
-2,
22,
-20,
29,
34,
46,
17,
4,
25,
24,
-35,
-39,
7,
-51,
-19,
-21,
-14,
24,
11,
4,
44
] |
Per Curiam.
Plaintiff appeals as of right from an order of the Ingham County Circuit Court vacating a temporary restraining order and granting summary judgment to defendants.
Plaintiff, Michigan Waste Systems, is in the business of constructing and operating sanitary landfills. The instant dispute arose when the Department of Natural Resources denied plaintiff’s application for a landfill construction permit. Plaintiff is also the lessee of the proposed landfill site, called "Twin Oaks”, which is located in Augusta, Kalamazoo County, Michigan.
Pursuant to MCL 299.410(1); MSA 13.29(10X1), plaintiff applied to the Kalamazoo County Health Department for a construction permit for a proposed Twin Oaks landfill. The application was acknowledged by the health department on March 11, 1982, and was forwarded to the DNR. Initially, the DNR concluded that the proposed landfill met or exceeded the requirements of the Solid Waste Management Act, 1978 PA 641; MCL 299.401 et seq.; MSA 13.29(1) et seq., and administrative rules promulgated thereunder. However, in a letter dated May 11, 1982, then-Governor William Mil-liken requested that DNR director Dr. Howard Tanner initiate a review of the proposed landfill by the Michigan Environmental Review Board (MERB). The MERB was established by Executive Order 1974-4 to assist and advise the governor on environmental matters. Under the terms of Executive Order 1974-4, an environmental impact statement must be prepared and forwarded to the MERB on every proposed major action that may have a significant impact upon the environment.
On May 24, 1982, plaintiff’s landfill construction permit application was presented to the MERB, which declared it to be a "major state action” subject to further MERB review. Apparently, as part of its review, the MERB directed the DNR to examine potential odor problems at the proposed site. The DNR’s Air Quality Division examined the proposed site for potential odor problems and recommended denial of plaintiff’s application because of the unique topography of the area. In October, 1982, the DNR followed this recommendation and denied plaintiff’s application. A letter was sent by DNR director Tanner to plaintiff which stated in pertinent part:
"During the course of the review before MERB, the issue of potential odor problems at the site was raised. Subsequently, the Air Pollution Control Commission directed the Air Quality Division to investigate the alleged odor problem and report to me their findings and recommendations.
"I have read the attached report from the Air Quality Division and I concur with their findings.
"On the basis of R 299.4305(12)(a) of rules promulgated under Act 641, P.A. 1978, I have determined that the isolation distances proposed in your application will not protect adjacent property from odors. I have also determined, under the provisions of the Michigan Environmental Protection Act, Act 127, P.A. 1970, that the alleged pollution and impairment is likely to occur if the landfill is constructed and operated as proposed in your application. In addition, I find that such odors are likely to violate the odor standards promulgated under the provisions of Act 348, P.A. 1965. Therefore, I must deny your application for a solid waste disposal construction permit at the Augusta site.”
Plaintiff filed a four-count complaint in the Ingham County Circuit Court on November 16, 1982. Apparently, plaintiff sought review under the Administrative Procedures Act (APA), MCL 24.301 et seq.; MSA 3.560(201) et seq., by alleging that the application denial was a final order. Count I alleged that the DNR improperly relied on an unpromulgated "policy with respect to odor” in denying the permit. In Count II, plaintiff alleged that, as a matter of law, the permit must issue because the DNR failed to make a final decision within 120 days. See MCL 299.412(1); MSA 13.29(12)(1). Count III simply alleged that the term "odor” contained in the DNR administrative rules is impermissibly vague. Lastly, plaintiff alleged that the DNR direc tor employed unlawful procedures by basing his denial, in part, upon the Michigan Environmental Protection Act, MCL 691.1201; MSA 14.528(201).
The circuit court issued a temporary restraining order, enjoining the DNR from approving any further Kalamazoo County Solid Waste Management Plans which did not also include the Twin Oaks site. In December, 1982, Charleston and Ross Townships and the historic Barn Theatre were permitted to intervene in this action.
Plaintiff brought a motion pursuant to GCR 1963, 117.2(3), alleging that no genuine issue of material fact existed. The circuit court reviewed the DNR’s denial of plaintiffs permit application and issued its opinion dated March 30, 1984.
In its opinion, the court indicated that the director of the DNR did not deny plaintiff’s application on unlawful procedures resulting in material prejudice to plaintiff and that the decision was neither arbitrary nor capricious. The circuit court further found that neither the pleadings, affidavits, nor the voluminous "record” presented a genuine issue of material fact. The nonmoving parties — the DNR, Charleston and Ross Townships, and the Barn Theatre — were therefore granted summary judgment. The court entered an order lifting the temporary restraining order and dismissing all four counts of plaintiffs complaint.
Plaintiffs first issue on appeal concerns the proper scope and standard of review to be applied in the instant case. Apparently, plaintiff sought de novo review of its permit denial in the circuit court. Confusion was engendered, however, because plaintiffs complaint stated that review was sought under the Administrative Procedures Act, MCL 24.301 et seq.; MSA 3.560(201) et seq. The circuit court correctly ruled that an áppeal under the APA was unavailable to plaintiff because the permit denial was not "a final decision or order in a contested case”. MCL 24.203(3); MSA 3.560(103)(3); see 13-Southfield Associates v Dep’t of Public Health, 82 Mich App 678; 267 NW2d 483 (1978). As the circuit court recognized, plaintiff’s appeal was proper under section 631 of the Revised Judicature Act, MCL 600.631; MSA 27A.631. Under the RJA, review is not de novo.
Defendant DNR spends a grest deal of time in its brief arguing that the circuit court’s application of the RJA was correct, and it is clear from defendant’s arguments that it mistakenly believes that review under the APA is de novo. Defendant is, however, incorrect. Review under the APA is not de novo, and the scope and standard of review under either the RJA or APA is similar. See generally, 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 614-616, and cases cited therein. We believe that defendant was misled by plaintiff’s ambiguous complaint. The circuit court, however, correctly recognized that plaintiff was seeking de novo review pursuant to the Michigan Environmental Protection Act, rather than the APA. Under the Michigan Environmental Protection Act (MEPA), MCL 691.1201 et seq.; MSA 14.528(201) et seq., review by the circuit court is de novo. West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741; 275 NW2d 538 (1979), cert den 444 US 941 (1979).
We turn now to plaintiff’s issue, namely, whether the circuit court erred in failing to treat plaintiff’s appeal under the MEPA, rather than the RJA. The circuit court found that the MEPA cases cited
"do not pertain since they involved challenges to administrative action grounded on the allegation that the proposed administrative action would result in a violation of the MEPA. In short, those actions were brought pursuant to the Michigan Environmental Protection Act. Plaintiff here makes no claim that the DNR’s denial of the construction application will damage the environment, that is, violates the MEPA, and de novo review is, therefore, unavailable.
"The scope of review under RJA 631 is limited. Where no hearing is required,’ the issue is 'whether such final decision, findings, rulings and orders are authorized by law; * * *.’ Constitution 1963, Art. 6, § 28; Viculin v Department of Civil Service, [386 Mich 375; 192 NW2d 499 (1971)] supra, at 392. The decision of the Director to deny Plaintiff’s application must be affirmed unless it is in violation of a statute, in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedure resulting in material prejudice to a party, is arbitrary or capricious.”
It is clear that the circuit court was correct. It is equally clear that the court utilized the proper standard of review under the RJA. We therefore find no error.
Plaintiff next argues that the circuit court erred in granting summary judgment to defendants under GCR 1963, 117.2(3). We again disagree.
Plaintiff first claims the DNR relied upon some unpromulgated policy with respect to odor from the landfill sites. The DNR counters that the denial was based upon rules which were properly promulgated pursuant to MCL 299.430; MSA 13.29(30); MCL 299.431; MSA 13.29(31) and the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq.
The DNR’s denial of the permit was based on 1982 AC, R 299.4305(12)(a) and (d) of the rules which were promulgated pursuant to 1978 PA 641. Nothing in the pleadings or the court file indicates that the department’s denial was based on any other rule or unwritten policy. The record, which included the depositions of eight DNR employees, shows that the DNR odor policy was straightforward. The decision did not turn on reliance on some hidden, unwritten policy.
Plaintiff claims that two items in the record show the existence of a DNR "policy” which forbids location of landfills within 1,200 feet of a domicile. Plaintiff states that the Air Quality Division Staff Activity Report of October 22, 1982, evidences this unwritten policy. Plaintiff believes that the Air Quality Division adopted a new minimum horizontal isolation distance requirement of 1,000 feet, because the DNR staff detected unpleasant odors approximately 1,000 feet from the working phase of landfills.
The full Staff Activity Report demonstrates that no unpromulgated policy concerning horizontal isolation distances was ever relied upon. The report shows that the Air Quality Division’s recommendation to deny issuance of the permit was based upon the specific characteristics of the Twin Oaks landfill proposal. The unique characteristics of the land adjacent to the landfill site, along with the concern for potential odor problems, militated in favor of denial of the permit under 1982 AC, R 299.4305(12). We find no evidence that the agency relied upon any unpromulgated rule.
Plaintiff claimed in Count II of its complaint that it was entitled to issuance of a landfill permit as a matter of law pursuant to MCL 299.412(1); MSA 13.29(12)(1), because the director of the DNR failed to make a final decision within 120 days after receipt of plaintiffs application. MCL 299.412(1); MSA 13.29(12)(1) provides:
"Sec. 12. (1) The director shall make a final decision on a construction permit application within 120 days after the director receives the application. If the direc tor fails to make a final decision within 120 days, the permit shall be considered issued. This subsection shall not apply if the director is required to meet the provisions of Executive Order 1974-4.”
The circuit court correctly determined as a matter of law that on May 11, 1982, when Governor Milliken requested the director to initiate review by the MERB well before expiration of the 120-day period, the director was then required to meet the provisions of Executive Order 1974-4.
Plaintiff alleges that the director may be required to comply with the executive order only where the governor orders the Natural Resources Commission to comply and the Natural Resources Commission then orders the director of the DNR to comply. This claim is meritless. Executive Order 1974-4 was invoked as of May 11, 1982, when Governor Milliken directed the letter to the DNR. A request from the governor to the DNR constitutes a requirement pursuant to MCL 299.412(1). Const 1963, art 5, § 8 provides that each department shall be under the supervision of the governor, unless otherwise provided by the constitution. The director of the DNR is the principal executive officer of the department. See MCL 16.355; MSA 3.29(255). The governor could easily require the director of the DNR to comply with the executive order in the instant case. It is irrelevant that Governor Milliken used the word "request” instead of "order” in his May 11, 1982, letter to Dr. Tanner. As a result of the May 11, 1982, "request”, the director was required to meet the requirements of Executive Order 1974-4. The MERB review process was invoked well before expiration of the 120-day period when it began in May, 1982. Thus, the 120-day limit ceased to operate on May 11, 1982, and the permit did not automatically issue.
The statute does not contain a requirement that the 120-day period continue until the party applying for the permit receives notice. At the latest, by July 7, 1982, the DNR director had formally determined that he was required to meet the provisions of Executive Order 1974-4. As of that date, the 120-day review period had not yet expired.
Plaintiff claimed in Count III that, even if the rules were duly promulgated, the term "odor” is impermissibly vague since the rules contained no objective standards to delineate when an odor is offensive. 1982 AC, R 299.4305(12)(a) provides that an isolation distance for a specific landfill shall take into consideration immediate and long-term environmental factors, including odor.
Michigan holds that agency standards are not impermissibly vague where they are as reasonably precise as the subject matter permits. See Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976); Mallchok v Liquor Control Comm, 72 Mich App 341, 346; 249 NW2d 415 (1976); Delta County v Dep’t of Natural Resources, 118 Mich App 458, 464-465; 325 NW2d 455 (1982), lv den 414 Mich 954 (1982); State Highway Comm v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974). This Court must determine whether the limits on the exercise of discretion conferred on an administrative official are sufficiently defined to avoid the delegation of legislative powers. Dep’t of Natural Resources v Seaman, supra, p 308. In Seaman, supra, the Supreme Court noted that the standards must be sufficiently broad to permit efficient administration in carrying out the policy of the Legislature, but not so broad that the people are unprotected from uncontrolled or arbitrary power in the hands of administrative officials. Seaman, supra, pp 308, 309.
We agree with the trial court that the guideline "odor” is more precise than the standard "necessity”, as applied in highway condemnation actions, which withstood constitutional scrutiny in Vanderkloot, supra, p 166. Additionally, in Delta County v Dep’t of Natural Resources, supra, the phrases "sanitary standards” and "unlawful pollution” were held to be as reasonably precise as the subject regulated permitted. In the Solid Waste Management contest, the term "odor” is sufficiently broad to permit efficient administration, yet not so excessively broad that arbitrary application must result.
Plaintiff next claims that the general provision of 1982 AC, R 299.4305(12)(a) concerning odor should yield to 1982 AC, R 299.4305(12)(b), which specifically establishes the distances which sanitary landfills may be located from various types of properties. Subsection (12)(b) provides that landfills may be located at any distance greater than 300 feet from a residence. The plain language of subsection (12)(a) requires that certain environmental factors, including odor, should be considered in establishing horizontal isolation distances for all landfill sites. Indeed, the plain language of subsection (12)(b) indicates the 300-foot isolation distance is a minimum, not a presumptive maximum. Plaintiffs contention that, regardless of the amount of odor emanating from a landfill, an applicant is entitled to operate a landfill at any distance beyond 300 feet, would render subsection (12)(a) meaningless. Indeed, where the language of an agency rule is unambiguous on its face, the court should give effect to the plainly expressed intention of the agency. See General Motors Corp v Bureau of Safety & Regulation, 133 Mich App 284, 292; 349 NW2d 157 (1984); Johnston v Billot, 109 Mich App 578, 589; 311 NW2d 808 (1981), lv den 414 Mich 955 (1982). The plain language of subsection (12)(b) indicates that the 300-foot isolation distance is a minimum and not a presumptive maximum.
Finally, in Count IV, plaintiff claims that the director of the DNR employed unlawful procedures by relying in part on the MEPA and on the Air Pollution Control Act, MCL 336.11; MSA 14.58(1), in reaching his decision to deny the permit. Plaintiff claimed the two laws were substantive statutes which were totally inapplicable to the process of issuing permits under 1978 PA 641.
The merits of the DNR’s determinations about construction and operation of the proposed landfill, in that it would violate MEPA and the Air Pollution Act, do not present a genuine issue of Material fact. Plaintiff did not raise the merits of those determinations in the lower court, either in its complaint or its motion for summary judgment. Thus, no genuine issue of material fact may exist in that regard.
Having found no error, the circuit court’s opinions and judgment are affirmed.
Affirmed. | [
-38,
15,
-25,
-2,
-28,
50,
2,
27,
-12,
51,
2,
-36,
49,
25,
-26,
-40,
28,
23,
-10,
24,
4,
37,
10,
36,
-4,
-1,
21,
22,
39,
0,
-39,
-58,
11,
-15,
19,
4,
45,
27,
38,
55,
5,
-41,
24,
-39,
-59,
-27,
47,
41,
12,
14,
34,
47,
-9,
8,
-39,
-42,
19,
-4,
0,
-10,
-15,
20,
26,
41,
77,
64,
-47,
34,
13,
6,
3,
35,
1,
-26,
22,
-15,
-2,
-16,
-19,
14,
-6,
43,
47,
17,
-24,
17,
-60,
13,
28,
18,
-30,
-21,
-35,
-1,
45,
6,
-29,
-36,
26,
-7,
2,
74,
50,
16,
0,
-4,
14,
-31,
11,
-35,
24,
-33,
-8,
-51,
-41,
-10,
13,
61,
-4,
7,
-31,
-26,
2,
-20,
-12,
-11,
26,
22,
24,
26,
30,
28,
24,
-24,
21,
-1,
27,
1,
17,
-2,
24,
21,
27,
-7,
-19,
5,
34,
-3,
39,
-4,
-30,
-23,
-3,
53,
-11,
78,
60,
-11,
28,
2,
16,
20,
3,
-9,
-39,
-31,
5,
37,
7,
-34,
49,
-5,
9,
-15,
-33,
-21,
15,
27,
-3,
19,
-2,
-55,
36,
12,
-34,
7,
1,
-31,
-77,
13,
32,
-36,
43,
-21,
-12,
61,
35,
88,
-11,
15,
-27,
-48,
30,
-14,
23,
-39,
0,
-20,
-21,
-9,
-12,
26,
-10,
-2,
3,
-39,
16,
35,
-15,
3,
8,
-48,
26,
3,
23,
32,
-1,
20,
9,
-57,
41,
-13,
61,
20,
-31,
19,
67,
40,
34,
1,
4,
30,
-29,
0,
19,
-27,
-40,
-33,
25,
14,
24,
-27,
3,
-14,
-19,
-19,
-34,
7,
-9,
6,
-4,
-4,
-16,
9,
-58,
45,
-74,
3,
-38,
-19,
-65,
35,
4,
-34,
-19,
-5,
3,
1,
26,
-28,
20,
-19,
1,
-40,
15,
49,
6,
25,
-26,
-37,
-28,
6,
-49,
3,
34,
21,
34,
-13,
2,
46,
-10,
1,
-17,
-51,
16,
7,
-34,
24,
-12,
6,
12,
-23,
9,
25,
-7,
-48,
-18,
-41,
49,
-6,
17,
5,
-30,
-14,
-41,
22,
-9,
38,
5,
-3,
11,
17,
8,
52,
16,
37,
0,
-59,
5,
-6,
66,
-3,
-32,
38,
19,
12,
-17,
1,
-16,
-17,
-2,
14,
4,
41,
-4,
9,
19,
-37,
-42,
55,
17,
25,
-32,
4,
-5,
-33,
33,
-6,
1,
23,
-47,
-30,
0,
20,
8,
-33,
-7,
-4,
-2,
-51,
-12,
-36,
38,
39,
33,
14,
0,
-8,
-8,
-30,
-8,
-87,
-5,
30,
-8,
-20,
35,
17,
19,
10,
18,
2,
-39,
48,
6,
35,
0,
-37,
33,
12,
-24,
7,
-25,
18,
9,
5,
26,
0,
23,
-16,
44,
4,
-39,
-69,
12,
-58,
-9,
-16,
46,
59,
-22,
28,
-3,
-8,
-14,
57,
-13,
-37,
-31,
26,
-8,
27,
-37,
-61,
-22,
-18,
-11,
23,
30,
39,
5,
65,
-74,
-50,
-52,
35,
-13,
32,
10,
-2,
-18,
-38,
-40,
-47,
-31,
40,
10,
5,
27,
-9,
-43,
83,
16,
17,
-13,
-20,
49,
46,
-30,
2,
25,
44,
-29,
-26,
-2,
10,
20,
25,
-34,
23,
11,
46,
-22,
33,
6,
28,
0,
-35,
44,
41,
19,
21,
-12,
52,
36,
-11,
-9,
33,
-20,
0,
-16,
-8,
30,
-8,
-17,
30,
23,
-43,
-11,
7,
-28,
1,
0,
-12,
28,
70,
-11,
-36,
29,
1,
38,
-54,
13,
-21,
7,
-8,
-13,
19,
-31,
1,
54,
-3,
15,
41,
24,
-43,
-23,
-32,
5,
-12,
-20,
-2,
-47,
-11,
-12,
24,
-14,
-12,
-10,
3,
-17,
14,
7,
6,
53,
-5,
-8,
-37,
45,
72,
25,
11,
13,
-35,
73,
31,
-14,
-4,
-32,
48,
-36,
-50,
-31,
-15,
6,
-6,
2,
-10,
0,
-40,
-27,
-38,
-73,
-18,
-27,
37,
-35,
-20,
35,
-50,
11,
2,
-28,
22,
-14,
-6,
-21,
-11,
17,
-6,
-17,
-3,
-20,
13,
-43,
30,
15,
-47,
69,
22,
-2,
-36,
9,
32,
21,
-19,
-6,
9,
-18,
76,
-10,
-8,
7,
7,
51,
-15,
23,
13,
3,
-29,
-40,
20,
-48,
-33,
-4,
-35,
20,
-11,
-26,
34,
29,
83,
27,
5,
18,
-27,
-14,
-40,
11,
-15,
19,
-43,
-32,
-17,
-66,
-7,
8,
23,
15,
6,
7,
51,
-33,
20,
-27,
-31,
-8,
8,
44,
25,
-19,
2,
-64,
-42,
34,
-18,
20,
41,
10,
-29,
-15,
-21,
5,
11,
44,
-37,
-18,
35,
-14,
-2,
-26,
25,
-2,
44,
-47,
48,
-8,
-35,
9,
22,
-49,
5,
51,
4,
21,
13,
27,
-38,
-32,
-23,
-17,
-37,
-54,
-13,
17,
-33,
6,
-10,
-15,
-19,
-20,
71,
24,
25,
5,
-23,
22,
16,
-31,
10,
35,
-51,
-15,
-33,
-41,
-11,
48,
32,
-33,
5,
-39,
-31,
-47,
48,
-26,
-41,
1,
-14,
-42,
12,
28,
-81,
-8,
-9,
-19,
-82,
39,
-25,
48,
23,
-35,
9,
33,
-45,
3,
-26,
-41,
15,
17,
-5,
2,
-38,
2,
-14,
5,
-22,
-32,
-41,
-15,
2,
-49,
-46,
50,
1,
35,
48,
7,
33,
15,
-31,
0,
-10,
-8,
7,
-17,
12,
-68,
-1,
16,
34,
26,
-16,
38,
-31,
74,
20,
-26,
23,
-36,
1,
-8,
39,
-18,
-21,
-32,
2,
46,
-11,
22,
-9,
53,
-3,
16,
19,
-27,
-38,
32,
33,
24,
-6,
12,
-15,
-21,
-57,
-25,
-1,
-46,
-7,
-8,
50,
-46,
-23,
8,
30,
63,
27,
-18,
-36,
2,
36,
74,
25,
-45,
-8,
-13,
18,
-29,
-35,
10,
-18,
-7,
-41,
-31,
24,
2,
-19,
-62,
-32,
-2,
-61,
-24,
-27,
62,
-12,
23,
-43,
6,
5,
0,
43,
58,
28,
-16,
56,
-55,
7,
31,
-18,
-30,
-20,
-47,
-28,
39,
8,
-19,
-11,
-31,
-3,
-32,
8,
-78,
7,
0,
28,
-15,
-18,
-28,
-7,
10,
-17,
23,
1,
-12,
-3,
-44,
-24,
-31,
45,
-27,
-12,
21,
-38,
-24,
-37,
-11,
1,
29,
-34,
27,
-9,
-16,
-62,
8,
6,
14,
-25,
-3,
-10,
14,
27,
33,
7,
9,
-6,
-13,
34,
4,
44,
-39,
0,
-20,
-7,
26,
45,
-7,
22,
-21,
8,
-12,
43,
-13,
-14,
-11,
-33,
-13,
-46,
-9,
51,
21,
-11,
-13,
-66,
-36,
-11,
-11,
5,
-11,
-22,
-27,
-24,
-6,
-9,
39,
-11,
-12,
-4,
-56,
-5,
9,
-30,
37,
31,
-53,
22,
25,
21,
14,
-16,
13,
14,
-11,
32,
4,
-23,
18,
23,
-22,
10,
-28,
-5,
-43,
-23,
-47,
1
] |
Danhof, C.J.
The people appeal by leave granted from the trial court’s order of September 10, 1984, dismissing a charge of operating a motor vehicle under the influence of intoxicating liquor, third offense, MCL 257.625; MSA 9.2325, and two related charges. We reverse the trial court’s finding of entrapment, vacate the order dismissing this case, and remand for reinstatement of the charges.
On June 6, 1984, at approximately 2:00 a.m., two Michigan State Police officers stopped a van, driven by Debbie James, in which defendant was a passenger. Trooper Schneider arrested James for driving while intoxicated, took her to the patrol car, and informed her that she could have the van towed at her expense or secured and left at the scene. She decided to leave it on the rural highway, south of Cheboygan and approximately three miles from the Dodds’s house, her intended destination. When another officer asked for identification, defendant stated that his license was suspended, and he presented other proof of identification. Defendant looked intoxicated but was not arrested. Defendant was then told of James’s arrest and her decision to leave the van. Defendant asked the officers for a ride into town or to a telephone, but they refused. At the officers’ request, defendant secured the van. He gave James her purse, but apparently kept the keys. After the patrol car left, defendant drove the van and, as he pulled into the Dodds’s driveway, was arrested for drunk driving by an officer of the Cheboygan County Sheriffs Department.
The testimony of James and defendant conflicted with that of Trooper Schneider over whether James had told defendant to "sit tight” while James called someone to get the van. Another conflict arose from James’s testimony claiming that a radio transmission, "we got him”, was received by the patrol car on the way to the State Police post. Trooper Schneider denied receiving that communication and denied making statements concerning defendant’s arrest on the return trip.
After an evidentiary hearing on defendant’s motion to dismiss, the trial court concluded that defendant had been entrapped, making the following fact findings and reasoning:
"Gentlemen, on the question of entrapment on the motion to dismiss, I find it a very interesting question. I’ll say that I would agree with the defense on the point that the police have a continuing duty to prevent crime, and they may also have a duty to generally assist people, but I don’t rest my decision on that duty. I rest it on their duty to prevent crime.
"Now, in this particular factual setting, according to the evidence as I understand it, the police left a drunk defendant — Mr. Kolaski — who they knew didn’t have a driver’s license since it had been suspended, on a public highway with a vehicle; and, of course, there’s a dispute as to whether or not they knew the keys were there at 2:15 in the morning.
"The test in the case of People versus Killian, 117 Michigan Appeals 220 at page 220 (sic), is whether or not the police conduct was likely to create or instigate a crime. Well, there’s been some testimony about the radio, and I don’t find it necessary to rule on that in order to reach a conclusion; and besides that, it would seem to me that that issue is somewhat ancillary to the basic question, which is: Was the conduct reprehensible. Well, whether they talked on the radio or what they said — I mean, if there was some conspiracy, I would obviously consider that reprehensible.
"I don’t find any such conspiracy, but I do find that, first of all, at the scene of the stop, the policy knew that or should have known, according to the testimony— Number 1: that the defendant was intoxicated and a passenger in the vehicle which they’d stopped and arrested the driver of the vehicle, who is Debbie James. They knew the car or her van was left at the scene. They knew that defendant’s driver’s license had been suspended and he was intoxicated and his judgment impaired. They thought he had given the keys back to Miss James but, in fact, the keys were there; and I think therein lies the rub.
"The police took control of the vehicle and the keys when they — Number 1: announced to Debbie James what her options were with regard to disposition of her vehicle. They’ll either secure it at the scene or they’ll call a wrecker to haul it away. Well, as a matter of fact, the vehicle was not secured in the sense that the keys to it were left with Mr. Kolaski, and they further permitted the exchange of the purse and the keys between defendant directly and the witness James; therefore, they placed the keys in the status which permitted them to get into defendant’s hands, in effect.
"Certainly the owner of the car, Mrs. James, had no longer — or any control over the vehicle. She was under arrest and there was an obvious and apparent risk and a danger to the public to allow Mr. Kolaski to drive the car. And I’m not saying that the officers intended that or approved of that in any way, but I think the bottom line is that if it was wrong — if it’s wrong for Mrs. James to drive drunk or anyone to drive drunk, it certainly also applies to Mr. Kolaski; and in his condition, it’s not surprising that he would have opted to drive the car rather than choose the more rational and safe alternative of walking.
"I would make another point here. I don’t consider the distances involved, from the standpoint of whether he could have walked to the Dodd residence, particularly significant, because his judgment was impaired. It could have been that it was fifty miles out in the wilderness, and then it would obviously be, in that case, an even stronger case where some determination should have been made about how defendant planned to get home. I think that the police should have verified that plus where the keys were before they left the scene.
"For all of those reasons, it’s my considered opinion that the defense of entrapment is appropriately raised in this case, and I would dismiss the case on that basis. The motion is granted.” (Emphasis added.)
Entrapment is an issue to be determined by the trial court. People v D’Angelo, 401 Mich 167, 173-174; 257 NW2d 655 (1977). The trial court is required to make specific findings of fact which will be reviewed under the clearly erroneous standard. D’Angelo, supra, p 183. In this case, we accept the trial court’s findings of fact but reverse the finding of entrapment which the trial court based upon the officers’ duty to prevent crime, because it is erroneous as a matter of law.
Although all may agree with the premise that State Police officers have a general duty to prevent crime, the trial court cited no legal authority, and we find none, which would impose a duty upon the officers to arrest or detain defendant in order to prevent him from operating the van. See MCL 28.6; MSA 4.436. Similarly, no legal authority is provided which would impose upon State Police officers a duty to provide a ride to an individual observed in an intoxicated condition.
Michigan has adopted the objective test of entrapment with express approval given to the minority view articulated by Justices Roberts, Frankfurter, and Stewart of the United States Supreme Court and the minority view articulated by Justices Marston and Campbell of the Supreme Court. People v Turner, 390 Mich 7, 22; 210 NW2d 336 (1973). The Turner Court quoted extensively from Justice Stewart’s dissenting opinion in United States v Russell, 411 US 423, 441-445; 93 S Ct 1637; 36 L Ed 2d 366 (1973), because it persuasively explained the rationale for the test. Turner, supra, p 19. That explanation provides in pertinent part:
"But when the agents’ involvement in a criminal activity goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced — I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.” Turner, supra, p 21.
In short, the purpose of the objective test is to prohibit unlawful governmental activities in insti gating crime in order to avoid the implication that the judiciary approves of impermissible governmental activity. Turner, supra, p 20.
In People v Sinclair, 387 Mich 91, 119-120; 194 NW2d 878 (1972), the Court stated that "the basis of the entrapment offense is that the methods used by the police are repugnant to fair play and justice”. In Turner, supra, p 22, the Court criticized the subjective test because it failed "to focus on the real concern in these cases — whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand”. In D’Angelo, supra, p 179, the Court stated that the defense of entrapment is "to present facts collateral or incidental to the criminal act which justify acquittal on the ground of an overriding public policy to deter instigation of crime by enforcement officers in order to get a conviction”.
A panel of this Court has stated:
"Turner and similar cases should not be read as indicating that a defense of entrapment is available any time the police or the agents do something which can be characterized as 'reprehensible’. The defense of entrapment presents a conflict between two significant state interests: the interest of the state in deterring police misconduct and the interest of the state in punishing criminals. The Turner Court resolved this conflict by striking a balance between the two conflicting interests. The balance struck is embodied in the test stated by Justice Stewart in his Russell dissent and previously quoted. Turner and subsequent cases show that the defense of entrapment is available only where the police or their agents manufactured the crime at issue by conduct likely, when objectively considered, to induce or instigate the commission of the crime by a person not ready and willing to commit it.” People v David L Crawford, 143 Mich App 348, 352-353; 372 NW2d 550 (1985).
Although the officers’ conduct in this case may be described as unaccommodating or careless, it is not unlawful or reprehensible conduct and it does not constitute entrapment as a matter of law. Cases in which entrapment has been found have typically concerned tactics employed by undercover agents, Crawford, supra, or instances in which police have pressured the defendant into committing the crime, People v Duis, 81 Mich App 698, 703; 265 NW2d 794 (1978), or instances in which the police have exploited the defendant’s friendship or sympathy, People v Soper, 57 Mich App 677, 679; 226 NW2d 691 (1975), lv den 394 Mich 822 (1975). Those factual circumstances are not present in this case. Entrapment has not been found where the record supports the conclusion that the idea for the crime did not originate with the police. People v Duke, 87 Mich App 618, 623; 274 NW2d 856 (1978). In its oral findings, the trial court declined to say that the officers intended to allow or to approve defendant’s use of James’s van. In our view, the record, when viewed in its entirety, supports a conclusion that the idea for the crime (i.e., defendant’s operation of James’s van while intoxicated) did not originate with the officers.
Moreover, the trial court is required to evaluate police conduct in relation to a hypothetical defendant, that is, a person "not ready and willing to commit” the crime charged. People v Zeegers, 61 Mich App 546, 550; 233 NW2d 76 (1975). In this case, the officers’ conduct was not sufficiently provocative to induce a normal law-abiding citizen to drive away with the van, because a reasonable person would have returned the keys to the van in accordance with the officers’ request.
The trial court’s finding that no conspiracy existed between the officers of the Michigan State Police and the Cheboygan County Sheriff’s Department is significant. A finding of conspiracy would have presented an altogether different issue which we are not now required to decide.
Reversed and remanded for proceedings consistent with this opinion.
J. L. Banks, J., concurred. | [
11,
16,
-6,
41,
-1,
-50,
-49,
22,
-32,
48,
25,
-23,
25,
-25,
49,
-12,
49,
12,
-7,
-14,
26,
-85,
11,
17,
-38,
-13,
18,
-17,
-2,
13,
10,
-18,
41,
-54,
26,
22,
54,
11,
12,
20,
6,
15,
-21,
2,
-58,
-20,
-2,
10,
-16,
-19,
26,
2,
-24,
6,
-3,
23,
11,
0,
72,
34,
-22,
25,
-8,
11,
-18,
7,
14,
35,
-50,
0,
10,
-2,
-47,
12,
-27,
17,
-34,
56,
7,
70,
-15,
36,
33,
25,
69,
0,
-36,
-36,
-24,
-23,
26,
29,
-90,
-26,
8,
-1,
-2,
-41,
19,
-7,
-8,
15,
32,
20,
19,
76,
-21,
-8,
-42,
-18,
-39,
0,
79,
-25,
18,
-47,
-22,
-4,
10,
46,
58,
-28,
51,
39,
-23,
-53,
-16,
-10,
9,
11,
-5,
7,
36,
-3,
-37,
25,
-11,
30,
14,
12,
10,
48,
15,
4,
4,
-21,
31,
9,
-8,
33,
-28,
1,
-27,
39,
-27,
-11,
39,
-1,
-25,
31,
-32,
-1,
7,
-10,
-19,
-44,
27,
21,
7,
0,
56,
24,
-1,
20,
44,
0,
-55,
49,
8,
-53,
-16,
44,
-53,
13,
-13,
-65,
7,
16,
-18,
48,
-38,
-2,
2,
-4,
2,
72,
0,
66,
-13,
-19,
-13,
-4,
-19,
-7,
-23,
-21,
14,
0,
40,
11,
-15,
15,
1,
-60,
-40,
-52,
-21,
1,
34,
-36,
41,
-51,
32,
21,
-33,
-11,
-23,
7,
-31,
0,
67,
26,
32,
32,
-62,
-18,
56,
-11,
44,
-5,
11,
-7,
-10,
-22,
19,
3,
-38,
-37,
0,
11,
31,
-34,
-52,
22,
-35,
-66,
35,
19,
4,
43,
-4,
54,
9,
52,
-31,
-7,
15,
44,
-36,
-31,
-18,
6,
-3,
-17,
-36,
0,
-15,
45,
59,
43,
2,
-15,
-48,
13,
28,
-28,
-21,
15,
52,
-6,
-8,
-36,
-53,
15,
-13,
-24,
32,
24,
-51,
61,
-14,
29,
-27,
2,
-36,
-20,
10,
40,
-10,
7,
0,
-5,
15,
36,
33,
-16,
12,
-7,
-13,
-3,
-22,
-10,
-20,
25,
0,
-2,
3,
-2,
4,
-70,
8,
-27,
-32,
-23,
-8,
-9,
2,
7,
6,
13,
-27,
-22,
0,
1,
-9,
-10,
14,
0,
-35,
-33,
21,
-3,
56,
-10,
-16,
-4,
-31,
-27,
-13,
1,
-8,
-12,
-3,
56,
33,
-20,
21,
-1,
-23,
44,
-25,
-48,
-33,
-2,
-26,
-26,
-17,
-28,
-11,
9,
4,
-47,
25,
10,
-36,
-12,
-46,
-56,
-36,
20,
-26,
-5,
1,
-9,
-5,
-35,
29,
33,
28,
4,
4,
33,
45,
4,
-23,
-70,
29,
64,
20,
10,
-52,
-13,
44,
87,
12,
21,
-2,
49,
-23,
-59,
22,
34,
1,
-26,
55,
36,
-15,
3,
24,
15,
43,
0,
53,
-14,
18,
-11,
-36,
-55,
-7,
0,
6,
-63,
-31,
41,
-23,
20,
-23,
-24,
-10,
-22,
13,
29,
16,
-2,
-56,
54,
6,
28,
-75,
-14,
-19,
-17,
-10,
-34,
6,
-25,
-13,
-29,
2,
0,
20,
-1,
-7,
-38,
-60,
-6,
4,
6,
-34,
-8,
-13,
-3,
4,
-18,
2,
15,
-19,
-34,
44,
49,
7,
-10,
-18,
18,
-3,
7,
9,
-5,
-19,
13,
3,
23,
-30,
57,
39,
-27,
20,
34,
-21,
-15,
-18,
44,
-47,
11,
-24,
-32,
-2,
-6,
50,
4,
24,
46,
26,
6,
-2,
36,
14,
-81,
-51,
13,
17,
0,
30,
-3,
22,
-11,
32,
17,
3,
-32,
32,
-9,
-45,
-31,
-11,
-35,
-20,
-18,
29,
-12,
-8,
17,
-21,
-39,
25,
-33,
-24,
-55,
-53,
-40,
-68,
4,
41,
15,
28,
12,
-21,
2,
59,
-36,
12,
29,
2,
25,
-34,
59,
38,
-13,
-69,
32,
13,
23,
26,
52,
-7,
-6,
14,
21,
-2,
-63,
-21,
-1,
37,
-8,
45,
53,
11,
-28,
-19,
9,
36,
22,
9,
63,
35,
-19,
32,
-16,
-50,
6,
51,
51,
0,
2,
2,
9,
-51,
-50,
1,
0,
-26,
-26,
-17,
16,
-15,
-23,
-8,
39,
26,
-47,
7,
-12,
14,
1,
21,
9,
-3,
35,
-23,
-34,
37,
30,
-7,
-2,
0,
7,
2,
-4,
-43,
-33,
-41,
37,
-16,
-16,
56,
1,
-62,
-21,
5,
-12,
-6,
34,
-26,
-14,
-66,
-22,
-65,
-23,
-1,
5,
-1,
-3,
22,
17,
-30,
-6,
28,
-20,
-1,
-10,
-9,
-1,
12,
-45,
13,
33,
23,
5,
23,
42,
-7,
26,
7,
31,
-36,
1,
-11,
11,
-29,
-59,
2,
-6,
40,
-48,
-58,
1,
20,
-28,
-24,
94,
-36,
53,
9,
2,
33,
-9,
-8,
8,
-38,
29,
-17,
-15,
-22,
7,
22,
5,
-23,
-78,
-18,
-32,
24,
3,
21,
-83,
-25,
-5,
-22,
14,
-4,
43,
-29,
9,
24,
-6,
39,
-46,
25,
0,
27,
0,
-3,
-10,
25,
64,
-21,
17,
56,
-28,
-70,
-47,
36,
-21,
-41,
-20,
-33,
29,
-17,
25,
39,
1,
-56,
-63,
1,
-23,
-44,
-1,
-36,
21,
1,
-14,
-9,
6,
-17,
0,
-17,
7,
0,
-26,
-10,
17,
24,
-24,
8,
-2,
-1,
24,
31,
-14,
24,
10,
5,
24,
18,
9,
16,
21,
19,
27,
-12,
-43,
-16,
1,
-20,
-42,
3,
7,
7,
-1,
-32,
-39,
31,
-17,
-46,
-19,
-14,
-4,
42,
-68,
-6,
28,
-20,
18,
28,
-19,
-37,
34,
13,
-25,
7,
7,
23,
40,
-17,
37,
22,
11,
48,
-30,
19,
46,
-17,
19,
-54,
13,
-36,
13,
-24,
63,
-6,
22,
-39,
32,
6,
-42,
2,
-31,
-1,
-32,
27,
52,
49,
-26,
36,
63,
-25,
-16,
38,
-10,
-7,
-9,
29,
-9,
50,
18,
-4,
-4,
-19,
-24,
-10,
-24,
17,
42,
-38,
-29,
-31,
27,
47,
2,
10,
-46,
11,
-5,
-16,
17,
12,
-61,
4,
-1,
-36,
-15,
-35,
14,
41,
-1,
23,
-24,
-73,
31,
42,
-41,
14,
47,
19,
-17,
14,
20,
0,
-10,
-40,
31,
-36,
13,
-14,
-19,
-49,
11,
38,
-6,
6,
-58,
-45,
8,
-46,
59,
0,
45,
50,
-29,
-13,
6,
-38,
-16,
16,
16,
-14,
-8,
-30,
-6,
-35,
0,
6,
41,
75,
24,
-32,
8,
27,
-4,
-10,
48,
-39,
31,
1,
-16,
10,
-9,
0,
6,
39,
-12,
-23,
-25,
-34,
-4,
41,
-7,
-38,
33,
-66,
5,
-58,
-10,
-5,
45,
-5,
37,
-34,
-23,
15,
15,
40,
-6,
14,
44,
30,
-22,
-4,
-15,
-36,
27,
4,
-47,
-4,
-15,
4,
5,
12,
17,
-49,
17,
-13,
-9,
41,
9
] |
Per Curiam.
Petitioner appeals as of right from a September 19, 1984, order and opinion of the Macomb County Circuit Court affirming a final order for the suspension of a license issued by respondent, the Department of Licensing and Regulation, Bureau of Realty and Environmental Services, Residential Builders and Maintenance and Alteration Contractors Board (board).
This action stems from a building contract entered into on April 14, 1980, by petitioner and Alfredo Puzzuoli to construct an addition onto Mr. Puzzuoli’s residence. Petitioner has been a licensed builder since October 24, 1980. Apparently, there were problems with the work being done by petitioner. Mr. Puzzuoli was dissatisfied with the sewer installation, the concrete in the bathroom, the header supports, the aluminum trim, the vinyl siding, the doorwall, the roof construction, and ruts left in his yard by a cement truck. Mr. Puzzuoli filed a complaint with the Department of Licensing and Regulation on May 19, 1981.
An investigative hearing was begun on August 5, 1982, and concluded on September 28, 1982. The hearing examiner submitted a report on December 10, 1982, indicating that the addition to Mr. Puzzuoli’s house was inspected by Michael Jozefiak, a Clinton Township building inspector. The building inspector reported that window leaks, the vinyl siding, tire ruts, and the failure to use Wolmanized (treated) lumber for the sole plates were main items of concern. He found that the doorwall was installed improperly, as was the aluminum trim, and that these items constituted poor workmanship. The building inspector also found that the new roof was installed with a dip and not only constituted poor workmanship but was a structural defect. Petitioner, aware of Mr. Puzzuoli’s complaints, claimed that he did nothing to correct them because he believed he was not allowed on the property and also because Mr. Puzzuoli had refused to pay the remaining amount due on the contract.
The hearing examiner recommended that petitioner be fined $300 as a condition of continued licensure. However, the final order of suspension imposed an $1,800 fine and a license suspension for six months after payment of the fine.
On March 11, 1983, a petition for review was filed with the Macomb County Circuit Court. On September 18, 1984, the opinion and order affirming the final order of the Department of Licensing and Regulation was issued.
Petitioner’s sole issue on appeal is that the circuit court erred in affirming the board’s final suspension order. We disagree.
The proceedings in this case were conducted pursuant to the Adminstrative Procedures Act. Section 106 of the act provides:
"(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).
Petitioner alleges violation of subdivisions (d) and (e).
Substantial evidence is that evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a scintilla of evidence but may be substantially less than a preponderance of the evidence. Russo v Dep’t of Licensing & Regulation, 119 Mich App 624; 326 NW2d 583 (1982). This Court will affirm as long as the hearing examiner’s findings are not contrary to law and are supported by competent, material, and substantial evidence, even if this Court might have reached a different result had it been making the initial decision. Knowles v Civil Service Comm, 126 Mich App 112; 337 NW2d 247 (1983). It is not a reviewing court’s function to resolve conflicts in the evidence or to pass on the credibility of witnesses. DeHart v State Board of Registration in Podiatry, 97 Mich App 307; 293 NW2d 806 (1980). Great deference is given to the findings of the hearing examiner because, as the trier of fact, he or she had the opportunity to hear the testimony and view the witnesses. Russo, supra.
The hearing examiner found that petitioner violated a rule of conduct of his occupation. MCL 339.604(c); MSA 18.425(604)(c). The rule violated is found in § 2411 of the Occupational Code and reads as follows:
"(2) A licensee or applicant who commits 1 of the following shall be subject to the penalties set forth in article 6:
"(m) Poor workmanship or workmanship not meeting the standards of the custom or trade verified by a building code enforcement official.” MCL 339.2411; MSA 18.425(2411).
Petitioner does not argue with the fact that his work was an example of poor workmanship. He relies on the assertion that Mr. Puzzuoli prevented him from correcting the work. Petitioner’s argument is without merit. First, he was under a duty to perform his work in a workmanlike manner from the beginning of the contract. Further, a letter sent by petitioner to the Department of Licensing and Regulation on July 20, 1981, belies the assertion that he felt he was prevented from correcting the work because he was not allowed on Mr. Puzzuoli’s property. The letter reads in part as follows:
"A week after I had finished Mr. P. called and told me that there were some things that he was unhappy with. He said he had two complaints with the alum, siding and one with a header. I told him that I would come and take a look. I told him that I would have someone over right away to fix the siding but that I wouldn’t do what he wanted to the header because it would be incorrect. He then sent me a registered letter telling me that unless I did what he wanted he wasn’t going to pay me. I took the inspector over to look at Mr. P.’s request. The inspector told him that it was corrected as it is.
"After this I hired an attorney to help me collect my money. He advised me to stay completely away since I wasn’t going to be paid anyway. The next thing I know is that I have 45 days to correct the stated things.”
Petitioner received the building inspector’s report on June 10, 1981. Mr. Puzzuoli testified that he did not prevent petitioner from correcting any of the defects. The hearing examiner was within his authority in believing Mr. Puzzuoli’s testimony in this regard, especially since it was corroborated by petitioner’s own letter to the Department of Licensing and Regulation. Thus, the evidence was clear that there were violations of the Occupational Code, verified by a building inspector. Petitioner chose not to make corrections in a timely manner. Accordingly, the findings of fact and conclusions of law were based on competent, material and substantial evidence and were properly affirmed by the circuit court.
Petitioner also argues that the sanctions imposed were arbitrary and an abuse of the board’s discretion. Petitioner bases this assertion on the fact that the hearing examiner recommended a $300 fine and the board imposed an $1,800 fine and a six-month suspension of his license.
Section 602 of the Occupational Code provides:
"A person, school, or institution which violates a section of this act or a rule or order promulgated or issued under this act shall be assessed 1 or more of the following penalties:
"(a) Placement of a limitation on a license or certificate of registration for an occupation regulated under articles 8 to 25.
"(b) Suspension of a license or certificate of registration.
"(c) Denial of a license, certificate of registration, or renewal of a license or certificate of registration.
"(d) Revocation of a license or certificate of registration.
"(e) A civil fine to be paid to the department, not to exceed $10,000.00.
"(f) Censure.
"(g) Probation.
"(h) A requirement that restitution be made.” MCL 339.602; MSA 18.425(602).
The recommended fine of $300 was just that, a recommendation. The hearing examiner had no authority to assess a penalty. The Residential Builders and Maintenance and Alteration Contractors Board is vested with total authority to assess penalties and exercised such authority in this case. One of the defects complained of by Mr. Puzzuoli, the roof dip, was more than just poor workmanship, but actually constituted a structural defect.
According to the circuit court, it is the policy of the board to require a builder who has violated the Occupational Code to pay some of the costs associated with the investigation and proceedings which resulted in that finding. In that light, the $1,800 fine is not excessive, nor an abuse of discretion.
Affirmed. | [
-8,
-3,
-10,
-20,
-11,
22,
-44,
16,
28,
17,
11,
-38,
23,
-26,
52,
7,
7,
4,
-51,
19,
-22,
-37,
52,
19,
-66,
30,
16,
24,
-33,
62,
-3,
-5,
-48,
-28,
-19,
11,
28,
47,
27,
0,
-15,
-20,
-71,
-41,
-19,
-42,
62,
-21,
35,
6,
-13,
49,
14,
-26,
-7,
-4,
-13,
-1,
0,
-21,
-32,
45,
-24,
0,
43,
7,
4,
65,
42,
9,
0,
83,
-36,
-14,
29,
44,
15,
16,
-53,
35,
-38,
5,
59,
34,
-13,
-52,
-10,
3,
-7,
36,
-21,
-43,
-9,
41,
-33,
3,
-26,
-10,
48,
-4,
-1,
54,
58,
0,
-22,
6,
-5,
4,
-42,
-15,
-31,
-38,
13,
-1,
-10,
-3,
-16,
63,
5,
-33,
8,
24,
30,
-68,
10,
-48,
-12,
8,
-42,
21,
-5,
26,
-14,
-7,
-28,
33,
52,
47,
57,
9,
52,
31,
12,
-17,
8,
-36,
-3,
-40,
34,
-45,
-15,
4,
32,
23,
3,
78,
-39,
-1,
8,
21,
-11,
14,
-12,
-30,
-24,
-49,
-46,
28,
41,
41,
13,
35,
30,
-44,
34,
-73,
6,
72,
10,
18,
-40,
-1,
33,
-12,
-25,
-46,
-33,
-63,
23,
-41,
2,
-39,
-25,
3,
-7,
-16,
1,
36,
-12,
-5,
-115,
2,
42,
29,
24,
-31,
-54,
-16,
-15,
-12,
33,
-36,
-55,
-22,
30,
-12,
64,
74,
4,
17,
6,
-16,
-4,
-3,
-22,
5,
-23,
12,
-7,
-65,
19,
-27,
108,
-22,
0,
55,
89,
25,
17,
51,
-41,
78,
-29,
26,
-98,
-32,
-39,
16,
3,
-37,
7,
-40,
-29,
-18,
-17,
13,
8,
24,
-17,
30,
7,
-26,
36,
-5,
-7,
7,
14,
29,
-27,
33,
-22,
62,
10,
4,
-26,
16,
-26,
-32,
45,
7,
9,
-26,
45,
-4,
0,
53,
19,
34,
-78,
-32,
0,
-31,
-40,
8,
8,
-1,
16,
-36,
-55,
-25,
-47,
-28,
-5,
-25,
25,
16,
-6,
41,
13,
18,
-7,
-20,
8,
34,
-7,
-30,
-17,
-54,
-28,
9,
5,
16,
-21,
-22,
-69,
-39,
42,
29,
6,
6,
-30,
-10,
-24,
24,
29,
27,
40,
-18,
-66,
-38,
34,
36,
48,
34,
-17,
20,
-1,
-12,
8,
20,
-17,
-9,
-37,
29,
-15,
17,
-14,
-8,
-15,
48,
44,
39,
-43,
-10,
25,
-9,
-11,
-14,
-10,
21,
-51,
-21,
-46,
15,
-21,
0,
-26,
12,
-34,
14,
23,
-21,
25,
-4,
10,
-23,
-13,
12,
-20,
-67,
-29,
-34,
5,
-36,
-10,
-19,
22,
48,
-36,
0,
6,
-33,
-55,
16,
-7,
20,
15,
38,
14,
-6,
-23,
-15,
6,
22,
29,
14,
27,
-52,
2,
0,
-26,
-5,
-22,
-37,
3,
-20,
-20,
26,
21,
47,
-8,
17,
-3,
-20,
9,
-10,
-31,
-25,
-15,
22,
-13,
29,
-54,
-42,
12,
3,
-18,
25,
-10,
-79,
26,
-11,
-22,
-13,
24,
0,
30,
19,
2,
1,
40,
-49,
-15,
-58,
-17,
2,
-13,
5,
23,
3,
-22,
14,
-17,
18,
-14,
-59,
4,
-17,
-22,
13,
40,
10,
-19,
16,
-19,
-62,
-37,
50,
-67,
1,
-2,
-24,
-34,
-21,
-4,
-15,
-4,
-19,
2,
39,
5,
20,
5,
41,
10,
-48,
-18,
36,
13,
21,
-70,
-7,
17,
24,
-19,
1,
41,
-20,
9,
7,
-64,
4,
-22,
-23,
35,
28,
-6,
21,
17,
13,
-7,
-7,
14,
4,
-6,
26,
-1,
33,
-30,
37,
44,
65,
-25,
40,
46,
26,
-51,
-13,
23,
-2,
0,
5,
-55,
-56,
-60,
-12,
-23,
-7,
22,
-10,
-31,
34,
42,
10,
36,
19,
-20,
2,
38,
52,
16,
-16,
20,
-20,
-26,
45,
-14,
-50,
-9,
11,
32,
-26,
7,
3,
0,
25,
15,
-25,
17,
7,
-25,
-4,
7,
-33,
11,
-13,
-79,
-8,
51,
-19,
-4,
-16,
-6,
38,
-5,
11,
-18,
33,
23,
-2,
31,
0,
-38,
-1,
17,
59,
4,
-3,
37,
12,
13,
7,
-17,
46,
-32,
0,
48,
-13,
7,
54,
-43,
0,
22,
-25,
1,
-42,
33,
0,
15,
-18,
-1,
6,
-45,
-14,
-7,
-46,
51,
14,
-29,
28,
-12,
17,
15,
-30,
30,
-32,
7,
-38,
50,
-9,
36,
-5,
-3,
46,
-1,
-23,
13,
30,
9,
42,
-2,
27,
6,
-17,
-9,
-14,
11,
52,
-1,
16,
31,
-34,
20,
1,
5,
-55,
29,
-1,
0,
-19,
-10,
-8,
41,
-46,
7,
36,
-28,
-6,
-10,
4,
-10,
42,
6,
62,
-52,
38,
9,
-72,
-22,
-9,
-64,
0,
-22,
40,
36,
24,
34,
-9,
-32,
-31,
21,
-62,
-30,
-27,
-12,
38,
-23,
-29,
-24,
21,
10,
25,
42,
-31,
-5,
-15,
17,
-6,
-10,
-13,
28,
-25,
-41,
-32,
4,
-37,
41,
53,
-53,
-7,
-30,
6,
-70,
-2,
11,
-15,
11,
1,
-1,
40,
-18,
-8,
-3,
41,
28,
-2,
4,
23,
29,
-18,
-17,
66,
54,
-21,
8,
-4,
-51,
-23,
52,
-51,
-21,
10,
27,
-36,
20,
-12,
7,
5,
2,
-2,
4,
-5,
-3,
34,
-2,
-6,
34,
109,
65,
-10,
57,
70,
23,
-19,
-40,
2,
-84,
-28,
18,
6,
25,
-9,
-49,
-40,
41,
-2,
21,
-5,
7,
-15,
8,
32,
-52,
-21,
0,
-37,
20,
-16,
5,
18,
32,
-10,
19,
30,
0,
-42,
5,
14,
-14,
16,
-18,
-31,
3,
9,
-22,
-7,
9,
28,
-6,
14,
-32,
-19,
11,
-29,
-8,
61,
10,
0,
7,
0,
76,
34,
-2,
-20,
-19,
-29,
6,
-24,
39,
38,
-4,
-10,
0,
14,
25,
-48,
-47,
15,
3,
-13,
17,
-15,
4,
-35,
31,
-30,
-20,
28,
-7,
47,
20,
25,
-11,
-20,
-35,
-4,
14,
-11,
-9,
-1,
9,
19,
12,
-40,
-17,
-7,
13,
20,
-60,
2,
-20,
21,
-7,
-5,
-5,
-28,
-12,
-27,
3,
-21,
-6,
16,
-43,
-1,
-40,
-9,
-34,
-26,
-49,
17,
35,
-16,
3,
37,
-38,
-60,
41,
-5,
8,
-48,
-10,
-32,
15,
38,
-28,
-1,
-9,
-29,
55,
-19,
4,
12,
3,
-11,
-33,
-13,
-21,
63,
-33,
-5,
22,
-30,
1,
-35,
-18,
21,
34,
19,
5,
34,
-18,
19,
-28,
11,
-9,
-27,
31,
33,
45,
2,
-9,
-51,
7,
-10,
-11,
-31,
39,
-41,
-39,
-11,
24,
-39,
36,
-25,
-20,
16,
-31,
-15,
14,
34,
77,
47,
-14,
21,
55,
-1,
-8,
-16,
30,
-9,
-6,
18,
33,
-6,
9,
-6,
-36,
8,
2,
-6,
0,
3,
-19,
19
] |
Per Curiam.
After a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549. Defendant was sentenced to imprisonment for from 15 to 25 years and he appeals as of right.
The prosecution obtained defendant for trial pursuant to the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1). Article IV(c) of the agreement provides:
"In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”
In People v Meyers (On Remand), 124 Mich App 148, 154; 335 NW2d 189 (1983), the Court explained:
"[T]he purpose of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1), is to facilitate the disposition of charges in one jurisdiction when an accused is incarcerated in another jurisdiction. Thus, Art IV(c) of the act requires the trial court to dismiss any charges brought against a defendant under the act if the defendant has not been brought to trial within the specified 120-day period. However, the 120-day time period may be tolled: (1) for any period which is the result of any necessary and reasonable continuance for good cause shown in open court with the defendant or his counsel present, (2) for any period during which the defendant is unable to stand trial, and (3) for any period of delay caused by the defendant’s request or in order to accomodate the defendant.”
Defendant was not brought to trial within the 120-day period. It is apparent from the record that defendant would have been brought to trial within the period but for the trial court’s disqualification of defendant’s retained counsel on the day before a scheduled trial date within the 120 days. The delay cannot be characterized as "the result of any necessary and reasonable continuance for good cause shown in open court with the defendant or his counsel present”. Defendant was not personally present when the trial court ordered the continance and was not then represented by counsel, because his former counsel had just been disqualified. Defendant was able to stand trial on the scheduled day and did not request a delay. The only arguable justification for the delay was that it was "in order to accomodate the defendant” by allowing time for a new defense counsel to prepare.
The right to assistance of counsel guaranteed by US Const, Am VI and Const 1963, art 1, §20 includes the right to a reasonable opportunity for defendant to retain counsel of his or her own choosing. See People v Humbert, 120 Mich App 195, 197; 327 NW2d 435 (1982), citing Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932). The prosecutor here offered three reasons in an attempt to justify the extraordinary step of removing defendant’s retained counsel without defendant’s consent:
(1) In 1974 and 1975, when charges in this case were first brought, the defense counsel’s father represented various alleged accomplices of defendant. The prosecutor claimed that the defense counsel’s father improperly induced his clients to breach a plea agreement under which, according to the prosecutor, the accomplices were supposed to testify against defendant. The prosecutor claimed that the conduct of the defense counsel’s father would inevitably be at issue at trial.
(2) The defense counsel interviewed a possible prosecution witness, Kenneth Provost. Provost allegedly told the defense counsel that his previous statements and testimony implicating defendant were false and that he would give testimony favorable to the defense at trial. Provost was called to testify about this alleged retraction at a pretrial evidentiary hearing and invoked the privilege against self-incrimination. The prosecutor claimed that, under these circumstances, the defense counsel would inevitably be a witness at trial.
(3) The defense counsel had represented John Ovalle, whom the prosecution proposed to call at trial, in grand jury proceedings in this case. The prosecution claimed that such representation presented a conflict of interest.
The prosecution’s motion to disqualify was made orally on the day before the scheduled trial date. No written motion was ever filed. No advance notice of the motion was ever given to the defense, although the proseutor claimed to have discussed the possibility of disqualification with the defense counsel. Defendant was not given “an opportunity to be personally present at the hearing on the motion.
The prosecutor proffers two explanations for making the motion to disqualify on the last day before the scheduled trial date. The prosecutor first claims that he anticipated a plea agreement in this case and did not learn that defendant would not plead guilty until four or five days before the scheduled trial date. This explanation is frivolous. If the alleged conflicts of interest would have prevented the defense counsel from adequately representing defendant at trial, we cannot see how the defense counsel could be entrusted with carrying out plea negotiations. This explanation also does not satisfactorily explain why the motion to disqualify was made orally without any advance notice to the defendant three or four days after the time when, according to the prosecutor, plea negotiations were broken off. Finally, no authority suggests that pending plea negotiations relieve the prosecutor of the duty to bring the case promptly to trial. Nothing in the record suggests that the defense ever sought a delay for plea negotiations. Acceptance of the prosecutor’s explanation would permit the prosecutor to delay trial indefinitely merely by offering to permit defendant to plead guilty.
The prosecutor also claims that he discovered the reasons for disqualification only shortly before the motion. It is clear, however, that he had literally known for years of at least two of the proffered reasons, the involvement of the defense counsel’s father and the defense counsel’s representation of John Ovalle. The prosecution’s motion to disqualify came at a hearing on a defense motion relating to the defense counsel’s interview with Kenneth Provost. Provost’s statements to the defense counsel were revealed in the defense motion, and the record shows that the prosecution received timely notice of that motion. We therefore cannot see how the prosecution’s recent discovery of the interview between the defense counsel and Provost could provide a justification for the prosecution’s extraordinarily irregular motion practice here.
In People v Fox, 97 Mich App 324, 328; 293 NW2d 814 (1980), rev’d on other grounds, 410 Mich 871 (1980), this Court explained that gross incompetence, physical incapacity, or contumacious conduct may justify removal of an attorney. In People v Reese, 699 F2d 803, 805 (CA 6, 1983), the Court held:
"When presented [with a government pretrial motion to disqualify a defense counsel] the district court must make a careful inquiry, balancing the constitutional right of the defendant to representation by counsel of his choosing with the court’s interest in the integrity of its proceedings and the public’s interest in the proper administration of justice. This inquiry will ordinarily require a hearing at which both parties will be permitted to produce witnesses for examination and cross-examination.
"Furthermore, even if an actual conflict of interests or a strong likelihood of conflict is demonstrated the defendant must be given an opportunity to waive his constitutional right to conflict-free representation. A voluntary waiver of this constitutional right, knowingly and intelligently made, must be honored by the court in the absence of compelling circumstances.”
Compelling circumstances in which a defendant’s waiver of the right to conflict-free representation should not be honored are presented when the defense counsel previously represented a prosecution witness and could not effectively cross-examine his former client without intruding into matters protected by the attorney-client privilege. See, for example, United States v Provenzano, 620 F2d 985, 1005 (CA 3, 1980).
The "careful inquiry” required in Reese was not conducted here. No evidentiary hearing was conducted, the prosecution’s irregular motion practice prevented the defense from calling any witnesses, and defendant was not present or consulted. Moreover, disqualification cannot be justified on this record. The most serious reason advanced for disqualification was the defense counsel’s prior representation of John Ovalle. Nothing in the record suggests that the defense counsel could not effectively cross-examine Ovalle without intruding into matters protected by the attorney-client privilege. At trial, Ovalle’s testimony was impeached by evidence of his numerous prior felony convictions. Evidence of Ovalle’s prior felony convictions was not protected by the attorney-client privilege. Under these circumstances, the circuit court would have had to honor a waiver by defendant and allow continued representation by defendant’s retained counsel.
Proper preparation for trial required the defense counsel to interview Provost, then apparently an important prosecution witness. The possibility of that interview leading to the defense counsel’s becoming a witness was remote. The defense evidently had no intention of calling Provost, no doubt because of Provost’s prior statements implicating defendant. Because the prosecution knew of Provost’s recantation and because Provost was not a res gestae witness whom the prosecutor was obliged to call, the prosecution could not call any witness, let alone the defense counsel, to impeach Provost if Provost gave testimony favorable to defendant. See People v White, 401 Mich 482, 508-509; 257 NW2d 912 (1977). The prosecution was unlikely to call Provost under these circumstances, and Provost in fact did not testify at trial. Because disqualification of defense counsel under these circumstances could have a significant chilling effect on pretrial investigation, consideration of disqualification should have been postponed at least until it became apparent whether Provost would be likely to give testimony favorable to the prosecution.
The prosecution does not explain, and we cannot understand, how any advice the defense counsel’s father gave to defendant’s alleged accomplices in 1974 or 1975 about whether to testify against defendant could conceivably be relevant to anything at issue at trial. The assumption by the court and the prosecutor that the defense counsel’s father’s conduct would inevitably be at issue at trial is insupportable.
The last-minute motion, grossly irregular procedures, and serious invasion of defendant’s right to counsel which this record shows cannot justify the failure to bring defendant to trial within the 120-day period.
We feel compelled to point out that the error that occurred in this case could have been prevented. It appears from the record that defendant was returned to Michigan jurisdiction on March 7, 1982. Thus, the last day for commencing trial under the 120-day rule was July 5, 1982. The attorney was disqualified on June 8, 1982, almost four weeks prior to the last available trial date, yet trial was not set to commence until July 13, 1982. The prosecutor could have insisted and the court could have set a trial date for a day before July 5. Substitute counsel was appointed June 14, 1982, and would have had three weeks for preparation or, if more preparation time were needed, new defense counsel could have filed a motion for adjournment and that delay would have been attributable to the defendant.
Instead, for an unexplained reason, the trial court set the trial date for July 13 and the prosector acquiesced knowing (or neglecting to find out) that the 120-day period would already have expired on that date. Either the prosecutor was not paying attention or the prosecutor’s office decided to gamble. In either event, the jurisdictional time period was unnecessarily allowed to lapse, thereby giving rise to the issues considered in this appeal.
Since violation of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1), results in the catastrophic consequence of the trial court’s losing jurisdiction, prosecutors and trial courts have an obligation to pay special attention to the statutory requirements. An oral motion to disqualify counsel so close to the expiration of the 120-day period, when the prosecutor had knowledge of facts in support of such a motion much earlier, does not lead us to believe that the prosecutor was paying close attention to the statutory (and jurisdictional) deadline. In the future, trial courts and prosecutors would be well-advised when it appears that a trial date is being set beyond the statutory period to clearly state on the record the reasons necessitating such a decision or to take steps which will not gratuitously deliver a jurisdictional issue into the hands of a defendant.
Reversed. | [
14,
12,
-38,
-9,
-14,
2,
-41,
-7,
-82,
64,
-28,
-19,
-4,
-105,
-3,
3,
6,
19,
34,
1,
-16,
39,
17,
56,
-11,
-23,
-13,
29,
16,
22,
-4,
9,
-25,
-13,
14,
-46,
61,
-17,
21,
49,
15,
-19,
-49,
1,
-40,
-15,
22,
34,
72,
7,
32,
16,
-34,
-14,
6,
-21,
-11,
-12,
-13,
55,
8,
16,
-35,
-18,
-1,
9,
4,
-7,
-5,
-10,
-8,
-21,
-5,
36,
27,
4,
20,
-3,
72,
18,
89,
3,
1,
-100,
-8,
0,
3,
-56,
15,
40,
-4,
16,
-30,
-84,
-31,
-32,
32,
-40,
30,
9,
-3,
-40,
14,
-39,
-19,
-15,
-55,
0,
-28,
32,
44,
16,
15,
-35,
1,
-3,
-41,
10,
-25,
47,
31,
26,
27,
20,
49,
-55,
-17,
6,
46,
-40,
3,
4,
35,
-37,
-4,
45,
28,
27,
25,
-22,
-17,
-12,
21,
-20,
54,
41,
-29,
5,
-10,
22,
-53,
56,
-18,
31,
16,
28,
26,
-38,
-15,
1,
35,
-1,
-2,
-65,
33,
-59,
-29,
-24,
-7,
-57,
-5,
-11,
40,
45,
26,
-7,
-6,
7,
50,
-31,
-66,
35,
-1,
-13,
38,
32,
-56,
12,
-35,
-18,
11,
-11,
45,
-10,
35,
20,
-9,
36,
12,
45,
-6,
-54,
13,
3,
-53,
-5,
38,
15,
16,
-43,
-51,
7,
-1,
-51,
-2,
3,
27,
-14,
5,
9,
-72,
-64,
19,
-9,
37,
8,
45,
36,
29,
2,
38,
22,
-24,
44,
-29,
-40,
-14,
-5,
41,
31,
19,
-24,
12,
-12,
62,
45,
-9,
38,
-35,
-9,
25,
-15,
45,
-2,
-9,
33,
-14,
-12,
-47,
-38,
5,
23,
-17,
-40,
-57,
28,
-10,
36,
-8,
-8,
44,
-21,
33,
35,
1,
-70,
0,
27,
-11,
-19,
24,
42,
-2,
10,
-85,
-48,
-41,
29,
19,
-9,
-19,
13,
-33,
17,
3,
4,
6,
27,
15,
26,
6,
-5,
42,
-9,
10,
-19,
-6,
67,
-31,
-71,
-2,
48,
36,
-14,
-39,
5,
17,
0,
38,
-45,
-1,
-1,
29,
-43,
25,
-55,
42,
-34,
20,
14,
-3,
13,
-15,
-14,
30,
6,
-17,
41,
8,
13,
43,
-2,
-10,
7,
-4,
20,
18,
16,
-22,
33,
-10,
-25,
18,
0,
45,
-26,
-44,
-23,
13,
-35,
31,
-33,
-39,
-26,
41,
-8,
20,
-8,
29,
-26,
-5,
-54,
7,
-39,
-24,
-6,
8,
34,
-31,
26,
-25,
20,
-10,
-39,
18,
-17,
-65,
-18,
20,
0,
-34,
-33,
-67,
-41,
11,
-17,
-30,
26,
10,
-26,
-39,
7,
-22,
8,
5,
2,
-20,
10,
-33,
10,
-28,
14,
45,
29,
-18,
-59,
6,
-41,
-8,
-42,
52,
-65,
9,
-13,
-29,
10,
-36,
42,
16,
-96,
33,
47,
31,
-27,
28,
102,
-24,
-16,
23,
0,
-6,
-42,
-39,
-24,
9,
24,
-7,
-32,
1,
24,
5,
48,
16,
-32,
12,
35,
-24,
26,
-8,
26,
15,
-53,
-52,
-1,
29,
-23,
-68,
-2,
14,
40,
38,
-40,
44,
27,
-35,
-17,
-31,
48,
41,
-3,
21,
-13,
-36,
-48,
19,
-10,
43,
-2,
31,
-30,
12,
-3,
0,
83,
-90,
7,
-13,
15,
-12,
6,
-23,
-16,
28,
17,
13,
-22,
26,
-13,
13,
-32,
-19,
1,
-8,
19,
-3,
-19,
9,
-12,
30,
-3,
10,
-42,
5,
-6,
-21,
49,
-21,
0,
-18,
29,
35,
-7,
-17,
-2,
29,
26,
-78,
-42,
-3,
-38,
12,
48,
9,
11,
71,
28,
-27,
-13,
-34,
-27,
24,
-4,
11,
-49,
-21,
-48,
-30,
25,
82,
-77,
9,
-2,
33,
12,
-13,
-12,
-27,
-31,
64,
18,
21,
70,
-7,
25,
-10,
36,
22,
40,
6,
-10,
23,
54,
-59,
-9,
-35,
7,
-16,
7,
22,
2,
-45,
-31,
16,
-13,
43,
12,
9,
-57,
21,
38,
33,
28,
-66,
-17,
32,
12,
28,
51,
45,
34,
7,
-7,
-55,
-12,
-49,
-40,
37,
0,
-93,
71,
-4,
15,
14,
26,
-33,
18,
0,
-12,
-8,
1,
-12,
0,
-16,
-17,
-31,
6,
2,
1,
5,
-18,
-33,
20,
3,
-29,
-43,
3,
3,
8,
27,
-19,
-13,
27,
-24,
-7,
30,
41,
-14,
14,
75,
0,
9,
48,
-34,
-29,
30,
12,
-31,
-36,
4,
-7,
53,
-23,
21,
33,
11,
21,
-6,
-4,
-20,
30,
-27,
7,
38,
-47,
10,
22,
-9,
5,
9,
13,
-58,
12,
19,
-15,
57,
-29,
-19,
27,
-10,
-3,
9,
41,
-26,
0,
-5,
21,
-36,
-47,
69,
1,
-68,
31,
13,
-44,
10,
17,
-83,
-35,
-21,
20,
6,
-21,
-22,
26,
14,
23,
-20,
6,
35,
-56,
-1,
20,
-44,
22,
1,
14,
-39,
-22,
-38,
15,
4,
11,
35,
-22,
-23,
6,
-41,
-43,
-10,
-30,
58,
21,
17,
13,
-27,
-32,
32,
-31,
-89,
8,
23,
62,
4,
0,
-21,
-7,
23,
-34,
43,
-3,
-34,
-38,
49,
24,
-7,
54,
-5,
13,
-4,
-36,
17,
47,
-31,
-18,
27,
-48,
0,
-20,
-23,
43,
14,
14,
32,
35,
13,
-5,
14,
23,
33,
32,
94,
-42,
-23,
26,
2,
16,
64,
-11,
5,
-22,
67,
36,
-6,
76,
6,
-15,
-17,
5,
28,
-30,
-3,
26,
-9,
-68,
6,
26,
-9,
-71,
-33,
-19,
-9,
-34,
21,
4,
19,
9,
-4,
69,
-59,
-45,
9,
-43,
16,
-45,
-6,
25,
-31,
-51,
-19,
2,
41,
12,
-54,
-56,
-37,
33,
2,
17,
18,
-34,
-4,
35,
2,
-63,
14,
-32,
20,
-16,
17,
1,
24,
-24,
7,
42,
-21,
39,
-45,
6,
0,
1,
0,
-31,
-14,
38,
0,
-40,
-43,
-37,
-93,
30,
-16,
91,
-23,
-36,
1,
34,
31,
-2,
36,
9,
-26,
-21,
-1,
26,
21,
-4,
23,
-33,
-30,
34,
-9,
40,
-47,
16,
83,
-33,
-44,
-7,
49,
-8,
-35,
2,
-15,
-15,
17,
-28,
-5,
-16,
36,
17,
-43,
0,
-5,
-27,
27,
-19,
8,
-46,
-18,
-37,
-87,
-17,
-63,
35,
-15,
70,
8,
21,
-34,
30,
-29,
-24,
12,
6,
-34,
11,
48,
6,
30,
-53,
0,
-8,
35,
-24,
55,
13,
8,
-54,
-38,
14,
13,
-14,
-9,
-14,
26,
-11,
8,
4,
-9,
-21,
-46,
-54,
-3,
-18,
14,
-8,
-9,
28,
-35,
-49,
41,
-18,
22,
43,
-7,
25,
-3,
-31,
-14,
41,
-1,
71,
27,
3,
23,
8,
42,
6,
7,
-46,
13,
-17,
56,
-42,
-32,
26,
-16,
7,
-27,
7,
8,
1,
-28,
27
] |
R. L. Tahvonen, J.
Plaintiffs Fred and Betty Moorhouse bring this appeal as of right from a circuit court order granting summary judgment in favor of defendants Kaufman & Friedman, P.C., Alan Jay Kaufman, P.C. and Alan Jay Kaufman (hereinafter Kaufman). We reverse and remand.
Fred Moorhouse was injured in a construction site accident in November, 1978. Consequently Fred and Betty Moorhouse filed a personal injury suit in July, 1980, against Gerald G. Loudon, doing business as Gerald G. Loudon Company (Loudon), and others in circuit court. Loudon’s insurer was Ambassador Insurance Company, Inc.
Loudon was served with summons and complaint on July 31, 1980. Loudon, believing that his policy with Ambassador Insurance Company provided him insurance coverage, forwarded the summons and complaint to Ambassador through his insurance agent at the Ames Agency. Burns & Wilcox, Ltd., a general insurance agency, received the summons and complaint from the Ames Agency on September 9, 1980. By then, the time period for filing Loudon’s answer to the complaint had expired. By September 16, 1980, the summons and complaint were routed to defendant Kaufman at his law firm, Kaufman & Friedman, P.C.
Kaufman requested and received two extensions of time for filing an answer to the complaint against Loudon. According to Kaufman, Ambassador instructed Kaufman not to answer the complaint due to lack of coverage, and indicated that Ambassador would notify Loudon that he was without coverage. An order of default was entered against Loudon on December 1, 1980, and a copy was sent to Kaufman. Kaufman did not respond or move to set aside the default, and failed to notify Loudon. On April 30, 1982, a default judgment was entered against Loudon for $660,000, plus interest and costs. Loudon claims Ambassador never informed or advised him of its position that he had no coverage until the default had already been entered against him.
Because Loudon was nearly bankrupt, plaintiffs accepted an assignment of Loudon’s causes of action against all the named defendants. Plaintiffs sued Ambassador Insurance Company, Inc.; Burns & Wilcox, Ltd.; Ames Agency; Randy Ames; Kaufman & Friedman, P.C.; Alan Jay Kaufman, P.C.; and Alan Jay Kaufman, individually, on July 28, 1982. Count IV of plaintiffs’ complaint sets forth allegations in regard to defendants Alan Jay Kaufman, Alan Jay Kaufman, P.C., and Kaufman & Friedman, P.C. All of those allegations refer to Kaufman’s negligence in failing to answer plaintiffs’ original complaint, in failing to inform Lou-don of the default, in failing to attempt to set aside the order of default, and in failing to advise Loudon of the insurance coverage dispute. It was alleged that Kaufman owed Loudon specific duties in his capacity as an attorney which were breached. Kaufman answered the complaint, stating several affirmative defenses. A claim that the assignment was invalid was not among them.
Kaufman filed a motion for summary judgment in June, 1983, based upon GCR 1963, 117.2(3), and another motion for summary judgment in October, 1983, based upon GCR 1963, 117.2(1). Both these motions were taken under advisement. In January, 1984, a second hearing was held on the first motion for summary judgment; the matter was again taken under advisement. In March, 1984, the lower court entered its opinion on both motions for summary judgement, granting the second motion based on subrule 1. In its denial of a motion for rehearing, the court specifically indicated that summary judgment had been granted because causes of action for legal malpractice are not assignable, and on this basis the motion for summary judgment had been granted. The counts of plaintiffs’ complaint alleging negligence on the part of Kaufman were dismissed with prejudice.
I
Plaintiffs’ first contention on appeal is that, contrary to the holding of Joos v Drillock, 127 Mich App 99; 338 NW2d 736 (1983), lv den 419 Mich 935 (1984), causes of action for legal malpractice in Michigan ought to be assignable. We disagree. Joos held that a legal malpractice cause of action is not assignable in Michigan. A trial judge is constrained to follow a decision by any panel of this Court unless it is contradicted by another panel or overruled by the Supreme Court. Tebo v Havlik, 418 Mich 350, 362; 343 NW2d 181 (1984), reh den 419 Mich 1201 (1984); In the Matter of Hague, 412 Mich 532, 552; 315 NW2d 524 (1982), reh den 413 Mich 1106 (1982). While we are not bound to follow the opinion of another panel of this Court, we normally do so unless cogent reason appears for not doing so. People v Waxman, 41 Mich App 277, 280; 199 NW2d 884 (1972), rev’d on other grounds 388 Mich 774 (1972).
Joos is a well-reasoned decision with which we agree. In it, the Court carefully analyzed the policy considerations attendant to the issue of whether a legal malpractice action ought to be assignable. The Court concluded that a legal malpractice action is not assignable because of the personal nature of the attorney-client relationship and because assignment of such claims would relegate the legal malpractice action to the marketplace, which would encourage unjustified suits, increase legal malpractice litigation, and force attorneys to defend themselves against strangers. 127 Mich App 103. We decline to hold that Joos was wrongly decided.
Plaintiffs try to distinguish the situation here from that in Joos by claiming that no close, personal relationship between Loudon, the client, and Kaufman, the attorney, existed and that the entire Joos decision hinged on just such a close, personal relationship. We do not think the distinction is as critical as plaintiffs believe it to be. Joos did not hold that legal malpractice claims are nonassignable only where the attorney and client had a close personal relationship. Attorney-client relationships vary and we do not think the degree of closeness of the relationship is of paramount concern. If it were, we would be left to the impossible task of dissecting the closeness of an attorney-client relationship in evaluating the validity of every assignment of a cause of action for legal malpractice.
II
Plaintiffs next assert that the invalidity of the assignment should have been raised as an affirmative defense or in a motion for accelerated judgement, since defendants were really claiming in their motion for summary judgment that plaintiffs lacked legal capacity to sue. We disagree.
Defendants first raised the invalidity of the assignment in their second motion for summary judgment, premised on subdivision 1 of the former summary judgment rule. Plaintiffs are incorrect that this claim should have been raised as a motion for accelerated judgment under GCR 1963, 116.1(3) or (5). Subdivision 5 of that rule is inapplicable to the present situation because defendants did not claim that plaintiffs assigned a claim or made some other disposition of it before com mencement of the action. Rather, defendants claim that plaintiffs did not validly receive the claim by assignment. Moreover, subdivision 3 does not apply because defendants do not contest plaintiff’s "legal capacity to sue”.
Plaintiffs also argue that the claim of invalid assignment is an affirmative defense which should have been asserted in defendants’ answer under GCR 1963, 111.7. The invalidity of the assignment may well have been an affirmative defense under the portion of the rule that covers "any defense which by reason of other affirmative matter seeks to avoid the legal effect or defeat the claim set forth in plaintiff’s complaint in whole or in part * * An invalid assignment would be a defense to plaintiffs’ claims. But more importantly, defendants could never have raised the invalidity of the assignment in their answer. Plaintiffs ignore the reality that defendants could not have raised this claim until a year and some months after the date the litigation was commenced. Joos was decided in' July, 1983, and defendants’ motion for summary judgment based upon the Joos defense was filed in October, 1983. Thus defendants could not have claimed it as an affirmative defense in their answer to plaintiffs’ complaint. Just as affirmative defenses may be added by amendment without waiving them, Pryber v Marriott Corp, 98 Mich App 50, 53; 296 NW2d 597 (1980), aff'd 411 Mich 887 (1981), it makes sense to allow them to be raised when they become legally available._
Moreover, we cannot quarrel with the posture in which the defense was raised. GCR 1963, 117.2(1) was formerly the vehicle for asserting that a party had failed to state a claim upon which relief could be granted. This was a proper way to raise the Joos issue. No new facts were raised in the motion which would have surprised plaintiffs. Additionally, Kaufman’s original enumeration of affirmative defenses stated that plaintiff had failed to state a claim upon which relief could be granted. Given that defendants moved in a timely manner once Joos was decided, Kaufman’s failure initially to plead the invalidity of the assignment as an affirmative defense did not waive the issue.
Ill
We next decide whether the lower court properly applied Joos, supra, retroactively to plaintiffs’ assignment. We note that this issue was raised but not ruled upon in the lower court. As plaintiffs’ claim is substantial, we will consider it.
The assignment at issue was formally accepted by plaintiffs on April 27, 1982, over one year before our decision in Joos was announced, and over two years before leave to appeal the Joos decision was denied by our Supreme Court. Thus, Joos was not binding precedent until September 26, 1984. See People v Phillips, 416 Mich 63, 74-75; 330 NW2d 366 (1982). The instant suit was filed in the Genesee County Circuit Court on July 28, 1982.
As we recently stated in Faigenbaum v Oakland Medical Center, 143 Mich App 303, 312-313; 373 NW2d 161 (1985):
"The general rule in Michigan is that decisions of appellate courts are to be given full retroactivity unless limited retroactivity is justifed. See King v General Motors Corp, 136 Mich App 301, 306; 356 NW2d 626 (1984); see generally, Moody, Retroactive Application of Law-Changing Decisions in Michigan, 28 Wayne L Rev 439, 508 (1981); see also Tebo v Havlik, 418 Mich 350, 360-361, 369; 343 NW2d 181 (1984), reh den 419 Mich 1201 (1984); Murray v Beyer Memorial Hospital, 409 Mich 217, 222-223; 293 NW2d 341 (1980), and Myers v Genesee County Auditor, 375 Mich 1, 11; 133 NW2d 190 (1965).
"The following considerations are pertinent to the issue of whether Ross should be given full retroactivity, limited retroactivity, or prospectivity only: (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice. King, supra, p 306; 28 Wayne L Rev p 462; see also Anno, 10 ALR3d 1371, 1386.”
Retroactive application of a decision may be withheld entirely where it would have a harsh effect because of reliance upon the old rule. Tebo v Havlik, supra.
Based upon the above considerations, we believe that this is a case where the new rule of law should be given prospective application only. We hold, therefore, that Joos applies only to assignments of legal malpractice claims made after its release date of July 11, 1983. It must be recognized that the Joos decision announced a new rule of law which carved a very narrow exception to the well-established rule that all legitimate causes of action are assignable. See 3 Michigan Law & Practice, Assignments, § 16, p 14. Unlike the law of governmental immunity, where there was little reliance on the old rule and it was common knowledge within the bar that a new clarifying opinion was imminent, there was nothing about the law of assignments generally or assignments of legal malpractice claims in particular which would have forewarned plaintiffs that the Joos exception was forthcoming. It is essential to the administration of our legal system that practitioners be able to rely upon well-established legal principles when advising their clients, and it is unlikely that plaintiffs would have accepted the instant assignment were they not relying upon the old rule.
We must, therefore, reverse the lower court’s finding that plaintiffs failed to state a claim upon which relief could be granted and remand for further proceedings consistent with this opinion.
IV
Finally, we consider plaintiffs’ assertion that summary judgment should have been denied because plaintiffs alleged defendants were negligent outside the parameters of their attorney-client relationship with Loudon. Plaintiffs posited in the lower court that they could recover against the defendant attorneys in the absence of an attorney-client relationship between Loudon and Kaufman. They theorized that, as Loudon suffered injury as a result of the negligence of defendant Kaufman, he could recover and summary judgment should have been denied. We note that the only allegations plaintiffs raised in their complaint concerned Kaufman’s negligent acts within the attorney-client relationship. As plaintiffs’ complaint states only a legal malpractice cause of action, only the allegations in the complaint could be considered in the motion for summary judgment under GCR 1963, 117.2(1), which tests the legal sufficiency of the claim as determined from the pleadings alone. Therefore, we find no merit to plaintiffs’ contention that summary judgment should have been denied because plaintiffs alleged defendants were negligent beyond the parameters of the attorney-client relationship.
Reversed and remanded for proceedings consistent with this opinion.
Lack of "capacity to sue” refers to some legal disability, such as infancy or mental incompetency, which deprives a party of the right to come into court. See Keehn v Joseph C Mackey & Co, 420 So 2d 398, 399, n 1 (Fla App, 1982); Oakland Municipal Improvement League v City of Oakland, 23 Cal App 3d 165, 170; 100 Cal Rptr 29, 32 (1972); Ascher Corp v Horvath, 35 Misc. 2d 375, 376; 231 NYS2d 676, 678 (1962); see generally 59 Am Jur 2d, Parties, § 31, p 386. "Capacity to sue” does not speak to whether the party has a cause of action or not. 59 Am Jur 2d, Parties, § 31, p 386. | [
-25,
20,
-12,
45,
55,
11,
-28,
-21,
14,
-39,
0,
1,
-12,
25,
-52,
-14,
-17,
4,
41,
-24,
-4,
-25,
-10,
31,
4,
-81,
-15,
-40,
8,
-17,
1,
-31,
2,
-45,
-24,
-14,
-12,
1,
-47,
14,
2,
-29,
5,
-7,
-5,
19,
27,
0,
35,
-33,
-8,
8,
38,
50,
1,
-75,
21,
64,
-33,
-22,
-19,
-4,
8,
-27,
-29,
20,
32,
6,
25,
78,
7,
16,
4,
3,
27,
-9,
27,
-37,
20,
-41,
18,
-7,
2,
22,
-24,
46,
2,
16,
-1,
24,
-51,
-31,
-6,
-6,
-31,
35,
-24,
16,
10,
37,
47,
-58,
7,
-22,
30,
78,
26,
-56,
-28,
41,
-10,
33,
50,
7,
-19,
-5,
33,
-5,
-37,
5,
-18,
12,
42,
-12,
19,
23,
19,
-12,
-68,
-3,
22,
4,
-33,
26,
-33,
-27,
12,
-55,
-1,
-43,
14,
-24,
2,
-13,
-53,
77,
14,
-2,
-40,
11,
29,
1,
-46,
0,
-54,
-25,
14,
-43,
37,
-19,
42,
-5,
-10,
44,
-2,
-1,
-9,
8,
36,
43,
7,
-17,
-11,
-21,
-6,
15,
36,
-6,
-33,
70,
12,
0,
-53,
-7,
-5,
-63,
49,
-13,
-4,
25,
54,
-70,
-32,
35,
-3,
-22,
-20,
89,
39,
8,
28,
-14,
-47,
-38,
-4,
33,
3,
-45,
23,
26,
-17,
31,
-32,
-17,
24,
-18,
-11,
-40,
-20,
-9,
-39,
60,
-11,
41,
-20,
-64,
-2,
5,
-20,
-48,
4,
12,
22,
88,
-18,
-18,
37,
57,
67,
17,
-25,
1,
12,
-23,
-2,
-7,
-44,
17,
-57,
-27,
6,
24,
14,
36,
4,
-9,
-61,
19,
-34,
-5,
9,
36,
-20,
-24,
36,
-4,
-27,
-6,
37,
-16,
-16,
-32,
33,
-87,
-13,
0,
-2,
46,
-14,
16,
-44,
-22,
9,
-8,
-24,
3,
76,
-2,
-63,
-66,
-2,
-26,
-12,
13,
25,
38,
-17,
-40,
-49,
3,
3,
-35,
43,
-23,
-27,
-13,
-69,
-44,
-1,
38,
30,
-26,
-33,
-44,
23,
-46,
-2,
5,
18,
-27,
-13,
66,
-2,
-45,
-24,
-19,
37,
-1,
18,
-46,
-5,
17,
-12,
-15,
17,
-18,
-19,
37,
56,
66,
-38,
20,
-40,
-19,
-4,
74,
29,
20,
20,
11,
-14,
-5,
-73,
-34,
15,
38,
41,
4,
-15,
79,
39,
25,
11,
-2,
-31,
27,
27,
51,
-32,
58,
-21,
-12,
-17,
-57,
-27,
10,
-32,
53,
-34,
10,
77,
2,
42,
37,
-30,
-6,
-13,
3,
-26,
21,
-15,
-58,
17,
21,
-7,
-5,
-46,
26,
-3,
0,
14,
-17,
-26,
0,
3,
7,
9,
-32,
9,
-34,
44,
-28,
16,
-23,
3,
-9,
36,
3,
50,
-11,
20,
-7,
31,
-16,
9,
-14,
36,
12,
-27,
23,
-14,
23,
-36,
-40,
0,
63,
-58,
12,
-6,
24,
0,
14,
-14,
4,
35,
-84,
11,
-16,
46,
39,
12,
85,
42,
38,
-18,
-24,
-21,
7,
37,
-4,
-28,
-33,
35,
-29,
-6,
10,
-10,
30,
0,
-49,
38,
-3,
28,
25,
-16,
-5,
-20,
-25,
-28,
-12,
-62,
-9,
0,
-11,
26,
28,
45,
19,
-72,
-25,
-11,
7,
-46,
20,
-10,
33,
-28,
44,
-25,
-85,
-12,
-58,
18,
-14,
55,
-19,
-32,
-18,
-6,
46,
-20,
-57,
-10,
8,
35,
28,
23,
-23,
-2,
-15,
-37,
20,
-27,
22,
-1,
-13,
-13,
-10,
36,
-32,
17,
-43,
-20,
-5,
-14,
11,
-19,
0,
-36,
-6,
8,
5,
52,
0,
22,
-31,
8,
35,
14,
0,
40,
-8,
30,
-18,
3,
-28,
-12,
5,
37,
27,
38,
32,
2,
57,
-2,
15,
13,
-33,
18,
14,
-58,
8,
-27,
-4,
-60,
42,
-52,
-19,
4,
-31,
-106,
18,
-51,
-15,
-27,
-13,
32,
-35,
-11,
-17,
-54,
28,
-13,
36,
3,
-9,
34,
-7,
33,
3,
-22,
-15,
-54,
-32,
-22,
66,
48,
45,
13,
-15,
-9,
21,
-35,
-32,
-22,
-42,
17,
-43,
37,
-31,
5,
22,
24,
56,
12,
6,
92,
39,
-86,
-25,
-13,
-20,
4,
-41,
21,
-42,
-6,
82,
-48,
38,
-31,
-22,
-30,
3,
8,
-41,
44,
-15,
24,
-16,
-58,
15,
1,
28,
-47,
-19,
-43,
41,
-53,
-21,
-46,
-8,
24,
23,
-29,
-4,
45,
-18,
33,
3,
11,
-9,
2,
53,
29,
17,
-15,
29,
-62,
56,
-38,
16,
42,
7,
31,
10,
-14,
-29,
0,
28,
-24,
16,
5,
-49,
55,
40,
34,
-10,
15,
27,
-39,
-5,
-48,
14,
-1,
-12,
-1,
-18,
-14,
12,
2,
27,
38,
-39,
-15,
14,
42,
-37,
-19,
-20,
61,
-32,
-24,
18,
-14,
15,
10,
44,
29,
52,
-15,
-26,
-16,
-31,
-53,
-9,
24,
-46,
-19,
-41,
21,
-31,
51,
-21,
-6,
39,
-38,
33,
20,
-23,
-37,
15,
14,
3,
36,
-26,
-19,
-15,
13,
-23,
43,
-15,
36,
33,
-16,
-10,
34,
7,
35,
-43,
17,
3,
16,
0,
-46,
36,
67,
-12,
3,
-16,
-26,
25,
17,
57,
11,
-43,
15,
25,
-11,
-19,
0,
44,
0,
-35,
-49,
35,
-18,
39,
-4,
-3,
-59,
35,
17,
98,
52,
-8,
-30,
57,
42,
-43,
-3,
-55,
6,
14,
-30,
31,
-13,
35,
-34,
15,
-72,
14,
-1,
34,
-8,
-19,
8,
-21,
57,
-2,
5,
-85,
-11,
51,
-41,
30,
71,
13,
-5,
-46,
-12,
55,
-81,
48,
27,
-10,
-48,
19,
-5,
-4,
-44,
-61,
1,
6,
3,
0,
-47,
-86,
3,
-32,
8,
-39,
-13,
11,
39,
-9,
-17,
-5,
19,
-60,
35,
45,
-8,
6,
-35,
-5,
5,
-2,
55,
-60,
-32,
-17,
-41,
53,
-3,
10,
27,
12,
-14,
4,
31,
71,
4,
21,
-28,
31,
-23,
0,
54,
22,
-35,
-16,
-8,
40,
-17,
9,
-2,
11,
-55,
-11,
29,
41,
-3,
-30,
15,
32,
2,
-18,
-58,
58,
12,
-84,
-15,
22,
16,
-16,
74,
9,
50,
38,
67,
-16,
10,
88,
72,
-76,
-3,
-9,
-52,
10,
-5,
-12,
-8,
-22,
5,
-33,
30,
-10,
-49,
41,
21,
12,
-42,
-7,
-35,
33,
0,
0,
7,
-19,
22,
18,
-41,
-45,
-10,
28,
-14,
17,
-9,
27,
15,
-31,
-9,
5,
-30,
-29,
25,
-18,
-14,
-11,
-22,
30,
17,
58,
-14,
-2,
-26,
-50,
11,
0,
9,
-18,
22,
22,
59,
7,
-65,
40,
18,
-50,
-21,
-38,
56,
-65,
-8,
8,
-1,
9,
86,
-2,
-3,
26,
52,
21,
-23,
-24,
-40,
-45,
8,
-7,
41,
-13,
33,
-55
] |
R. L. Tahvonen, J.
The people appeal by leave granted from the circuit court’s affirmance of the district court’s dismissal of charges against defendants of fleeing and eluding a police officer or conservation officer when directed to bring a motorcycle to a stop, MCL 257.602a; MSA 9.2302(1), and of operating an unregistered motorcycle on a public street, MCL 257.215; MSA 9.1915. We affirm the dismissal of the charges.
Conservation Officer Poreda was cruising on US-23 in Iosco County in a marked Department of Natural Resources vehicle when he observed two motorcyclists riding without helmets on unregistered vehicles. At the time, Poreda was not enforcing the conservation laws. He chased the motorcycles. Defendant Kopko lost control of his motorcycle. When defendant Carey stopped to assist Kopko, Poreda apprehended both of them.
We must decide on appeal whether a conservation officer is authorized to enforce the Michigan Vehicle Code. The people argue that conservation officers are peace officers who have authority to arrest a person for the commission of a misdemeanor in their presence, regardless of whether the infraction occurs while the conservation officer is enforcing the conservation laws. We do not agree. The Michigan Vehicle Code does not provide conservation officers with any such authority. Moreover, we cannot constitutionally construe MCL 300.16; MSA 13.1226 as granting any such authority.
I
Defendants were charged under the fleeing and eluding statute, which provides:
"Sec. 602a. A driver of a motor vehicle, who is given by hand, voice, emergency light or siren a visual or audible signal by a police or conservation * * * officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop, and who wilfully fails to obey the direction, by increasing the speed of the motor vehicle, extinguishing the lights of the motor vehicle, or otherwise attempting to flee or elude the officer, is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine not to exceed $1,000.00, or both. The officer giving the signal shall be in uniform; and the vehicle driven shall be adequately identified as an official police or * * * department of natural resources vehicle.”
Thus, the inquiry becomes whether the conservation officer acted in the lawful performance of his duty in stopping and citing defendants under the fleeing and eluding statute. We begin our analysis by considering whether a conservation officer is a police officer within the meaning of the Michigan Vehicle Code.
Under section 42 of the Michigan Vehicle Code, the term police officer is currently defined as:
"Sec. 42. 'Police officer’ means any of the following:
"(a) Every sheriff or sheriffs deputy; village or township marshal; officer of the police department of any city, village, or township; any officer of the Michigan state police; or any peace officer who is trained and certified pursuant to Act No. 203 of the Public Acts of 1965, being sections 28.601 to 28.616 of the Michigan Compiled Laws.
"(b) For purposes of enforcing sections 717, 719, 719a, 720, 722, 724, 725, and 726 any duly authorized agent of a county road commission meeting the requirements of section 726c.” (Footnotes omitted.) MCL 257.742; MSA 9.2442.
Thus, peace officers who are trained and certified pursuant to 1965 PA 203 are included in the definition of a police officer under section 42. The people argue that conservation officers are peace officers who are trained and certified pursuant to Act 203, the "law enforcement officers training council act”, which defines "police officer” as follows:
"(c) 'Police officer’ or 'law enforcement officer’ means a member of a police force or other organization of a city, county, township, village or of the state, regularly employed as such and who is responsible for the prevention and detection of crime and the enforcement of the general criminal laws of this state, but shall not include any person serving as such solely by virtue of his occupying any other office or position.” MCL 28.602(c); MSA 4.450(2)(c). (Emphasis added.)
Thus, we must determine whether conservation officers are police officers responsible for the enforcement of the general criminal laws of this state in deciding whether they are encompassed in the definition in Act 203.
The general law enforcement responsibilities of conservation officers are specified in MCL 299.3; MSA 13.3, which provides, in pertinent part:
"Sec. 3. The department of conservation shall protect and conserve the natural resources of the state of Michigan; provide and develop facilities for outdoor recreation; prevent the destruction of timber and other forest growth by fire or otherwise; promote the reforesting of forest lands belonging to the state; prevent and guard against the pollution of lakes and streams within the state, and enforce all laws provided for that purpose with all authority granted by law, and foster and encourage the protecting and propagation of game and fish.” (Emphasis added.)
Authorization for law enforcement activity by conservation officers relating to the general criminal law may be found in MCL 312.10(2); MSA 13.1339(2):
"(2) Arrests. An officer charged with the enforcement of laws relating to hunting shall make arrests for violations of other laws if the violations are committed by a person licensed as a hunter under this act while the person is exercising his or her privileges under the license.”
If the Legislature intended for conservation officers to have broad authority to enforce the general criminal laws of Michigan, it would not have specifically stated in MCL 312.10(2) that conservation officers may arrest for criminal violations which are ancillary to the perpetrator’s act of hunting. If conservation officers had a broad and general authority to enforce criminal laws, the statute above would be redundant.
Given the conservation officer’s limited authority to enforce criminal law where the violation is ancillary to the act of hunting, and other limited authority to enforce conservation laws, it follows that a conservation officer is not a police officer with responsibility for the enforcement of the general criminal laws of Michigan under MCL 28.602(c); MSA 4.450(2)(c). Thus, a conservation officer is not, as the people argue, a police officer within the meaning of section 42 of the Michigan Vehicle Code, and therefore is not authorized to enforce that code.
II
The people cite MCL 764.15; MSA 28.874 which provides that a "peace officer” may arrest without a warrant for the commission of a misdemeanor in his presence. The people claim that language in MCL 300.16(1); MSA 13.1226(1) leads to the conclusion that conservation officers are peace officers who may make such an arrest:
"Sec. 6. (1) The director of the department of natural resources and conservation officers appointed by the director are peace officers vested with all the powers, privileges, prerogatives, and immunities conferred upon peace officers by the general laws of this state; have the same power to serve criminal process as sheriffs; have the same right as sheriffs to require aid in executing process; and are entitled to the same fees as sheriffs in performing those duties.” (Emphasis added.)
People v Bissonette, 327 Mich 349, 357; 42 NW2d 113 (1950), held that a conservation officer is not a peace officer. The people remind us that MCL 300.16(1) in its present form is the result of postBissonette amendments. The people then argue that the Legislature intended to vest conservation officers with full authority as peace officers for enforcement of all criminal laws. We do not agree. We think that the people’s construction of the statute would render it unconstitutional. The circuit court held that the people’s reading of MCL 300.16 would violate the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, which was designed to avoid bringing diverse sub jects which have no necessary connection into one bill. People v Bolling, 140 Mich App 606, 611; 364 NW2d 759 (1985).
MCL 300.16; MSA 13.1226 is a portion of 1929 PA 192, the title of which, as amended by 1950 PA 24, reads:
"AN ACT to prescribe certain powers and duties of the director of conservation; to provide for the enforcement of the laws relative to the protection, propagation or preservation of wild birds, wild animals and fish; to provide for the enforcement of laws pertaining to the powers and duties of the director of conservation or the commission of conservation; to provide for the condemnation of property seized for violation of such statutes and laws; and to declare as peace officers the director of conservation and any officer appointed by him and to vest in him and them all the powers, privileges, prerogatives and immunities of peace officers under the general laws of the state.”
The title has separate and distinct objects if we read the purpose of MCL 300.16 to grant conservation officers the general authority of peace officers, as the people argue. First, the act prescribes the powers and duties of the director of conservation and provides for enforcement of the conservation laws. It also déclares the director of conservation and his appointed peace officers to be general peace officers of the state. These are diverse purposes. We think that such a construction would violate the title-object clause of the Constitution. Act 192 deals with enforcement of conservation laws. Any broader authority to be granted to conservation officers should be encompassed in another statute, either in one defining a "peace officer” or one defining "police officer”. We conclude that, since Act 192 has a general purpose of enforcement of the fish and game laws, it would be a diverse purpose to establish conservation officers as general peace officers.
This is not to say that the act cannot be given a constitutional construction. Conservation officers are vested with the authority of peace officers while they enforce the fish and game laws. Thus, a conservation officer who witnesses the commission of a misdemeanor under conservation laws may make an arrest without a warrant pursuant to MCL 764.15; MSA 28.874.
For the reasons stated above, we do not think MCL 300.16 constitutionally grants conservation officers the full authority of peace officers. We conclude that conservation officers are not police officers within the meaning of the Michigan Vehicle Code and do not have authority to enforce it. Therefore, we hold that both the circuit court and the district court were correct in holding that Officer Poreda was not acting within his lawful authority when he attempted to enforce the traffic laws of this state.
Affirmed. | [
12,
18,
-38,
27,
5,
28,
-6,
31,
7,
49,
17,
23,
21,
-4,
25,
-15,
54,
23,
-42,
11,
0,
-35,
13,
-26,
-46,
-13,
32,
-18,
-25,
35,
-15,
-12,
33,
-48,
30,
-28,
-1,
37,
11,
11,
-1,
-43,
-3,
-10,
-26,
-28,
-24,
12,
-14,
-51,
37,
22,
-39,
4,
-38,
45,
35,
-20,
29,
-27,
-57,
42,
0,
18,
-17,
21,
-43,
58,
-17,
-20,
0,
61,
-47,
-7,
1,
49,
15,
12,
-23,
35,
-41,
71,
22,
26,
45,
-4,
-10,
-43,
31,
-61,
-8,
-8,
-43,
-16,
37,
-7,
12,
-44,
10,
-57,
-35,
0,
3,
83,
-7,
26,
-23,
-47,
10,
-76,
27,
6,
20,
-38,
22,
-7,
-7,
-3,
89,
20,
14,
-68,
33,
53,
-32,
-44,
2,
9,
-41,
83,
-6,
-9,
75,
-28,
-12,
11,
16,
17,
33,
35,
-34,
33,
42,
17,
13,
-8,
28,
-35,
52,
26,
-17,
-8,
-4,
10,
-42,
11,
45,
-27,
20,
19,
-25,
8,
-20,
-34,
-21,
1,
11,
8,
-11,
4,
54,
7,
7,
1,
6,
-58,
-61,
72,
12,
-31,
33,
-16,
-24,
-1,
-43,
-49,
11,
-12,
-65,
11,
-12,
-23,
35,
-56,
29,
19,
27,
70,
-21,
-67,
25,
38,
7,
1,
-40,
-4,
22,
21,
44,
11,
0,
-9,
19,
-55,
19,
-16,
42,
4,
5,
-78,
18,
-31,
0,
-5,
25,
-32,
-54,
1,
-17,
5,
49,
-5,
5,
15,
-84,
-21,
27,
31,
44,
-11,
0,
-11,
-28,
-1,
79,
-4,
16,
-65,
7,
34,
-6,
-39,
-26,
-11,
-32,
-12,
41,
-27,
0,
40,
7,
12,
41,
-6,
-34,
3,
-45,
36,
21,
-41,
-37,
13,
-34,
10,
-15,
-25,
-2,
36,
-5,
37,
41,
21,
-20,
28,
-26,
23,
8,
-1,
31,
-51,
3,
-25,
-46,
34,
-14,
13,
60,
-24,
-8,
34,
39,
0,
-41,
-66,
12,
-51,
2,
-54,
16,
24,
-10,
30,
5,
39,
24,
18,
25,
-37,
27,
-18,
-31,
8,
-54,
-11,
-40,
32,
46,
9,
42,
-31,
-25,
22,
-19,
-46,
36,
34,
41,
-30,
-4,
11,
-24,
-51,
2,
10,
-11,
20,
10,
58,
-52,
-54,
-55,
32,
16,
-31,
8,
-9,
-39,
-63,
-27,
37,
-15,
-17,
16,
13,
27,
-5,
-12,
-11,
-42,
5,
41,
-55,
11,
26,
-57,
-2,
38,
-10,
-36,
-12,
-18,
-42,
13,
-31,
19,
-41,
-7,
-2,
-21,
0,
-20,
-46,
4,
-31,
-15,
0,
41,
0,
32,
24,
10,
27,
38,
8,
-21,
-10,
34,
-15,
7,
-2,
-92,
8,
75,
48,
35,
31,
12,
12,
-28,
-38,
15,
-42,
-13,
-26,
39,
-12,
-36,
30,
4,
17,
44,
5,
44,
-19,
-21,
-2,
-48,
-42,
-43,
-4,
-9,
-11,
-9,
-6,
-7,
-23,
-40,
7,
-22,
9,
35,
26,
-27,
-6,
-61,
43,
4,
24,
-40,
-3,
-79,
-40,
2,
-57,
-45,
-40,
-43,
-12,
83,
-32,
-10,
33,
-62,
2,
-3,
-15,
-31,
1,
-33,
26,
-33,
8,
1,
-44,
-28,
0,
-24,
12,
58,
29,
7,
30,
15,
62,
62,
22,
-22,
-1,
0,
17,
24,
38,
-18,
45,
6,
-39,
42,
7,
28,
-9,
-26,
52,
10,
-2,
-34,
3,
11,
-11,
63,
-7,
4,
-9,
-2,
-14,
62,
23,
-37,
-61,
26,
20,
12,
-47,
32,
-11,
46,
47,
-11,
43,
-12,
-2,
16,
7,
-28,
-14,
41,
-49,
7,
-6,
55,
-24,
-18,
19,
-21,
-21,
-8,
-33,
3,
-12,
-9,
-11,
-26,
-30,
24,
-18,
-28,
35,
1,
25,
60,
8,
22,
8,
7,
-46,
9,
73,
15,
-6,
-31,
27,
28,
-13,
-27,
50,
37,
-3,
-19,
-34,
1,
-74,
-16,
9,
32,
33,
-17,
54,
-5,
-9,
-2,
2,
40,
17,
-46,
45,
88,
-19,
20,
19,
-11,
13,
18,
19,
19,
13,
-2,
62,
-34,
-56,
65,
-7,
-43,
-72,
6,
35,
-46,
-24,
34,
46,
51,
11,
-54,
-5,
-18,
-17,
14,
0,
0,
56,
-59,
-17,
-3,
45,
1,
10,
24,
24,
6,
8,
-33,
-11,
-16,
17,
-74,
-10,
54,
15,
-41,
11,
8,
-8,
-4,
9,
-39,
-20,
-14,
-28,
-55,
-19,
9,
5,
21,
-8,
-6,
9,
25,
-6,
16,
6,
-6,
2,
-11,
-22,
-18,
-37,
-4,
12,
-17,
49,
43,
-12,
3,
77,
44,
16,
-22,
-52,
4,
-21,
9,
-20,
12,
23,
-6,
-16,
-19,
-18,
-51,
-48,
-15,
30,
-26,
62,
19,
-11,
-15,
10,
-42,
-6,
-63,
-26,
-24,
-41,
-26,
-13,
19,
-34,
-61,
-34,
7,
-29,
-12,
76,
46,
-61,
-1,
-29,
4,
-1,
-39,
-9,
-2,
5,
50,
-30,
21,
-42,
11,
-23,
35,
-37,
-17,
-2,
18,
58,
-33,
-35,
21,
-16,
-49,
-28,
-7,
-33,
-2,
15,
-20,
-49,
-41,
26,
49,
-40,
1,
10,
21,
-57,
23,
-19,
-16,
-40,
30,
2,
-7,
22,
-28,
-22,
8,
-10,
-86,
-18,
-45,
1,
31,
-24,
38,
23,
8,
-25,
-12,
20,
29,
-12,
12,
0,
-20,
5,
3,
36,
-2,
24,
8,
-22,
28,
28,
-3,
-10,
40,
27,
14,
46,
-15,
-68,
-7,
-2,
-14,
-40,
-15,
48,
67,
-51,
-33,
26,
-1,
-1,
10,
58,
-23,
-18,
32,
-36,
33,
-10,
-32,
-35,
-9,
43,
-22,
12,
-11,
5,
17,
60,
-24,
13,
-23,
1,
35,
52,
-57,
10,
-24,
-10,
57,
1,
-2,
-46,
21,
30,
-7,
9,
-33,
30,
46,
6,
17,
83,
-56,
14,
-25,
-21,
-25,
19,
-3,
-51,
24,
-27,
47,
-28,
-51,
-59,
-19,
6,
-2,
-8,
-54,
-14,
-41,
40,
-8,
29,
52,
-38,
41,
-14,
-33,
-47,
38,
0,
23,
0,
-53,
21,
-17,
15,
-17,
-10,
-13,
-36,
-61,
29,
26,
-13,
-43,
51,
13,
11,
-12,
0,
-31,
8,
11,
37,
-45,
3,
2,
-31,
37,
28,
19,
4,
31,
-31,
-33,
-17,
-46,
11,
11,
49,
0,
36,
-29,
22,
45,
21,
7,
18,
-5,
11,
-19,
-10,
-12,
15,
-1,
-4,
51,
2,
-9,
0,
35,
-50,
-9,
63,
37,
-10,
-31,
-22,
9,
-5,
-29,
22,
-46,
-21,
-22,
3,
46,
7,
22,
19,
-10,
-13,
-34,
29,
-33,
29,
5,
-28,
-2,
12,
-28,
17,
-11,
-56,
1,
42,
2,
17,
61,
57,
7,
6,
27,
39,
-14,
-9,
-4,
17,
-32,
49,
9,
34,
-32,
-9,
6,
14,
-13,
30
] |
Per Curiam.
Plaintiffs were involved in an automobile accident on November 1, 1978. Within one year after the accident, plaintiffs sought no-fault benefits from defendant. Defendant then evaluated this claim for over three years without denying liability. Defendant claimed that it was unable to determine whether it was the proper carrier liable for the payment of first-party benefits to plaintiffs. Plaintiffs, dissatisfied with the lack of defendant’s progress, filed this lawsuit on January 4, 1983. In its answer, defendant admitted that it was the proper carrier, but defendant then brought a motion for partial summary judgment seeking to bar plaintiffs from recovering no-fault benefits incurred prior to one year before plaintiffs’ com plaint was filed. The trial court denied the defendant’s motion for partial accelerated judgment and granted summary judgment in favor of plaintiffs, finding that plaintiffs’ application for no-fault benefits tolled the one-year back rule. See MCL 500.3145; MSA 24.13145. The trial court stated:
"The court feels that Richards [v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), lv den 406 Mich 862 (1979)] decision in this particular case, though not on all fours, is similar because of the inaction of the insurance company as claimed by Mr. Gilhool, in investigating this matter for 40 months, and because they misled according to plaintiffs’ attorney, Mr. Murphy, who was the previous attorney, that they were going to settle this matter. The courts and the law encourage settlement of these matters. That was the reason for the no-fault changes that we are aware of. And the court feels that in this situation it is violative of that to allow the partial accelerated judgment claim by defendant.”
This Court granted defendant leave to file this interlocutory appeal.
MCL 500.3145(1); MSA 24.13145(1) provides as follows:
"(1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than one year after the date of the accident causing the injury unless written notice of injury was provided herein has been given to the insurer within one year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within one year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than one year before the date on which the action was commenced.”
The period of limitations provided in the statute is tolled from the time written notice is provided to the insurer until the time the insurer formally denies the no-fault claim. Joiner v Michigan Mutual Ins Co, 137 Mich App 464; 357 NW2d 875 (1984), Preferred Risk Mutual Ins Co v State Farm Mutual Automobile Ins Co, 123 Mich App 416; 333 NW2d 303 (1983), lv den 417 Mich 1100.9 (1983), Lansing General Hospital, Osteopathic v Gomez, 114 Mich App 814; 319 NW2d 683 (1982), and Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), lv den 406 Mich 862 (1979). We recognize that other panels of this Court have rejected this position in favor of a literal reading of the statute. We are persuaded, however, that the reasoning set forth in Preferred Risk and Richards is the better view.
In Welton v Carriers Ins Co, 421 Mich 571; 365 NW2d 170 (1984), the Supreme Court stated:
"Tolling the statute when the insured submits a claim for specific benefits would not appear to detract from the policies underlying the one-year limitation On recovery. By submitting a timely and specific claim, the insured serves the interest in preventing stale claims by allowing the insurer to assess its liability while the information supporting the claim is relatively fresh. A prompt denial of the claim would barely affect the running of limitation period, while a lengthy investigation would simply 'freeze’ the situation until the claim is eventually denied. In effect, the insured would be charged with the time spent reducing his losses to a claim for specific benefits plus the time spent deciding whether to sue after the claim is denied.” 421 Mich 578-579.
We feel that this analysis supports our decision to follow Richards. In this case, defendant readily concedes that it had adequate notice of the claim within one year after the accident. Defendant also admits that it investigated the claim for over three years to determine whether it was the proper carrier to pay no-fault benefits. When plaintiffs commenced this suit, defendant admitted that it was the proper carrier, but then sought the protection of the one-year back rule. We feel that the facts of this case illustrate why Richards presents the better approach.
The decision of the trial court is affirmed, and the case is hereby remanded for further proceedings.
Kransz v Meredith, 123 Mich App 454; 332 NW2d 571 (1983), English v The Home Ins Co, 112 Mich App 468; 316 NW2d 463 (1982), Allstate Ins Co v Frankenmuth Mutual Ins Co, 111 Mich App 617; 314 NW2d 711 (1981), lv den 414 Mich 917 (1982), and Aldrich v Auto-Owners Ins Co, 106 Mich App 83; 307 NW2d 736 (1981). | [
-29,
-5,
12,
33,
38,
20,
23,
-23,
8,
14,
-43,
-9,
43,
5,
3,
7,
1,
-1,
-47,
9,
-54,
-39,
8,
9,
-12,
-11,
27,
-28,
16,
36,
31,
-39,
-33,
-3,
-71,
-14,
-16,
13,
1,
58,
13,
-10,
7,
15,
-52,
-50,
45,
10,
10,
6,
42,
-3,
-26,
-13,
-5,
-9,
24,
6,
-16,
7,
-19,
38,
42,
28,
-12,
16,
-23,
62,
-3,
-2,
-51,
11,
11,
3,
-6,
-6,
24,
29,
1,
-51,
9,
-55,
55,
-24,
23,
8,
-42,
-29,
54,
-29,
-60,
-49,
-37,
-19,
-19,
27,
-15,
-43,
56,
24,
-19,
0,
23,
-14,
-47,
34,
5,
-64,
-5,
4,
-9,
-1,
-15,
-2,
-15,
-7,
-20,
23,
35,
47,
-8,
-22,
39,
32,
12,
27,
13,
13,
-25,
43,
22,
40,
8,
7,
-8,
-20,
19,
-59,
29,
-26,
5,
-1,
-13,
-23,
5,
26,
3,
-65,
14,
-10,
-17,
18,
-22,
14,
-16,
3,
-44,
-50,
0,
-61,
21,
-27,
-12,
57,
9,
-21,
23,
23,
50,
-3,
34,
-67,
30,
0,
8,
25,
43,
-7,
-9,
14,
-54,
36,
0,
36,
8,
-40,
-1,
0,
-19,
-8,
6,
-18,
-40,
29,
6,
21,
3,
19,
25,
9,
8,
-93,
23,
0,
-19,
1,
47,
-27,
65,
18,
5,
-29,
1,
-68,
-18,
-11,
29,
6,
-17,
-25,
-10,
2,
-27,
-36,
-35,
16,
-41,
-59,
-19,
10,
-39,
-19,
-17,
34,
-34,
2,
-48,
-9,
32,
22,
80,
-33,
-2,
-19,
2,
30,
-6,
-26,
7,
-13,
32,
-40,
4,
-29,
-1,
-57,
13,
16,
-5,
-12,
-21,
62,
-45,
-4,
-3,
-13,
0,
12,
5,
1,
-21,
10,
8,
12,
-4,
-105,
-3,
-4,
66,
18,
-29,
16,
-3,
2,
-53,
-4,
11,
-32,
-4,
37,
10,
-42,
19,
38,
-7,
-27,
15,
-6,
-15,
5,
15,
-11,
18,
21,
-5,
-41,
-57,
-26,
24,
13,
-18,
-7,
9,
-40,
28,
0,
-16,
-25,
54,
-70,
38,
34,
5,
41,
3,
-40,
31,
-11,
-16,
7,
-51,
-1,
-5,
38,
27,
-53,
-12,
-22,
16,
21,
0,
35,
11,
12,
-7,
29,
67,
-49,
39,
65,
-38,
-7,
-17,
-21,
16,
0,
37,
-56,
-82,
33,
28,
-32,
-9,
-21,
28,
21,
8,
22,
-45,
90,
0,
-16,
2,
-31,
-46,
-27,
-7,
37,
13,
64,
17,
-36,
28,
-30,
3,
15,
-82,
-8,
-10,
-11,
-49,
-44,
23,
27,
-15,
0,
-6,
35,
-12,
27,
-9,
-15,
-30,
5,
23,
28,
5,
0,
-27,
19,
-26,
-5,
-3,
-7,
-43,
-9,
80,
-15,
10,
-48,
14,
-1,
-25,
-33,
-32,
-19,
40,
22,
0,
20,
3,
43,
2,
-44,
26,
10,
-49,
-35,
-8,
9,
-12,
36,
-24,
-32,
-15,
2,
-34,
-14,
42,
-4,
41,
3,
9,
-29,
-53,
-7,
47,
12,
-50,
-59,
2,
-41,
-31,
43,
19,
-30,
-30,
-15,
55,
-10,
12,
0,
5,
10,
3,
-8,
-14,
-23,
-25,
30,
-48,
-26,
-43,
14,
-5,
-26,
33,
-6,
25,
8,
38,
-8,
-14,
37,
-21,
-1,
-48,
-15,
-43,
-63,
-47,
-19,
28,
27,
56,
-35,
18,
-87,
-48,
-27,
-36,
14,
22,
21,
49,
0,
-7,
-15,
20,
38,
-4,
-10,
-19,
-6,
-27,
-10,
-7,
-7,
6,
-32,
17,
19,
19,
-17,
-20,
31,
-21,
35,
-31,
-26,
5,
45,
-31,
-3,
8,
-9,
-19,
4,
28,
-8,
15,
-34,
21,
5,
9,
-21,
44,
16,
21,
-16,
27,
55,
29,
16,
-14,
14,
-9,
-52,
1,
-22,
-37,
47,
14,
1,
3,
25,
20,
26,
-51,
2,
-30,
26,
-36,
-10,
-55,
-45,
23,
33,
25,
-10,
-47,
8,
10,
12,
59,
34,
0,
-47,
8,
-14,
0,
6,
-50,
4,
28,
-4,
-35,
37,
28,
-29,
27,
-5,
-30,
-27,
-32,
-87,
-4,
1,
38,
7,
-32,
-32,
31,
54,
-15,
29,
10,
24,
-7,
4,
29,
20,
-24,
-38,
2,
-12,
14,
59,
-12,
-1,
4,
18,
93,
37,
-20,
-17,
-6,
8,
-4,
-58,
-24,
50,
1,
-48,
-45,
24,
19,
10,
-27,
5,
-38,
16,
-16,
-30,
-38,
-10,
6,
-7,
-29,
51,
-6,
-20,
61,
34,
63,
44,
5,
57,
-6,
28,
-49,
19,
49,
18,
-37,
7,
-52,
-12,
68,
10,
0,
28,
-50,
-9,
-35,
2,
45,
43,
-3,
7,
-13,
21,
-29,
-16,
-36,
41,
-39,
-12,
33,
35,
-75,
13,
14,
-68,
13,
72,
-8,
-26,
-18,
-12,
6,
-34,
-17,
-4,
-27,
45,
38,
1,
27,
-23,
-12,
21,
-17,
48,
-34,
-11,
53,
2,
7,
-25,
37,
16,
45,
29,
-7,
-2,
-65,
42,
42,
-1,
4,
-25,
11,
31,
10,
-13,
13,
-11,
-10,
-32,
37,
-29,
23,
15,
-12,
-16,
-25,
37,
-30,
-53,
-15,
21,
44,
-21,
-9,
-13,
37,
-24,
-27,
11,
0,
-28,
-5,
21,
1,
-41,
26,
-20,
6,
9,
34,
3,
7,
-28,
24,
27,
-8,
-31,
48,
0,
14,
15,
-2,
1,
-32,
-11,
-1,
-5,
50,
-21,
20,
-32,
33,
19,
-64,
22,
-34,
16,
-7,
-11,
-41,
58,
-57,
-26,
21,
-3,
22,
-28,
33,
36,
-9,
-34,
23,
49,
1,
6,
41,
29,
16,
-44,
45,
-15,
-36,
33,
47,
7,
-43,
6,
39,
-4,
-27,
-58,
-1,
6,
1,
4,
-33,
-28,
-18,
3,
-25,
-17,
-29,
4,
61,
-33,
-21,
0,
0,
4,
-12,
30,
-44,
7,
-5,
47,
4,
-36,
48,
-22,
-14,
-13,
-23,
30,
-47,
19,
-17,
10,
-44,
20,
22,
3,
-8,
-16,
-44,
-18,
-4,
58,
59,
-24,
-34,
34,
19,
50,
17,
29,
9,
-17,
-50,
-17,
10,
-16,
22,
-2,
60,
35,
19,
13,
9,
56,
7,
13,
-35,
-74,
24,
2,
16,
32,
24,
4,
34,
-16,
-37,
37,
23,
-7,
4,
-61,
1,
2,
-6,
-8,
24,
33,
-48,
-51,
9,
24,
-2,
19,
50,
-53,
-22,
9,
25,
-7,
-33,
2,
50,
28,
3,
30,
34,
-35,
57,
-43,
11,
-21,
-14,
40,
20,
-31,
-24,
-42,
7,
-29,
25,
1,
-62,
9,
37,
-42,
7,
-2,
-23,
32,
-11,
0,
9,
1,
23,
17,
20,
24,
26,
-13,
35,
8,
34,
29,
28,
41,
70,
5,
-51,
-24,
-3,
-2,
19,
2,
8,
38,
12,
-38,
40,
73,
-48,
-36,
-35,
-28,
23,
-22,
34,
-23
] |
Per Curiam.
Glenn Cronk was driving down a road in Ionia County one night when he hit defendant’s cow, which was in the middle of the road. Plaintiff paid Cronk $1,641.95 under his collision insurance policy for damage done to Cronk’s car. Plaintiff then commenced this action as subrogee to its insured, seeking this amount. The only dispute is whether plaintiff must show that defendant was negligent in order to recover damages under the "animal running at large” act, MCL 433.11 et seq.; MSA 18.789(1) et seq.
The statute provides:
"(1) A person who sustains any loss of, or damage to, property by an animal running at large may demand reasonable compensation from the owner of the animal as reparation for the loss or damage or as ordered by the court.” MCL 433.13; MSA 18.789(3).
A statute which is clear and unambiguous is not open to construction. Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959). The only statutory requirements are that a person sustain loss or damage to property and that it be caused by an animal running at large. As the above-quoted provision is not ambiguous, we may not read into it an additional requirement that the injured party may be compensated only if the animal’s owner was negligent.
The present act repealed a statutory provision, MCL 433.1; MSA 18.781, which merely made it unlawful to permit certain animals to run at large on public highways, without providing a remedy. The old statute was ambiguous; the present one is not.
Defendant’s reliance on MCL 433.12(2); MSA 18.789(2X2) lacks merit. The culpability element in that criminal provision need not be read into the section providing for a civil remedy.
We are constrained by the express language of the statute to conclude that it imposes strict liability upon the owner of an animal running at large which causes property damage. The circuit court correctly reversed the district court’s directed verdict for defendant.
Affirmed. | [
-4,
21,
-9,
6,
2,
3,
52,
11,
5,
39,
-11,
17,
1,
10,
20,
-8,
21,
-5,
-10,
32,
-52,
-32,
-40,
11,
-39,
-10,
56,
-53,
-17,
25,
-36,
38,
-16,
22,
-19,
-41,
34,
26,
-25,
54,
35,
-52,
15,
-56,
35,
-38,
2,
-13,
11,
-59,
-44,
-17,
-40,
-47,
17,
21,
27,
28,
-43,
-10,
-3,
-7,
-1,
14,
-23,
10,
8,
6,
-2,
-1,
3,
86,
-81,
-19,
0,
6,
33,
34,
-7,
43,
4,
-7,
66,
-32,
38,
15,
-13,
-35,
12,
-44,
-43,
-11,
-31,
3,
-21,
26,
-35,
-7,
-10,
-8,
-31,
4,
52,
14,
-26,
42,
-81,
-44,
-22,
0,
-30,
-11,
8,
-11,
39,
-19,
-30,
39,
2,
-13,
53,
-14,
39,
-4,
-40,
-17,
-51,
17,
-35,
0,
26,
-39,
-24,
29,
12,
-53,
-49,
-25,
-3,
19,
1,
-13,
-14,
1,
-15,
22,
-1,
-30,
4,
-6,
-21,
47,
29,
-10,
-56,
-32,
-25,
-18,
21,
0,
41,
-9,
-52,
70,
-9,
10,
-21,
10,
-4,
-8,
29,
-46,
4,
-23,
58,
-3,
34,
18,
-32,
0,
2,
6,
0,
9,
-45,
-31,
-19,
17,
-14,
14,
34,
-26,
-18,
-65,
6,
16,
16,
48,
0,
-8,
43,
-53,
8,
12,
-2,
13,
24,
-33,
3,
-33,
-15,
-22,
-42,
0,
0,
0,
32,
-40,
1,
-57,
-8,
-7,
49,
1,
-2,
-53,
-36,
-86,
34,
8,
21,
19,
35,
3,
-55,
-18,
19,
-32,
43,
10,
3,
12,
-66,
-51,
69,
-15,
-17,
17,
13,
20,
23,
-68,
28,
8,
0,
11,
36,
16,
-4,
-11,
-27,
39,
18,
45,
-16,
-25,
-41,
32,
-27,
-22,
-7,
23,
15,
-19,
-43,
-80,
17,
10,
-4,
-8,
38,
17,
6,
-14,
-6,
49,
-3,
-8,
0,
-47,
44,
-94,
-33,
-10,
-40,
29,
5,
-22,
22,
20,
16,
7,
16,
-3,
27,
-61,
-53,
-34,
-4,
-48,
-28,
12,
5,
24,
28,
8,
14,
4,
12,
-55,
67,
-1,
16,
7,
15,
-10,
76,
-78,
-3,
18,
-12,
5,
2,
-1,
46,
-15,
27,
-6,
-21,
-4,
48,
24,
27,
13,
-22,
19,
22,
43,
-12,
33,
-81,
26,
2,
12,
47,
-28,
6,
0,
-14,
-13,
8,
24,
2,
-14,
5,
-14,
8,
-9,
-7,
31,
-4,
4,
41,
-3,
-42,
-57,
46,
22,
-16,
8,
55,
-34,
-22,
4,
17,
-9,
-68,
-14,
-41,
2,
-43,
-60,
43,
35,
17,
22,
-48,
-12,
-21,
0,
3,
-38,
33,
-28,
-22,
-19,
20,
-41,
-23,
5,
-37,
18,
33,
33,
-33,
54,
50,
-22,
-11,
-70,
30,
4,
43,
-55,
21,
-43,
-14,
50,
-27,
29,
32,
-9,
23,
24,
27,
-2,
-38,
-39,
-28,
0,
18,
34,
15,
14,
-27,
44,
-50,
15,
26,
-23,
68,
-40,
-1,
7,
-74,
25,
8,
5,
-15,
-37,
-17,
-43,
1,
-83,
34,
-67,
-24,
-11,
91,
-12,
18,
20,
-4,
47,
0,
-51,
-19,
9,
-2,
18,
-67,
1,
-16,
-26,
-1,
-57,
-1,
12,
19,
21,
36,
34,
-9,
48,
19,
31,
8,
31,
9,
11,
-2,
-15,
11,
23,
45,
-25,
6,
-22,
-7,
27,
14,
7,
29,
-19,
26,
25,
-12,
0,
53,
-2,
-2,
-71,
-24,
-20,
-2,
-6,
23,
7,
21,
6,
37,
-23,
-29,
7,
37,
18,
3,
50,
-20,
-9,
-11,
47,
-20,
-32,
44,
-39,
45,
-4,
16,
19,
-16,
-25,
32,
-25,
42,
-28,
2,
-26,
0,
43,
14,
32,
28,
0,
1,
-9,
39,
12,
-8,
2,
-17,
12,
45,
-58,
1,
5,
-26,
-29,
-33,
28,
-11,
0,
-21,
45,
-17,
-11,
-17,
-11,
48,
-44,
14,
31,
33,
22,
-23,
9,
12,
-3,
-11,
-12,
-16,
-6,
-53,
22,
86,
10,
-19,
-12,
17,
6,
1,
70,
6,
3,
12,
-24,
0,
-74,
6,
5,
-1,
-44,
23,
4,
-68,
4,
61,
9,
-19,
-15,
-1,
3,
0,
-10,
-37,
18,
-15,
28,
-36,
-57,
-6,
31,
12,
15,
63,
4,
-59,
-15,
-44,
-37,
-44,
30,
-44,
-39,
-18,
1,
-22,
-17,
-9,
-13,
26,
-38,
-16,
-65,
-49,
-13,
-19,
-14,
-14,
24,
32,
-35,
25,
20,
31,
27,
-1,
26,
19,
4,
2,
-47,
43,
-5,
48,
8,
-45,
23,
63,
-5,
-29,
19,
18,
-22,
6,
-38,
29,
29,
-47,
5,
35,
10,
-44,
-12,
-1,
45,
-31,
-28,
-25,
29,
24,
20,
-5,
-30,
-18,
49,
31,
0,
-20,
-22,
2,
-24,
12,
-96,
0,
-15,
18,
27,
-20,
26,
11,
40,
22,
14,
-41,
34,
46,
77,
-34,
-59,
-4,
-23,
53,
4,
-57,
3,
-17,
21,
17,
66,
-10,
-23,
20,
-14,
-25,
-24,
15,
-1,
-23,
-33,
-1,
-23,
-16,
18,
-16,
-44,
-22,
-16,
0,
-33,
16,
17,
3,
-57,
31,
2,
29,
-62,
13,
-9,
-14,
-15,
29,
-13,
-15,
-14,
0,
-79,
-39,
19,
38,
41,
48,
-49,
-38,
21,
-8,
43,
31,
5,
11,
10,
-21,
0,
4,
13,
13,
21,
0,
24,
1,
4,
0,
-27,
42,
2,
14,
29,
-64,
-25,
10,
39,
-48,
-21,
8,
45,
30,
-24,
23,
-17,
-4,
-64,
-54,
35,
8,
39,
33,
32,
-8,
-6,
16,
3,
-9,
-8,
-3,
30,
-63,
-14,
-28,
-45,
-31,
-26,
-6,
-35,
-18,
14,
-28,
-14,
-8,
8,
-8,
-39,
-51,
16,
42,
-16,
19,
44,
-45,
-4,
15,
45,
-51,
26,
32,
43,
2,
-5,
23,
-27,
43,
-32,
-6,
36,
3,
-11,
-4,
-29,
-57,
15,
54,
15,
8,
49,
9,
4,
-53,
48,
34,
-74,
-20,
31,
-1,
7,
-5,
29,
0,
-34,
-21,
31,
-6,
-4,
43,
-5,
2,
71,
-51,
27,
9,
-27,
30,
19,
-26,
-29,
-20,
2,
-29,
9,
-14,
3,
-37,
-31,
4,
29,
27,
-13,
5,
-44,
-4,
-29,
-11,
34,
-15,
36,
-24,
-32,
10,
-7,
-47,
5,
24,
47,
20,
18,
5,
-17,
21,
-8,
14,
28,
31,
45,
13,
-9,
55,
6,
43,
8,
-35,
73,
-9,
-9,
-20,
-9,
44,
6,
25,
36,
-35,
-45,
27,
-42,
5,
41,
17,
-28,
-23,
-16,
-76,
40,
-35,
51,
34,
30,
-28,
-28,
0,
86,
-15,
-81,
-14,
4,
1,
7,
43,
8,
49,
24,
37,
-35,
-25,
68,
8,
-33,
-14,
34,
41,
18,
-50,
-16,
15,
63,
20,
30
] |
D. E. Holbrook, Jr., P.J.
The prosecutor appeals as of right from the trial court’s order dismissing a one-count information against Hubert Horne individually and a five-count information against all the defendants. The charges were for possession with intent to deliver narcotics, MCL 333.7401; MSA 14.15(7401), and felony-firearm, MCL 750.227b; MSA 28.424(2). Defendants were arraigned on August 6, 1983, and preliminary examinations were set for August 17th. During the proceedings on the 17th the prosecution moved for adjournments as essential witnesses were unavailable. In Case No. 75840 the essential witness had to leave immediately for a matter currently pending in federal court. In Case No. 75839, the essential witnesses were police officers who were on vacation. Over defendants’ objections the examinations were postponed and were held on August 26 and September 8. On December 16, 1983, defendants’ motions to dismiss the cases as the preliminary examinations had not been held within 12 days of the arraignments were granted. On appeal the prosecutor argues that the 12 days may be extended for good cause shown, MCL 766.7; MSA 28.925, and that they had shown good cause.
In People v Weston, 413 Mich 371, 376; 319 NW2d 537 (1982), the Supreme Court interpreted the 12-day rule strictly, ruling that failure to comply with the statute entitled the defendant to his discharge, although the discharge was without prejudice to the prosecutor’s right to reinstate a prosecution against the defendant. See also People v Dunson, 139 Mich App 511, 512-513; 363 NW2d 16 (1984). The Supreme Court stated that it was interpreting the 12-day rule as an unqualified statutory command that the preliminary examination be held within 12 days. Weston, supra, p 376. The defendants now assert that the holding in Weston would prevent any delays or adjournments for any reason. We disagree. Weston merely requires that the preliminary examination be initially scheduled to be held within 12 days of the arraignment. People v Frank Johnson, 146 Mich App 429, 438; 381 NW2d 740 (1985). The preliminary examination may be adjourned, continued or delayed when good cause is shown. MCL 766.7; MSA 28.925.
In the instant actions the preliminary examinations were initially scheduled to be held within 12 days of the arraignments. The prosecution showed good cause and requested postponements, and reasonable delays were granted. See Johnson, supra, p 438. Accordingly the 12-day rule was not violated and the trial court erred in dismissing these actions. Thus we reverse and remand for trial in both No. 75839 and No. 75840.
Reversed and remanded. | [
46,
15,
38,
34,
-28,
35,
-10,
-50,
-2,
67,
83,
-29,
-15,
-13,
15,
30,
-26,
-33,
44,
-15,
-8,
41,
43,
27,
-2,
-21,
-17,
25,
-15,
-5,
-39,
-34,
24,
-1,
10,
-7,
28,
-8,
27,
33,
17,
-32,
4,
-38,
-16,
-37,
32,
11,
26,
2,
36,
6,
-35,
-8,
17,
-12,
-3,
-25,
31,
44,
-5,
35,
-22,
-11,
-54,
39,
-86,
31,
-9,
-69,
-19,
8,
35,
-13,
20,
-12,
20,
11,
5,
54,
62,
25,
19,
8,
21,
-21,
-22,
-14,
33,
13,
-4,
-9,
-44,
-45,
-22,
-27,
39,
-76,
47,
-12,
15,
36,
-9,
-44,
-103,
36,
-45,
-9,
-1,
-43,
44,
19,
54,
-23,
4,
-32,
-28,
26,
2,
9,
34,
5,
29,
11,
15,
8,
5,
6,
-8,
-2,
-29,
35,
-4,
-33,
-10,
-7,
31,
16,
0,
-19,
29,
22,
19,
-6,
43,
41,
-39,
46,
7,
71,
-27,
15,
-22,
53,
-34,
5,
44,
-22,
14,
36,
-2,
6,
-17,
-42,
7,
-42,
-68,
-17,
38,
-32,
3,
7,
42,
40,
-12,
-45,
-11,
-2,
43,
-41,
-15,
-14,
21,
-42,
63,
23,
-25,
-7,
-3,
-19,
8,
-23,
14,
59,
29,
-16,
-37,
61,
18,
-32,
-1,
-25,
-43,
11,
5,
7,
18,
32,
61,
37,
-67,
-10,
-17,
-33,
8,
-64,
-19,
12,
21,
21,
-20,
-31,
17,
-44,
-17,
14,
-20,
36,
27,
42,
33,
39,
-40,
10,
8,
-12,
35,
11,
46,
-10,
-20,
22,
33,
-31,
-18,
-10,
-29,
-40,
-11,
32,
16,
39,
44,
-5,
-17,
23,
-27,
-34,
-44,
57,
70,
23,
3,
-9,
-36,
33,
21,
20,
-4,
18,
0,
31,
1,
-45,
-10,
-7,
-16,
-5,
-7,
8,
54,
23,
-34,
50,
-70,
-56,
4,
4,
-19,
-3,
-2,
0,
-93,
17,
19,
35,
67,
43,
-37,
13,
62,
-29,
-16,
4,
-32,
2,
-29,
39,
6,
-30,
-18,
-29,
15,
-29,
-6,
7,
-20,
-51,
-6,
-25,
-15,
0,
-21,
-18,
7,
26,
19,
-35,
42,
-20,
-15,
3,
-11,
-34,
-11,
8,
-8,
6,
6,
39,
-25,
-20,
5,
-28,
13,
19,
5,
-1,
-1,
-13,
25,
9,
-1,
-2,
4,
-27,
-80,
-54,
-5,
34,
11,
-30,
2,
31,
12,
-5,
4,
-34,
12,
-17,
-51,
-72,
2,
-42,
18,
4,
27,
-28,
17,
33,
-18,
-56,
-27,
-12,
-25,
-11,
-2,
30,
72,
-22,
17,
-51,
-3,
-31,
-6,
8,
0,
36,
22,
-12,
-58,
-8,
11,
-39,
30,
-45,
-42,
61,
-14,
-1,
17,
41,
19,
56,
-21,
-43,
-11,
-17,
-1,
-34,
26,
-9,
0,
-21,
36,
35,
-5,
-8,
5,
-15,
-2,
25,
14,
-25,
-5,
32,
-1,
-67,
-5,
-6,
-35,
-47,
-64,
3,
-3,
12,
3,
-12,
9,
31,
-23,
13,
76,
-30,
-57,
10,
22,
40,
-22,
14,
7,
-58,
-53,
29,
14,
27,
-69,
1,
4,
-15,
15,
-49,
58,
7,
-63,
22,
-34,
53,
11,
5,
-2,
-43,
-30,
0,
-29,
34,
-27,
-18,
45,
61,
10,
-43,
-69,
31,
-35,
0,
-3,
-27,
-10,
25,
25,
-31,
-2,
-8,
30,
-43,
55,
18,
-9,
-10,
-6,
20,
-26,
37,
-30,
-4,
0,
-19,
2,
-1,
66,
-24,
29,
-5,
-12,
52,
-1,
-70,
-26,
2,
34,
4,
-13,
-35,
25,
-3,
-87,
-2,
-7,
-35,
14,
25,
-1,
43,
22,
-8,
3,
-29,
37,
-31,
20,
56,
-3,
-82,
-7,
8,
-8,
30,
26,
-28,
-41,
-9,
53,
43,
17,
8,
-29,
-8,
56,
30,
14,
65,
-10,
31,
-5,
24,
44,
12,
-20,
19,
0,
37,
-67,
-19,
-16,
4,
22,
-59,
-30,
-22,
-31,
-25,
-23,
10,
2,
-2,
37,
-20,
16,
41,
57,
50,
-31,
8,
-19,
27,
1,
32,
-22,
-16,
17,
-18,
-42,
-19,
-54,
-13,
-35,
-22,
-29,
2,
-25,
-2,
-24,
24,
-36,
-10,
-13,
13,
0,
-55,
-22,
-34,
-13,
23,
-5,
-18,
-6,
5,
-45,
-4,
-11,
42,
-17,
-21,
-16,
12,
-5,
-1,
15,
-37,
-34,
48,
15,
1,
27,
17,
-32,
4,
2,
8,
2,
10,
-22,
-33,
12,
6,
-11,
-30,
9,
-21,
31,
12,
-24,
-7,
-2,
-21,
30,
-33,
-6,
34,
-38,
-37,
-3,
-9,
-34,
21,
-28,
16,
13,
-18,
-34,
28,
8,
-13,
-22,
-55,
4,
37,
22,
-11,
-29,
12,
-17,
13,
-8,
7,
6,
10,
15,
0,
-54,
36,
8,
-35,
26,
-25,
-44,
4,
-1,
51,
61,
41,
-16,
29,
19,
19,
23,
-4,
46,
-56,
14,
-16,
-28,
-13,
-16,
-5,
-8,
8,
-13,
0,
-3,
14,
18,
-14,
13,
28,
6,
2,
-6,
-20,
29,
-21,
37,
29,
-19,
49,
37,
-21,
-37,
-15,
47,
25,
9,
-10,
-20,
0,
-13,
25,
35,
0,
-21,
-96,
56,
9,
-8,
57,
-9,
7,
-1,
-28,
7,
13,
-75,
28,
20,
11,
0,
-7,
-40,
33,
15,
-34,
-41,
11,
41,
5,
-11,
-45,
-3,
50,
51,
-24,
36,
9,
-30,
24,
-21,
-26,
35,
-47,
12,
2,
-16,
-12,
13,
-34,
-12,
-12,
11,
-6,
-33,
35,
1,
-10,
-14,
3,
-5,
-69,
27,
0,
7,
-5,
10,
-3,
2,
-13,
9,
11,
32,
58,
-15,
15,
-31,
-5,
-44,
23,
24,
-6,
27,
46,
-4,
57,
-33,
-2,
-10,
-13,
2,
-16,
6,
10,
5,
1,
-5,
-4,
-23,
11,
28,
-3,
34,
-11,
-3,
-59,
15,
71,
-78,
25,
-9,
-10,
-18,
39,
1,
4,
31,
12,
4,
-42,
-49,
-18,
-19,
29,
-20,
59,
-23,
0,
7,
27,
16,
-3,
-45,
4,
6,
-30,
14,
11,
41,
-6,
-34,
6,
-23,
42,
35,
44,
-31,
-65,
38,
5,
-69,
-41,
27,
-24,
-9,
-5,
63,
20,
25,
-9,
0,
-24,
13,
30,
-23,
37,
-24,
-36,
34,
-49,
33,
-20,
12,
3,
-30,
3,
-87,
74,
-10,
35,
-22,
16,
-22,
45,
-38,
-58,
5,
23,
22,
17,
13,
-11,
-7,
-47,
-6,
-18,
39,
-6,
45,
9,
-24,
-21,
-23,
53,
37,
-1,
-8,
17,
2,
-29,
-33,
1,
-17,
15,
-62,
-6,
13,
-30,
30,
25,
14,
-6,
-46,
-16,
8,
13,
-14,
7,
-32,
9,
-55,
-52,
-1,
40,
11,
49,
41,
31,
40,
-30,
2,
13,
-20,
39,
-5,
19,
13,
-14,
-24,
14,
-3,
9,
-15,
-14,
-15,
28,
-44,
37
] |
Per Curiam.
The trial court granted summary judgment to defendant, and plaintiff appealed as of right. In an unpublished per curiam opinion, this Court reversed that judgment and remanded for further proceedings. Docket No. 59246, decided December 14, 1982. There we held that the defendant’s motion, which recited both GCR 1963 117.2(1) and (3), had been granted on the basis of subrule (3) and that such judgment was inappropriate. Upon application for leave to appeal, the Supreme Court, on December 15, 1983, entered the following order:
"On order of the Court, the application for leave to appeal is considered and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we VACATE the Court of Appeals judgment and REMAND the case to the Court of Appeals for consideration of whether the complaint in this matter stated a 'claim upon which relief can be granted.’ GCR 1963, 117.2(1).
"We do not retain jurisdiction.” See 418 Mich 882 (1983).
A motion for summary judgment based upon GCR 1963, 117.2(1) tests the legal sufficiency of the pleadings. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). The trial court, when ruling on the motion, must accept as true all well-pleaded facts in the complaint. Zaschak v Traverse Corp, 123 Mich App 126, 128; 333 NW2d 191 (1983). Briefly, plaintiffs complain that defendant on January 16, 1980, without any warning, without any notice, and without cause or provocation, did terminate the electrical services, thereby leaving plaintiffs without heat or other means of shelter and forcing plaintiffs to occupy said premises with candlelight. Plaintiffs further allege that on January 16, 1980, the candles did precipitate a fire which resulted in damages to plaintiffs. Defendant alleges that the pleadings are deficient in two respects: They fail to recite a duty owed to plaintiffs by defendant, and they fail to make a prima facie allegation of proximate cause.
The complaint sets forth two distinct duties. The first duty was based upon Detroit City Ordinance No. 361-H, chapter 39, art 1, passed December 5, Í979. That ordinance provided in pertinent part:
"No artificial or natural gas or electrical public utility may terminate service to any residential customer, including multiple unit dwellings used for residential purposes, for non-payment of a delinquent account during the period commencing on the 15th day of October and ending on the 15th day of April.”
This utility shutoff moratorium ordinance was adjudicated unconstitutional on January 28, 1980, The Detroit Edison Co v City of Detroit, Wayne Circuit Court civil action No. 79-942-914-CZ. Plaintiffs maintain that, since the service disconnection at issue occurred prior to the ordinance’s being declared unconstitutional, the ordinance should be held to have conferred a duty upon defendant for the purposes of this complaint.
In 16 Am Jur 2d, Constitutional Law, § 177, pp 402-403, it is stated:
"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.”
The rule that an unconstitutional statute is void ah initio had been long adhered to in Michigan. See Stanton v Lloyd Hammond Produce Farms, 400 Mich 135, 144-145; 253 NW2d 114 (1977), citing the Am Jur language set forth supra. Although there are exceptions to this principle, Stanton, supra, pp 146-148, they are not applicable in this matter. Because the utility shutoff moratorium ordinance was void from its inception, it may not form the basis for a duty as asserted in plaintiffs’ complaint.
Alternatively, plaintiffs plead that defendant had a duty to notify plaintiffs of any impending termination of electrical service. Such a duty to warn of service cutoff does exist under relevant Public Service Commission regulations. See 1979 AC, R 460.2163 and R 460.2152. We hold only that this part of plaintiffs’ pleadings can survive a summary judgment motion under GCR 1963, 117.2(1).
We must now determine whether the pleadings state that defendant’s breach of duty was a proximate cause of plaintiffs’ injuries. These pleadings clearly establish the existence of an intervening negligent act, i.e., plaintiffs’ use of candles in such a fashion as to start a devastating fire. The salient question is whether the intervening act is of such character that a claim in negligance has not been pleaded as a matter of law.
The question of proximate cause is generally held to be one for the jury. Comstock v General Motors Corp, 358 Mich 163, 180; 99 NW2d 627 (1959). More specifically, whether an intervening act of a third person constitutes a superseding proximate cause is a question for the jury to decide. Young v E W Bliss Co, 130 Mich App 363, 369; 343 NW2d 553 (1983), and cases cited therein. While an intervening independent cause may sever whatever connection there may be between the plaintiffs’ injuries and the defendant’s negligence, this is not so where the intervening act was reasonably foreseeable. Davis v Thornton, 384 Mich 138, 148; 180 NW2d 11 (1970). See also 2 Restatement of Torts, §447, p 1196, followed in Fiser v City of Ann Arbor, 417 Mich 461, 474; 339 NW2d 413 (1983).
We conclude that plaintiffs’ complaint does allege a cause of action such that it could survive defendant’s motion for summary judgment under GCR 1963, 117.2(1). This cause is remanded for trial.
Reversed. | [
-42,
-17,
2,
12,
-34,
10,
5,
2,
0,
23,
19,
-9,
-22,
-18,
17,
-39,
-37,
45,
27,
-2,
-26,
22,
41,
7,
8,
-8,
-11,
0,
37,
7,
1,
-24,
-36,
-28,
-26,
-29,
21,
-9,
12,
6,
-5,
20,
48,
-5,
-47,
-19,
33,
36,
53,
-15,
35,
55,
-10,
14,
-18,
-21,
-16,
15,
-17,
-7,
1,
37,
-10,
46,
4,
41,
-13,
35,
-9,
31,
14,
-5,
40,
8,
-4,
6,
-47,
-14,
0,
44,
-13,
-38,
31,
23,
-16,
-15,
24,
1,
-37,
8,
-15,
-7,
-33,
-16,
-9,
48,
40,
-36,
50,
28,
1,
34,
38,
34,
-15,
-51,
4,
-38,
-24,
-36,
-44,
2,
-41,
-34,
-10,
21,
19,
0,
12,
11,
-1,
-26,
25,
-14,
31,
24,
8,
-6,
41,
-10,
-30,
80,
-13,
-33,
51,
-15,
36,
10,
44,
-26,
-26,
-36,
32,
-19,
35,
-46,
13,
18,
-25,
-15,
18,
33,
-4,
45,
30,
5,
-13,
-29,
4,
43,
29,
-3,
-45,
14,
-11,
-23,
-11,
18,
-30,
-5,
16,
0,
33,
-22,
-33,
-17,
-20,
-29,
-52,
16,
-19,
32,
26,
21,
41,
-22,
-47,
-9,
-12,
-30,
23,
-14,
-14,
33,
-11,
30,
32,
45,
-20,
-19,
-22,
2,
4,
-8,
30,
-39,
0,
-25,
67,
-10,
-46,
-4,
3,
-44,
22,
-2,
-6,
-7,
-19,
7,
-14,
-6,
-27,
-14,
-18,
-12,
-27,
11,
7,
5,
-8,
36,
-14,
6,
0,
36,
24,
33,
50,
-46,
-11,
16,
30,
-21,
-23,
47,
-11,
-6,
23,
23,
29,
-15,
15,
-12,
-43,
-55,
-5,
31,
27,
-28,
33,
23,
-54,
1,
8,
74,
-1,
4,
-56,
-5,
-77,
44,
5,
2,
-4,
-45,
-18,
16,
38,
24,
-28,
1,
-9,
-40,
-22,
48,
9,
9,
-5,
17,
10,
35,
-28,
25,
68,
7,
-28,
-23,
-5,
-12,
-4,
7,
-5,
-10,
-5,
-1,
-31,
18,
-11,
7,
0,
19,
46,
-10,
11,
18,
-14,
23,
24,
-22,
20,
9,
-44,
12,
-7,
-36,
25,
-13,
14,
23,
-30,
-18,
2,
28,
-14,
47,
6,
25,
28,
-4,
18,
10,
-52,
-21,
-6,
15,
38,
-10,
14,
-17,
-36,
22,
-25,
-21,
17,
7,
17,
-34,
-50,
33,
53,
-5,
26,
-12,
22,
46,
3,
-15,
-8,
66,
-23,
-18,
0,
9,
-29,
-6,
-18,
2,
-24,
78,
-13,
-63,
13,
22,
-7,
10,
-8,
37,
-9,
-30,
-35,
-20,
0,
-30,
5,
50,
15,
-17,
34,
21,
16,
22,
-4,
24,
-21,
-43,
-1,
12,
-6,
43,
-28,
41,
-10,
7,
9,
-7,
-1,
6,
55,
-47,
32,
0,
-6,
30,
-17,
-34,
33,
-46,
28,
3,
6,
11,
8,
-15,
-21,
71,
-30,
-38,
-17,
20,
-54,
-10,
-44,
-18,
-11,
-18,
-17,
3,
-8,
28,
10,
1,
28,
-17,
-13,
-7,
0,
-2,
-12,
26,
40,
-33,
-35,
44,
-10,
-4,
5,
35,
27,
-4,
-4,
11,
-31,
24,
-42,
-9,
-17,
30,
-17,
-18,
21,
22,
3,
-31,
-55,
-10,
-3,
4,
18,
-35,
32,
3,
23,
-7,
7,
-28,
-58,
-22,
-22,
15,
-5,
-54,
-22,
-7,
78,
22,
-7,
-1,
33,
38,
-21,
-15,
25,
27,
-5,
5,
37,
-40,
0,
49,
-68,
-22,
-15,
-33,
-6,
15,
2,
-15,
18,
43,
-11,
-23,
34,
-30,
8,
39,
-31,
9,
19,
0,
-10,
25,
-23,
25,
38,
9,
-64,
-28,
18,
38,
4,
-63,
-29,
-8,
16,
6,
-35,
4,
54,
-44,
-10,
14,
39,
19,
0,
5,
-6,
-24,
18,
30,
27,
36,
-20,
9,
4,
8,
25,
32,
-67,
-32,
-2,
26,
0,
-40,
22,
-22,
-10,
10,
-6,
25,
-44,
-2,
18,
-29,
-14,
-11,
-80,
-27,
42,
16,
9,
12,
-11,
22,
25,
31,
-19,
-6,
32,
-32,
75,
-17,
-48,
-52,
-26,
-5,
-29,
55,
34,
19,
1,
-20,
-30,
28,
-15,
-22,
-25,
10,
-20,
5,
14,
38,
-1,
-23,
14,
-5,
43,
1,
-44,
13,
-43,
-1,
33,
-12,
-29,
-12,
-20,
25,
-6,
22,
5,
54,
-2,
-9,
18,
-37,
26,
5,
39,
-88,
-13,
-47,
-26,
-13,
-24,
3,
-26,
9,
-16,
15,
4,
12,
-9,
42,
-2,
-19,
-26,
12,
0,
-25,
-25,
-18,
-1,
12,
50,
-64,
-16,
-22,
17,
-34,
3,
7,
8,
2,
13,
9,
-3,
72,
68,
-34,
-38,
9,
53,
26,
-74,
3,
7,
-28,
56,
-58,
-20,
1,
0,
-9,
-28,
7,
-34,
-53,
-11,
-6,
-28,
22,
13,
16,
10,
-32,
17,
-23,
-1,
-53,
3,
12,
-8,
17,
-57,
-30,
0,
-14,
-15,
-22,
12,
9,
5,
21,
-21,
11,
40,
30,
-8,
0,
14,
4,
5,
34,
21,
12,
46,
-22,
-39,
-28,
33,
-33,
6,
22,
0,
-2,
28,
0,
-33,
-5,
-28,
14,
34,
-48,
-39,
10,
-2,
-35,
59,
-18,
1,
-37,
31,
-2,
-14,
-24,
21,
-25,
-13,
-2,
30,
-56,
-42,
-38,
48,
10,
3,
-59,
-2,
1,
-12,
1,
57,
-6,
-4,
22,
-55,
22,
14,
1,
51,
-13,
9,
-4,
-1,
34,
-7,
12,
-11,
-25,
35,
48,
-43,
15,
38,
-6,
52,
-41,
0,
30,
15,
-41,
-24,
75,
-39,
-39,
-3,
3,
50,
-12,
-33,
-28,
-50,
64,
12,
5,
-14,
39,
-23,
33,
-22,
2,
6,
4,
19,
0,
-24,
-33,
1,
-21,
41,
33,
-4,
-8,
15,
7,
-47,
-7,
23,
12,
-26,
-15,
-8,
5,
-16,
-21,
14,
-20,
9,
3,
0,
-48,
41,
-16,
43,
38,
-32,
-16,
-58,
47,
80,
35,
27,
63,
2,
19,
-17,
-26,
29,
-42,
-59,
-13,
-6,
-9,
42,
54,
1,
-23,
7,
7,
-54,
35,
-37,
-6,
64,
3,
-15,
-45,
51,
-16,
-18,
15,
-11,
-16,
-5,
-11,
8,
-23,
-23,
31,
-4,
-28,
-45,
4,
14,
-55,
-11,
-41,
7,
4,
-29,
-31,
18,
15,
-12,
-61,
-27,
2,
15,
-19,
-2,
-48,
5,
-6,
-44,
26,
-9,
12,
-28,
-28,
-42,
26,
30,
41,
4,
-24,
-17,
-14,
-3,
4,
-10,
-22,
37,
-8,
-30,
-14,
-45,
28,
-14,
40,
-9,
-26,
3,
-31,
-18,
5,
-35,
-38,
-55,
-32,
26,
-43,
12,
-23,
-27,
-10,
-23,
-11,
26,
45,
6,
33,
25,
-14,
44,
7,
31,
-16,
-27,
35,
-9,
-9,
75,
60,
15,
-18,
-6,
0,
-48,
-10,
48,
12,
0,
0
] |
Per Curiam.
Plaintiffs minor son rode the same school bus as defendant’s two stepdaughters. De fendant’s stepdaughters complained to defendant on numerous occasions that plaintiffs son would pinch and harass them on the bus while en route to school. When the boy’s behaviour persisted, defendant approached the youth and threatened to break his "damn little arms” unless he left the girls alone.
Later thát same evening plaintiff drove to defendant’s residence and confronted defendant. Following a short exchange of words, plaintiff grabbed defendant by the shirt and pushed his back up against the exterior wall of defendant’s garage. In response defendant threw plaintiff to the ground, grabbed a tire iron from the floor of the garage, and, when plaintiff got to his feet, struck him with the iron on the left side of the head. Plaintiff fell to the ground, dazed, but was later able to leave defendant’s property under his own power. Defendant pled guilty to a charge of aggravated assault in connection with this incident.
Plaintiff thereafter filed a complaint against defendant to recover damages for the injuries he sustained as a result of the assault. Upon receipt of the complaint, defendant contacted Auto Club Insurance Association (Auto Club) and requested both representation and coverage on the basis of a homeowner’s insurance policy then in effect. Under "Coverage E” of the policy, Auto Club had agreed to defend any lawsuit against defendant which sought damages for personal injury and, further, to pay for those damages in the event defendant became legally obligated to do so. The policy, however, contained the following exclusion —"This policy does not apply: 1. Under Coverage E — Personal Liability * * * f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.” Pursuant to this exclusion, Auto Club, after the trial court granted its motion for leave to intervene to file a complaint for declaratory relief, filed a complaint for declaratory relief in which it denied any obligation or responsibility toward defendant in connection with his intentional assault in the principal action. Defendant then filed a cross-complaint against Auto Club seeking representation and coverage. Auto Club thereafter filed a motion for summary judgment which was granted by the court on May 29, 1984. In its order the court found that defendant intended both his conduct and the resulting injury to plaintiff. This finding was premised on defendant’s plea-based conviction of aggravated assault. Defendant appeals as of right from the court’s order granting summary judgment in favor of Auto Club.
Defendant first contends that summary judgment was improper as a question of fact existed under the language of the exclusion clause as to whether defendant intended to injure plaintiff. Defendant concedes that he intended to hit plaintiff with the tire iron but argues that he acted in self defense with the sole intention of protecting himself.
In passing on a motion for summary judgment under GCR 1963, 117.2(3), a court may consider pleadings, affidavits, depositions, admissions, and other documentary evidence then available to it. Wright v White Birch Park, Inc, 118 Mich App 639, 646; 325 NW2d 524 (1982). The evidence must be considered in the light most favorable to the party opposing the motion. This same party should also be given the benefit of any reasonable doubt. Wright, supra.
Viewing the evidence in a light most favorable to defendant, we agree that summary judgment was proper under the facts of this case. The exclusion in defendant’s homeowner’s policy includes injuries which are either "expected or intended” from defendant’s standpoint. The injury sustained by plaintiff was the natural, foreseeable, and "expected” result of defendant’s intentional act of wielding a tire iron. This conduct was therefore outside of the scope of coverage of the instant policy. Wright, supra, p 645. See Group Ins Co of Michigan v Morelli, 111 Mich App 510, 516; 314 NW2d 672 (1981), Iacobelli Construction Co, Inc v The Western Casualty & Surety Co, 130 Mich App 255, 264; 343 NW2d 517 (1983), and Farm Bureau Mutual Ins Co v Rademacher, 135 Mich App 200; 351 NW2d 914 (1984).
Defendant next contends that the trial court improperly considered his plea-based conviction of aggravated assault in determining that defendant intended to injure plaintiff. We do not agree.
The use of defendant’s plea-based conviction under these circumstances must be factually distinguished from the situation where a defendant’s criminal conviction is offered against him as proof of culpability in a civil action arising out of the same criminal occurrence, e.g, if plaintiff herein were to offer defendant’s conviction in the principal action as proof that defendant was liabile for damages. Such a use is prohibited. Wheelock v Eyl, 393 Mich 74, 79; 223 NW2d 276 (1974). Rather, in the instant case, defendant’s conviction was advanced by his insurer in a pretrial proceeding to deny coverage under an insurance contract. Imperial Kosher Catering, Inc v The Travelers Indemnity Co, 73 Mich App 543, 545; 252 NW2d 509 (1977). Compare Danish Inn, Inc v Drake Ins Co of New York, 126 Mich App 349; 337 NW2d 63 (1983). Defendant was not being sued by the insurer for damages, nor was his conviction being offered by the insurer as proof of liability in a civil suit. We find no error.
Affirmed. | [
-46,
18,
22,
45,
42,
24,
-26,
-22,
0,
-16,
-38,
29,
23,
23,
-11,
-9,
5,
8,
-40,
5,
-9,
-53,
-1,
21,
1,
-25,
34,
-45,
-15,
41,
6,
-20,
-5,
-12,
-59,
-19,
23,
9,
-19,
60,
41,
31,
20,
-5,
22,
-20,
12,
29,
21,
9,
26,
35,
7,
-11,
-50,
-11,
49,
34,
21,
13,
-7,
2,
8,
-10,
-21,
-18,
6,
40,
17,
83,
-35,
3,
-32,
20,
-34,
-3,
-44,
48,
28,
-10,
-56,
12,
76,
-10,
23,
44,
-41,
0,
-66,
-31,
-36,
-8,
-52,
-16,
12,
0,
-20,
-18,
33,
-13,
10,
-55,
23,
-6,
-41,
73,
23,
-80,
0,
38,
-41,
28,
3,
-5,
11,
-29,
-16,
10,
54,
-9,
31,
13,
38,
-7,
-2,
25,
-25,
-34,
-51,
24,
-28,
65,
44,
35,
19,
-7,
-14,
2,
-29,
-28,
12,
7,
8,
0,
35,
29,
-17,
-19,
6,
-3,
-10,
-40,
-30,
-17,
-11,
-8,
-24,
-28,
1,
-45,
-1,
-59,
-26,
39,
-17,
-12,
-46,
49,
5,
16,
27,
1,
46,
-26,
12,
-21,
1,
32,
-34,
9,
19,
-8,
20,
3,
-18,
-38,
-18,
-10,
-51,
-19,
35,
-21,
-51,
-34,
15,
17,
2,
52,
-15,
-27,
5,
-28,
-3,
-30,
7,
-17,
-12,
11,
-20,
0,
36,
49,
-56,
-45,
-13,
4,
46,
18,
-58,
0,
-21,
19,
-36,
-12,
-43,
-42,
-40,
-65,
5,
-5,
42,
5,
-13,
-2,
-43,
-21,
-38,
-16,
28,
21,
21,
13,
15,
-31,
3,
1,
19,
27,
14,
-21,
13,
2,
27,
-25,
-32,
-42,
18,
14,
14,
41,
-11,
15,
29,
35,
21,
25,
-4,
18,
-69,
-24,
-7,
-30,
-18,
19,
-30,
-47,
7,
27,
73,
-42,
6,
28,
-2,
2,
-11,
30,
21,
11,
-10,
-23,
21,
-55,
54,
-29,
40,
-38,
50,
-29,
-27,
-8,
40,
-8,
18,
-6,
-10,
-2,
13,
-21,
0,
20,
-15,
-18,
-6,
-25,
29,
-19,
-23,
11,
6,
-42,
-31,
3,
-2,
41,
-34,
-76,
47,
-33,
-5,
-13,
-12,
1,
30,
16,
9,
-49,
-20,
-19,
43,
24,
11,
80,
23,
-4,
-2,
33,
-4,
17,
1,
-2,
-29,
-42,
24,
-46,
-22,
0,
63,
-33,
3,
50,
13,
-14,
-22,
-26,
2,
25,
61,
15,
-53,
93,
-3,
-35,
-24,
11,
-38,
-77,
-5,
32,
-14,
52,
34,
-43,
10,
-46,
14,
16,
-64,
11,
-14,
-20,
-49,
7,
26,
-7,
13,
-68,
-12,
6,
36,
8,
16,
-17,
6,
-24,
-20,
8,
27,
-4,
-9,
-51,
7,
-20,
32,
31,
17,
39,
33,
-57,
-14,
-21,
-35,
-11,
6,
-46,
18,
-18,
29,
-13,
-21,
3,
3,
-17,
-23,
-12,
22,
-49,
-24,
-32,
23,
-4,
-42,
10,
-2,
-28,
48,
-25,
-27,
-16,
38,
-67,
43,
0,
37,
-5,
-18,
3,
0,
38,
27,
-57,
-12,
-7,
-11,
-22,
60,
-9,
-56,
-9,
-1,
-12,
-17,
-33,
-49,
38,
77,
6,
-32,
8,
-26,
14,
-38,
22,
-10,
-20,
-14,
-21,
2,
12,
27,
5,
24,
-34,
-14,
2,
3,
42,
-35,
55,
-31,
-13,
-14,
0,
-27,
17,
50,
-24,
-16,
19,
-13,
-24,
-8,
16,
-4,
-19,
33,
26,
19,
23,
43,
-11,
-5,
34,
4,
13,
-16,
-52,
45,
24,
-68,
-6,
50,
-15,
1,
-2,
47,
35,
9,
-9,
-25,
0,
6,
26,
4,
-8,
7,
-43,
-5,
26,
54,
28,
-8,
33,
28,
-35,
39,
25,
0,
-11,
16,
13,
-26,
69,
38,
0,
6,
0,
35,
5,
42,
-64,
-66,
5,
-29,
-40,
-37,
22,
7,
9,
-53,
-1,
4,
15,
-41,
43,
-57,
-17,
56,
7,
18,
-55,
-7,
12,
6,
-3,
41,
-1,
7,
4,
-1,
1,
-18,
-6,
-29,
-10,
48,
20,
-7,
26,
1,
-19,
36,
0,
-28,
3,
15,
14,
-5,
49,
44,
-25,
-18,
-37,
7,
78,
27,
19,
20,
3,
-15,
17,
1,
-27,
1,
-1,
-1,
-38,
21,
86,
-11,
-39,
2,
20,
20,
-14,
7,
8,
-44,
42,
-35,
-63,
-58,
14,
-6,
-38,
-15,
2,
-71,
4,
-32,
-17,
-30,
-51,
-13,
8,
-51,
-19,
15,
-27,
-8,
21,
-16,
40,
54,
67,
32,
74,
-35,
61,
-3,
9,
-10,
-18,
15,
-2,
4,
6,
76,
-8,
16,
-30,
33,
16,
14,
-63,
10,
17,
51,
4,
-89,
-1,
-65,
47,
-39,
13,
-28,
10,
-16,
25,
33,
26,
8,
10,
1,
16,
-19,
-6,
7,
-43,
-58,
-26,
19,
-24,
16,
-71,
30,
88,
71,
-13,
10,
21,
11,
-3,
-42,
10,
-18,
51,
79,
-37,
39,
11,
-7,
28,
6,
9,
27,
-34,
-39,
4,
58,
29,
-35,
-21,
-6,
-25,
-5,
10,
14,
21,
-1,
-3,
-21,
23,
35,
-3,
0,
-31,
-47,
22,
42,
-57,
-15,
-3,
20,
-39,
-38,
-21,
0,
-72,
-19,
-25,
10,
13,
20,
25,
-36,
4,
11,
-45,
0,
13,
64,
72,
-21,
3,
-43,
22,
15,
-47,
85,
-27,
15,
63,
-19,
5,
-21,
-38,
33,
31,
25,
-29,
-12,
-2,
-53,
-27,
-16,
10,
6,
12,
0,
6,
41,
9,
-51,
2,
-8,
37,
13,
-20,
32,
-21,
12,
-38,
4,
47,
-61,
39,
19,
-38,
-20,
0,
10,
40,
3,
8,
77,
2,
10,
20,
69,
-2,
3,
-83,
-29,
-11,
38,
-31,
-10,
30,
-15,
-45,
2,
-11,
-62,
10,
25,
-9,
20,
19,
9,
-20,
-10,
38,
-7,
23,
1,
-21,
-33,
-12,
-19,
21,
-3,
-36,
-39,
9,
-34,
-6,
-22,
-6,
-65,
50,
27,
5,
-15,
-67,
-26,
0,
-40,
51,
22,
-54,
-7,
75,
-21,
8,
-46,
3,
61,
-25,
-76,
-63,
5,
-11,
47,
57,
29,
49,
18,
28,
6,
48,
25,
-19,
41,
-52,
14,
-7,
-33,
-25,
17,
35,
35,
-41,
-19,
3,
20,
-4,
-4,
-51,
4,
0,
65,
68,
-8,
35,
-31,
-44,
16,
-41,
-16,
40,
-31,
17,
-4,
3,
-25,
-23,
-49,
29,
-6,
34,
4,
49,
-24,
-18,
19,
-27,
31,
-11,
-34,
-30,
21,
35,
-11,
23,
-23,
-53,
3,
-12,
-49,
-5,
-32,
-14,
-13,
13,
-89,
33,
-71,
41,
-10,
-37,
-49,
-4,
26,
41,
29,
7,
3,
42,
56,
-38,
-42,
26,
35,
12,
-66,
18,
23,
22,
49,
-12,
-19,
30,
-35,
-20,
58,
5,
-1,
-5,
-20,
-36,
10,
15,
20,
-15
] |
P. J. Duggan, J.
Defendant was convicted of armed robbery following a bench trial. He appeals as of right. Defendant and a co-defendant, Juarez Bolden, were charged with robbing a gas station. An employee of the gas station testified that defendant Johnson was one of the individuals who committed the robbery. Clifford Williams, a fourteen-year-old witness, testified that he was at the gas station the night the robbery allegedly took place; but, contrary to statements he had previously given, Williams initially testified at trial that he could not identify the robbers. At this point the trial judge ordered a recess, and took Williams, the court reporter and the officer in charge into chambers for an in camera hearing. The judge was concerned that someone may have ordered Williams to change his story. After questioning by the judge and the police officer (some of which questioning by the police officer took place out of the presence of the judge and the court reporter), Williams admitted that he had been offered money by the brother of the defendant if he would testify that he could not identify the robbers. He then assured the judge that he would tell the truth while testifying.
In an effort to protect Williams, the court refused to disclose to the prosecutor or the defense attorney what was said during the in camera hearing. The court, however, did indicate to defendant and defense counsel that he would grant a mistrial if one was requested. For "tactical reasons” defendant refused to request a mistrial.
Williams then testified during the bench trial that the defendant was one of the robbers. The court, however, prevented defense counsel from inquiring about any of the discussion that took place in chambers. The court subsequently found defendant guilty of the armed robbery charge.
The only issue raised by appellant is whether defendant is entitled to a new trial because of a violation of his constitutional rights under the Sixth Amendment. US Const, Am VI. Defendant contends that the in camera discussion between the trial judge and the prosecution witness violated his right to have a public trial by an impartial jury and to be confronted by the witnesses against him. Defendant believes that such violation requires the granting of a new trial.
The confrontation clause of the Sixth Amendment requires that "in all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him”. Applicable to the states through the Fourteenth Amendment, the confrontation clause "guarantees a criminal defendant the right , to be present at every stage of his trial, Illinois v Allen, 397 US 339; 90 S Ct 1057; 25 L Ed 2d 353 (1970), and to physically confront and to cross-examine the witnesses against him. Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974).” LaChappelle v Moran, 699 F2d 560, 564 (CA 1, 1983). Because such in camera proceedings during a criminal trial are "manifestly conceptually incompatible with our system of criminal jurisprudence”, close consideration of this question is warranted. United States v Arroyo-Angulo, 580 F2d 1137, 1141 (CA 2, 1978).
A defendant’s right to be present at his trial extends to any stage of his trial that "bears, or may fairly be assumed to bear, a relation, reasonably substantial to his opportunity to defend”. Snyder v Massachusetts, 291 US 97, 106; 54 S Ct 330; 78 L Ed 674 (1934). However, not every aspect of a judicial proceeding is a stage at which the accused must be present. For example, in LaChappelle, supra, where the trial judge in a jury trial sensed that the sixteen-year-old complainant had refused to answer defense counsel’s question because of embarrassment and saw fit to conduct an in camera interview with her out of the presence of counsel and the jury, the appellate court held that the in camera conference was not a stage of the trial at which the confrontation clause gave a right to be present. LaChappelle, however, is distinguishable from the instant case. In LaChappelle, the judge was not the trier of fact and the court specifically noted that "[t]he witness’s response and demeanor were not being judged at the in camera conference”. LaChappelle, supra, p 566. The LaChappelle court specifically noted that "[t]he confrontation clause guarantees a defendant the right of physical presence when a witness’s response and demeanor are being tested before the trier of fact”. LaChappelle, supra, p 566.
Given the fact that Williams was an eyewitness to the armed robbery, his credibility certainly was a significant factor in the decision made by the trier of fact. Certainly, had this same information been conveyed to a jury without the defendant or his counsel being present, a new trial would be mandated. An in camera proceeding before a judge in a bench trial does not require a different result where the information communicated to the judge may well have influenced his decision as the trier of fact.
In this Court’s opinion, defendant’s Sixth Amendment rights were violated. Mr. Williams made statements to the trier of fact during the in camera hearing which the defense was not given any opportunity to refute. The statements made by Mr. Williams could be interpreted as adverse to defendant. Defendant had no opportunity to cross-examine the witness with regard to these statements, nor was the defense even aware of the substance of these statements. This violation of the defendant’s Sixth Amendment rights mandates a new trial.
We believe a new trial is also mandated by reason of the fact that defendant’s rights to due process guaranteed to him under the 14th Amendment of the United States Constitution were violated. The relevant determination under the due process clause is whether the judge’s actions were so egregious and fundamentally unfair as to deprive the defendant of his right to trial based on untainted evidence before an impartial trier of fact. See LaChappelle, supra, pp 566-567.
Generally, courts regard in camera proceedings during criminal trials as improper. Ex parte communications cast a shadow on the impartiality, or at least the appearance of the impartiality, of any judicial proceeding, particularly a bench trial where the judge sits as the trier of fact. Grieco v Meachum, 533 F2d 713 (CA 1, 1976).
In the instant case, the impartiality of the trial judge following the in camera proceeding is clearly in question. The information obtained by the judge during the in camera conference may well have influenced the judge’s opinion of the credibility of the eyewitness testimony. Moreover, the trial judge communicated to defense counsel his concerns about his ability to remain impartial based on the information received in chambers. Because this was a bench trial, defendant’s right to a trial before an impartial trier of fact was jeopardized and he is entitled to a new trial.
The prosecution argues that a new trial should not be granted because defendant was given an opportunity for a mistrial and refused it. He should, therefore, not now be allowed to claim error. We disagree. We recognize that the trial judge was in a difficult position. If he granted the mistrial without defendant’s consent at that stage of the proceedings, defendant might well have been successful in precluding a second trial on the basis of double jeopardy. If he did not grant the mistrial, defendant most certainly would assert his conduct as the basis for a new trial, as he has done. The prosecution contends that defendant should not be able to reject the court’s offer for a mistrial, thereby implying that he is satisfied that the court can be impartial, and then later attack the court’s conduct.
While we do not condone a party’s deliberately refusing to object to "error” and then awaiting an adverse verdict before asserting it as error, we believe the circumstances here should not preclude defendant from now raising this issue. In this case, defendant was never sufficiently informed of what took place during the in camera hearing so as to be able to make an informed choice as to whether to request a mistrial. While the court did suggest that what took place in chambers may have affected his impartiality, defendant did not know why. Defendant may have assumed that what took place in chambers was not significant enough to clearly affect the court’s impartiality. In other words, he may have assumed that the court could set aside what took place in chambers and decide this case in a fair and impartial manner. This defendant chose to be tried without a jury before that judge. Without knowing what took place in chambers, defendant could not make an informed decision as to whether or not to request a mistrial. By refusing the opportunity to obtain a mistrial, defendant did not waive his right to assert a violation of his constitutional rights when the facts of what took place in chambers became known to him.
In reversing the trial court, it is important to note that we find the trial judge’s motives in holding the in camera hearing beyond reproach.
"Judges in our system are not mere bureaucrats. They have the ultimate responsibility to see that a trial is conducted fairly, and in difficult circumstances such as occurred here, they must do what they think right.” LaChappelle, supra, p 567.
The trial judge suspected that a witness may have been threatened. He was faced with a difficult decision and he dealt with it in a manner that he thought was appropriate. His integrity is not in question.
However, for the reasons indicated above, a new trial must be ordered.
Reversed arid remanded for a new trial. | [
22,
-1,
13,
21,
34,
-22,
-77,
4,
-59,
27,
48,
-26,
29,
-36,
16,
-21,
-33,
4,
49,
-78,
-43,
-2,
44,
62,
5,
-6,
10,
61,
-26,
18,
22,
18,
20,
-20,
7,
-38,
79,
43,
28,
82,
29,
12,
-22,
-12,
-22,
-20,
-31,
-5,
41,
14,
33,
-28,
-44,
60,
-39,
0,
-27,
-32,
17,
31,
-13,
54,
-17,
-54,
7,
-21,
-31,
-2,
-11,
-41,
-17,
-63,
-8,
2,
33,
2,
-65,
25,
38,
14,
38,
14,
8,
-34,
-38,
-14,
4,
-76,
-8,
-41,
6,
-27,
-50,
1,
2,
-82,
38,
-30,
15,
-6,
-32,
-61,
-66,
-61,
32,
11,
-23,
2,
-17,
-18,
41,
-22,
27,
3,
1,
-51,
-34,
39,
15,
-4,
1,
28,
14,
-11,
9,
-17,
-23,
-45,
15,
-28,
-18,
61,
-19,
7,
2,
19,
4,
23,
-49,
42,
-3,
18,
8,
-42,
14,
-15,
-49,
38,
20,
53,
-9,
7,
-10,
21,
-38,
9,
-44,
-42,
-38,
12,
-22,
-41,
-14,
-29,
25,
17,
-15,
-8,
-10,
-20,
-7,
10,
31,
43,
-8,
23,
-33,
-9,
20,
-47,
1,
-7,
-41,
3,
3,
13,
-23,
20,
-31,
57,
6,
3,
-49,
-14,
48,
-20,
28,
-37,
-2,
-43,
27,
4,
22,
33,
50,
-10,
26,
-15,
41,
-34,
-4,
3,
-25,
-35,
-45,
-10,
29,
-12,
-9,
36,
16,
0,
-15,
-15,
-40,
-10,
13,
-9,
-30,
18,
35,
-22,
-25,
-3,
-26,
7,
-17,
-100,
40,
-4,
-18,
-43,
24,
-25,
36,
7,
-16,
-25,
16,
2,
0,
4,
0,
11,
-14,
-26,
34,
-33,
-36,
54,
3,
42,
-18,
8,
46,
30,
-22,
23,
11,
56,
-13,
-68,
-18,
-17,
21,
-33,
21,
-33,
-25,
-13,
37,
23,
-6,
-8,
-19,
-61,
-12,
43,
51,
40,
37,
32,
-10,
-18,
47,
-23,
35,
9,
-15,
25,
46,
18,
-27,
-38,
-2,
19,
51,
3,
-42,
-13,
42,
13,
32,
10,
24,
-28,
-26,
44,
36,
-20,
-34,
-47,
-6,
-3,
41,
19,
17,
-7,
37,
-32,
24,
8,
-5,
5,
-30,
-16,
42,
29,
58,
24,
2,
-50,
-21,
-42,
34,
22,
-4,
39,
-55,
-41,
28,
-24,
27,
7,
17,
-25,
-18,
-9,
33,
-39,
25,
-56,
0,
-55,
28,
-40,
-6,
0,
3,
21,
-19,
-73,
-19,
-26,
-17,
5,
76,
-34,
12,
38,
-25,
-24,
-5,
-31,
3,
-27,
-18,
13,
25,
42,
8,
7,
-25,
-48,
-4,
54,
-6,
2,
56,
23,
-38,
-37,
28,
48,
-60,
-22,
-19,
-7,
21,
-9,
45,
46,
-13,
77,
-60,
9,
0,
25,
5,
8,
-42,
-58,
35,
26,
-9,
-9,
-51,
4,
29,
-30,
31,
-55,
0,
-58,
-11,
43,
-49,
-46,
3,
5,
-30,
-11,
-47,
3,
18,
16,
-24,
-40,
4,
1,
-5,
-4,
-8,
-13,
-64,
35,
9,
23,
-3,
25,
1,
-15,
-35,
11,
38,
-39,
-65,
-39,
-8,
18,
90,
16,
-45,
-16,
-30,
-10,
-15,
48,
43,
-2,
31,
22,
-20,
-1,
-21,
-21,
7,
-15,
28,
7,
-12,
-1,
21,
-28,
26,
28,
15,
35,
19,
-2,
-40,
44,
-11,
35,
-20,
-18,
-11,
40,
-1,
28,
34,
35,
-53,
15,
-4,
-52,
-27,
58,
7,
-8,
66,
-11,
5,
15,
-52,
10,
-25,
-11,
-25,
-12,
80,
-20,
49,
-52,
48,
45,
1,
-3,
14,
-7,
1,
11,
-1,
-15,
-3,
-23,
-29,
-29,
37,
10,
82,
4,
15,
-29,
-18,
-4,
-19,
8,
15,
-4,
-15,
52,
74,
76,
14,
0,
11,
-18,
29,
21,
41,
61,
-1,
41,
6,
3,
14,
30,
-31,
21,
-4,
20,
-30,
27,
-39,
-10,
19,
-30,
33,
-17,
-70,
-18,
19,
16,
13,
-32,
9,
-12,
2,
2,
43,
-43,
-39,
-5,
35,
-42,
18,
0,
-24,
51,
30,
33,
-35,
-19,
23,
24,
-39,
7,
-52,
27,
-56,
-3,
-42,
-34,
-12,
29,
-52,
1,
45,
-42,
-36,
-76,
-42,
-7,
16,
-28,
-26,
-9,
-8,
26,
-60,
19,
3,
-32,
15,
-39,
-38,
-15,
-39,
-15,
1,
11,
63,
-7,
20,
19,
-63,
0,
51,
-22,
0,
-2,
-49,
-4,
-3,
40,
15,
-27,
47,
0,
11,
-19,
41,
42,
22,
46,
58,
0,
-39,
-33,
36,
-43,
26,
11,
-29,
4,
-8,
12,
11,
18,
31,
-48,
42,
38,
32,
-30,
38,
-2,
-74,
-2,
-12,
-32,
33,
-19,
-9,
8,
18,
0,
-66,
82,
-19,
17,
-14,
41,
28,
-26,
-46,
2,
15,
26,
-8,
42,
53,
19,
1,
37,
62,
14,
-40,
-58,
38,
0,
-25,
18,
13,
37,
-61,
-14,
3,
-26,
-36,
-13,
2,
-12,
-32,
-1,
24,
-60,
0,
53,
5,
37,
-29,
16,
-83,
43,
15,
-16,
-38,
-16,
-1,
60,
1,
-64,
-50,
-38,
9,
-51,
58,
-9,
-1,
-66,
-10,
14,
-30,
70,
24,
-56,
-12,
-35,
46,
28,
-19,
18,
56,
-25,
26,
-7,
-16,
37,
10,
15,
-39,
53,
24,
13,
-10,
-33,
34,
11,
-69,
-8,
53,
-25,
35,
-15,
20,
13,
-18,
1,
-10,
-18,
-41,
21,
-54,
-21,
-29,
19,
16,
-33,
-15,
19,
38,
-65,
-3,
56,
0,
-79,
20,
-14,
-29,
-20,
34,
56,
0,
-11,
32,
22,
28,
-23,
36,
3,
-9,
21,
16,
10,
-44,
-46,
-18,
-8,
38,
77,
-28,
-13,
-29,
-32,
-36,
25,
-4,
6,
2,
0,
11,
-32,
-31,
19,
-23,
53,
13,
44,
-21,
2,
20,
68,
-35,
42,
-29,
54,
-9,
12,
-4,
-24,
14,
2,
37,
3,
44,
-81,
-7,
-16,
-15,
25,
7,
-12,
-27,
23,
-6,
-4,
13,
-14,
6,
8,
-17,
5,
-5,
-28,
41,
-11,
13,
6,
-3,
3,
36,
-1,
0,
27,
-21,
-19,
26,
-35,
-28,
90,
31,
69,
-16,
-42,
68,
-52,
-6,
11,
10,
-40,
-17,
-45,
-6,
-22,
29,
-43,
0,
5,
-35,
6,
-29,
27,
-15,
-4,
-17,
-10,
11,
18,
-85,
0,
-27,
-28,
-10,
-42,
-5,
45,
26,
-6,
-4,
57,
-13,
2,
-3,
23,
25,
0,
-49,
14,
25,
-18,
-23,
1,
39,
-39,
-28,
14,
-14,
17,
-55,
-23,
-10,
31,
-15,
2,
-24,
33,
-9,
28,
-3,
2,
-12,
63,
-20,
50,
1,
-24,
-31,
15,
-33,
79,
3,
13,
-25,
-1,
-35,
17,
-56,
27,
-12,
-24,
50,
-3,
-2,
10,
37,
-15,
-19,
32,
-14,
64,
-26,
52
] |
On Remand
Before: R. M. Maher, P.J., and Bronson and Cynar, JJ.
Per Curiam.
This Court previously affirmed a judgment in favor of plaintiff against defendant, a staff psychiatrist at Northville State Hospital, 124 Mich App 291; 335 NW2d 481 (1983). The Supreme Court, after its decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), has remanded the case for reconsideration in light of the Ross decision. 422 Mich 875 (1985). Upon reconsideration, we affirm.
In our previous opinion, we held that defendant was not entitled to immunity as a governmental employee under a variant of the "scope of employment” test. Judge Cynar dissented, concluding that defendant was immune under either the scope of employment or discretionary-ministerial standard.
Now that the Supreme Court has required that we reconsider that opinion, it is necessary to set forth the salient points of the Ross opinion as it pertains to this case.
In discussing individual immunity, the Supreme Court recognized its common-law origins, Ross, supra, pp 626-629. The Supreme Court further noted that the doctrine of individual immunity is unaffected by any interpretation of the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., Ross, supra, pp 628-629. Ac knowledging the confusion engendered by its decisions in Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), and Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), the Supreme Court endeavored to set forth clear tests for use in determining the applicability of the doctrine of individual immunity:
"We therefore hold that judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are
"1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
"2) acting in good faith; and
"3) performing discretionary, as opposed to ministerial acts.” Ross, supra, pp 633-634. (Footnote omitted.)
In this case, as in most, it is the final requirement that will prove decisive in determining the applicability of the doctrine. There is no suggestion that defendant was not acting within the scope of his employment and within the scope of his authority or that defendant was not acting in good faith. Unfortunately, the Ross opinion provides no "bright line” standard by which the determination whether an employee was performing a discretionary or ministerial act can be made. The Supreme Court recognized that fact and attempted to offer some direction to assist in making the necessary determination.
First, the Supreme Court in Ross stated that the common definition of discretionary acts "encompasses more than quasi-judicial or policy-making authority”, Ross, supra, p 634. Therefore, the Court utilized the term "discretionary-decisional” as more accurate. Similarly, the Court defined ministerial acts as broader than "those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice”. Id. The Supreme Court explained:
"An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between "discretionary” and "ministerial” acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making.” Ross, supra, pp 634-635.
Implicit in the Supreme Court’s explanation is the recognition that to decide whether or not to engage in a particular activity means that either alternative would be permissible. We conclude that the Supreme Court did not intend to shield from liability persons who were faced with doing something permissible or something impermissible —merely because it was a theoretical option. Where an individual is faced with such a "choice”, we conclude that the Supreme Court intended that situation to be placed in the "ministerial-operational” category. Finally, the Court instructed that "to determine the existence and scope of the individual’s immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined”. Ross, supra, p 635.
In addition to the explanation of its holding offered by the Supreme Court in Ross, supra, we can also obtain guidance from the applications of the discretionary-decisional versus ministerial-operational test in Ross itself.
In the Regulski case, decided with Ross, the Supreme Court identified offering a particular class at school, allowing plaintiff to participate in the class and deciding where and when to conduct the class as discretionary-decisional acts. Instruction and supervision of plaintiff in the class, on the other hand, were ministerial-operational activities "[although some decision-making is involved in these activities”. Ross, p 651. The Court also pointed out that establishing a school’s policy as to safety precautions is a discretionary-decisional act.
In Zavala, another case decided with Ross, plaintiff alleged that certain police officers were negligent in failing to stop a fight involving the brother of plaintiff and in failing to prevent plaintiff’s assailant from shooting plaintiff. The Supreme Court held that the officers’- act — deciding not to deal with the disturbance until backup assistance arrived — was discretionary. The Supreme Court explained:_
"Police officers, especially when faced with a potentially dangerous situation, must be given a wide degree of discretion in determining what type of action will best ensure the safety of the individuals involved and the general public, the cessation of unlawful conduct, and the apprehension of wrongdoers. The determination of what type of action to take, e.g., make an immediate arrest, pursue a suspect, issue a warning, await backup assistance, etc., is a discretionary-decisional act entitled to immunity. Once that decision has been made, however, the execution thereof must be performed in a proper manner, e.g., the arrest must be made without excessive force, the pursuit of the suspect must not be done negligently, the request for assistance must include reasonably accurate information, etc. Since plaintiffs merely alleged negligent performance of a discretionary-decisional act, summary judgment for the individual officers was properly granted.” Ross, supra, pp 659-660.
This view regarding the discretionary nature of certain actions by police officers is consistent with decisions from other states. See, e.g., Everton v Willard, 468 So 2d 936 (Fla, 1985); Marshall v Ellison, 132 Ill App 3d 732; 87 Ill Dec 704; 477 NE2d 830 (1985).
In Willis, another of the cases decided with Ross, the Court concluded that a decision to hire employees was discretionary-decisional, as were decisions about conducting an outing for delinquent and neglected juveniles. The care and supervision of the children during the outing, however, were ministerial-operational acts.
The preceding review of Ross, including the applications of the discretionary-ministerial test in Ross, leads to the conclusion that defendant is not immune.
Plaintiff asserted two distinct acts of negligence. First, plaintiff alleged that defendant failed to exercise reasonable care in the discharge of the son of plaintiff’s decedent in view of the clinical evidence which, according to the relevant standard of care, required that the son of plaintiff’s decedent not be released. Second, plaintiff alleged that the relevant standard of care required defendant to warn plaintiff’s decedent of the danger to her posed by her son in the event of his negligent discharge. It is worth reiterating that the standard by which defendant’s actions must be judged (and it must be assumed that the jury applied this standard) is that of a reasonable psychiatrist practicing medicine in the light of present-day scientific knowledge. See, Swanek v Hutzel Hospital, 115 Mich App 254; 320 NW2d 234 (1982). Consistent with the common law, defendant could not choose to ignore that standard and escape liability for professional negligence. Wood v Posthuma, 108 Mich App 226; 310 NW2d 341 (1981). A professional, otherwise liable because he or she has deviated from the appropriate standard of care, cannot contend that he or she had discretion to violate that standard.
Thus, in terms of Ross defendant was required to be "obedient” to a standard and perform his duties consistent therewith, having "little or no choice” in the matter, the minimal definition of a ministerial-operational activity. As stated in Ross, supra, p 635, ministerial acts "must be performed in a non-tortious manner”. That was the basis of plaintiff’s complaint and the proofs offered at trial. Plaintiff having proved a prima facie case, it was incumbent upon defendant to show that he was nonetheless entitled to immunity. Defendant was unable to make the requisite showing.
It may be argued that this court’s holding means that a licensed professional is never entitled to immunity for acts of professional negligence and for this reason is at variance with the purpose of individual immunity as stated by the Supreme Court in Ross:
"Individual immunity exists to ensure that a decision maker is free to devise the best overall solution to a particular problem, undeterred by the fear that those few people who are injured by the decision will bring suit. We therefore will no longer define the parameters of individual immunity with reference to whether the tortfeasor was engaged in the exercise or discharge of a governmental function.” Ross, supra, p 631.
However, we believe that it is not possible to focus on that single paragraph and thereby ignore the rest of the Ross opinion. For, in addition to the lengthy discussion of the discretionary-decisional versus ministerial-operational standard (set forth in this opinion, supra), the Supreme Court concluded its treatment of individual immunity as follows:
"Under the rules set forth today, it is obvious that the immunity extended to individuals is far less than that afforded governmental agencies. We believe that this was the result intended by the Legislature. The threat of personal liability for engaging in ultra vires activities or tortiously executing one’s duties may be the most effective way of deterring improper conduct.” Ross, supra, p 635. (Emphasis added.)
The Supreme Court’s carefully drafted opinion clearly represents a desire to give vent to both considerations, which are not irreconcilable. Thus, where an individual is faced with making a decision in the absence of guidelines or duties prescribed by statute, regulation, or the common law, and the threat of a lawsuit may result in excessive caution on the part of the individual, then the individual is to be accorded immunity. However, where an individual is faced with a situation covered by guidelines or duties imposed by statute, regulation or the common law, the individual is not accorded immunity in an attempt to insure the nontortious performance of those duties. This case falls in the latter category.
Affirmed.
The subject of legal malpractice will help illustrate this conclusion. Having decided to file a lawsuit on an apparently valid claim, an attorney has discretion in deciding on what day that lawsuit is to be commenced within the applicable statute of limitations. However, it is incomprehensible to suggest that an attorney has discretion to file a lawsuit after the expiration of the statute of limitations. Similarly, an attorney at trial has discretion regarding the presentation of evidence and the sequence of witnesses called to testify. However, an attorney, consistent with the applicable standard of care, cannot fail to present available evidence necessary to prove an element of the cause of action alleged.
In addition to the Ross case itself, the Supreme Court opinion in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), encompassed the following cases: Willis v Dep’t of Social Services, 113 Mich App 30; 317 NW2d 273 (1982); Siener v Dep’t of Mental Health, 117 Mich App 179; 323 NW2d 642 (1982); Rocco v Dep’t of Mental Health, 114 Mich App 792; 319 NW2d 674 (1982); Regulski v Murphy, 119 Mich App 418; 326 NW2d 528 (1982); Trezzi v Detroit, 120 Mich App 506; 328 NW2d 70 (1982); Disappearing Lakes Ass’n v Dep’t of Natural Resources, 121 Mich App 61; 328 NW2d 570 (1982); Zavala v Zinser, 123 Mich App 352; 333 NW2d 278 (1983).
The relevant standard of care included following criteria set forth in the Mental Health Code. See MCL 330.1401; MSA 14.800(401). Both experts agreed that John Patterson met the criteria of a person who should not be discharged.
Neglience (including professional negligence) may be described as "a species of a generic action based in torts”, Maki v City of East Tawas, 385 Mich 151; 188 NW2d 593 (1971).
As stated earlier in the text, in Ross, supra, the Supreme Court stated that the doctrine of individual immunity arose out of the common law and is unaffected by any interpretation of the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. As with any other common-law affirmative defense, it is the proponent of the defense that has the burden of demonstrating its applicability. Tuttle v Brown, 131 Mich App 256; 346 NW2d 87 (1983). The jury’s verdict indicated that defendant did not meet his burden.
We emphasize, however, that this opinion should not be read as suggesting that a ruling on the question of immunity can only be made after trial in a professional negligence case. Under MCR 2.116, if the defendant can prove that there is no material question of fact as to the lack of a recognized standard of professional conduct, then the defendant is entitled to summary judgment in his or her favor on the question of immunity. | [
-1,
-62,
11,
-18,
9,
-21,
-8,
-31,
-47,
41,
-2,
-1,
22,
-19,
-17,
-36,
-32,
21,
-10,
0,
5,
42,
-22,
50,
-34,
-50,
26,
23,
-25,
49,
15,
-28,
-5,
-36,
-29,
-35,
44,
-5,
1,
-4,
18,
22,
-6,
-37,
0,
-19,
12,
12,
-31,
2,
35,
53,
-30,
29,
-10,
-34,
-1,
18,
-26,
10,
-23,
35,
1,
-16,
44,
11,
7,
-6,
29,
-7,
15,
26,
-16,
-54,
12,
8,
-22,
0,
32,
-22,
0,
7,
11,
-30,
25,
48,
-11,
12,
-11,
10,
20,
-36,
-37,
-49,
-1,
46,
4,
-33,
40,
-15,
-26,
-4,
-9,
-6,
51,
-5,
1,
28,
-2,
9,
41,
-12,
-51,
-29,
0,
-21,
-9,
20,
-34,
93,
-4,
31,
48,
-10,
11,
-13,
-19,
-27,
6,
57,
7,
53,
17,
-17,
17,
14,
19,
1,
56,
-37,
-68,
-20,
0,
5,
8,
0,
-5,
-5,
27,
-7,
0,
-36,
-6,
3,
-17,
27,
50,
-56,
23,
32,
25,
-14,
9,
21,
9,
-3,
-31,
-64,
-2,
-56,
70,
5,
20,
29,
40,
-3,
-11,
-12,
-37,
-6,
-48,
8,
2,
34,
-31,
-9,
4,
0,
-35,
59,
-21,
-46,
14,
-14,
53,
5,
22,
52,
-15,
-28,
-13,
-24,
23,
30,
37,
-29,
29,
-56,
-5,
-23,
-35,
-24,
-18,
-58,
12,
-17,
-4,
-10,
-13,
46,
6,
8,
4,
-4,
-48,
-49,
-51,
50,
19,
-27,
1,
-50,
-55,
20,
-3,
4,
14,
-23,
60,
-30,
-41,
26,
56,
-5,
-21,
39,
3,
-23,
23,
30,
76,
-26,
38,
-15,
-23,
-29,
11,
15,
2,
-37,
11,
34,
-51,
-1,
-10,
53,
32,
49,
-1,
5,
-52,
25,
26,
-1,
-4,
-52,
37,
-18,
-10,
-49,
-19,
34,
-5,
45,
-9,
-15,
9,
-39,
16,
-26,
46,
22,
11,
22,
23,
14,
57,
16,
10,
38,
-18,
41,
-22,
19,
-29,
52,
7,
17,
0,
-41,
26,
19,
27,
-57,
16,
-16,
-84,
-15,
51,
-60,
-53,
-24,
26,
-54,
-59,
-33,
-1,
-31,
-5,
-25,
-14,
-17,
25,
44,
5,
-12,
-22,
23,
35,
16,
-27,
-1,
16,
-22,
-13,
2,
-19,
24,
18,
-5,
41,
1,
-3,
21,
21,
-15,
4,
-4,
-12,
-9,
-29,
12,
-21,
14,
-15,
-17,
-32,
-33,
-13,
21,
28,
-5,
-4,
-1,
6,
55,
-23,
38,
13,
19,
-56,
-10,
35,
-4,
-9,
-27,
-6,
37,
0,
-21,
-44,
-17,
-14,
32,
-82,
21,
15,
8,
47,
39,
20,
9,
16,
14,
8,
10,
-44,
-40,
-34,
30,
-64,
64,
-14,
25,
2,
-25,
15,
-30,
20,
-73,
20,
-9,
20,
-19,
54,
-31,
-28,
4,
24,
1,
-15,
-40,
16,
-56,
-42,
-16,
-40,
-54,
-25,
1,
-49,
-14,
-72,
-28,
-23,
1,
23,
-1,
15,
-3,
33,
0,
-38,
-15,
-75,
-17,
-16,
-29,
-22,
-42,
-1,
-57,
-24,
-15,
26,
-32,
-12,
27,
35,
-52,
36,
-24,
-5,
74,
-34,
-23,
-5,
30,
1,
-6,
23,
17,
45,
-4,
-8,
11,
-28,
-25,
-2,
11,
21,
1,
10,
22,
-12,
27,
13,
-46,
-44,
21,
0,
8,
22,
-56,
24,
-32,
22,
-27,
-15,
36,
-23,
2,
22,
114,
8,
-33,
-12,
19,
57,
-16,
18,
-1,
11,
-8,
-12,
22,
-47,
0,
-1,
13,
16,
2,
23,
2,
8,
15,
-10,
6,
14,
-60,
15,
10,
39,
9,
-3,
-48,
-8,
5,
1,
29,
-26,
5,
7,
2,
24,
-23,
-30,
22,
29,
13,
-27,
28,
68,
-12,
-18,
-11,
-57,
-7,
58,
1,
38,
-9,
32,
9,
17,
32,
26,
22,
-39,
-28,
2,
7,
16,
-7,
-34,
-43,
33,
-34,
37,
0,
-47,
31,
-13,
2,
-2,
-31,
14,
-48,
31,
26,
7,
13,
-4,
48,
18,
33,
31,
-21,
45,
21,
37,
15,
-14,
-40,
-20,
-31,
-40,
27,
16,
-11,
-42,
-12,
-28,
-47,
1,
-21,
-13,
20,
19,
-6,
-1,
-29,
-70,
-6,
-27,
11,
5,
-24,
-9,
-30,
-48,
41,
35,
15,
15,
1,
49,
29,
-16,
-16,
0,
82,
16,
-9,
-40,
-11,
3,
-41,
4,
-18,
25,
-27,
7,
24,
-16,
51,
27,
-40,
-6,
-6,
19,
14,
31,
28,
82,
-44,
18,
-48,
-6,
-6,
-43,
-13,
-28,
13,
-10,
12,
-25,
2,
0,
21,
2,
50,
-16,
24,
-17,
-29,
13,
-2,
-3,
13,
-54,
12,
-1,
-19,
-47,
17,
-1,
-40,
-12,
-18,
15,
-20,
-67,
0,
-8,
5,
-35,
-34,
-27,
10,
23,
5,
37,
43,
21,
14,
-3,
12,
-19,
-1,
-15,
-36,
-45,
19,
-11,
28,
19,
30,
4,
16,
26,
44,
12,
15,
-39,
9,
26,
-14,
44,
19,
-60,
24,
-25,
-17,
-39,
54,
8,
16,
-25,
14,
40,
6,
-23,
23,
10,
-46,
27,
-42,
-27,
-1,
7,
-21,
4,
26,
-2,
47,
-25,
-27,
-57,
-14,
0,
24,
15,
-8,
14,
-62,
-22,
-50,
-40,
13,
3,
-18,
17,
20,
58,
22,
29,
-24,
3,
42,
-13,
-6,
-35,
26,
16,
0,
-15,
7,
28,
12,
39,
-17,
-8,
12,
5,
36,
6,
-9,
-39,
-62,
-23,
19,
-26,
-19,
-46,
41,
32,
-25,
51,
11,
-54,
37,
-78,
19,
-16,
11,
-18,
22,
0,
27,
20,
9,
-2,
51,
18,
53,
9,
15,
1,
16,
-7,
13,
-2,
15,
2,
-19,
12,
-11,
2,
73,
28,
30,
0,
-9,
9,
33,
-4,
-49,
58,
-11,
-68,
-11,
47,
-34,
-40,
25,
7,
21,
-22,
27,
35,
29,
2,
-34,
22,
8,
33,
-16,
19,
-6,
68,
29,
-7,
45,
-37,
-3,
-32,
32,
11,
-54,
-33,
-17,
42,
17,
26,
1,
-39,
13,
6,
4,
-10,
7,
58,
32,
19,
24,
-32,
-14,
49,
-47,
-5,
34,
37,
-18,
-57,
-22,
-7,
-26,
-21,
17,
-12,
-4,
-34,
28,
10,
-39,
20,
0,
-40,
-12,
-43,
-18,
-37,
50,
-17,
-6,
-7,
-31,
-4,
-30,
8,
-25,
34,
42,
-60,
-54,
-23,
30,
7,
-24,
-5,
52,
-31,
46,
-25,
13,
-69,
-26,
-15,
4,
2,
2,
43,
-11,
5,
-17,
-33,
0,
-24,
49,
0,
-34,
30,
18,
26,
11,
-17,
-23,
-9,
-33,
22,
6,
22,
37,
0,
2,
-54,
2,
-1,
17,
29,
21,
-66,
27,
-17,
-32,
10,
0,
-21,
5,
26,
28,
32,
-71,
11,
27,
32,
2,
-66,
1,
9,
55,
-24,
-12
] |
Per Curiam.
Pursuant to defendant’s pretrial motions, the trial court issued written orders striking plaintiff’s demand for a jury trial and prohibiting plaintiff from collecting any damages or presenting any evidence of damages accruing after the date of his retirement. Plaintiff was granted leave to appeal the interlocutory orders.
Plaintiff began working for Chrysler on July 24, 1950. He was originally employed as an ornamental model maker and worked in that capacity until July 9, 1980, when, at the age of 65, he was permanently laid off. He subsequently retired, the effective date of retirement being February 28, 1983. On August 24, 1977, plaintiff had filed a complaint in Wayne County Circuit Court against defendant, the UAW and a union steward alleging that the defendants wrongfully discriminated against plaintiff in certain hiring practices on the basis of age contrary to the provisions of the fair employment practices act. The claims against the union and union steward were settled. On August 9, 1982, plaintiff was permitted to amend his complaint to substitute the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., for the fair employment practices act.
Plaintiff first argues that the trial court erred in striking plaintiff’s demand for a trial by jury. We agree.
In two recent cases, this Court held that jury trials are a litigant’s right under the Elliott-Larsen Civil Rights Act. King v General Motors Corp, 136 Mich App 301, 308-309; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985); Lindsey Smith v The University of Detroit, 145 Mich App 468; 378 NW2d 511 (1985). We are persuaded by the logic of King and Smith and believe that logic to be equally applicable to the instant age discrimination claim under the act. See generally, Holmes v Haughton Elevator Co 404 Mich 36; 272 NW2d 550 (1978). We therefore reverse the trial court and reinstate plaintiff’s demand for a jury trial.
Plaintiff next argues that the trial court erred in prohibiting plaintiff from presenting evidence of damages accruing subsequent to his date of retirement. We again agree.
Prior to trial, defendant brought a motion in limine requesting the court to find that plaintiff could not recover damages for the alleged discrimination after the date of his retirement. A hearing was held on April 13, 1983, and in a written opinion dated May 18, 1983, the court granted defendant’s motion. The court found that since "no one told plaintiff to retire” and plaintiff "had retired in order to collect retirement benefits”, the plaintiff had "voluntarily” retired and was not, as a matter of law, entitled to damages accruing after the date of his retirement.
MCL 37.2801(3); MSA 3.548(801X3) provides that damages may be recovered for any "injury or loss caused by each violation of this act”. This section has been interpreted to include any damages which "flow” from the discrimination.. Slayton v Michigan Host, Inc, 122 Mich App 411, 417; 332 NW2d 498 (1983). Such damages may include damages for humiliation, embarrassment, outrage and disappointment as well as loss of wages, loss of pension rights and employee benefits, loss of seniority and loss of employment. Slayton, supra. Under this standard, the court should have considered not whether plaintiff retired in order to collect benefits but rather whether the loss of wages and pension rights which followed his retirement were damages which "flowed” from the actual discrimination injury, i.e., the hiring of younger personnel and transfer of plaintiff’s work to other units, and the permanent layoff. The court’s emphasis on voluntariness is incorrect.
Defendant’s reliance on Richardson v Restaurant Marketing Associates, Inc, 527 F Supp 690 (ND Cal, 1981), is misplaced. Although the court in Richardson acknowledged the general rule that back pay was not available if the claimant left the job for a reason unrelated to the illegal conduct of the employer, it found that the rule was not applicable since the plaintiff’s resignation was the result of the alleged civil rights violation. Richardson■, if properly examined, supports plaintiff’s claim that the court must look beyond the "volun tariness” of the resignation or retirement to the underlying cause. Under this analysis, the trial court should have considered whether the alleged discriminatory layoff resulted in the retirement. That is, whether the retirement was a natural consequence which flowed from the discriminatory act.
Finally, while it is apparent that defendant did not physically coerce or force plaintiff to resign, voluntariness would clearly not require such extreme circumstance. If, as plaintiff alleges, his permanent layoff caused economic hardships which in turn caused him to retire, sufficient circumstances would be presented to negate a claim of voluntariness. We would additionally note that the issue of damages and whether the retirement and loss of wages and benefits which ensued were damages which flowed from the alleged discrimination are questions of fact to be determined by a jury!
Reversed. | [
16,
37,
-26,
27,
-8,
2,
0,
-10,
-47,
57,
-15,
-15,
31,
-34,
32,
-17,
16,
13,
-5,
-12,
-39,
-58,
1,
-50,
10,
5,
-22,
7,
-3,
0,
-5,
18,
-20,
-16,
-44,
-7,
-9,
26,
-19,
32,
13,
-3,
39,
-8,
-64,
-28,
21,
2,
26,
-24,
21,
23,
-17,
12,
20,
-5,
19,
-40,
-26,
37,
-20,
17,
23,
-21,
51,
-2,
29,
39,
-10,
-4,
-34,
1,
16,
9,
9,
-61,
-50,
26,
-27,
14,
6,
-66,
24,
-9,
-40,
15,
18,
30,
-11,
-28,
-68,
-2,
-78,
-1,
-46,
43,
29,
3,
57,
-25,
19,
-5,
16,
-13,
-26,
-13,
-50,
14,
4,
46,
35,
-14,
26,
35,
-30,
-14,
7,
0,
-1,
30,
22,
-2,
18,
25,
-14,
12,
33,
-25,
-6,
42,
5,
44,
31,
-8,
25,
15,
34,
3,
-44,
-6,
-8,
28,
-7,
-21,
1,
13,
-18,
42,
-6,
-25,
-1,
34,
6,
36,
12,
-11,
-10,
-15,
51,
14,
4,
-4,
-21,
-5,
0,
23,
-16,
7,
46,
-7,
27,
-39,
55,
-47,
34,
33,
3,
14,
-31,
-37,
-78,
14,
-26,
-7,
6,
-50,
-14,
-26,
15,
23,
-4,
-3,
12,
40,
5,
56,
22,
14,
-37,
22,
41,
-21,
-6,
-39,
-3,
47,
23,
-32,
24,
57,
-27,
43,
-10,
-47,
-30,
28,
-20,
-1,
23,
-42,
4,
-21,
-10,
10,
-24,
-65,
-8,
-54,
70,
-14,
4,
2,
2,
2,
-42,
-48,
25,
16,
63,
23,
2,
-32,
20,
-42,
-59,
-12,
-62,
6,
59,
37,
10,
1,
21,
46,
-38,
-65,
-36,
-25,
32,
-1,
-19,
57,
-46,
-24,
13,
22,
-11,
55,
-10,
-16,
-63,
-30,
45,
13,
-30,
-44,
-43,
-5,
13,
-14,
-75,
7,
-18,
-27,
-16,
11,
42,
-32,
-39,
8,
35,
37,
-26,
23,
45,
-13,
20,
8,
-1,
18,
11,
-21,
-31,
-21,
-2,
-6,
-56,
-33,
-3,
-18,
-54,
-42,
27,
-27,
-9,
5,
-36,
17,
45,
-86,
47,
-1,
-4,
19,
-5,
-4,
14,
-44,
9,
-24,
-12,
1,
-30,
35,
19,
-43,
25,
33,
10,
34,
56,
24,
-10,
10,
2,
-1,
31,
-4,
21,
-39,
28,
3,
-13,
-17,
34,
40,
20,
-24,
-13,
-2,
33,
-30,
21,
-20,
1,
21,
-45,
-31,
-18,
55,
-33,
-15,
-8,
-23,
-35,
1,
-9,
-9,
6,
55,
2,
-36,
28,
-26,
-22,
46,
-12,
10,
-37,
-12,
-76,
5,
-22,
18,
-34,
64,
39,
-6,
-8,
44,
-37,
-4,
-26,
-18,
-14,
-23,
27,
18,
-10,
41,
39,
10,
48,
39,
7,
-44,
20,
-30,
-16,
25,
59,
-34,
-27,
11,
17,
-22,
6,
9,
47,
0,
-31,
15,
12,
-60,
16,
16,
-41,
-7,
0,
33,
-50,
-10,
-7,
-45,
16,
9,
-10,
13,
51,
-14,
17,
48,
49,
-10,
17,
-37,
25,
36,
-8,
-5,
-46,
-5,
-29,
-22,
-11,
-27,
-31,
5,
16,
35,
-8,
2,
-21,
33,
-11,
-31,
11,
-19,
36,
-24,
-5,
9,
-8,
-14,
-68,
-12,
17,
-59,
-21,
-24,
8,
0,
-16,
-7,
-28,
33,
-31,
22,
-20,
-1,
-41,
-13,
17,
-16,
40,
-24,
12,
-42,
-18,
6,
-35,
-12,
40,
52,
26,
-26,
-13,
17,
-24,
4,
-54,
9,
-8,
13,
-30,
-41,
-20,
-2,
-3,
-15,
68,
17,
23,
-61,
22,
49,
10,
-25,
-26,
-21,
-29,
26,
1,
13,
15,
-5,
19,
12,
30,
23,
43,
-28,
5,
12,
20,
29,
9,
8,
44,
-65,
19,
18,
35,
60,
-4,
-5,
-22,
11,
51,
19,
-22,
27,
20,
33,
18,
25,
38,
33,
-27,
-26,
-1,
16,
11,
-29,
-28,
-75,
26,
5,
27,
18,
-36,
-32,
-31,
-35,
6,
-9,
36,
-14,
0,
6,
-4,
-33,
-64,
16,
-49,
14,
-16,
23,
29,
-28,
-1,
6,
0,
-51,
0,
-58,
-20,
18,
46,
48,
21,
10,
37,
-17,
13,
19,
36,
8,
-5,
-49,
29,
-21,
-39,
-33,
-11,
14,
25,
48,
25,
-33,
15,
-17,
64,
-4,
-11,
-86,
39,
4,
-37,
-46,
2,
43,
23,
-37,
20,
-40,
47,
1,
-4,
-41,
-19,
-3,
-43,
-4,
40,
30,
14,
-15,
-26,
-33,
3,
35,
47,
66,
24,
13,
-60,
16,
-32,
0,
-47,
5,
54,
33,
18,
7,
53,
-27,
4,
-10,
22,
45,
0,
-4,
19,
40,
45,
10,
-30,
-9,
-37,
15,
4,
-4,
-16,
12,
-60,
15,
38,
-2,
-39,
-20,
23,
-15,
-5,
37,
-72,
-27,
-10,
-30,
2,
-18,
-33,
-2,
1,
23,
5,
-4,
-9,
20,
26,
33,
-9,
7,
-18,
-9,
16,
-31,
-34,
-9,
61,
12,
43,
-5,
-18,
-8,
7,
-17,
4,
8,
-24,
16,
-12,
47,
-1,
33,
21,
2,
-38,
-6,
-19,
13,
15,
0,
-3,
-9,
2,
-9,
27,
-14,
-3,
-6,
38,
-57,
25,
-17,
26,
-12,
-9,
9,
-6,
24,
30,
17,
-36,
-37,
68,
-9,
-15,
10,
7,
-29,
-34,
-17,
-22,
-11,
36,
-32,
36,
-28,
-9,
40,
8,
39,
-18,
-63,
14,
-39,
4,
-49,
-13,
23,
-17,
-21,
-47,
-12,
-18,
31,
-3,
8,
27,
39,
-20,
-28,
21,
-18,
-9,
-49,
24,
33,
35,
-19,
-6,
13,
-44,
18,
45,
35,
47,
17,
-7,
-4,
-21,
47,
32,
23,
-6,
29,
10,
-40,
0,
-1,
-10,
-7,
-2,
27,
2,
-36,
31,
-32,
-30,
-5,
-33,
-13,
40,
30,
-125,
-26,
26,
-15,
26,
-42,
14,
-30,
-76,
22,
1,
26,
-2,
4,
32,
-17,
7,
-16,
12,
38,
41,
-24,
-36,
30,
18,
23,
24,
-22,
4,
22,
33,
23,
18,
-40,
-29,
41,
2,
30,
21,
-3,
10,
-41,
-75,
16,
-5,
2,
-13,
-11,
66,
-2,
-29,
37,
54,
8,
32,
-27,
-42,
-68,
27,
13,
53,
0,
-3,
23,
9,
-4,
16,
-15,
27,
4,
-15,
-58,
-41,
32,
-67,
2,
-27,
0,
-36,
-44,
-72,
21,
-24,
37,
-45,
-20,
12,
30,
-16,
-11,
-14,
8,
15,
2,
4,
-41,
83,
6,
56,
-16,
32,
-23,
-6,
1,
35,
-46,
28,
-47,
-21,
19,
25,
39,
-16,
-21,
-26,
-5,
-4,
18,
11,
-25,
-20,
1,
-15,
4,
21,
-14,
21,
3,
-3,
1,
-38,
7,
41,
27,
22,
42,
11,
-17,
16,
17,
55,
-46,
-14,
32,
24,
-36,
4,
-19,
40,
36,
-29,
-49,
0,
-31,
3,
-6,
5,
-26
] |
Per Curiam.
Plaintiff appeals as of right from the order of summary judgment that fixed defendant St. Paul Fire and Marine Insurance Company’s liability at a maximum of $10,000. This action arose from a boating accident. Thea Marie Sigmann was struck by a speedboat while waiting to water ski, resulting in the amputation of her left leg. She filed suit against the boat operator (Paul Nida), the boat retailer (James Klym, doing business as Custom Speed Marine, plaintiff herein), the boat manufacturer and St. Paul Fire and Marine Insurance Company. Ms. Sigmann obtained a mediation award of $500,000, Nida being liable for $300,000 and plaintiff being liable for $200,000. The insurance company obtained a summary judgment that it was only liable for $10,000 on its insurance contract with Nida.
Plaintiff then initiated this action in an attempt to receive a declaratory judgment that the insurance company was liable for $300,000. The trial court held otherwise. On appeal plaintiff contends that the court erred in holding that the special water skiing limitation language of the insurance policy issued to Nida was unambiguous, that the water skiing limitation is against public policy, that the insurance company’s agent was negligent in providing the coverage requested by the insured and that the insurer was thereby liable for the full amount of Nida’s liability, and that the cost of defending Nida in the suit brought by Sigmann should not be deducted from the amount that the insurance company must pay.
Plaintiff argues that the water skiing limitation language in the insurance policy issued by defendant insurer is ambiguous. We do not agree. The policy clearly states that when the boat is being utilized in water skiing or a similar activity that the insurance coverage is reduced to a maximum of $10,000. Even the application had the box checked for the $10,000 water skiing limitation. The fact that the injured person was not a member of Nida’s party is irrelevant. We find that there is only one reasonable interpretation.
"[I]f a contract, however inartfully worded or clum sily arranged, fairly admits of but one interpretation it may not be said to be ambiguous or, indeed, fatally unclear.” Raska v Farm Bureau Ins Co, 412 Mich 355, 362; 314 NW2d 440 (1982).
Plaintiff contends that this policy did not meet Nida’s expectations.
"[T]he expectation that a contract will be enforceable other than according to its terms surely may not be said to be reasonable. * * *
"[T]o allow such a person to bind another to an obligation not covered by the contract as written because the first person thought the other was bound to such an obligation is neither reasonable nor just.” 412 Mich 362-363.
We believe a fair reading of the entire contract leaves no doubt that any accident which occurred while the boat was engaged in water skiing had a maximum insurance coverage of $10,000.
Plaintiff next argues that the $10,000 limitation violates public policy. Michigan does not require private pleasure boats to have liability insurance. See MCL 281.561 et seq.; MSA 18.1251 et seq., MCL 281.1001 et seq.; MSA 18.1287(1) et seq., and MCL 500.1 et seq.; MSA 24.1100 et seq. As there are no statutory regulations which would prohibit the water skiing limitation, we cannot find such a provision to be contrary to public policy. The insured could have purchased extra insurance for an additional fee. In the absence of legislative limitations, the insured and the insurer are free to provide and agree to whatever conditions they see fit. See Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118; 301 NW2d 275 (1981).
Plaintiff alleges that he should be entitled to a declaratory judgment that Nida had $300,000 of liability insurance. He argues that the insurer is responsible for the negligent acts of its agent in failing to secure the insurance requested by Mr. Nida. While Mr. Nida may have such a claim, we can find no authority that would permit the plaintiff, who is a complete stranger to the contract, to sue for reformation so that the contract would be more beneficial to himself. Furthermore, the plaintiff cannot bring a negligence action against the insurance company. Plaintiff has not shown that the insurance company owed a duty to him to provide $300,000 of liability insurance for Mr. Nida. Ziginow v Redford Jaycees, 133 Mich App 259, 262; 349 NW2d 153 (1983). Plaintiff has cited no case law that supports a cause of action for him against Nida’s insurer and we decline to create such an action.
Plaintiff alleges that it was error to hold that the liability limit included the cost of Nida’s defense in the Sigmann action. This is not a situation where the insurer did not defend the insured. See Stockdale v Jamison, 416 Mich 217, 225; 330 NW2d 389 (1982). The insurance company did indeed defend Mr. Nida in a situation where the claim exceeded the policy limits. Palmer v Pacific Indemnity Co, 74 Mich App 259, 263; 254 NW2d 52 (1977). Therefore the insurance company was not in breach. Our review of the policy reveals that it does clearly state that the costs of defense are included in the liability amount.
"As a general rule, it is the court’s duty to ascertain the meaning which the insured would reasonably expect from the language of the contract. If the language is clear and unequivocal, the court will enforce its terms and will not rewrite the contract.” Farm Bureau Ins Co v Hoag, 136 Mich App 326, 332; 356 NW2d 630 (1984).
Accordingly, we find no error in the trial court’s granting summary judgment.
Affirmed. Costs to appellee._
Had the insurance company failed to defend its insured as promised, their liability might well exceed policy limits. Stockdale, supra, p 225. | [
-22,
27,
-11,
3,
20,
29,
76,
26,
-27,
11,
11,
26,
37,
9,
0,
-3,
-12,
-5,
-32,
10,
3,
-19,
-87,
25,
-47,
-27,
35,
-34,
23,
-3,
28,
8,
-19,
0,
-50,
37,
-38,
54,
-41,
23,
16,
-59,
64,
-5,
29,
-25,
24,
-5,
27,
9,
39,
10,
-8,
-9,
0,
29,
38,
18,
-25,
-21,
-67,
-66,
44,
60,
39,
-11,
8,
32,
38,
-8,
-14,
71,
-22,
29,
-9,
-1,
5,
56,
-41,
-6,
-31,
-3,
10,
-32,
-20,
36,
-58,
-23,
39,
-19,
-60,
-26,
-46,
-21,
-62,
34,
19,
-20,
11,
39,
22,
-16,
35,
40,
-41,
17,
-34,
-21,
7,
34,
11,
51,
2,
-50,
35,
-50,
-22,
41,
75,
21,
-30,
28,
43,
-36,
-5,
-9,
19,
13,
-41,
10,
-38,
-20,
-31,
70,
20,
-6,
-62,
-16,
35,
-10,
46,
-3,
0,
8,
-11,
58,
54,
-41,
7,
-23,
-34,
47,
25,
-19,
-13,
-10,
-27,
-43,
65,
-33,
11,
-56,
-16,
1,
-40,
-28,
51,
19,
19,
4,
53,
-10,
-3,
-30,
48,
39,
62,
-31,
8,
20,
-12,
23,
2,
-5,
-8,
-24,
-8,
-17,
-40,
38,
34,
-82,
-29,
37,
-24,
1,
25,
85,
4,
-37,
29,
-40,
-28,
38,
32,
-20,
-2,
-14,
-26,
-11,
28,
-26,
-17,
-55,
-18,
33,
-26,
1,
-86,
-56,
-13,
33,
-10,
-30,
-46,
-67,
-36,
-35,
29,
-22,
-17,
-40,
-25,
39,
-16,
-4,
43,
25,
27,
-62,
-1,
65,
-36,
-16,
18,
-15,
-27,
-27,
5,
-16,
-13,
-55,
69,
22,
-2,
-16,
-6,
-35,
-59,
39,
-9,
4,
-19,
-7,
-5,
10,
8,
-20,
3,
0,
29,
37,
32,
-80,
-16,
-86,
7,
12,
1,
30,
14,
37,
-41,
-34,
-98,
-14,
-2,
7,
12,
31,
20,
45,
30,
-14,
50,
-30,
-4,
-83,
-19,
-28,
-23,
-63,
51,
28,
25,
-38,
-39,
12,
-22,
10,
-57,
17,
-28,
-30,
0,
2,
-42,
-19,
-13,
-40,
8,
69,
15,
47,
-55,
-59,
17,
-12,
-8,
26,
-83,
27,
-41,
6,
12,
-42,
36,
-34,
-31,
34,
7,
31,
-8,
-40,
-48,
38,
61,
12,
27,
3,
-55,
49,
28,
10,
-42,
9,
50,
-23,
-40,
68,
24,
4,
22,
-44,
50,
0,
40,
40,
-12,
60,
-11,
26,
11,
-18,
4,
-28,
5,
66,
-49,
15,
17,
-17,
38,
-27,
28,
25,
-24,
-37,
3,
-4,
-39,
-17,
-24,
16,
-37,
4,
-58,
5,
-15,
-9,
58,
6,
37,
-28,
-26,
10,
17,
-43,
-30,
30,
-45,
-35,
49,
-5,
-1,
41,
43,
-29,
-7,
-20,
17,
19,
17,
-22,
5,
-62,
54,
8,
-4,
-36,
-27,
43,
-47,
-30,
-3,
-27,
-40,
-37,
12,
-9,
23,
-2,
-38,
-31,
-19,
-22,
-2,
-23,
24,
-70,
42,
30,
9,
28,
-5,
18,
-26,
-17,
-35,
-22,
-19,
-2,
5,
-3,
2,
-4,
-5,
13,
86,
-42,
-20,
6,
-7,
8,
22,
-12,
-17,
14,
-31,
-6,
-41,
15,
4,
-16,
-7,
-44,
0,
33,
-1,
0,
29,
1,
13,
-37,
-32,
12,
-28,
42,
-14,
-47,
-16,
-39,
32,
35,
-11,
-10,
23,
-10,
39,
13,
17,
6,
38,
20,
-25,
0,
-6,
-25,
17,
17,
-6,
-5,
-39,
2,
-37,
-31,
-37,
-23,
3,
7,
49,
19,
26,
-99,
-6,
10,
3,
-6,
0,
15,
-2,
43,
-16,
0,
26,
1,
-4,
21,
76,
-16,
15,
-26,
44,
24,
44,
54,
21,
-24,
5,
-13,
-1,
59,
-25,
6,
46,
1,
21,
-43,
15,
-48,
-27,
16,
-8,
-8,
-43,
7,
1,
-8,
-66,
5,
-58,
4,
-4,
-17,
-39,
-10,
35,
-3,
-6,
-46,
10,
-25,
24,
12,
-9,
-6,
6,
-12,
0,
-33,
-40,
23,
-28,
-5,
36,
-3,
-45,
-7,
51,
0,
-1,
10,
-4,
0,
24,
-35,
28,
0,
47,
-49,
-5,
9,
66,
39,
-30,
41,
-9,
-15,
-1,
16,
9,
-56,
2,
-72,
41,
0,
-28,
79,
-63,
54,
6,
-4,
5,
-32,
6,
-36,
30,
38,
17,
-59,
-10,
57,
-4,
-42,
0,
0,
-42,
5,
-10,
15,
-49,
-20,
-13,
7,
-17,
13,
-8,
-6,
-7,
-2,
61,
13,
28,
29,
62,
3,
-23,
39,
-26,
50,
-5,
-21,
28,
-32,
21,
25,
11,
8,
60,
-30,
16,
32,
-5,
-25,
30,
-19,
19,
65,
-35,
-20,
32,
6,
-5,
-14,
-8,
0,
13,
-27,
-1,
108,
-7,
38,
32,
-27,
-13,
23,
-11,
-14,
-49,
-22,
13,
-80,
-10,
-14,
-81,
24,
19,
65,
36,
27,
-35,
-7,
36,
20,
13,
19,
9,
-34,
46,
3,
45,
21,
26,
17,
-38,
7,
-39,
-2,
30,
-16,
-42,
-8,
6,
-5,
-31,
-5,
0,
26,
8,
-41,
-24,
-35,
-17,
61,
3,
-57,
21,
-31,
20,
-23,
53,
-3,
17,
-32,
-7,
-21,
37,
12,
0,
16,
-33,
15,
-18,
0,
-25,
-26,
9,
-44,
-9,
29,
13,
9,
10,
-6,
22,
14,
24,
-5,
22,
-12,
-25,
43,
-15,
28,
-17,
-5,
-15,
-32,
36,
-33,
11,
-36,
-2,
1,
19,
19,
-17,
6,
-29,
2,
-14,
28,
-23,
-3,
58,
-39,
8,
-38,
25,
25,
18,
-37,
-34,
21,
32,
1,
35,
34,
3,
-37,
-20,
-17,
-5,
54,
34,
-37,
-50,
-38,
-6,
-12,
9,
-56,
20,
12,
41,
34,
-46,
11,
39,
7,
-1,
-18,
8,
7,
14,
8,
-31,
46,
-34,
19,
9,
39,
-15,
40,
0,
31,
-63,
-33,
21,
-35,
33,
-10,
-38,
-1,
-35,
-10,
-13,
48,
-22,
8,
49,
0,
19,
-39,
-30,
25,
-51,
25,
36,
-38,
0,
19,
-1,
19,
-17,
32,
-8,
-55,
-57,
-8,
21,
8,
68,
18,
35,
13,
-36,
36,
6,
66,
-22,
-20,
19,
-16,
-22,
12,
15,
31,
-14,
10,
-32,
11,
3,
67,
37,
-15,
-19,
4,
-12,
45,
5,
-13,
7,
35,
-40,
-35,
33,
5,
-20,
44,
39,
7,
4,
33,
-49,
11,
5,
3,
-11,
19,
-13,
7,
10,
47,
24,
-22,
6,
-37,
-30,
9,
-24,
-45,
-22,
-26,
-54,
-9,
11,
-3,
-22,
-3,
8,
-16,
22,
-10,
-9,
6,
-55,
20,
-13,
-2,
-10,
-34,
53,
-2,
17,
-59,
-9,
29,
-18,
-8,
0,
23,
47,
54,
-15,
35,
10,
-1,
-3,
6,
1,
40,
1,
-66,
0,
-14,
2,
-17,
5,
-7,
51,
32,
34,
27
] |
R. B. Burns, J.
Plaintiff Sentry Insurance, a mutual company incorporated in Wisconsin, commenced this declaratory judgment action against defendants seeking a ruling that it was not required to defend or provide coverage to defendants in an underlying negligence action. Sentry appeals from a grant of summary judgment in favor of defendant.
Defendant National Steel was added as an additional insured party on a general liability insurance contract between Sentry and plaintiff K & D Industrial Services pursuant to an industrial maintenance contract between K & D and defendant. The contract between K & D and defendant required K & D as the contractor to indemnify National Steel for liability incurred in connection with K & D’s performance of the service contract or its presence on National Steel’s premises. It also required K & D to purchase contractor’s general liability insurance with coverage of two million dollars and make National Steel an additional insured under the policy.
On May 11, 1981, Michael Darby, an employee of K & D, fell and injured his back on National Steel’s premises. Darby brought suit against defendant National Steel in Wayne County Circuit Court, alleging that defendant negligently permitted the accumulation of the ore pellets on which he fell. Sentry undertook defendant’s defense in the Darby suit and apparently continues to defend defendant in that action. Sentry and K & D later filed the present declaratory judgment action against defendant over Sentry’s duty to defend and provide coverage to defendant.
Paragraph 22 of the maintenance contract between defendant and K & D would indemnify defendant against any liability defendant incurred because of injury to persons or damage to property where the injury or damage was connected to K & D’s performance of the contract or presence on defendant’s premises. K & D also agreed to indem nify defendant even where liability was based on defendant’s own active or passive negligence as long as the liability did not result from defendant’s sole negligence. Paragraph 23 required K & D to purchase contractor’s comprehensive general liability insurance with coverage of two million dollars and make defendant an additional insured under the policy. _
Defendant National Steel was added as an additional insured to K & D’s insurance policy with Sentry by an endorsement effective October 1, 1980. The endorsement purported to include defendant in the policy with respect to all liability of defendant arising out of the operations performed by K & D, including liability arising out of its ownership or control of the premises.* **
In its complaint against defendant, Sentry claimed that it had no duty to defend or provide coverage to defendant because any liability arose out of defendants sole negligence. Although defen dant raised a number of affirmative defenses to Sentry’s complaint, including that it was not solely negligent, both sides agreed for purposes of the summary judgment motions that, assuming defendant was soley negligent, the only issue before the court was whether the insurance policy was void as against the public policy expressed in MCL 691.991; MSA 26.1146(1). Sentry agreed that defendant was corred under the terms of the insurance policy if the policy was not void. In an opinion from the bench, the trial court held that the insurance policy between Sentry and National Steel was not void and unenforceable as against the public policy expressed in the statute.
In this appeal, we address the sole issue of whether the public policy of the state as expressed in MCL 691.991; MSA 26.1146(1) voids the insurance policy between Sentry Insurance and National Steel. We conclude that it does not.
MCL 691.991; MSA 1146(1) provides as follows:
"A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable.”
Thus, an indemnitor is not liable for the indemnitee’s negligence, unless the indemnitor is also negligent, regardless of contractual language to the contrary. Peeples v Detroit, 99 Mich App 285, 295; 297 NW2d 839 (1980).
The essence of Sentry’s argument is that the above statute voids not only an indemnity agreement in a construction or a maintenance contract which purports to indemnify the promisee for its sole negligence, but also any insurance contract, like the one in the present case, which was purchased pursuant to such an indemnity agreement. This argument, however, is contrary to the relatively clear language of the statute., ■ The statute refers to and voids only indemnity agreements.
Sentry also relies upon the following language in Peeples, supra, for the proposition that it was contrary to public policy for the agreement between K & D and National Steel to provide that K & D would purchase a liability policy which would cover National Steel even against its own sole negligence:
"We have previously noted that the Legislature has declared it to be contrary to public policy in Michigan for anyone in the construction industry to make any agreement which would absolve him from liability for his sole negligence, declaring that any such agreement is void and unenforceable, MCL 691.991; MSA 26.1146(1). Any agreement whereby a subcontractor must procure insurance which includes coverage for the general contractor’s sole negligence would contravene Michigan public policy as expressed by the statute and would be unenforceable.” 99 Mich App 302-303.
However, we need not determine whether the above rule correctly states the law as we find it inapplicable to the case at bar. The Court in Peeples was faced with a situation where the subcontractor was under a contractual obligation to purchase liability insurance for the benefit of the contractor. The Court concluded that any contractual provision which required the subcontractor to procure an insurance policy which included coverage for the contractor’s sole negligence con travened the public policy declared in MCL 691.991; MSA 26.1146(1) and was, therefore, unenforceable.
We are not faced with the question of the enforceability of such a contractual requirement. In the case a bar, the policy was procured by K & D. We are thus called upon to determine whether the policy, once procured, is enforceable. We conclude that it is.
There is no question that National Steel could have directly contracted with Sentry to obtain liability coverage for National’s own negligence. Such a policy certainly would not be against public policy as the very purpose of insurance is to provide coverage to a policyholder for the policyholder’s negligent actions.
Rather, what is against public policy, according to Peeples, supra, is a contractual obligation, in the context of construction or maintenance contracts, which requires one party to the contract to purchase insurance to cover the other party’s sole negligence. Thus, public policy, assuming that Peeples was correctly decided, is concerned not with the existence of the insurance policy, but with who pays the premium.
We cannot see how the question of who should pay the premium, or the public policy surrounding that question, is of any concern to Sentry. Sentry collected its premium and now seeks to avoid liability under the contract because the wrong party paid this premium. Whether or not K & D could be required to pay the premium is a dispute between K & D and National Steel which may or may not provide K & D with a remedy against National Steel.
The decision of the trial court is affirmed. Cost to defendants.
Great Lakes Steel is either a subsidiary or division of National Steel and the two corporations will be referrred to collectively as "defendant” or "National Steel” in this opinion.
Paragraph 22 provides as follows:
"INDEMNITY BY CONTRACTOR FOR PERSONAL INJURY OR PROPERTY DAMAGE: Contractor shall be soley responsible for and shall indemnify, defend and hold harmless Owner from and against any and all claims, suits, damages, losses, specifically including loss of use of property, and all other liabilities whatsoever, including related expenses and attorneys’ fees, for or on account of injuries to or death of any person, including but not limited to employees of Owner or Contractor, and/or loss of or damage to any property, including but not limited to the property of Owner or Contractor, in any way sustained or alleged to have been sustained, directly or indirectly, by reason of or in connection with:
"the performance of the work by Contractor, its employees, agents or Subcontractors or their employees, including but not limited to the use of any equipment or material furnished by Owner, or "the presence of Contractor, its employees, agents or Subcontractors or their employees on the premises of Owner,
"whether such claims, suits, damages, losses and liabilities are based upon or result in whole or in part from the active or passive negligence of Owner, its employees or agents, or Owner’s strict liability in tort, breach of warranty, breach of contract, duty to indemnify or any other basis or cause whatsoever whereby Owner might be held liable; provided, however, that the foregoing shall not be construed to be an agreement to indemnify Owner against liability for damages caused by or resulting from the sole negligence of Owner, its agents or employees, under circumstances whereby said agreement would be in violation of Michigan Public Act 1966, No. 165, Section 1 (M.C.L.A. Section 691.991), if applicable, it being the intent of the foregoing provisions to absolve and protect Owner from, and to indemnify Owner against, any and all liability and loss by reason of the premises except to the limited extent prohibited by Michigan Public Act 1966, No. 165, Section 1, if applicable.”
Paragraph 23 provides as follows:
"INSURANCE AND BONDS: Contractor and all Subcontractors, at their own expense, shall procure and maintain with respect to the work any and all bonds and policies of insurance which may be required by Owner and which shall be in such form and issued by such company or companies satisfactory to Owner, and prior to commencement of work hereunder, shall secure and deliver to Owner Certificates of Insurance evidencing at least the following insurance coverage:
"(a) Workmen’s Compensation and Employer’s Liability Insurance, according to applicable statutory requirements.
"(b) Contractor’s Comprehensive General Liability Insurance covering operations, automobiles and Subcontractors (including the contractual liability assumed under paragraph 22 above), with a minimum limit unless otherwise specified in the Purchase Order, applicable to Bodily Injury Liability and Property Damage Liability of:
$2,000,000 single limit.
CONTRACTOR SHALL MAKE OWNER AN ADDITIONAL INSURED UNDER CONTRACTOR’S COMPREHENSIVE GENERAL LIABILITY INSURANCE POLICY APPLICABLE TO THE WORK BY MEANS OF AN ENDORSEMENT TO THE POLICY IN THE FORM ATTACHED TO THE CONTRACT SIGNED BY THE INSURER, A SIGNED DUPLICATE OF WHICH SHALL BE FURNISHED TO OWNER WITH THE REQUIRED CERTIFICATES OF INSURANCE.
"All certificates of insurance from the insuring companies required to be furnished to Owner hereunder shall include the following clause: 'At least ten (10) days’ advance notice shall be given in writing to National Steel Corporation, Weirton, West Virgiiiia, 26062 Attention: Insurance Department, prior to cancellation, termination, or any alteration of the policy or policies evidenced by this certificate.”
The Additional Insured Endorsement provides in part as follows:
"The 'Persons Insured’ provisions is [sic] amended to include as an 'insured’ National Steel Corporation, hereinafter call 'additional insured’, with respect to all liability of the additional insured arising out of or in any way in connection with operations performed for the additional insured by the named insured or any sub-contractor of the named insured at the location designated above, including but not limited to liability of the additional insured arising out of its general supervision, if any, of such operations with respect to safety or otherwise, or arising out of its ownership or control of the premises on which such operations are performed.” | [
-38,
8,
-13,
38,
-22,
42,
-3,
-52,
1,
-14,
-53,
-2,
23,
2,
-52,
-16,
10,
19,
19,
30,
27,
-14,
-34,
1,
-16,
12,
-54,
-41,
-5,
28,
8,
-12,
-38,
-23,
-77,
17,
-7,
28,
-60,
6,
33,
-6,
64,
-7,
41,
5,
20,
17,
58,
45,
101,
60,
30,
-43,
-81,
-34,
12,
29,
-33,
-29,
-19,
-35,
42,
-22,
0,
-16,
6,
51,
18,
8,
-8,
23,
0,
-7,
11,
8,
-28,
13,
-17,
-57,
21,
-22,
15,
-44,
-42,
48,
-28,
1,
-33,
33,
-21,
15,
-13,
-16,
-10,
-9,
-35,
54,
-31,
9,
-21,
-19,
-29,
16,
15,
-1,
8,
-88,
-29,
10,
47,
0,
-17,
-28,
-18,
-11,
31,
17,
35,
60,
6,
-21,
57,
-8,
-22,
-2,
3,
-41,
-15,
-16,
-6,
-20,
10,
20,
-25,
-13,
37,
-38,
11,
16,
-43,
-25,
-13,
-19,
-8,
74,
-13,
-27,
-20,
-16,
-30,
11,
51,
-4,
31,
9,
-24,
3,
13,
-24,
19,
-29,
24,
6,
-58,
-65,
-20,
58,
-16,
32,
63,
-35,
30,
-36,
18,
7,
13,
-33,
-24,
6,
32,
-36,
-4,
-8,
34,
-1,
-22,
3,
-17,
42,
12,
-30,
-44,
26,
-59,
50,
-47,
71,
9,
-12,
74,
-31,
-31,
-95,
6,
15,
-15,
-11,
-49,
-34,
29,
38,
-33,
-61,
-18,
3,
-24,
-18,
-73,
-69,
0,
35,
-50,
54,
-22,
-20,
-67,
-44,
26,
-32,
21,
-54,
39,
82,
-51,
35,
44,
-8,
65,
28,
45,
-16,
-22,
-33,
43,
-36,
-54,
1,
-31,
-9,
-37,
-45,
13,
45,
24,
-22,
-16,
27,
-2,
23,
11,
34,
-64,
24,
11,
55,
-75,
-2,
-58,
17,
18,
-14,
56,
1,
-26,
-72,
0,
39,
-32,
-19,
-15,
33,
-20,
-12,
-72,
41,
36,
20,
-61,
-72,
23,
-34,
29,
-24,
56,
-29,
18,
-40,
-58,
8,
6,
17,
34,
-42,
5,
-23,
-73,
15,
-29,
0,
-37,
16,
7,
-64,
-14,
-9,
68,
17,
17,
-39,
-8,
57,
-4,
49,
6,
-78,
0,
56,
21,
20,
-98,
-9,
47,
4,
-13,
-61,
17,
21,
-10,
36,
2,
27,
64,
-67,
-69,
22,
61,
17,
19,
12,
16,
-5,
-2,
-15,
4,
48,
34,
48,
26,
13,
53,
7,
-2,
-11,
-1,
-51,
-16,
4,
-90,
38,
-46,
-11,
16,
-35,
4,
-20,
-13,
60,
-47,
46,
55,
-57,
28,
-55,
-4,
36,
0,
47,
-79,
44,
-26,
-74,
28,
53,
28,
8,
-23,
-22,
-48,
-38,
29,
34,
17,
-7,
-24,
8,
-11,
-35,
28,
30,
8,
32,
-27,
8,
-41,
-23,
67,
-6,
46,
29,
58,
31,
1,
19,
-3,
-51,
7,
40,
-29,
-56,
-31,
-26,
-1,
15,
13,
-54,
-28,
-4,
17,
27,
-46,
-11,
-30,
-28,
44,
1,
-12,
32,
37,
-50,
47,
45,
10,
14,
31,
23,
64,
-25,
1,
19,
-10,
-1,
20,
-1,
24,
-16,
-5,
-38,
31,
10,
2,
-18,
-24,
-7,
11,
-51,
27,
-2,
-40,
43,
1,
3,
35,
-11,
-10,
-80,
48,
64,
-11,
-1,
5,
-14,
-35,
-13,
-20,
33,
-8,
42,
-28,
-27,
-50,
0,
-56,
44,
12,
28,
-5,
-40,
-46,
34,
-3,
38,
61,
35,
55,
35,
53,
-1,
-17,
7,
41,
-38,
-11,
57,
8,
-25,
-15,
-13,
0,
55,
42,
-29,
45,
-32,
-14,
0,
-22,
-14,
-84,
-64,
23,
9,
15,
26,
9,
-54,
-35,
25,
10,
-28,
-62,
-17,
53,
47,
-2,
-32,
31,
28,
35,
10,
-7,
32,
-3,
14,
-9,
0,
16,
-50,
63,
-56,
-91,
18,
-26,
16,
23,
4,
-35,
0,
-30,
27,
-29,
7,
14,
-52,
-20,
42,
49,
-22,
24,
-14,
-3,
-4,
-5,
-27,
-6,
-5,
28,
15,
-16,
11,
15,
-42,
-43,
-43,
-32,
-1,
-7,
3,
24,
-20,
-1,
-16,
14,
-27,
4,
9,
-1,
-7,
36,
-8,
2,
-2,
38,
79,
37,
64,
37,
-9,
-41,
-17,
-8,
-16,
-59,
-6,
30,
-17,
30,
59,
-17,
42,
4,
-32,
51,
-7,
-46,
-37,
-21,
3,
6,
-43,
-60,
22,
39,
11,
16,
9,
-51,
42,
2,
-28,
-15,
-4,
0,
0,
2,
9,
-7,
-22,
9,
30,
40,
21,
12,
33,
-2,
21,
27,
-10,
-19,
-21,
-1,
-13,
51,
-18,
64,
-14,
85,
-2,
-3,
-59,
-10,
20,
15,
-77,
46,
-12,
-10,
-7,
-17,
-18,
-13,
36,
14,
-4,
-13,
5,
10,
-30,
0,
26,
12,
2,
17,
-38,
-12,
14,
-31,
-41,
-21,
-51,
-18,
-6,
6,
-16,
-5,
57,
13,
5,
6,
-4,
-16,
0,
-58,
24,
12,
-2,
3,
-19,
-33,
-56,
70,
-11,
68,
19,
-54,
-8,
-38,
60,
38,
21,
-18,
27,
-40,
-32,
3,
-11,
43,
43,
-43,
1,
-1,
-37,
50,
-34,
1,
-18,
0,
-54,
29,
-29,
27,
83,
-26,
-5,
4,
24,
48,
-31,
-48,
30,
30,
2,
84,
-12,
-11,
-31,
37,
13,
0,
-16,
23,
-5,
28,
-44,
-13,
-13,
40,
72,
9,
20,
58,
4,
-8,
-5,
-7,
-17,
30,
-21,
32,
-49,
13,
-39,
10,
25,
-17,
48,
-10,
9,
-45,
0,
-36,
94,
-24,
12,
1,
-18,
-8,
-51,
-14,
-42,
-42,
-14,
-6,
-20,
-15,
20,
8,
6,
-42,
0,
48,
-23,
7,
28,
2,
-18,
-51,
14,
-10,
-47,
-17,
-16,
9,
8,
24,
41,
21,
-13,
-23,
-34,
5,
0,
-45,
71,
1,
-21,
-55,
-8,
-15,
-38,
22,
46,
4,
52,
-36,
43,
-38,
-69,
93,
0,
2,
56,
-29,
20,
-40,
-29,
0,
-6,
26,
74,
19,
-1,
-53,
8,
-38,
-28,
13,
21,
77,
-49,
1,
-2,
4,
18,
-12,
42,
46,
-10,
-45,
2,
10,
12,
-8,
27,
-37,
59,
23,
14,
17,
79,
-28,
9,
18,
-20,
6,
37,
-8,
54,
16,
24,
35,
7,
11,
79,
-9,
-36,
9,
-16,
-51,
-34,
8,
5,
-56,
-8,
-30,
-49,
29,
-57,
-3,
10,
-17,
22,
-29,
-8,
-30,
-10,
24,
19,
-37,
15,
-1,
12,
-28,
21,
-28,
-41,
25,
-1,
-9,
7,
-11,
-19,
-8,
-34,
-1,
-48,
10,
2,
22,
-8,
26,
-46,
31,
0,
-46,
21,
-53,
4,
-25,
-31,
68,
15,
-4,
47,
-1,
11,
-20,
16,
19,
18,
23,
1,
42,
-28,
-15,
33,
34,
46,
50,
37,
1,
1,
22,
-30,
8,
26,
-77,
28,
-61,
-55,
39,
-21,
8,
51
] |
Per Curiam.
Defendants appeal as of right from a November 28, 1984, order through which portions of the defendants’ zoning ordinance were held unconstitutional as applied to plaintiffs’ property.
Plaintiffs, who live on Elms Road in Birch Run, Michigan, desired to use a portion of their property as a junkyard. In the spring of 1979, they requested a special use permit from the Taymouth Township Zoning Board. The request was denied on the ground that plaintiffs did not have a 200-foot set-back as required by the local zoning ordinance.
In the fall of 1979, after having acquired 20 acres of adjacent land, plaintiffs filed a request with the zoning board to have the property rezoned from A-l, agricultural, to M-2, intensive industrial, with a special use permit for junkyards, pursuant to the Taymouth Township Rural Zoning Ordinance. The request was denied.
In June 1980, plaintiffs filed another request for a zoning change, this time requesting that the land be rezoned from A-l, agricultural, to M-l, industrial, again with a special use permit for junkyards. After a hearing on the matter, the request was denied in December 1980. The Township Board based its denial of the request upon the following factors: 1) the use was not compatible with adjacent agricultural land use and was not in compliance with the future township land-use plans; 2) there were already adequate junkyard facilities in the township and in surrounding areas; and 3) there was a need to avoid increased traffic on the unimproved secondary road on which the property was located.
On December 11, 1980, plaintiffs filed a complaint against defendants in the Saginaw County Circuit Court, requesting, among other relief, that the court enjoin defendants from enforcing the zoning ordinance against plaintiffs and order defendants to change plaintiffs’ zoning designation to allow use of the property as an auto salvage yard. After trial, the trial court issued an opinion declaring the ordinance unconstitutional as applied to the plaintiffs. The court based this conclusion upon its findings that the land could not be used effectively in any manner permitted under the ordinance, thus rendering any development economically unfeasible. Further, the trial court held that use of the land as a junkyard could not adversely affect the township’s morals, health or safety. Defendants appeal as of right from the trial court’s order.
Our review of zoning cases, although de novo, is conducted with the following guidelines in mind:
"This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case, unless, after examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge.” Kropf v City of Sterling Heights, 391 Mich 139, 163; 215 NW2d 179 (1974), quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).
The appropriate standard for determining the constitutional validity of a zoning ordinance set forth in Kropf, supra, was outlined concisely in Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976), as follows:
"The principles and tests to use to determine whether the present zoning of plaintiffs’ property is valid was detailed in Kropf.
"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
" '[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
" '[Secondly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.’ 391 Mich 139, 158.
"The four rules for applying these principles were also outlined in Kropf. They are:
"1. ' "[T]he ordinance comes to us clothed with every presumption of validity.” ’ 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
"2. ' "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.” ’ 391 Mich 139, 162, quoting Brae Burn, Inc.
"3. ' "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” ’ 391 Mich 139, 162-163.
"4. '" This Court, however, is inclined to give considerable weight to findings of the trial judge in equity cases.” ’ 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).”
Applying these standards to the case before us, we conclude that the trial court erred in finding the defendants’ zoning ordinance unconstitutional as applied to plaintiffs. The ordinance permitted the following uses of the property as of right: 1) single-family dwellings; 2) general farming and forestry; 3) specialized farming; and 4) public and private conservation areas and structures. The physical characteristics of the land, as testified to by plaintiff Johanna Bierman, were as follows. As a result of sand-mining operations conducted by Mrs. Bierman’s grandfather, who was a predecessor in title to the land, approximately one-half of the land is a swamp which presently sustains only weeds and quack grass. However, plaintiffs’ home is located on the other half of the land and, at the time of trial, the land was being utilized for farming purposes. Further, Mrs. Bierman testified that the land was suitable for building additional houses. Moreover, although the property was located near the 1-75 expressway and the noise from semi-tractor trailers shifting gears could be heard from plaintiffs’ home, Mrs. Bierman admitted that, notwithstanding the existence of the expressway, several substantial homes had been built in the area within the past ten years. Further, plaintiffs chose to build their home on the property in the early 1970’s even though the expressway had been there since 1956. Based upon this evidence, we believe that the portions of the land which did not consist of swamp area were fully adapted to the uses authorized by the ordinance, especially residential dwellings and farming. We therefore cannot conclude that the ordinance is "an arbitrary and unreasonable restriction on the owner’s use of his property”. Kropf, supra, p 162.
The testimony describing the swamp area, on the other hand, reveals it to be much less suscepti ble to development than the remainder of the land. However, we note from the record that the swamp-like condition of the land was caused not by nature, but rather by the actions of Mrs. Bier-man’s grandfather, the predecessor in title, when he conducted a sand-mining operation on the property. We are therefore not presented with a situation where a zoning ordinance renders the land, in its natural condition, unadaptable to any reasonable use permitted by the ordinance. Rather, the affirmative actions of the previous owners have changed the basic nature of the property from that capable of agricultural adaptation to a swamp which, in its present form, is useless to the plaintiffs. Thus, this case is similar to Johnson v Robinson Twp, 420 Mich 115; 359 NW2d 526 (1984), where the plaintiffs sought a variance from the defendant’s zoning ordinance in order to permit construction of a residence on their undersized lot. However, the lot was originally combined with two others to form a much larger parcel of land which was owned by the plaintiff’s grandfather. This larger lot was intentionally split into three smaller parcels by the plaintiff’s family. 420 Mich 117. Based upon these facts, the Supreme Court concluded that the local zoning board of appeals properly denied the requested variance since "the only practical difficulty or hardship is one that was produced by the plaintiff’s family”. 420 Mich 126. The Court concluded:
"The zoning ordinance preceded the division of this property. Thus the plaintiffs’ problems were not caused by the township, but were caused by the division. Since, prior to the split, this land was being properly used in conformance with the zoning ordinance, we can see no sense in which the township can be said to have unconstitutionally deprived the plaintiffs of their property rights.” 420 Mich 126.
We believe the same result is mandated here. If, as plaintiffs claim, there land cannot be utilized in its present condition for any of the uses permitted under the ordinance, they have no one to blame but their grandfather. A properly adopted zoning ordinance does not become an arbitrary and unreasonable restriction upon an owner’s use of his or her land simply because they or their predecessors in title have voluntarily disrupted the natural condition of the land so as to make it useless in its resulting state. We conclude that the defendants have not unconstitutionally deprived plaintiffs of the use of their property through the restrictions imposed by the ordinance at issue.
Plaintiffs also argue that the ordinance has "no reasonable basis for its very existence”, Robinson Twp v Kroll, 410 Mich 293, 312; 302 NW2d 146 (1981), quoting Kropf, supra, and supports this claim with the fact that junkyards are excluded, while sanitary landfills and incinerators are allowed by special use permit. In fact, the zoning ordinance permits the following uses of land by special use permit in addition to those cited by plaintiffs: public parks and recreation areas, institutions for human care, religious institutions, sand, gravel, and clay pits, greenhouses and nurseries, production of furbearing animals for profit, seasonable labor housing associated with agricultural enterprises, grain and seed elevators and sales, education and social institutions, public buildings, riding stables and livestock auction yards, and veterinary hospitals, clinics and kennels. However, we are of the opinion that the ordinance is not unreasonable due to the allowance of these special uses and the exclusion of junkyards, since a distinction exists between the latter and those uses listed. The permitted uses can be characterized either as a form of govern ment service provided to citizens out of necessity or as commercial enterprises closely related to the agricultural and forestry industries. In contrast, a junkyard is simply a general commercial business established for profit having no connection to agriculture or forestry. Junkyards thus fall into the general commercial enterprise category which the zoning ordinance was designed to exclude from A-l districts in order to protect, enhance and stabilize food and fiber production areas. We conclude that a reasonable basis exists for excluding commercial enterprises such as junkyards from agricultural districts while at the same time allowing limited public services such as landfills and incinerators.
Finally, plaintiffs claim that the zoning ordinance as enacted in 1972 failed to include any guidelines for the zoning board’s use in deciding whether to grant or deny a special use permit request and is thus invalid pursuant to Osius v St Clair Shores, 344 Mich 693; 75 NW2d 25 (1956). See also Bruni v Farmington Hills, 96 Mich App 664; 293 NW2d 609 (1980). We find the argument to be without merit since the plaintiffs did not request a special use permit until July of 1979, subsequent to an amendment of the ordinance enacted April 1, 1979, which delineated specific standards to be used by the zoning board. It cannot be said, then, that the Zoning Board of Appeals was permitted through this ordinance to exercise, by delegation, a legislative function without guidelines or standards. Osius, supra, p 697; Bruni, supra, p 668. The order of the trial court finding the ordinance unconstitutional as applied to the plaintiffs is reversed.
Reversed. | [
7,
61,
2,
16,
-44,
11,
-19,
15,
-16,
55,
-1,
-42,
21,
8,
16,
8,
32,
12,
-24,
65,
4,
-27,
-10,
22,
-22,
-22,
28,
-17,
-25,
17,
6,
-39,
-14,
-18,
-25,
24,
8,
23,
25,
34,
-21,
-44,
-13,
-47,
-5,
-8,
58,
16,
0,
-4,
17,
45,
7,
-8,
-37,
-24,
-15,
-20,
4,
15,
-22,
30,
-13,
46,
73,
25,
-13,
34,
25,
-28,
-22,
12,
-35,
9,
60,
-7,
25,
14,
-36,
14,
-32,
19,
45,
26,
-44,
9,
-57,
-8,
-21,
-34,
-52,
-42,
-26,
39,
34,
40,
-7,
-69,
20,
-52,
-33,
48,
43,
-5,
6,
0,
1,
-48,
27,
-4,
25,
-31,
11,
-13,
20,
-18,
13,
22,
52,
11,
-36,
-42,
-9,
-1,
17,
-7,
2,
-1,
-10,
-7,
13,
21,
-1,
-4,
9,
9,
3,
-19,
-39,
28,
8,
13,
20,
-5,
42,
-60,
25,
9,
10,
15,
-29,
-20,
-9,
31,
-12,
35,
13,
4,
34,
19,
-6,
3,
-10,
21,
-31,
-7,
-44,
36,
-1,
2,
9,
-8,
1,
-14,
6,
-36,
20,
42,
-48,
23,
-27,
-35,
25,
4,
-84,
-46,
-16,
-17,
-35,
-16,
32,
13,
28,
-79,
12,
10,
11,
50,
-37,
22,
-11,
-5,
43,
-36,
37,
-51,
0,
1,
-14,
-1,
-37,
-12,
-25,
1,
64,
-12,
15,
18,
11,
27,
33,
20,
35,
0,
-3,
46,
-19,
14,
33,
-53,
47,
-46,
63,
18,
-74,
-7,
11,
15,
6,
29,
10,
66,
-12,
7,
-50,
10,
-9,
19,
39,
-28,
1,
-41,
-51,
-1,
3,
-24,
-17,
-13,
31,
10,
60,
17,
-8,
14,
-20,
55,
-36,
-9,
-70,
36,
-67,
22,
16,
-3,
-46,
-2,
-17,
-8,
31,
-2,
6,
-14,
38,
-27,
3,
67,
-4,
31,
-45,
0,
-22,
19,
-39,
19,
0,
-6,
10,
-60,
-4,
23,
-16,
31,
-42,
-34,
41,
-23,
-13,
-22,
18,
28,
9,
-1,
15,
-8,
-11,
3,
16,
-19,
4,
-3,
-15,
38,
-18,
15,
-5,
45,
32,
8,
0,
-18,
2,
-2,
5,
57,
45,
39,
-8,
-36,
-28,
22,
52,
28,
14,
44,
39,
-8,
-17,
-8,
6,
-24,
25,
-14,
-4,
5,
-1,
-3,
15,
-16,
-52,
32,
60,
40,
-10,
-15,
-56,
-3,
-19,
19,
7,
28,
5,
-41,
20,
38,
45,
-18,
-14,
6,
0,
8,
34,
-41,
33,
-16,
64,
1,
1,
0,
-49,
-49,
-20,
-72,
0,
12,
-3,
-31,
40,
40,
15,
-9,
4,
10,
-71,
34,
-7,
32,
37,
15,
24,
-13,
-22,
-2,
16,
13,
-5,
30,
7,
-29,
8,
-52,
-5,
27,
-14,
-62,
6,
2,
-4,
-24,
-22,
69,
-4,
17,
-4,
-4,
11,
44,
-61,
-6,
-21,
9,
-21,
30,
-27,
-49,
-32,
-32,
-40,
-1,
7,
-21,
19,
65,
-68,
-68,
-2,
0,
20,
27,
18,
-21,
11,
-24,
-32,
-24,
25,
-30,
-32,
-23,
15,
-61,
-26,
70,
22,
30,
14,
-18,
40,
37,
-18,
22,
37,
20,
-46,
-41,
21,
-20,
-44,
61,
5,
44,
-2,
52,
13,
11,
31,
-20,
-29,
-21,
60,
36,
17,
10,
-12,
-1,
41,
22,
-1,
-13,
0,
27,
-33,
-27,
12,
16,
-8,
26,
35,
-35,
23,
16,
-6,
-16,
-8,
-26,
33,
22,
15,
-12,
0,
14,
-13,
-24,
-6,
0,
9,
-35,
-10,
18,
-50,
3,
29,
5,
-21,
37,
-11,
-43,
-20,
-14,
30,
-8,
-7,
-19,
-46,
-26,
20,
13,
-45,
0,
-5,
14,
-37,
35,
22,
0,
77,
-32,
9,
-26,
34,
24,
-19,
18,
35,
-29,
11,
57,
21,
-29,
-25,
27,
0,
4,
-13,
-39,
25,
-51,
-25,
0,
7,
1,
-21,
-2,
2,
-30,
-13,
0,
-24,
5,
24,
-19,
0,
-1,
-7,
-3,
-14,
-8,
7,
0,
-36,
-25,
18,
-40,
-39,
53,
0,
44,
-10,
-8,
62,
-19,
14,
-14,
-6,
36,
26,
-21,
-20,
40,
-13,
44,
-29,
16,
21,
12,
29,
-34,
6,
48,
-18,
9,
4,
12,
-18,
-22,
26,
-22,
1,
10,
-26,
27,
-36,
78,
34,
-21,
18,
-1,
-16,
-64,
7,
-61,
5,
-3,
-19,
-36,
-27,
-27,
-24,
-12,
19,
43,
20,
40,
10,
20,
15,
-18,
-63,
24,
41,
5,
-26,
-3,
-53,
-23,
19,
-14,
14,
24,
36,
7,
38,
-15,
35,
6,
-21,
-13,
-19,
35,
-53,
27,
13,
74,
51,
8,
-51,
40,
36,
-28,
-11,
1,
-44,
-23,
42,
-4,
11,
4,
10,
-9,
13,
-1,
1,
-7,
-85,
-33,
7,
-20,
-3,
-69,
-19,
28,
8,
20,
42,
-26,
3,
-3,
4,
16,
4,
3,
33,
-37,
-11,
-18,
-36,
-14,
-11,
20,
-27,
24,
-9,
-14,
-27,
30,
-13,
-55,
3,
-5,
-49,
-23,
1,
-38,
-13,
31,
-14,
-51,
22,
10,
9,
-16,
-59,
6,
-4,
-48,
-9,
-25,
-75,
2,
13,
-3,
-40,
-36,
16,
-36,
4,
-9,
-17,
-15,
9,
-5,
-36,
-5,
-13,
-15,
-21,
38,
28,
16,
75,
-27,
-19,
50,
-1,
1,
-19,
-3,
-74,
14,
-16,
37,
8,
8,
-45,
-37,
33,
20,
30,
49,
-43,
39,
10,
33,
-60,
-15,
-11,
37,
77,
-35,
-1,
47,
58,
4,
25,
65,
-49,
-50,
39,
28,
22,
9,
-27,
-25,
-22,
2,
-16,
-2,
-10,
22,
37,
28,
-48,
1,
28,
19,
25,
8,
31,
-11,
8,
9,
62,
15,
-26,
11,
-40,
26,
-18,
-62,
35,
43,
-18,
-5,
7,
44,
31,
-27,
-61,
-14,
-24,
2,
23,
-15,
43,
11,
5,
-58,
-39,
25,
11,
21,
14,
6,
7,
0,
-24,
0,
-5,
6,
-19,
-61,
-30,
2,
4,
7,
-13,
8,
4,
28,
-47,
-30,
-70,
-25,
-21,
6,
-28,
-32,
-22,
-27,
11,
18,
17,
24,
-25,
-23,
-28,
-25,
-17,
-9,
-16,
28,
5,
-4,
7,
-18,
4,
-14,
-20,
-37,
25,
-17,
-52,
15,
17,
29,
-2,
-35,
3,
0,
28,
-7,
17,
4,
-4,
28,
-25,
9,
-34,
-8,
-37,
8,
-17,
43,
46,
8,
23,
-34,
-9,
8,
1,
33,
-66,
-34,
16,
-2,
8,
-39,
-1,
62,
29,
-1,
-3,
-52,
36,
35,
-5,
7,
-1,
-35,
-38,
6,
6,
-40,
58,
2,
-6,
-7,
-48,
-5,
17,
-36,
40,
14,
46,
11,
-5,
13,
16,
-30,
1,
11,
-57,
22,
-9,
-5,
33,
-8,
-39,
28,
-21,
-39,
-13,
-27,
-38,
5
] |
Per Curiam.
Defendant appeals after pleading guilty to delivery of cocaine, MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv), in Jackson County Circuit Court. He was sentenced to from 5 to 20 years in prison.
On appeal, defendant argues that he was sentenced on inaccurate information and thus deprived of due process.
"Consonant with due process, it is vitally important to the defendant and to the ends of justice that the sentence be based upon accurate information. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). When a defendant claims that a presentence report contains an error, the trial judge may hold an evidentiary hearing to determine the report’s accuracy, may accept the defendant’s unsworn statement, or may disregard the alleged misinformation in determining the sentence. People v Gray, 125 Mich App 482, 487; 336 NW2d 491 (1983).
In the case before us, defense counsel objected at sentencing to "certain statements” made by a Mr. Hartman of the Jackson City Police Department which appeared in the presentence report. Counsel told the court that the allegations were unsubstantiated and asked the court to strike the paragraph from the record. The court responded:
"The Court: Well, counsel, in regards to the statements in the presentence report, as to what detective Mel Hartman alleges, I’m not considering that in the sentence I impose here. However, I am considering that part of it, that the three purchases were made on other occasions, 12-21-83, 1-4-84, and 1-9-84, since they are part of the plea bargain agreement.
”[Defense Counsel]: Except, if it please the Court, the defendant specifically denies these specific allegations. His reason for pleading, as he stated on the record, in connection with those other three charges, he was taking the heat, he can’t afford to retain counsel.
"The Court: If he wants to go on the plea bargain agreement, that’s his right. I’ll then entertain it, counsel.
Defense Counsel]: No, sir, he pled — he pled to this incident. His version is in there.”
After discussing another matter, defense counsel said that he had nothing further to say. The court affirmed the reliability of the presentence report and repeated that, while it would not consider the allegations of Detective Hartman, it would consider the three other sales involved in the plea bargain agreement.
It appears from the file that defendant was never charged with the three other alleged sales. A sentencing court may consider other criminal activities in which a defendant was involved even though they did not result in charges or convictions. People v McCuaig, 126 Mich App 754, 762; 338 NW2d 4 (1983), lv den 419 Mich 876 (1984). However, reliance on such information is not proper unless it is accurate. Id. This Court was persuaded in People v Books, 95 Mich App 500; 291 NW2d 94 (1980), to permit statements of other criminal activity in presentence reports because it noted that, if the matters were disputed, the sentencing court could disregard the matters or conduct a hearing to determine their accuracy. In People v Beal, 104 Mich App 159; 304 NW2d 513 (1981), lv den 413 Mich 888 (1982), this Court found no due process problem with a presentence report which contained other untried, unproven crimes defendant denied, because the sentencing court consistently denied that the offenses would affect the sentence imposed.
In the case before us, however, the sentencing judge did not hold an evidentiary hearing, did not accept defendant’s version, nor did he ignore the allegations. To the contrary, he specifically stated he would consider them, and factored them into the sentencing guidelines scoring, which raised defendant’s Offense Severity level to III.
The fact that a defendant entered into a plea bargain agreement in which the prosecutor agrees not to proceed against the defendant with respect to certain alleged criminal conduct does not constitute an admission on the part of the defendant that he is guilty of that criminal conduct.
The defendant’s sentence is set aside and the case is remanded to the trial court for resentencing. | [
43,
-25,
-26,
35,
-41,
3,
-17,
-29,
-19,
29,
0,
-37,
0,
39,
-17,
5,
-9,
12,
33,
-18,
2,
-15,
9,
58,
-7,
-16,
22,
3,
50,
0,
34,
10,
-11,
-43,
35,
8,
52,
32,
-5,
32,
-28,
-17,
37,
0,
-95,
-30,
-35,
5,
50,
-15,
40,
31,
32,
-7,
1,
10,
18,
46,
3,
-16,
-25,
44,
-44,
-14,
-42,
20,
-13,
-7,
-16,
-53,
-2,
20,
39,
34,
6,
-16,
-36,
23,
3,
45,
-3,
56,
23,
79,
2,
24,
43,
-56,
53,
43,
28,
-29,
-2,
-51,
-26,
0,
16,
22,
46,
-15,
-57,
30,
13,
37,
-11,
38,
0,
-48,
-28,
73,
-32,
-31,
39,
-40,
-37,
-40,
-10,
-14,
-4,
-9,
-25,
-13,
21,
42,
46,
-32,
20,
-34,
-46,
-4,
-29,
2,
8,
-15,
5,
15,
38,
20,
-25,
27,
10,
18,
10,
-2,
71,
53,
0,
7,
3,
30,
-47,
-4,
-12,
1,
-24,
-34,
5,
-43,
-13,
-5,
33,
28,
-42,
-47,
15,
-55,
-3,
-18,
22,
-20,
6,
20,
36,
11,
5,
-5,
-19,
15,
-6,
6,
-32,
-33,
39,
-2,
9,
-5,
5,
2,
-73,
-21,
7,
38,
-22,
38,
71,
5,
-29,
-7,
79,
-35,
-14,
-25,
9,
14,
8,
7,
-24,
-20,
29,
-12,
-17,
-23,
11,
-69,
42,
-18,
34,
13,
7,
43,
-6,
-8,
34,
-29,
-17,
-30,
18,
14,
-37,
-8,
38,
19,
34,
-32,
-28,
2,
56,
6,
70,
28,
9,
-33,
-44,
-40,
21,
1,
-25,
-39,
-57,
4,
-47,
20,
2,
-5,
-69,
-85,
30,
5,
-40,
-13,
-12,
41,
-29,
20,
-38,
35,
-62,
-5,
-46,
16,
-10,
-2,
3,
-37,
6,
33,
-89,
33,
10,
26,
-9,
9,
78,
-13,
-33,
-7,
-33,
67,
39,
-18,
45,
-31,
-44,
-35,
83,
-16,
8,
28,
-35,
-29,
3,
-6,
5,
-66,
18,
-32,
39,
15,
-51,
21,
53,
-2,
44,
31,
-42,
-19,
6,
-27,
76,
-28,
-53,
7,
5,
-19,
35,
-41,
16,
-38,
43,
-32,
10,
-2,
-26,
-47,
41,
42,
-6,
5,
6,
27,
-7,
14,
-7,
-18,
10,
53,
48,
-10,
-8,
-6,
20,
3,
18,
6,
-24,
2,
-25,
-35,
37,
-27,
42,
17,
6,
-32,
-19,
36,
-11,
-11,
-6,
53,
-7,
-67,
-66,
-21,
-52,
0,
36,
7,
-10,
-4,
-23,
-21,
22,
2,
-6,
-65,
-23,
63,
44,
21,
-24,
5,
11,
-47,
-25,
-3,
26,
48,
-4,
-35,
25,
-38,
81,
30,
9,
-25,
-15,
11,
33,
28,
10,
0,
-3,
62,
-37,
-21,
11,
-22,
26,
2,
33,
3,
-9,
-49,
22,
16,
-2,
30,
47,
0,
3,
33,
-23,
-66,
-12,
42,
-50,
-37,
-17,
-3,
-4,
0,
15,
13,
47,
-26,
-11,
-25,
19,
36,
13,
30,
-1,
-42,
-30,
67,
22,
-41,
33,
5,
12,
-25,
-25,
-1,
45,
-48,
-8,
-46,
4,
15,
13,
46,
-2,
27,
-25,
5,
5,
-16,
40,
-41,
13,
26,
-1,
-34,
9,
-50,
6,
-22,
-10,
-5,
5,
-34,
-34,
-33,
4,
1,
18,
-12,
-8,
31,
-30,
-24,
12,
-11,
42,
19,
30,
-8,
56,
3,
15,
47,
-4,
-4,
2,
-44,
16,
-51,
-59,
8,
9,
-13,
18,
-32,
-8,
-9,
-29,
-46,
-42,
11,
40,
-44,
11,
-50,
36,
-33,
-17,
2,
-3,
16,
-9,
40,
-14,
20,
14,
16,
12,
-22,
23,
16,
-21,
11,
35,
-14,
-22,
15,
53,
6,
31,
-29,
-11,
25,
34,
27,
10,
20,
11,
-5,
42,
2,
-8,
-3,
-1,
21,
-13,
14,
-17,
17,
39,
28,
6,
22,
4,
-29,
4,
32,
23,
-1,
-16,
-54,
-54,
-1,
21,
-10,
-11,
1,
-27,
-74,
-12,
27,
41,
-15,
-31,
-14,
60,
-21,
3,
30,
5,
-14,
12,
-3,
-1,
-9,
-21,
3,
-7,
-29,
-15,
14,
-39,
41,
37,
-55,
3,
-6,
-28,
-17,
-69,
-27,
-4,
-28,
-21,
-26,
-23,
1,
14,
15,
-43,
1,
14,
8,
-8,
7,
11,
15,
-17,
0,
20,
-15,
17,
2,
18,
-41,
19,
6,
-58,
37,
-19,
-5,
-19,
0,
-33,
-49,
-24,
1,
34,
-50,
42,
-8,
-43,
-27,
-37,
14,
5,
0,
-12,
-11,
59,
-24,
-13,
-47,
37,
-54,
20,
-9,
-40,
-2,
-33,
52,
-47,
-24,
42,
11,
69,
-9,
44,
22,
14,
-24,
0,
10,
8,
-55,
4,
-31,
36,
-26,
-1,
22,
-49,
70,
-77,
-16,
-27,
-21,
-46,
0,
-36,
-19,
-19,
-15,
5,
22,
-7,
7,
30,
12,
38,
-36,
31,
-7,
12,
12,
28,
27,
3,
-7,
-10,
3,
8,
20,
-41,
-40,
-14,
12,
0,
-6,
-10,
41,
60,
22,
43,
57,
-22,
32,
31,
-31,
-34,
-51,
-59,
47,
4,
-10,
-53,
17,
6,
-12,
-5,
33,
-51,
-56,
38,
-30,
-38,
28,
-19,
0,
1,
-1,
0,
32,
-46,
9,
-2,
22,
-25,
-11,
-13,
-5,
-19,
1,
-49,
9,
15,
8,
-7,
31,
-26,
-39,
19,
-7,
56,
23,
-2,
11,
0,
10,
23,
23,
-4,
4,
15,
-20,
19,
-7,
-23,
-34,
33,
-53,
31,
39,
-41,
-5,
-30,
23,
27,
-67,
3,
-15,
0,
10,
9,
55,
-4,
-3,
-29,
7,
-29,
0,
50,
-39,
-23,
10,
5,
46,
-36,
-5,
-6,
8,
38,
-11,
7,
2,
-40,
54,
-44,
30,
-16,
20,
12,
25,
10,
15,
-20,
27,
28,
20,
11,
-56,
16,
32,
-27,
30,
16,
47,
-34,
-11,
-21,
-42,
-25,
-26,
39,
5,
43,
-52,
-39,
-26,
-15,
17,
-19,
40,
-55,
-30,
-35,
-27,
53,
-24,
-24,
-3,
48,
-23,
-3,
-3,
7,
-1,
-9,
3,
-63,
37,
-23,
4,
13,
-12,
-6,
-3,
-39,
4,
11,
-21,
-9,
57,
28,
28,
46,
-9,
-5,
0,
-64,
29,
6,
1,
-10,
4,
0,
7,
49,
-19,
-19,
11,
-30,
7,
-17,
4,
-61,
31,
-42,
4,
-22,
14,
-18,
-6,
17,
24,
-22,
5,
3,
4,
20,
-18,
-12,
21,
-18,
-34,
2,
48,
-51,
15,
-33,
44,
19,
-67,
0,
-43,
30,
-21,
22,
-40,
-1,
0,
-8,
-25,
-36,
8,
1,
21,
45,
44,
42,
-23,
14,
-50,
37,
-14,
-31,
-5,
-37,
-8,
0,
-30,
24,
31,
-13,
-28,
21,
7,
37,
12,
-44,
33,
24,
41,
23,
-48,
-3,
21,
11,
-1,
11,
38,
-18,
44,
3,
15
] |
Cynar, J.
In this wrongful death action, plaintiff appeals as of right from an August 29, 1984, order granting the individual defendants’ motion for accelerated or summary judgment.
On July 11, 1978, plaintiff’s decedent, Timothy, was a member of the Saginaw Township Community School District beginners’ swimming class at the Chippewa Middle School. Timothy dove off the edge of a swimming pool and did not resurface. Efforts to resuscitate and revive him failed. On July 16, 1978, all life support systems were discontinued.
The defendants involved in this appeal are as follows: Barbara Yeo, Jean Luoma and Curt Crimmins were the swimming class instructors; Ann Princing was the pool attendant; and Jack Cleveland and Richard Brown were school administrators. For purposes of this opinion, we will divide the appealing defendants into two separate groups: the swimming class instructors (including the pool attendant) and the school administrators. At the time the incident complained of occurred all the defendants were employed by the defendant Saginaw Township Community School District. The central issue raised on appeal is whether the alleged acts or omissions of the defendant class instructors and defendant school administrators are discretionary or ministerial. Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The trial court concluded that each of the individual defendants were shielded by governmental immunity because their actions were discretionary in nature rather than ministerial. The trial court granted the individual defendants’ motion for summary judgment or accelerated judgment.
The individual defendants’ pleadings and the trial court opinion and order fail to identify the grounds upon which defendants’ motion was granted. We treat the lower court’s order as one for summary judgment granted under GCR 1963, 117.2(1) [now MCR 2.116(C)(8)], for failure to state a claim upon which relief may be granted.
Viewing the pleadings alone, and accepting as true every well-pled allegation and all conclusions that can reasonably be drawn from the factual allegations, Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 429-430; 202 NW2d 577 (1972), we find that defendant class instructors were only entitled to partial summary judgment under Ross, supra. We also find that defendant school administrators were not entitled to summary judgment under Ross, supra.
In Ross, supra, the Supreme Court held that individual government employees, like defendants herein, are immune from tort liability only when they are:
"a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority;
"b) acting in good faith; and
"c) performing discretionary-decisional, as opposed to ministerial-operational, acts.” Ross, supra, p 592.
In the present case no dispute exists between the parties with respect to the first two prongs of the above-cited rule. Hence, we must determine whether defendant class instructors and defendant school administrators were performing discretionary acts at the time the accident complained of occurred.
The Ross Court offered the following definitions of "discretionary” acts:
" 'Discretionary’ acts have been defined as those which require personal deliberation, decision and judgment. This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as 'the driving of a nail,’ which may be involved in performing an activity. For clarity, we would add the word 'decisional’ so the operative term would be 'discretionarydecisional’ acts.” (Citation omitted; footnotes omitted.) 420 Mich 634.
The Ross Court offered the following definitions of "ministerial” acts:
" 'Ministerial’ acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between 'discretionary’ and 'ministerial’ acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word 'operational’ so the operative term would be 'ministerial-operational’ acts.” (Citation omitted.) 420 Mich 634-635.
The specific acts complained of, rather than the general nature of the activity, must be examined in this case. Ross, supra, pp 634-635. The trial court apparently did not perform this type of examination in determining that the individual defendants were entitled to immunity.
Plaintiff’s amended complaint alleges that defendant class instructors negligently failed to give Timothy mouth-to-mouth resuscitation before removing the boy from the water, and failed to place him on a spine board while in the water. Apparently, Timothy and his classmates had been diving in the deep end of the pool. We believe that defendant class instructors exercised personal judgment in determining that resuscitation efforts would be more effective by first removing Timothy from the water, rather than attempting resuscitation of the boy in the deep end of the pool. We conclude that the manner in which Timothy was rescued constitutes a discretionary act for which defendant class instructors were cloaked with immunity. Ross, supra, pp 633-634.
Plaintiff’s amended complaint further alleges that defendant class instructors failed to properly administer mouth-to-mouth resuscitation and cardiopulmonary resuscitation procedures after removing Timothy from the water. The Ross Court concluded that "the actual execution of [a discretionary] decision * * * is a ministerial act”. Ross, supra, p 635. Applying this principle to the actual resuscitative efforts employed by defendant class instructors, we conclude that these acts are ministerial. The class instructors were therefore not cloaked with immunity for these ministerial acts.
Plaintiff makes several allegations against defendant class instructors which involve their failure to properly instruct and supervise the beginners’ swimming class. Plaintiff specifically alleges that the class instructors breached their duty of care by failing to: 1) properly observe each child enrolled in the swimming class, 2) position themselves around the swimming pool, 3) immediately provide assistance and first aid in the event of an accident, and 4) refrain from activities which would distract their attention from their supervisory responsibilities.
In one of the cases decided in the Ross opinion, Regulski v Murphy, 420 Mich 648-651, the Supreme Court considered whether individual government employees who engage in negligent acts of instruction and supervision in the classroom are entitled to governmental immunity. The plaintiff in that case was enrolled in a high school building trades class in which students were required to build a house. That plaintiff was injured when he attempted to hammer a nail into a piece of wood. That plaintiff alleged that all of the defendants were negligent in failing to properly instruct, warn, and supervise him. In response to the defendants’ claim of governmental immunity, the Supreme Court stated: "Although some decision-making is involved in [instructional and supervisory] activities, it is relatively minor.” 420 Mich 651. The Court held that "instruction and supervision are essentially ministerial-operational activities for which there is no immunity from tort liability.” Id. See also the Court’s consideration of another of the cases decided with Ross, Willis v Nienow, 420 Mich 638-641.
Because instruction and supervision in the classroom setting are defined as ministerial-operational activities in Ross, supra, defendant class instructors were not cloaked with immunity for these acts.
With respect to defendant school administrators, plaintiff has alleged a failure to supervise the children enrolled in the class, and a failure to warn the children’s parents: 1) of the condition of the pool premises, 2) that there was no lifeguard on duty during the class, and 3) that there was lack of constant supervision of the students in the swimming class. Under Ross, supra, these acts or omissions constitute ministerial-operational activities on the part of the defendant school administrators. The trial court therefore erred in granting the defendant school administrators summary judgment on the basis that they were individually immune from tort liability.
Based on the above analysis we conclude that the trial court properly granted summary judg ment with respect to the discretionary acts of defendant class instructors. The trial court, however, improperly granted summary judgment as to the ministerial acts of defendant class instructors and defendant school administrators.
Affirmed in part and reversed in part. | [
-9,
-1,
-34,
-27,
0,
-7,
16,
-12,
3,
36,
-46,
-18,
8,
27,
-7,
-47,
3,
-17,
-33,
-48,
27,
1,
17,
-16,
6,
-55,
39,
-25,
0,
6,
0,
-32,
-7,
-62,
6,
27,
5,
-16,
-15,
-18,
-47,
-44,
16,
-51,
-32,
-21,
57,
6,
11,
14,
37,
34,
23,
25,
-7,
-6,
23,
1,
-35,
-18,
-37,
34,
12,
-33,
6,
0,
-15,
36,
-14,
-7,
-51,
13,
24,
7,
0,
44,
-21,
23,
13,
8,
-26,
13,
25,
12,
-11,
-29,
-39,
-2,
-12,
-15,
-7,
1,
-47,
-49,
-31,
8,
31,
-22,
5,
-23,
51,
17,
0,
-5,
-38,
30,
-32,
9,
19,
11,
-1,
50,
0,
-32,
3,
-47,
22,
21,
-7,
61,
-49,
9,
69,
-9,
35,
-19,
58,
-21,
-15,
73,
-20,
40,
-30,
-10,
-5,
9,
54,
-17,
20,
-46,
-1,
4,
17,
-18,
-16,
-19,
0,
0,
26,
-34,
-60,
28,
-13,
27,
23,
-6,
7,
-14,
26,
20,
8,
-43,
-17,
33,
-44,
-22,
16,
-20,
-13,
9,
53,
-6,
35,
-1,
27,
40,
15,
-5,
-8,
14,
-28,
-1,
24,
19,
-41,
-50,
-5,
-38,
1,
49,
9,
-37,
-43,
-38,
24,
-10,
46,
32,
-8,
28,
13,
-17,
57,
-2,
21,
-37,
-17,
-13,
3,
18,
15,
-15,
0,
6,
-35,
-52,
-6,
-20,
-3,
-32,
-7,
47,
33,
13,
2,
-50,
-21,
23,
-32,
-30,
38,
-46,
-1,
17,
-48,
1,
-34,
57,
60,
-12,
20,
1,
13,
-5,
20,
43,
0,
-44,
-38,
-13,
1,
0,
3,
-33,
-10,
50,
9,
-22,
-35,
11,
58,
15,
-72,
15,
-21,
34,
20,
0,
-41,
0,
-41,
-21,
0,
-42,
26,
-54,
-43,
-14,
47,
8,
6,
-6,
0,
-7,
-63,
-9,
-9,
-52,
-37,
21,
-5,
31,
-24,
-19,
59,
-45,
46,
-69,
-7,
-21,
-12,
12,
46,
37,
-4,
30,
-11,
0,
-15,
9,
34,
23,
-12,
2,
28,
8,
-70,
-37,
48,
-24,
-25,
-22,
-34,
4,
-67,
19,
2,
28,
46,
-6,
-29,
4,
-22,
-44,
31,
-1,
14,
-31,
-8,
13,
1,
54,
-3,
12,
-3,
0,
30,
21,
-2,
-6,
23,
21,
10,
-6,
-9,
58,
17,
2,
-3,
82,
10,
-22,
-30,
4,
-10,
68,
-4,
51,
-35,
62,
56,
3,
-12,
-26,
37,
-6,
2,
91,
-2,
67,
-38,
41,
31,
-49,
5,
-39,
11,
32,
10,
5,
-50,
-22,
0,
-32,
-40,
6,
5,
46,
2,
0,
1,
-4,
24,
10,
7,
-32,
-35,
-56,
19,
15,
-61,
11,
46,
-1,
4,
-48,
60,
-40,
42,
-61,
32,
-40,
30,
-28,
27,
-6,
-4,
-13,
2,
5,
-17,
67,
0,
-21,
30,
2,
-61,
13,
-47,
20,
-1,
-26,
-4,
-77,
-16,
-16,
19,
17,
14,
-29,
38,
23,
-22,
-5,
-14,
-10,
7,
-3,
-10,
11,
-40,
-14,
17,
12,
-4,
-2,
-18,
33,
53,
-60,
-18,
-35,
-40,
53,
-5,
-59,
0,
12,
12,
-12,
12,
35,
-44,
-66,
-12,
32,
-11,
-18,
-20,
-5,
0,
9,
-17,
-4,
12,
33,
-4,
-8,
-14,
-26,
-1,
-64,
-1,
-9,
2,
-3,
-27,
-48,
-65,
15,
-4,
16,
-10,
92,
-11,
3,
42,
-40,
8,
60,
0,
26,
7,
31,
14,
-12,
-8,
-13,
-6,
0,
24,
-16,
56,
-24,
17,
-22,
-54,
-34,
14,
-7,
25,
30,
7,
22,
14,
-12,
-26,
-39,
41,
46,
36,
-2,
-44,
0,
19,
-20,
12,
-6,
21,
-42,
-14,
24,
50,
17,
24,
-16,
-3,
-29,
37,
-34,
1,
66,
34,
-52,
-31,
12,
72,
33,
-42,
17,
5,
24,
39,
0,
-27,
-50,
61,
51,
9,
1,
-26,
51,
0,
-7,
2,
-16,
2,
-63,
0,
-10,
18,
-25,
-7,
-24,
25,
15,
-14,
-46,
1,
-100,
35,
0,
-34,
-5,
-45,
-49,
-20,
16,
30,
-31,
-7,
-14,
32,
27,
9,
29,
3,
13,
0,
-51,
1,
-27,
-58,
-16,
2,
-17,
-31,
5,
-32,
28,
-31,
-14,
-3,
7,
28,
-57,
-3,
5,
17,
-7,
-33,
13,
20,
0,
-26,
-24,
-33,
10,
-17,
-36,
-23,
-11,
-19,
-9,
-20,
54,
1,
-13,
0,
-9,
1,
22,
22,
-17,
-1,
1,
-16,
31,
-6,
-2,
-18,
31,
14,
-7,
46,
-36,
-2,
26,
8,
-48,
9,
36,
-49,
12,
20,
-24,
-5,
31,
-9,
4,
-18,
6,
-25,
0,
-67,
-27,
44,
13,
-61,
2,
-59,
40,
0,
16,
-13,
-2,
-10,
-43,
-8,
17,
-3,
34,
-12,
10,
27,
7,
40,
17,
-8,
-35,
-35,
-27,
31,
-2,
26,
-6,
4,
-24,
-4,
11,
19,
-19,
-36,
-29,
-14,
1,
11,
12,
64,
7,
-3,
-5,
29,
6,
-41,
-7,
39,
5,
13,
-2,
-6,
25,
-11,
12,
-22,
-44,
-6,
35,
13,
-4,
25,
2,
-17,
0,
-7,
-10,
-39,
-51,
-8,
1,
-24,
42,
-13,
19,
-19,
-36,
-19,
-36,
-5,
4,
13,
-29,
-9,
-12,
27,
49,
62,
19,
27,
-16,
19,
12,
5,
59,
-1,
-2,
-4,
-35,
11,
11,
-6,
17,
-44,
-20,
33,
23,
-11,
-21,
-39,
24,
-6,
41,
0,
13,
1,
13,
49,
14,
3,
29,
-17,
-22,
-1,
56,
-30,
-81,
24,
13,
16,
-12,
-46,
0,
-23,
15,
59,
-38,
45,
-32,
28,
2,
13,
9,
3,
-21,
22,
31,
-52,
-63,
21,
23,
39,
22,
-44,
15,
-25,
49,
-27,
18,
-18,
18,
-5,
0,
-33,
48,
-59,
20,
4,
-45,
-2,
-6,
12,
26,
2,
17,
-6,
44,
4,
-17,
-1,
-9,
22,
61,
13,
-30,
-36,
1,
-22,
-16,
8,
-48,
26,
-19,
-17,
-43,
-7,
16,
-9,
-26,
-30,
45,
-7,
38,
27,
2,
41,
24,
-7,
-17,
6,
30,
-34,
-50,
17,
-26,
23,
-24,
-11,
-22,
-41,
54,
-12,
35,
-35,
9,
50,
-31,
52,
-13,
-9,
20,
-4,
-16,
-23,
43,
42,
-39,
7,
22,
-22,
-1,
9,
-56,
9,
35,
-30,
16,
-24,
80,
-47,
11,
49,
-6,
-1,
72,
44,
-58,
-59,
13,
21,
39,
-11,
-27,
-13,
-31,
-30,
-63,
22,
27,
-44,
31,
-9,
-62,
35,
-11,
0,
41,
5,
-38,
10,
38,
24,
-7,
58,
-1,
17,
34,
18,
16,
24,
-10,
32,
38,
23,
54,
14,
53,
7,
-27,
-10,
38,
-2,
51,
16,
-42,
10,
-3,
-25,
-25,
-41,
5,
7,
46,
19,
19
] |
Per Curiam.
Plaintiffs appeal as of right from an order granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(3).
Plaintiff Rozanne Meklir was injured when the vehicle she was riding in was struck in the rear by defendant’s automobile. The trial court held as a matter of law that plaintiff Rozanne Meklir, although injured in the accident, had not sustained a serious impairment of body function and was barred from bringing an action in tort to recover for noneconomic damages under the no-fault act, MCL 500.3135; MSA 24.13135. Rozanne’s husband alleged loss of consortium. As his claim is dependent upon that of his wife summary judgment was entered on his claim as well. Unless otherwise noted, "plaintiff’ will refer only to Rozanne.
On appeal plaintiff contends that the trial court erred in its grant of summary judgment as there were genuine issues of material fact and the affidavit filed in support of the motion was procedurally defective. Plaintiff also alleges that as a matter of law she did sustain a serious impairment of bodily function. Defendant asks us to award him costs and attorney fees as he argues that this is a frivolous and vexatious appeal.
Plaintiffs argument that the motion for summary judgment was procedurally defective is without merit. This precise issue was disposed of in Jakubiec v Kumbier, 134 Mich App 773, 775-776; 351 NW2d 865 (1984), and Brooks v Reed, 93 Mich App 166, 174-175; 286 NW2d 81 (1979). Accordingly, we find no reversible error in defendant’s failure to file an affidavit based on personal knowledge.
Plaintiff contends that the trial court erred in finding that her injuries were not a serious impairment of a body function. She first argues that there was a factual dispute, which would make the extent of her injuries a question for the jury and the grant of summary judgment improper. To support her claim of a factual dispute, plaintiff points out the affidavit from one of her doctors who stated that her injuries were serious impairments of bodily function. However, these statements are legal conclusions, not facts. Additionally, plaintiff attempts to present a genuine issue of material fact by pointing out discrepancies between her affidavit and her deposition.
In her affidavit she alleged that her activities were severely curtailed due to her pain, while in her deposition she stated that she only had to slow her activities down due to her pain. The discrepancy plaintiff is relying upon regards the amount of pain she is suffering. However, her pain is not a factor material to her recovery.
"We also note the Cassidy Court’s determination of the legislative intent to predicate recovery on objectively manifested injuries, not on pain and suffering. Cassidy, supra, p 505.” Jakubiec, supra, p 777.
The actual injuries were not disputed.
"[G]iving the benefit of every reasonable doubt to the party opposing the motion and [we are] satisfied that it is impossible for the claim to be supported at trial because of some deficiency which could not be overcome.” Feldman v Green, 138 Mich App 360, 367; 360 NW2d 881 (1984).
As there was no factual dispute, this was a matter of law for the court to decide. Cassidy v McGovern, 415 Mich 483, 488; 330 NW2d 22 (1982).
Plaintiff is barred from bringing this suit under the no-fault act unless she can meet the threshold requirements of proving a serious impairment of an important bodily function. Cassidy, supra, pp 504-505. These requirements are stated in Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984).
"First, 'impairment of body function’ actually means 'impairment of important body functions’. Cassidy v McGovern, 415 Mich 504. Second, by its own terms, the statute requires that any impairment be 'serious’. MCL 500.3135(1); MSA 24.13135(1); McKendrick v Petrucci, 71 Mich App 200, 210; 247 NW2d 349 (1976). Third, the section applies only to 'objectively manifested injuries’. Cassidy v McGovern, 415 Mich 505.”
Plaintiff claims that she suffered injuries to her neck, lower back and left hand. We do not doubt that the ability to move one’s back is an important body function. Argenta v Shahna, 135 Mich App 477, 489; 354 NW2d 796 (1984). We would also agree that movement of one’s neck and hand are also important body functions. However, we do not find any impairment of plaintiff’s to be serious. Seriousness is judged by the effect of the injury on a person’s ability to lead a normal life. Cassidy, supra, p 505.
Even if we were to hold that the medical findings of muscle spasm, tenderness and limitations upon the flexibility of her muscles were objective manifestations of her injuries, it does not appear that her lifestyle has been significantly altered. Flemings v Jenkins, 138 Mich App 788, 790; 360 NW2d 298 (1984). Plaintiff is still able to engage in her nomal activities and is not incapacitated by her discomfort. McDonald v Oberlin, 127 Mich App 73, 76; 338 NW2d 725 (1983). While plaintiff experiences difficulties in her daily life, i.e., inability to play cards for long periods of time, difficulty in cooking and a reduction in her social life, we do not find that such difficulties interfere in any significant manner with plaintiff’s lifestyle. Guerrero v Schoolmeester, 135 Mich App 742, 751; 356 NW2d 251 (1984), and Branden v Lee, 133 Mich App 215; 358 NW2d 63 (1984). Accordingly, we find no error in granting summary judgment for defendant.
We do not find this appeal to be frivolous or vexatious and we decline to award defendant attorney fees and costs under MCL 600.2445; MSA 27A.2445.
Affirmed. Cost to appellee. | [
-16,
0,
-44,
13,
23,
-22,
39,
-11,
-15,
40,
-4,
-36,
32,
-18,
0,
-14,
6,
4,
-8,
-20,
-10,
-30,
-59,
77,
-23,
-19,
-15,
-29,
4,
10,
20,
-30,
-45,
-13,
9,
-16,
6,
33,
-18,
42,
20,
-15,
-8,
21,
-48,
-38,
60,
17,
16,
-42,
41,
-1,
-55,
-33,
-31,
-13,
61,
-14,
-23,
-24,
10,
14,
42,
-3,
0,
10,
37,
55,
-37,
-23,
-55,
23,
-25,
-33,
-79,
1,
-7,
39,
-1,
15,
12,
-25,
28,
31,
2,
43,
-21,
-4,
-14,
-27,
-12,
-21,
-48,
1,
-44,
36,
2,
-56,
44,
-3,
-8,
70,
32,
52,
-4,
11,
-49,
-44,
23,
14,
-14,
36,
-37,
-8,
-26,
-36,
18,
38,
20,
-16,
-5,
-9,
68,
-14,
25,
-13,
20,
-5,
5,
5,
38,
-9,
-10,
-11,
-6,
-6,
-15,
-26,
-3,
27,
14,
-3,
-9,
3,
14,
34,
58,
-42,
28,
-17,
3,
48,
21,
-7,
-7,
-6,
-32,
-10,
39,
-21,
33,
5,
24,
49,
11,
-14,
24,
-2,
-1,
-54,
60,
-8,
53,
-43,
-4,
23,
27,
0,
-41,
32,
-21,
43,
-1,
3,
-42,
-37,
-34,
14,
31,
10,
-5,
16,
-16,
1,
2,
23,
8,
42,
37,
-25,
19,
-55,
38,
-25,
1,
-1,
-27,
-24,
8,
-23,
15,
-51,
8,
-45,
0,
-30,
45,
-39,
-60,
10,
-2,
-12,
19,
-31,
-52,
11,
1,
-52,
-6,
-4,
33,
-37,
-41,
4,
-20,
6,
16,
-21,
51,
-37,
22,
18,
40,
-45,
-11,
7,
-26,
-9,
3,
-47,
58,
-5,
-33,
-32,
-30,
-23,
33,
63,
-17,
12,
-13,
81,
-4,
20,
3,
14,
0,
24,
7,
-24,
-36,
0,
-9,
-36,
37,
-62,
-1,
29,
37,
38,
-12,
-3,
-20,
-39,
-50,
18,
21,
6,
31,
21,
42,
-25,
-40,
8,
14,
-17,
12,
-14,
-23,
0,
3,
-52,
57,
29,
-25,
-29,
-35,
54,
-27,
25,
0,
4,
57,
-9,
55,
3,
-17,
-14,
20,
-38,
-28,
21,
-14,
-15,
20,
-33,
4,
-62,
-18,
4,
-50,
39,
4,
23,
13,
-40,
29,
27,
-15,
8,
27,
44,
-7,
8,
-5,
57,
-8,
2,
29,
24,
-76,
-2,
42,
19,
-77,
-2,
31,
-56,
-45,
50,
-15,
-7,
25,
0,
-4,
40,
-15,
31,
-21,
85,
-3,
-25,
8,
-46,
-3,
-52,
12,
31,
25,
33,
-2,
10,
17,
-57,
0,
-10,
-44,
-32,
25,
-15,
-34,
8,
46,
-25,
-28,
3,
-21,
23,
-7,
17,
-22,
-10,
5,
33,
-19,
-46,
5,
-43,
-16,
17,
18,
40,
21,
-11,
26,
12,
65,
11,
-8,
-66,
38,
-19,
5,
-40,
-2,
-16,
-7,
-13,
45,
-30,
6,
5,
-35,
-36,
31,
-21,
-36,
-9,
23,
6,
-56,
-29,
-18,
-29,
-50,
24,
3,
14,
10,
7,
16,
0,
45,
-7,
11,
5,
20,
15,
-41,
-57,
8,
-29,
-12,
-24,
42,
-31,
-21,
-16,
34,
-37,
25,
11,
-20,
68,
32,
1,
-35,
3,
-6,
9,
-2,
21,
-11,
-13,
-35,
-13,
3,
20,
-13,
-16,
5,
1,
-21,
-2,
-30,
-45,
-53,
5,
-32,
-60,
-24,
-22,
-28,
21,
40,
-12,
7,
-15,
23,
29,
-53,
3,
32,
34,
-40,
-3,
28,
1,
0,
16,
-40,
-8,
-8,
15,
-29,
-15,
-1,
-13,
-32,
-8,
27,
-14,
0,
-17,
43,
-6,
-40,
-41,
-17,
-6,
-43,
54,
-12,
-32,
35,
-21,
-26,
12,
20,
28,
17,
-26,
9,
24,
42,
-34,
28,
5,
5,
-47,
26,
10,
-23,
42,
39,
-24,
21,
-83,
20,
16,
-16,
6,
-24,
-46,
-48,
-32,
48,
54,
-51,
-2,
41,
25,
-15,
-45,
-5,
-36,
3,
-13,
13,
-37,
-41,
-12,
24,
-7,
6,
2,
0,
-50,
46,
22,
53,
29,
-55,
16,
33,
35,
-14,
24,
42,
-82,
22,
7,
-33,
-1,
-39,
-46,
6,
29,
30,
-8,
-16,
11,
5,
35,
-9,
-28,
-5,
-6,
-26,
-48,
0,
-14,
-4,
-23,
-11,
35,
-14,
15,
-23,
-18,
36,
11,
47,
48,
34,
-47,
16,
3,
-34,
-27,
0,
51,
-15,
-27,
26,
-32,
25,
23,
-22,
14,
-29,
-4,
-3,
-48,
14,
20,
3,
7,
11,
21,
24,
10,
71,
9,
57,
24,
15,
18,
-14,
18,
7,
-27,
15,
-9,
-47,
-49,
-34,
26,
52,
-55,
-37,
40,
13,
48,
-34,
6,
13,
20,
-13,
33,
12,
-17,
-2,
32,
-46,
-30,
3,
-11,
17,
7,
-43,
38,
-6,
-21,
18,
31,
26,
-40,
9,
-55,
4,
9,
-24,
-16,
-16,
21,
13,
32,
44,
2,
7,
3,
-10,
-21,
-5,
-5,
32,
-31,
-4,
-7,
40,
34,
21,
-13,
23,
-19,
9,
31,
2,
49,
-3,
10,
25,
2,
-27,
2,
24,
-64,
26,
2,
26,
-36,
-14,
-7,
-13,
7,
-39,
8,
-27,
5,
-16,
36,
11,
-85,
-59,
44,
-18,
-29,
72,
-17,
3,
-63,
20,
21,
-19,
-12,
14,
-56,
-54,
23,
30,
-45,
11,
-18,
39,
3,
-2,
-2,
0,
-3,
23,
-7,
-12,
18,
38,
10,
1,
36,
43,
31,
47,
-35,
49,
-17,
-1,
-18,
6,
4,
-29,
-12,
39,
19,
-31,
0,
16,
-4,
18,
-23,
21,
29,
-37,
-52,
15,
44,
-10,
41,
24,
-15,
-21,
-63,
20,
12,
-33,
38,
54,
-1,
-32,
3,
-23,
24,
31,
-42,
42,
11,
-29,
10,
-20,
-2,
-42,
36,
14,
-10,
-26,
-13,
8,
8,
-5,
33,
25,
25,
20,
41,
-70,
47,
7,
18,
1,
-25,
21,
4,
20,
-11,
-53,
31,
-41,
16,
6,
-3,
-68,
-32,
26,
40,
21,
-5,
-43,
23,
0,
-12,
59,
-36,
-40,
8,
41,
4,
45,
50,
25,
-31,
4,
-14,
-12,
-19,
17,
29,
32,
-6,
-12,
10,
-1,
-1,
-16,
18,
11,
-35,
7,
-15,
0,
8,
-42,
15,
3,
-36,
38,
21,
42,
-13,
-15,
-8,
4,
-37,
15,
-37,
15,
70,
-26,
-51,
-21,
38,
-15,
21,
18,
-5,
10,
25,
-29,
3,
43,
1,
-29,
26,
35,
25,
-24,
18,
26,
-46,
-33,
-24,
-3,
50,
-31,
-12,
-30,
-10,
-45,
-21,
20,
28,
-41,
16,
22,
-50,
-20,
12,
9,
-53,
-55,
28,
-23,
11,
-13,
-9,
-13,
-15,
-27,
25,
4,
-20,
14,
39,
-16,
-24,
47,
24,
27,
-18,
29,
5,
-28,
20,
4,
20,
21,
-15,
25,
25,
-2,
-25,
-14,
-15,
-15,
3,
92,
-1
] |
Per Curiam.
Plaintiff applied for workers’ compensation benefits on the ground that her husband’s death was caused by a heart condition and emphysema aggravated by his working conditions. Hearing examiner Ray Ravary, by decision mailed August 21, 1980, awarded plaintiff $101 per week for up to 500 weeks. Defendant appealed to the Workers’ Compensation Appeal Board, which issued its decision October 14, 1983. In reversing the hearing examiner’s award, the board stated in part:
"It is clear to us as fact finders that decedent worked in a deleterious atmosphere which aggravated his pulmonary disease and most likely made him more susceptible to his arteriosclerotic heart disease and death sooner than would otherwise have been the case. Although there is expert testimony to support this finding, our judicial superiors have usurped our right to so find. Miklik v Mich Special Mach Co, 415 Mich 364 (1982).”
The plaintiff filed a delayed application for leave to appeal to this Court which was denied on February 28, 1984. Upon plaintiff’s application for leave to appeal, the Supreme Court remanded the case to this Court "as on leave granted”. Leaveck v General Motors Corp, 419 Mich 950 (1984).
Mr. Leaveck worked for General Motors Corporation for 24 years before his death at the age of 58. He operated a cutting machine called an Ex-Cell-O. He was required to load approximately 1,000 eight- or nine-pound parts into the machine daily. There was testimony that the air around the machine was dusty and smelled oily. Mr. Leaveck wore a mask on the job. Plaintiff testified that her husband’s work clothes smelled oily and were covered with a graphite-like substance and little pieces of metal.
Mr. Leaveck suffered from cardiac problems beginning in 1967. His physician, Dr. Rhoda M. Powsner, testified that he suffered from severe pulmonary disease and severe arteriosclerotic heart disease. Dr. Powsner believed that there were several causative factors for the pulmonary disease, including smoking (Mr. Leaveck quit smoking in 1967), and allergy to dust at work. Dr. Powsner testified that people with pulmonary disease are less able to tolerate heart disease because the lungs are unable to deliver as much oxygen as normal lungs.
After reviewing Mr. Leaveck’s medical reports, Dr. Clyde Wu testified on behalf of General Motors that plaintiffs decedent died as a result of arteriosclerosis, that arteriosclerosis is an ordinary disease of life, and that the patient’s death, occurring two days after his last working day, was not work related.
The WCAB found that the decedent worked in a deleterious atmosphere which aggravated his pulmonary disease and "most likely” contributed to his death. However, the board stated that the recent Supreme Court decision in Miklik v Michigan Special Machine Co, 415 Mich 364; 329 NW2d 713 (1982), restricted its findings of fact and precluded an award. We disagree.
Findings of fact in a workers’ compensation proceeding are conclusive in the absence of fraud. Const 1963, art 6, §28; MCL 418.861; MSA 17.237(861). This Court reviews such findings only to determine whether there is any evidence to support them. Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978). On the other hand, the WCAB’s application of legal standards is properly reviewable by an appellate court. Stover v Midwest Tank & Fabrication Co, Inc, 87 Mich App 452, 456-457; 275 NW2d 15 (1978), lv den 406 Mich 926 (1979); Ratliff v General Motors Corp, 127 Mich App 410, 414; 339 NW2d 196 (1983). The WCAB’s application of Miklik in this case is, therefore, reviewable.
MCL 418.401(2)(b); MSA 17.237(401)(2)(b) provides in part:
" 'Personal injury’ shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment. An ordinary disease of life to which the public is generally exposed outside of the employment is not compensable/’[ ]
Michigan courts have, on earlier occasions, considered the compensability under the workers’ compensation statute for injuries and death due to heart disease. Five such cases were analyzed in Kostamo v Marquette Iron Co, 405 Mich 105; 274 NW2d 411 (1979). All five plaintiffs were victims of arteriosclerotic heart disease (hardening of the arteries).
The Court first held that arteriosclerosis is an "ordinary disease of life” which is not caused by work or aggravated by the stress of work. However, the Court also found that a person suffering from arteriosclerosis might well be more susceptible to a heart attack caused by stress, including work-realted stress. The Court stated:
"Unless the work has accelerated or aggravated the illness, disease or deterioration and, thus, contributed to it, or the work, coupled with the illness, disease or deterioration, in fact causes an injury, compensation is not payable.” 405 Mich 116.
Thus, the Court envisioned two routes to compensation: (1) the work aggravates the illness, or (2) the work precipitates an injury in a person weakened by the illness. Since the Court found arteriosclerosis not to be aggravated by work, plaintiffs in the cases considered had to meet the conditions of the second test. In the case of two of the plaintiffs, the WCAB had found no heart damage. Although the plaintiffs were disabled by arteriosclerosis, the Court held that there was no compensable injury, since arteriosclerosis itself is not a work-related disease. 405 Mich 116-118. Where, however, there was a showing of incidents of work-related stress which contributed to heart damage in an arteriosclerotic individual, the Court held that compensation is appropriate.
Although the three remaining plaintiffs in Kostamo all had heart attacks while on the job or within several hours of leaving work, the Court did not specifically state that this was a prerequisite to compensation.
In Miklik v Michigan Special Machine Co, supra, the Court considered whether a WCAB award was proper in view of the Kostamo decision. The WCAB had found that unspecified stresses in Miklik’s employment aggravated his arteriosclerotic heart condition. The Court found this "bald assertion” at odds with Kostamo. The Court stated:
"There must be a relationship proved between the damage and specific incidents or events at work. General conclusions of stress, anxiety, and exertion over a period of time do not satisfy this second requirement. There must be enough detail about that which precipitated the heart damage to enable the factfinder to establish the legal connection by a preponderance of the evidence.
"The link between the work and the heart damage need only be one of reasonable relationship of cause and effect. Other possible or probable causes need not be excluded beyond doubt. Further, the work need not be the sole cause of the damage; it is sufficient if the employment is a cause. The factfinder must identify and evaluate the discrete factors of employment which are connected to the damage. The Kostamo Court noted several examples which have been regarded as significant by courts and commentators; temporal proximity of the cardiac episodes to the work experience, hot and dusty conditions, repeated return to work after a cardiac episode, and mental stress.
"The WCAB’s conclusion in Miklik that general stress existed without a link between a specific incident of employment and a specific cardiac episode does not suffice. Accordingly, we reverse the decision of the WCAB.” 415 Mich 370-371. (Emphasis in original.)
After Kostamo and Miklik, the state of the law appears to be that: (1) arteriosclerosis is an ordinary disease of life not caused by working conditions nor aggravated by stress; (2) the existence of arteriosclerosis does not necessarily bar a workers’ compensation award by a claimant who suffers a heart attack; (3) working conditions may be a cause of a heart attack in an arteriosclerotic individual; (4) in order to claim an award, an employee must cite specific stressful conditions from which the factfinder may draw a conclusion that employment conditions were a causative factor in the attack.
In the instant case, however, plaintiff is not arguing that the decedent’s working conditions aggravated an arteriosclerotic condition. The argument instead is that working conditions aggravated decedent’s pulmonary disease, which in turn was a causative factor in his heart attack. Although arteriosclerosis may be an ordinary disease of life neither caused nor aggravated by working conditions, the same cannot be said for lung diseases. There was competent evidence offered to show that decedent’s pulmonary disease was, in fact, aggravated by his working conditions, and the evidence of those conditions was specific, consisting primarily of a hot, dusty environment. Absent the added factor of decedent’s lung disease, it would be a question whether a sufficient showing of the causal connection between the work stress and the heart attack was made. Given that factor, however, two questions are posed: (1) did work condi tions aggravate the pulmonary disease, and (2) did the pulmonary disease contribute to decedent’s heart attack? The board, believing that Miklik prevented a finding for plaintiff, did not conclusively address these questions. We hold, however, that the board erroneously construed Miklik and applied an incorrect legal standard. We therefore reverse the decision of the WCAB and remand for further findings of fact and proceedings consistent with this opinion. See Williams v Lang (After Remand), 415 Mich 179, 183; 327 NW2d 240 (1982).
Reversed and remanded.
An amendment to the above statue, effective January 1, 1982, has been held not to be retroactive and thus does not apply in this case. See Lambard v Saga Food Service, 127 Mich App 262, 270-273; 338 NW2d 207 (1983), lv den 419 Mich 958 (1984). | [
35,
23,
-14,
-3,
37,
9,
-12,
-7,
-12,
-27,
31,
-48,
52,
-22,
56,
4,
34,
-15,
-28,
19,
-26,
-49,
-4,
20,
-15,
-25,
0,
-8,
-10,
-1,
7,
1,
-14,
-54,
-31,
-10,
21,
-59,
-39,
14,
-15,
-87,
19,
-17,
-22,
-32,
57,
27,
21,
33,
24,
18,
19,
-22,
41,
17,
22,
59,
-35,
69,
-5,
-17,
25,
-10,
79,
75,
3,
14,
-30,
77,
-10,
1,
2,
3,
-22,
-55,
40,
61,
-33,
13,
35,
-30,
18,
-29,
-55,
23,
-6,
41,
6,
-8,
-21,
-8,
8,
14,
-57,
-1,
-54,
8,
-4,
40,
1,
38,
20,
-12,
-22,
2,
56,
20,
-33,
11,
-8,
6,
-10,
26,
34,
24,
20,
45,
3,
44,
-31,
-35,
10,
-3,
29,
39,
0,
18,
-6,
30,
45,
51,
-7,
-18,
-5,
-4,
-18,
-26,
-15,
-8,
-2,
75,
-7,
-17,
-3,
17,
0,
-28,
-13,
-34,
-29,
73,
-8,
-17,
-18,
52,
11,
-9,
52,
-23,
14,
-19,
5,
74,
-31,
-43,
-5,
54,
30,
-33,
2,
2,
0,
-9,
15,
15,
62,
20,
-16,
48,
-75,
6,
-14,
0,
11,
-15,
9,
52,
-11,
-31,
52,
-30,
-4,
15,
12,
19,
-11,
25,
55,
-8,
19,
-29,
28,
5,
27,
32,
-29,
25,
15,
-5,
0,
25,
62,
-85,
-26,
0,
-4,
-15,
-21,
-18,
11,
-19,
3,
-9,
-52,
-9,
8,
-22,
40,
-32,
-3,
-24,
49,
20,
-3,
33,
32,
-29,
62,
6,
-19,
-5,
-3,
29,
-23,
14,
-27,
-6,
-5,
13,
37,
40,
5,
27,
-30,
-20,
-13,
-9,
35,
-42,
-13,
43,
8,
48,
32,
23,
-10,
24,
-19,
-6,
12,
-35,
19,
-93,
-33,
-63,
0,
-2,
52,
12,
-27,
-2,
-57,
-27,
-19,
31,
12,
-47,
-68,
-13,
44,
-53,
-7,
3,
44,
-15,
5,
3,
3,
0,
-20,
20,
-48,
-36,
7,
6,
-71,
-1,
-12,
30,
14,
-64,
45,
101,
46,
-25,
0,
-58,
-17,
7,
-30,
47,
-39,
-46,
-16,
15,
-46,
-11,
46,
0,
-60,
-4,
-23,
79,
36,
-52,
-9,
29,
9,
24,
-14,
34,
13,
30,
-35,
2,
49,
27,
32,
12,
25,
15,
73,
5,
-42,
48,
31,
-30,
-29,
33,
21,
-12,
15,
80,
-9,
-12,
18,
-47,
-28,
1,
51,
-11,
-10,
-35,
-11,
24,
-25,
35,
42,
6,
14,
-20,
28,
-45,
-60,
68,
-16,
16,
9,
31,
-35,
6,
30,
41,
-16,
26,
-1,
-13,
-51,
57,
-17,
-5,
-23,
46,
59,
-54,
-15,
-32,
-14,
9,
-41,
-18,
-22,
4,
-4,
-56,
37,
-4,
-20,
-42,
64,
25,
-39,
-13,
-15,
-42,
-12,
3,
-34,
7,
-7,
-15,
-17,
-39,
-7,
-36,
-33,
34,
25,
18,
-14,
-53,
24,
-16,
-2,
34,
7,
22,
62,
-53,
0,
14,
0,
16,
-25,
-22,
-17,
-7,
-37,
4,
-66,
-37,
18,
-21,
21,
-16,
-30,
-2,
89,
8,
11,
-21,
-26,
8,
-25,
-45,
-36,
2,
27,
-31,
0,
-6,
3,
-9,
-27,
-13,
-31,
7,
-13,
34,
44,
-26,
-6,
-32,
-14,
-8,
-21,
5,
15,
-9,
-18,
-50,
36,
-4,
40,
-77,
-4,
-51,
31,
-75,
-41,
-24,
-16,
37,
12,
33,
-2,
16,
-26,
6,
-68,
-21,
12,
17,
18,
-61,
-40,
-4,
-27,
-42,
15,
-22,
42,
32,
12,
3,
-9,
-16,
-70,
-28,
-8,
10,
-15,
7,
-30,
-44,
-28,
-10,
25,
18,
3,
-35,
-17,
13,
20,
2,
44,
46,
40,
-13,
-13,
23,
-14,
39,
-7,
-4,
-15,
-8,
74,
-10,
-22,
-28,
28,
4,
15,
33,
-21,
-25,
-34,
19,
38,
-16,
24,
27,
-51,
-59,
15,
-1,
-7,
-32,
-18,
-37,
7,
41,
16,
6,
0,
-27,
-1,
-20,
5,
-25,
-34,
16,
-17,
46,
-7,
22,
58,
-66,
-27,
-19,
-25,
-63,
-52,
-26,
-43,
-33,
34,
23,
14,
29,
-9,
-33,
-35,
29,
28,
-4,
-15,
9,
-1,
23,
6,
-42,
-5,
-27,
63,
11,
-17,
17,
-4,
2,
64,
11,
-24,
-25,
2,
6,
-30,
-49,
6,
30,
-27,
25,
5,
-4,
56,
-30,
-27,
-9,
-13,
32,
11,
-2,
19,
29,
-8,
-10,
-8,
-13,
32,
45,
-17,
49,
35,
-8,
0,
-21,
-3,
6,
-51,
-20,
48,
46,
-53,
58,
22,
5,
4,
-44,
-31,
46,
-8,
39,
-19,
23,
9,
2,
30,
-37,
4,
47,
-43,
2,
-10,
30,
-27,
-49,
-4,
16,
-52,
-9,
-7,
-30,
15,
52,
-13,
-40,
-15,
-29,
-12,
-21,
-58,
-10,
9,
34,
23,
37,
-65,
-42,
-19,
-30,
-20,
-24,
-15,
7,
29,
13,
-44,
4,
43,
39,
57,
15,
2,
-33,
-7,
-37,
32,
-24,
-29,
47,
-16,
-6,
4,
-23,
39,
-21,
0,
-11,
27,
-47,
41,
19,
-20,
8,
20,
29,
-10,
-25,
1,
40,
25,
-30,
-34,
-5,
-31,
-36,
3,
-3,
1,
-43,
57,
-12,
-13,
-10,
-53,
12,
21,
-20,
-24,
-32,
35,
-26,
9,
-40,
-2,
28,
54,
-5,
77,
49,
0,
62,
35,
-7,
-7,
-8,
67,
-7,
2,
1,
66,
-14,
29,
-27,
-11,
36,
-39,
21,
17,
61,
-17,
-15,
8,
-4,
-14,
3,
26,
-14,
-28,
-26,
-21,
52,
-27,
19,
35,
13,
2,
-31,
52,
-11,
-2,
55,
-9,
-23,
-4,
-17,
22,
19,
-15,
-27,
-25,
68,
22,
-8,
-21,
-38,
45,
51,
20,
4,
-9,
26,
-5,
9,
-52,
38,
32,
-28,
15,
-14,
6,
-40,
-81,
6,
-47,
11,
46,
-29,
-37,
-46,
56,
-24,
15,
43,
0,
2,
-17,
0,
-34,
15,
-35,
0,
6,
-35,
-19,
27,
-1,
-22,
20,
13,
48,
18,
12,
16,
-25,
-43,
-46,
-8,
-24,
-38,
-14,
-2,
14,
32,
8,
86,
5,
-62,
-44,
-31,
20,
-7,
32,
-7,
15,
-46,
-39,
14,
36,
16,
6,
23,
23,
-17,
-41,
-38,
14,
-75,
20,
6,
15,
26,
-21,
-29,
25,
-47,
47,
-5,
28,
22,
12,
40,
-13,
-25,
5,
-7,
-2,
46,
-8,
9,
-3,
64,
20,
-15,
2,
9,
-39,
-32,
17,
-37,
9,
-52,
10,
-14,
39,
23,
-3,
9,
2,
-20,
-8,
1,
7,
-53,
-16,
-91,
-29,
-1,
-5,
7,
1,
33,
44,
-10,
5,
-23,
52,
18,
24,
14,
10,
18,
42,
51,
-21,
-19,
31,
33,
-12,
32,
-29,
-61,
-18,
-3,
-16,
-37,
-42,
-34,
-12,
1,
-27,
-41
] |
Cynar, J.
On October 2, 1984, the plaintiff, Omega Construction Company, Inc., filed a complaint in Ingham County Circuit Court. The first count of the complaint sought a declaratory judgment, finding that disputes arising out of the construction contracts with defendants were subject to arbitration. The second and third counts sought, as an alternative to the first count, damages for breach of contract and contract-related torts. On November 9, 1984, the defendants filed a motion for summary judgment pursuant to GCR 1963, 117.2(3) [now MCR 2.116(0(10)]. On January 10, 1985, Ingham County Circuit Court Judge Thomas L. Brown granted the defendants’ motion for summary judgment on Count I, holding that the defendants had not waived in the contract documents their right to judicial process and trial and the parties are stayed from arbitration in Michigan. The parties voluntarily dismissed the other two counts; and on January 23, 1985, Judge Brown filed his final order. The plaintiff now appeals as of right._
The only issue raised on appeal is whether the trial court properly granted summary judgment to the defendants on Count I of the complaint. The trial court granted defendants summary judgment based on GCR 1963, 117.2(3), finding that there was no material issue of fact and that defendants were therefore entitled to summary judgment as a matter of law.
The standard for granting motions for summary judgment brought under subrule 117.2(3) is well settled. In determining whether such motions should be granted, reference must be made to any evidence in the case, including depositions, affidavits, admissions and pleadings. Once these documents are reviewed, the court must ascertain whether there is a dispute as to any material fact. Anderson v Kemper Ins Co, 128 Mich App 249; 340 NW2d 87 (1983). The court should give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a question as to a material fact. Rizzo v Kretschemer, 389 Mich 363; 207 NW2d 316 (1973). The Court must be satisfied that no factual development is possible which would support the nonmoving party’s claim. Royal Globe Ins Co v Great American Ins Corp, 118 Mich App 735; 325 NW2d 556 (1982).
The relevant evidence in this case consists primarily of the contract documents.
On November 29, 1983, Omega entered into a contract with defendants, Joel Altman, as president of Altman Development Company, and the Arbor Club. The contract stated that it was "being signed based on plans and drawings prepared by the architect”. The contract further stated:
"Seciton [sic] 1.03. Master Drawings and Specifications A master set of the aforesaid Drawings and Specifications, initialled by the parties hereto and by the Development’s Architect, and the contractor’s Surety or Guarantor will be placed on file with the Architect, and such master set hereof shall govern in all matters which arise with respect to such Drawings and Specifications.”
Similarly, the construction contract between Omega and Altman, on behalf of defendant Lakepointe, provided that it was "being signed based on preliminary plans and drawings prepared by the Architect”. The contract between Omega and Lakepointe further stated:
"Section 1.01, Contract Documents. * * * At such time as the final working drawings and specifications are arrived at, they shall be considered part of the Contract Documents for purposes of this Agreement, and shall be initialled by all the parties to this agreement, and the Architect, at the closing of the Mortgage being entered into to finance the construction of the above-referenced Development.
"Section 1.03. Master Drawings and Speciñcations. A master set of the aforesaid Drawings and Specifications, initialled by the parties hereto and by the Development’s Architect, and the Contractor’s Surety or Guarantor will be placed on file with the Architect, and such master set, as amended from time to time pursuant to Section 1.05 hereof shall govern in all matters which arise with respect to such Drawings and Specifications.”
On appeal, the defendants admit that these provisions incorporate the architect’s specifications and plans into the parties’ contracts.
The architect’s specifications and plans were contained in the "Project Manual” which was drafted by the architect, rather than by any of the parties to this appeal.
The title page of the project manual was signed by the parties. The parties agree that the project manual, § 00700, states:
"August 1976 Thirteenth Edition of 'General Conditions of Contract for Construction’ A.I.A. Document A201, as published by American Institute of Architects, is hereby made a part of these specifications.”
Article 7, Miscellaneous Provisions, of AIA Document A201 provided for arbitration of disputes:
"7.9.1 All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof, except as provided in Subparagraph 2.2.11 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.9.4 and 9.9.5, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.”
Defendant Joel Altman stated by affidavit that it was never the intent of Lakepointe or the Arbor Club to have disputes under the contract arbitrated. Harold DeYoung, the president of the plaintiff corporation, stated by affidavit that it was his understanding that the documents incorporated AIA document A201. The defendants’ brief asserts that the architect stated by affidavit that reference to AIA general conditions (document A201) was not for the purpose of incorporating the arbitration clause. However, the only affidavit contained in the trial record signed by the architect does not support defendants’ assertion.
Plaintiff contends that the arbitration clause set forth above was incorporated by reference into the parties’ contract when the parties signed the cover sheet of the project manual. Defendants claim that an arbitration agreement cannot be incorporated by reference unless there is clear and unambigu ous language contained in the contract stating that this is the intent of the parties. Neither the project manual nor the contracts state that the arbitration clause was to be incorporated into the contracts.
Michigan’s public policy favors arbitration in the resolution of disputes. Arbitration clauses in contracts are to be liberally construed. Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Campbell v Community Service Ins Co, 73 Mich App 416, 419; 251 NW2d 297 (1977).
It is well settled that arbitration is a matter of contract. A party cannot be required to arbitrate an issue which he has not agreed to submit to arbitration. Kaleva-Norman-Dickson School Dist v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975); Grand Rapids v Grand Rapids Lodge No 97, Fraternal Order of Police, 415 Mich 628, 635; 330 NW2d 52 (1982).
In the present case the disputed arbitration clause was not contained in the contract, but in a separate document, the project manual.
Our Supreme Court, in Arrow Sheet Metal Works, Inc v Bryant & Detwiler Co, 338 Mich 68, 78; 61 NW2d 125 (1953), was confronted with a subcontract entered into between the defendant general contractor and plaintiff subcontractor which provided that the work was to be done according to the plans and specifications of the architects and engineers. The plans and specifications were incorporated into the general contract between Ford Motor Company and defendant general contractor and indicated in detail the manner in which the construction work was to be performed. A dispute arose between the defendant general contractor and the plaintiff subcontractor concerning whether the "time is of the essence” clause contained in the general contract was incorporated by reference into the subcontract. After determining the reason why the parties referred to the drawings and specifications in the subcontract, the Court concluded that the "time is of the essence” provision was not incorporated into the subcontract. The Court held that "in the case of subcontracts, as in other cases of express agreements in writing, a reference by the contracting parties to an extraneous writing for a particular purpose makes it a part of their agreement only for the purposes specified”. 338 Mich 78.
Applying the holding of Arrow to the facts presented, we find that the parties referred to the architect’s drawings and specifications for a limited purpose. The parties did not agree to incorporate the architect’s dispute resolution procedures, nor any other matters contained in the project manual except the architect’s drawings and specifications. Defendants were therefore entitled to summary judgment on Count I.
When the trial court granted summary judgment on Count I, thereby denying arbitration, it did not issue an opinion explaining the reasons for its decision. The trial court, however, did orally indicate that arbitration in Michigan was to be stayed because defendants had not waived in the contract documents their right to judicial process and trial.
The defendants were entitled to summary judgment as a matter of law on the ground that the parties’ contracts did not incorporate the arbitration clause in the project manual. We reject the reasoning used by the trial court in support of its granting summary judgment. The trial court’s reasoning in support of its ruling was incorrect because the trial court had to assume that the arbitration clause in the project manual was also incorporated by reference before reaching the question whether there was a waiver of a constitutional right of judicial process and trial.
Affirmed on the basis of reasons stated herein. | [
-6,
2,
-3,
-35,
11,
-11,
4,
-11,
17,
74,
31,
-1,
-19,
-19,
9,
-31,
-22,
0,
16,
-15,
-21,
-48,
1,
6,
-18,
23,
-13,
-12,
28,
16,
-40,
-13,
-52,
-10,
5,
-35,
38,
20,
1,
0,
0,
-43,
6,
-28,
-44,
-11,
25,
8,
18,
-13,
44,
40,
-20,
-8,
-53,
-17,
22,
36,
20,
26,
27,
19,
6,
5,
14,
-7,
-35,
20,
32,
-4,
-42,
2,
49,
-14,
-3,
-33,
-46,
5,
-35,
-4,
26,
-7,
39,
26,
23,
13,
-30,
-24,
24,
-28,
-30,
20,
-29,
3,
10,
14,
-11,
20,
35,
17,
2,
52,
15,
22,
-3,
30,
-32,
-3,
44,
-4,
13,
-43,
5,
-13,
-4,
-4,
17,
41,
-40,
-60,
-5,
28,
5,
9,
-2,
11,
53,
-47,
-23,
63,
-16,
-12,
-11,
-6,
-17,
1,
91,
29,
-25,
11,
47,
-33,
-6,
-34,
23,
38,
-18,
-12,
-34,
11,
-39,
-4,
21,
29,
4,
26,
-16,
18,
29,
-8,
43,
38,
-7,
-4,
-25,
-32,
-19,
-16,
14,
13,
-10,
-15,
3,
-91,
0,
10,
-3,
-24,
-27,
-32,
-36,
-5,
-7,
-6,
-6,
-4,
-4,
23,
-36,
21,
18,
-22,
-49,
31,
-24,
24,
-7,
59,
-4,
18,
-22,
-84,
43,
-53,
-38,
-4,
18,
-8,
0,
29,
-1,
-36,
-67,
-18,
16,
3,
49,
30,
-3,
0,
23,
-9,
-1,
20,
5,
-19,
-25,
-8,
30,
-25,
17,
20,
18,
-31,
-13,
15,
49,
-10,
85,
27,
-16,
1,
-34,
-18,
-11,
25,
-58,
-22,
18,
-34,
20,
1,
-56,
-23,
-44,
-53,
4,
29,
-33,
12,
-7,
38,
-37,
-10,
-49,
18,
-34,
-13,
-66,
52,
-46,
50,
7,
-16,
-32,
-27,
-42,
10,
6,
19,
-17,
-8,
2,
-62,
-56,
46,
23,
11,
-56,
10,
16,
-2,
-48,
-28,
44,
33,
21,
-57,
-4,
0,
-41,
-12,
-2,
-20,
-42,
0,
-41,
-17,
-41,
-24,
33,
-39,
27,
-58,
17,
-19,
-4,
-15,
42,
-58,
35,
49,
14,
-18,
-9,
3,
56,
-13,
-3,
13,
-49,
10,
0,
19,
-14,
5,
-15,
-25,
22,
49,
40,
49,
-34,
-33,
-4,
41,
-2,
-46,
8,
4,
23,
0,
-44,
10,
34,
9,
5,
26,
-32,
0,
39,
17,
3,
-12,
8,
27,
-44,
20,
-13,
19,
-16,
-7,
-5,
27,
-17,
-14,
9,
25,
1,
57,
1,
-9,
49,
-28,
25,
-50,
-15,
0,
-4,
-27,
-40,
-51,
-12,
-3,
19,
12,
25,
46,
0,
28,
10,
7,
-20,
21,
0,
2,
38,
-55,
-32,
41,
11,
2,
-14,
2,
-29,
-16,
18,
16,
54,
-36,
29,
15,
-4,
-4,
47,
-7,
30,
-6,
-16,
4,
-37,
41,
-7,
-23,
19,
38,
-46,
-19,
-38,
54,
-16,
-1,
-58,
-73,
-6,
-21,
25,
26,
14,
-4,
51,
61,
-16,
-17,
-27,
7,
33,
-2,
-1,
1,
52,
-26,
26,
-11,
30,
4,
10,
6,
15,
9,
0,
-3,
-17,
37,
-16,
-27,
24,
1,
-2,
-54,
24,
48,
-13,
-15,
-50,
1,
-26,
25,
-12,
6,
-25,
-14,
-3,
-2,
-66,
8,
8,
-16,
-4,
13,
-44,
8,
-22,
-5,
38,
-16,
-35,
0,
3,
69,
-37,
6,
27,
27,
-1,
-36,
65,
5,
-13,
37,
31,
-7,
-31,
-35,
6,
26,
-26,
21,
-33,
16,
30,
5,
53,
-9,
32,
34,
-20,
28,
10,
-8,
10,
39,
-13,
34,
35,
-8,
-63,
-50,
29,
29,
0,
-22,
-5,
-17,
-1,
2,
2,
14,
9,
-26,
-17,
67,
39,
22,
79,
10,
-37,
-60,
40,
-29,
-9,
78,
-2,
-22,
-62,
32,
24,
38,
-24,
-25,
-38,
15,
26,
-21,
-39,
-45,
84,
22,
36,
19,
-56,
0,
2,
-23,
10,
8,
-13,
11,
67,
5,
26,
-36,
-48,
-5,
-16,
-27,
16,
29,
24,
-65,
-7,
-5,
-25,
43,
-28,
13,
-25,
-6,
42,
28,
27,
-18,
3,
16,
-15,
7,
70,
16,
-29,
-19,
-29,
10,
-45,
-27,
-6,
-15,
-22,
-16,
-30,
-39,
-8,
59,
5,
12,
7,
-77,
12,
-22,
1,
-6,
-17,
58,
12,
1,
-23,
0,
3,
-5,
-12,
-40,
55,
-32,
-30,
-24,
-5,
-27,
37,
13,
39,
-1,
34,
18,
-21,
-17,
-20,
5,
-21,
19,
34,
36,
18,
1,
24,
5,
43,
-55,
14,
-1,
7,
-17,
-25,
33,
42,
-18,
-21,
-2,
2,
15,
-9,
-35,
-6,
14,
26,
-10,
-40,
22,
-39,
21,
23,
0,
-47,
34,
-45,
8,
-26,
40,
5,
-31,
-28,
-22,
24,
-7,
-21,
-4,
-31,
-3,
24,
33,
0,
-16,
-6,
21,
14,
23,
-20,
-36,
13,
-23,
-65,
-16,
33,
-44,
-31,
-42,
-17,
-11,
41,
42,
-40,
19,
6,
56,
27,
18,
0,
-12,
44,
-24,
2,
-4,
11,
-62,
-7,
-21,
-26,
-53,
-35,
-15,
-18,
-4,
-17,
2,
1,
-32,
-5,
21,
3,
-21,
3,
-26,
0,
-10,
32,
20,
-26,
-37,
8,
-12,
-14,
23,
-6,
-17,
-27,
-24,
-15,
9,
15,
57,
-38,
-11,
-5,
23,
28,
18,
11,
-19,
-40,
-39,
41,
28,
6,
-49,
-20,
-18,
54,
9,
-43,
-8,
0,
-13,
-15,
60,
-55,
-24,
31,
-49,
18,
-56,
8,
38,
19,
-61,
-30,
11,
0,
-36,
18,
60,
30,
-22,
-28,
-11,
-55,
11,
21,
-16,
-40,
14,
-24,
-26,
-10,
11,
15,
-41,
27,
10,
-1,
-36,
30,
0,
35,
36,
-24,
21,
25,
3,
-63,
-9,
31,
-6,
44,
14,
5,
29,
0,
-42,
-20,
-19,
27,
29,
18,
40,
5,
-10,
-43,
-18,
-30,
22,
-8,
53,
55,
5,
2,
4,
-29,
-2,
39,
-81,
0,
-23,
-5,
11,
13,
44,
10,
40,
-3,
15,
-22,
38,
-14,
-11,
2,
18,
3,
9,
21,
-36,
40,
52,
8,
-10,
-30,
-30,
-10,
-40,
15,
49,
-36,
27,
-20,
1,
17,
11,
15,
-12,
7,
-19,
-22,
28,
-1,
-39,
-19,
26,
10,
-58,
-24,
50,
-8,
-4,
4,
-42,
-14,
-2,
-1,
34,
2,
24,
15,
-73,
44,
14,
-4,
-12,
30,
30,
-2,
-9,
-6,
30,
-14,
12,
7,
0,
-16,
-21,
15,
6,
12,
40,
65,
-47,
-7,
-14,
17,
8,
20,
-34,
8,
14,
15,
-55,
29,
-7,
0,
30,
32,
-37,
12,
15,
21,
7,
47,
-8,
20,
0,
-2,
-4,
25,
24,
-25,
34,
23,
0,
0,
51,
-32,
-32,
1,
-3,
23,
11,
-17,
45
] |
Per Curiam.
Pursuant to a negotiated plea agreement, the defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2). As part of the agreement, defendant testified for the prosecution during the trial of Perry Bradley, an individual who had also been involved in the incident which led to the charges against defendant. In exchange for defendant’s testimony and plea, he understood that he would be charged only with armed robbery and felony firearm. Defendant specifically noted, both on the signed plea form and orally at the plea-taking proceedings, that as a term of the agreement, he would not be charged with murder or any other offense. In addition to the agreement that no other charges stemming from the incident would be brought against defendant, the prosecutor also agreed to dismiss a charge of escape which had been brought against defendant subsequent to the initial charges. The trial court sentenced defendant to two years on the felony-firearm charge and to a consecutive life sentence for the armed robbery. Defendant appeals from his plea-based convictions as of right. We affirm.
Defendant claims that his guilty plea was involuntary. Defendant contends that the prosecutor’s promise to dismiss the escape charge was illusory since defendant’s sentence on the escape charge would have been required to run concurrently with that on his armed robbery conviction. He also contends that he did not know the actual value of the commitments made to him and that the benefits to be derived from the plea were grossly exaggerated since the facts of the case would not support a murder charge.
A guilty plea will be invalidated if it is involuntary as a matter of law because the bargain on which the plea was based was illusory. People v Peters, 95 Mich App 589, 592; 291 NW2d 133 (1980). However, where the value of a bargain is genuine, is valid, and is known to a defendant, that plea will be upheld. People v Peete, 102 Mich App 34, 38; 301 NW2d 53 (1980), lv den 411 Mich 962 (1981). Moreover, where the facts in a case indicate that a plea is voluntary, whether or not defendant received consideration in return, the plea will be upheld. Id.
We reject defendant’s claim that the prosecutor’s promise to dismiss the escape charge was illusory. Defendant cites no authority for his allegation that a sentence on the escape charge would have been required to run concurrently with a sentence for the armed robbery conviction. Neither has defendant indicated which statutory provision provided the basis for the escape charge. We note that the escape provisions are contained in MCL 750.193; MSA 28.390 through MCL 750.197c; MSA 28.394(3). Most of those provisions provide either for mandatory consecutive sentencing or for the imposition of fines. Moreover, it is widely recognized that sentence consequences are not the only benefits that may be received in plea bargaining. A conviction with no effect on a sentence may punish a defendant in several ways, including an adverse impact on parole considerations. People v Peete, supra.
Defendant next alleges that murder charges were not possible under the facts of this case, and that his belief that murder charges were possible exaggerated his perception of the benefit of his plea and made the plea involuntary. Indeed, a situation may arise where a bargain is illusory because the defendant is misinformed as to the benefit of his plea. For instance, if an accused is not in fact a potential subject of habitual offender supplementation because the recidivist statutes are not legally applicable to the defendant and if the plea is induced by a promise to forego such a proceeding, the defendant is per se misinformed as to the benefit of his plea. People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978). Moreover, if a defendant is improperly charged with a greater offense, his plea to a leseer offense will be involuntary if it is induced by a desire to avoid the possiblity of a conviction on the greater offense. People v Goins, 54 Mich App 456, 461-462; 221 NW2d 187 (1974), lv den 393 Mich 807 (1975). In each of the foregoing cases there was a legal bar to conviction on the offense dismissed pursuant to the bargain. A rule of law prevented conviction under the clear facts of each case. However, in the present situation, defendant argues that the disputed facts of the case would not support a murder charge. A claim similar to that made by defendant was raised in People v Peters, supra. The defendant therein contended that his plea bargain was illusory, claiming that he could not have been properly convicted of the felony-murder charge which was dismissed in exchange for his plea since he neither committed nor aided and abetted in the murder of the victim. In Peters, this Court held as a matter of law that the defendant therein could have been properly charged with felony-murder and that, therefore, the value of the bargain to defendant was genuine, valid, and known to him. However, the present situation differs from Peters in that the underlying facts of the case are not available to this Court. Defendant was never charged with murder and, accordingly, no preliminary examination was ever held. There is no way for us to determine whether there would be factual support for a murder charge on either an aiding and abetting or an agency theory. How ever, we find that a review of the facts is unnecessary in order to affirm defendant’s conviction.
During the hearing on defendant’s motion to withdraw his guilty plea, defendant moved in the alternative for an evidentiary hearing to determine whether there was evidence to support a murder charge against him. On appeal, defendant would have us remand for such an evidentiary hearing. However, we cannot condone a procedure which would require after-the-fact production of evidence sufficient to bind a defendant over on charges which were dismissed or never even filed against a defendant. There is no need to hold, in essence, an after-the-fact "preliminary examination” for a possible charge arising out of an occurrence when a defendant is not convicted on that charge. We hold that when charges are dismissed or otherwise foregone as part of a plea bargain, a defendant cannot later claim a lack of evidence to support such charges unelss he (1) waits until a preliminary examination is conducted before pleading guilty or (2) in good faith alleges ° an abuse of prosecutorial discretion or other bad faith conduct in bringing a charge, in threatening to bring a charge, or in failing to correct the defendant’s communicated, mistaken perception that a charge is possible.
A substantial benefit is gained by a defendant from the dismissal of (or forebearance in bringing of) any charges which a prosecutor, in good faith and with due regard to existing or readily discoverable evidence, believes may be possible in the case. Decisions regarding the initiation of criminal charges are discretionary executive acts. In re Petition for Appointment of Special Prosecutor, 122 Mich App 632, 636; 332 NW2d 550 (1983), lv den 417 Mich 1086 (1983); People v Thomas, 118 Mich App 667, 670; 325 NW2d 536 (1982). Charges may rightfully be brought against a defendant even though it might later be determined at a preliminary examination that there is insufficient evidence to justify binding a defendant over for trial. A defendant may plead guilty at any stage during the proceedings. Until it is determined that there is insufficient evidence to bind a defendant over on a given charge, there is a risk to the defendant that he may eventually be convicted of that charge. By pleading guilty pursuant to a plea bargain whereby the prosecutor agrees not to bring such charge, the defendant avoids that risk at an early stage in the proceedings. He receives peace of mind and the absolute assurance that he will never be convicted thereon. However, by pleading guilty at that time, a defendant foregoes the right to have the prosecution establish probable cause to believe that defendant committed the crime. Since the prosecution is not required to establish such probable cause, there is nothing for us to review.
In the present situation, defendant has gained a substantial benefit from an agreement whereby he was assured that any and all potential charges which could possibly arise out of the criminal episode could no longer be brought against him. By failing to wait for the murder charge to be brought and for a preliminary examination to be conducted on that charge, and by failing to allege that the prosecutor somehow acted in bad faith in leading defendant to believe a murder charge was possible, defendant has not presented any ground on which his guilty plea can be set aside. The value of his bargain was genuine, valid and known to him. His plea bargain was not illusory.
Finally, defendant alleges that his plea was involuntary because it was induced by the advice of his counsel that murder charges were possible when they were not. Defendant claims that he has been denied the effective assistance of counsel. Defendant’s argument is based on his appellate counsel’s claim that "it is apparent that defense counsel mistakenly advised defendant-appellant that murder charges were possible”. We reject defendant’s argument. It is not readily apparent, as defendant contends, that trial counsel advised defendant that murder charges were possible. If the record made before a defendant is convicted does not factually support claims he wishes to urge on appeal, he should move in the trial court to set aside the plea and to make a separate record factually supporting the claims. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Moore, 129 Mich App 354, 358; 341 NW2d 149 (1983). There is absolutely no evidence in the record as to what advice was given to defendant by defense counsel. There is no evidence that trial counsel committed any mistakes. Defendant’s conviction is, therefore, affirmed.
Affirmed.
Even if a preliminary examination is held, a defendant may not be able to claim error. The allegation of lack of evidence to establish the probable cause necessary to support a bind-over on a charge which is no longer pursued as part of a bargain is actually less substantial than an allegation of insufficient evidence to bind over on a charge to which defendant pled guilty. There is a conflict among the decisions of this Court as to whether a defendant waives any claim regarding defects in the preliminary examination upon pleading guilty. Compare People v Jones, 111 Mich App 465; 314 NW2d 654 (1981), and People v Hill, 86 Mich App 706; 273 NW2d 532 (1978), with People v Schaffer, 129 Mich App 287; 341 NW2d 507 (1983). We express no opinion in this regard.
However, a prosecutor may not abuse his discretion through the use of an unwarranted or legally impermissible charge as a plea bargaining tool. Prosecutors retain a duty to use due diligence in discovering the actual facts of a case. For instance, a cursory investigation will, in most cases, provide the facts necessary to determine whether a habitual offender charge could possibly be brought. | [
35,
21,
-42,
22,
-65,
-32,
-26,
35,
-59,
46,
41,
-46,
-8,
0,
-24,
30,
21,
6,
41,
-9,
43,
-43,
-32,
15,
-42,
-8,
38,
-2,
10,
52,
44,
19,
32,
6,
6,
-1,
56,
-18,
-3,
-5,
8,
16,
-31,
17,
-24,
-13,
-16,
-17,
72,
-39,
42,
7,
5,
-49,
-47,
28,
-25,
-35,
31,
18,
0,
-22,
-56,
-1,
-52,
-22,
64,
63,
15,
0,
23,
-14,
-7,
3,
11,
23,
-30,
40,
22,
-9,
0,
-5,
15,
-37,
15,
13,
-14,
-45,
-2,
-6,
30,
39,
4,
-8,
19,
-3,
-2,
17,
0,
-52,
-74,
8,
-12,
8,
53,
-32,
-11,
-13,
-4,
21,
-29,
17,
50,
-15,
-11,
-20,
-42,
-49,
-36,
7,
3,
-10,
17,
43,
15,
-27,
27,
-16,
28,
9,
13,
46,
22,
56,
-6,
21,
-4,
56,
6,
67,
-31,
27,
-7,
-30,
3,
55,
-23,
-8,
-15,
8,
-10,
11,
-48,
3,
24,
-2,
1,
-38,
-30,
-3,
33,
4,
-30,
8,
-25,
-33,
-32,
0,
-45,
-53,
-4,
-51,
12,
-17,
62,
35,
-1,
24,
32,
-42,
-20,
-23,
-20,
0,
23,
-33,
35,
57,
-31,
-24,
-20,
5,
-32,
-9,
63,
36,
-28,
4,
2,
21,
25,
-78,
-24,
32,
-28,
-11,
4,
1,
36,
26,
-47,
-9,
-18,
-63,
-33,
6,
0,
-8,
21,
25,
-32,
-34,
-26,
26,
-11,
-61,
24,
-2,
-22,
22,
4,
13,
-35,
53,
-14,
-20,
20,
-55,
38,
-6,
-27,
-47,
23,
-21,
57,
-2,
-3,
-6,
7,
-1,
-30,
20,
-8,
52,
-12,
8,
-4,
37,
-37,
10,
-81,
43,
-10,
0,
-45,
72,
-47,
-17,
13,
4,
3,
4,
4,
48,
60,
-12,
-50,
36,
-27,
-30,
17,
-3,
15,
11,
-13,
-15,
-34,
37,
30,
-13,
96,
-43,
-47,
-37,
70,
22,
0,
0,
-52,
6,
44,
6,
40,
-40,
18,
14,
82,
21,
-61,
-24,
-30,
24,
-17,
51,
8,
-12,
15,
-44,
22,
-18,
-17,
-14,
-2,
15,
15,
-61,
45,
-18,
-13,
9,
2,
-13,
-39,
-64,
-24,
55,
-5,
-18,
4,
30,
30,
5,
-15,
-37,
-23,
36,
30,
37,
-36,
-32,
-17,
-43,
18,
-15,
42,
-67,
-15,
-1,
46,
-49,
28,
-31,
-36,
19,
22,
14,
16,
6,
11,
48,
28,
-34,
-34,
-43,
-27,
-18,
41,
3,
-53,
9,
-38,
-6,
42,
-22,
6,
-31,
-21,
-17,
12,
53,
-111,
-49,
-28,
-41,
-8,
3,
6,
-13,
11,
-25,
22,
-34,
47,
-24,
-37,
-12,
24,
21,
-49,
-17,
-21,
65,
-1,
36,
-21,
-40,
8,
0,
41,
-19,
41,
-34,
53,
23,
-31,
-1,
-48,
-3,
-17,
-69,
45,
7,
31,
-42,
41,
5,
-54,
-45,
0,
24,
-14,
-45,
-8,
-4,
30,
-4,
-86,
-42,
4,
13,
6,
28,
-10,
-39,
-43,
33,
-18,
-13,
16,
-39,
9,
-28,
-29,
-31,
29,
-72,
-73,
17,
38,
-2,
-5,
3,
-23,
5,
-1,
-2,
-4,
-13,
32,
58,
-10,
2,
23,
-18,
-28,
-15,
-27,
-28,
28,
-20,
-2,
-51,
47,
17,
12,
1,
17,
19,
15,
4,
-20,
17,
-11,
2,
4,
3,
-21,
-19,
23,
7,
9,
28,
-12,
-5,
23,
-48,
17,
0,
-3,
36,
25,
0,
-2,
-24,
-19,
3,
-58,
3,
-18,
9,
41,
-48,
4,
-33,
32,
-5,
3,
-37,
22,
-43,
31,
16,
-66,
1,
10,
6,
6,
35,
51,
27,
-8,
-6,
26,
-1,
2,
22,
49,
-1,
-5,
-43,
-11,
-4,
40,
26,
-15,
0,
12,
-27,
48,
29,
-24,
-21,
24,
32,
-33,
-40,
6,
-5,
25,
2,
29,
44,
-22,
10,
-10,
27,
39,
-6,
-3,
-3,
-26,
-10,
34,
-8,
0,
-6,
-9,
-3,
0,
61,
26,
0,
-62,
26,
54,
-8,
43,
-2,
15,
2,
34,
20,
9,
-40,
-41,
3,
37,
-13,
-48,
81,
-4,
22,
2,
-59,
8,
-9,
-50,
9,
4,
12,
-2,
-24,
12,
-2,
-35,
71,
3,
62,
-52,
-61,
-49,
32,
-18,
-36,
19,
-4,
-42,
36,
13,
-6,
-6,
-4,
-2,
-25,
41,
-5,
-43,
5,
0,
10,
2,
32,
-76,
-26,
38,
54,
5,
-56,
6,
19,
-7,
14,
0,
-52,
6,
54,
-9,
20,
27,
7,
1,
-46,
0,
-52,
-13,
0,
8,
-14,
5,
48,
-1,
44,
20,
-28,
28,
-25,
68,
27,
-24,
11,
58,
-14,
-6,
-29,
-56,
11,
19,
-25,
-18,
39,
-27,
26,
-3,
18,
-13,
24,
-72,
26,
-22,
-2,
-29,
11,
40,
24,
2,
-25,
41,
-6,
15,
14,
40,
17,
12,
-4,
46,
51,
-34,
-14,
-21,
1,
-24,
7,
-9,
-15,
-20,
-13,
16,
-15,
25,
-29,
25,
-59,
11,
42,
-44,
51,
40,
-20,
-13,
-4,
-14,
76,
-26,
33,
-22,
39,
-30,
-14,
37,
-9,
-36,
-25,
-5,
34,
4,
-4,
-3,
-8,
-20,
-4,
57,
14,
-68,
-8,
-29,
-39,
-25,
-59,
-55,
-9,
-28,
42,
0,
49,
33,
19,
45,
14,
-6,
-4,
-17,
14,
6,
42,
40,
-7,
-5,
0,
27,
-38,
30,
-23,
-14,
4,
5,
0,
-15,
-24,
8,
-48,
25,
11,
-43,
-41,
-36,
33,
38,
-79,
-57,
-10,
0,
7,
24,
42,
-14,
22,
-10,
0,
-53,
26,
29,
-57,
1,
8,
30,
-13,
-37,
-79,
16,
-15,
54,
-58,
0,
-11,
-16,
8,
-15,
65,
26,
-70,
-21,
27,
-1,
-32,
26,
10,
13,
25,
22,
-37,
8,
-48,
13,
23,
0,
83,
-41,
-18,
-5,
-27,
7,
31,
39,
23,
31,
-12,
-28,
-55,
-42,
37,
0,
43,
-58,
8,
17,
2,
-16,
-52,
6,
-30,
62,
-1,
-18,
-27,
43,
6,
35,
32,
-22,
42,
7,
-2,
44,
43,
0,
1,
-41,
20,
57,
12,
5,
31,
56,
18,
40,
-16,
0,
25,
-14,
6,
-5,
29,
53,
-25,
29,
3,
51,
-18,
21,
-13,
-1,
8,
-69,
-1,
-35,
27,
15,
-16,
4,
5,
1,
-9,
6,
0,
-42,
-28,
8,
22,
-43,
-23,
-12,
-24,
-37,
-52,
35,
45,
50,
21,
-22,
-7,
16,
-30,
-35,
-38,
26,
-37,
23,
-11,
-18,
-10,
0,
-60,
-18,
-13,
40,
16,
22,
45,
-33,
-27,
1,
26,
15,
28,
-6,
-17,
17,
-34,
-51,
-27,
-35,
30,
13,
-10,
-12,
-8,
10,
6,
1,
-12,
12,
38,
76,
-44,
-49,
37,
-19,
26,
-12,
35,
-1,
22,
-23,
49
] |
H. E. Deming, J.
Defendant appeals his conviction, following a bench trial in Recorder’s Court of Detroit, of two counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to the mandatory 2-year prison term for the felony-firearm conviction and to from 15 to 30 years in prison for the criminal sexual conduct convictions. He appeals as of right and we affirm.
Defendant claims that the judge who heard defendant’s motion to suppress the complaining witness’s identifications of the defendant erred when he denied the motion. It is the defendant’s further claim that he should be resentenced because the sentence he received is grossly disporportionate to the gravity of the offense and is shocking to the judicial conscience of the court.
On February 22, 1984, at 8:00 p.m. the victim, while walking on a city street, was stopped by the defendant when he pointed a gun at her. Defendant ordered her to enter his car, and he then drove into a nearby alley. After stopping in the alley, the defendant required the victim to remove all of her clothes, with the exception of her blouse and coat, and at gunpoint forced her to submit to two sexual acts. Upon completion, the defendant told the victim to leave the car and to face the wall of a nearby building until he had driven away. The victim complied, but as the abductor drove away she turned and noted that the car was missing a taillight. Subsequently, the victim ran to the street, and shortly thereafter hailed a passing police cruiser. The officers placed the victim in the cruiser, and proceeded to look for the offender. Within a short time the victim observed a car, missing a taillight, which she believed was used in her abduction. A high speed chase resulted. The automobile was stopped and the victim identified the driver to be the person who had assaulted her. When the victim observed the defendant leave the police cruiser at the police station, she stated that he was the offender. The defendant moved to suppress all of the identifications. Upon the completion of a hearing on the motion to suppress, the motion was denied. At the time of the bench trial, the trial judge suppressed the police station identification.
People v Turner, 120 Mich App 23; 328 NW2d 5 (1982), considered the rights of defendants to be protected along with the needs of the police to determine whom to arrest and the possibility that an immediate identification will exculpate someone:
"Therefore, we would allow the police officers to conduct an on-the-scene identification without the presence of counsel any time promptly after the crime, except in certain situations. First, we require counsel to be present where the police have very strong evidence that the person stopped is the culprit. Strong evidence exists where the suspect has himself decreased any exculpatory motive, i.e., where he has confessed or presented the police with either highly distinctive evidence of the crime or a highly distinctive personal appearance.” 120 Mich App 36-37.
And in People v Wilki, 132 Mich App 140; 347 NW2d 735 (1984), this Court interpreted the term "very strong evidence” to mean "evidence such that the police, acting in good faith, have no reasonable necessity for confirming that the suspect they have apprehended is in fact the perpetrator”. 132 Mich App 144. In the instant case this Court cannot say that the police suspicion (that the driver of the car they were pursuing was the perpetrator of the crime) should be elevated to "very strong evidence”, such that there was no reasonable necessity for conducting the on-the-scene identification. The procedure was proper and the defendant was not denied his right to counsel.
Defendant’s other claim is that this case should be remanded for resentencing because the term of the sentence shocks the judicial conscience.
In People v Coles, 417 Mich 523; 339 NW2d 440 (1983), the Supreme Court held that the trial court’s exercise of discretion in sentencing is reviewable on appeal, but that relief may be granted only in those cases in which it is found that the trial court abused its discretion to the extent that the sentence imposed shocks the conscience of the appellate court. Coles also required that the sentencing court "articulate on the record its reasons for imposing the sentence given”. 417 Mich 549.
When Coles was released, the sentencing guidelines were being used by some judges on a voluntary basis. The guidelines were discussed in Coles, p 548, fn 31, as follows:
"The purpose of the sentencing guidelines is to ensure that sentencing decisions focus on a consistent set of legally relevant factors and to ensure that these factors are assigned equal importance for all offenders. This should result in sentences which are imposed in a predictable, coherent, and consistent manner, thus eliminating impermissible disparity in the sentences of similarly situated defendants.”
Supreme Court Administrative Order No. 1984-1, 418 Mich lxxx, required every judge of all circuit courts and of the Recorder’s Court of Detroit to use the sentencing guidelines generated by the Sentencing Guidelines Advisory Committee for a period of one year beginning March 1, 1984. Administrative Order No. 1985-2, 420 Mich lxii, continued the previous order until the further order of the Supreme Court.
Since the defendant was sentenced on November 16, 1984, the trial judge was required to sentence the defendant within the sentencing guidelines or state her reason for failing to do so. Defendant has raised no issue with regard to the scoring of the guideline variables and thus is not contesting the calculation of the minimum sentence that may be imposed under the guidelines.
In this case the trial judge stated on the record that she was sentencing defendant pursuant to the sentencing guidelines. Because the guidelines themselves take so many factors into consideration, including defendant’s prior record and the circumstances surrounding the crime, we find that such a statement was sufficient to meet the Coles requirement of articulation on the record of the reasons for the sentence imposed.
The trial judge’s minimum sentence of 15 years falls within the minimum sentence suggested by the guidelines. Because defendant’s sentence falls within the guidelines, the issue of whether his sentence is an abuse of discretion by the trial judge is nonexistent. The guidelines reflect past sentencing practices of the state’s trial judges. We hold that any sentence imposed by a trial judge, which is within the guidelines, does not shock the judicial conscience of this Court.
Affirmed. | [
0,
-1,
-35,
22,
-40,
-63,
-74,
-60,
-45,
-14,
4,
-15,
-1,
-37,
-6,
12,
67,
26,
-33,
-49,
3,
-41,
-34,
12,
-23,
-13,
1,
15,
-51,
33,
27,
-28,
25,
-40,
-10,
15,
-6,
6,
44,
50,
17,
-15,
-19,
-20,
-63,
-4,
26,
23,
3,
-13,
2,
10,
-12,
50,
-6,
6,
19,
-6,
68,
-32,
-23,
62,
-21,
-21,
5,
-29,
11,
7,
-50,
21,
0,
-81,
-36,
10,
-9,
9,
0,
-5,
26,
15,
-34,
41,
5,
3,
23,
4,
12,
-15,
-7,
-2,
14,
-4,
-49,
28,
32,
-46,
2,
-48,
55,
-17,
-29,
2,
-4,
37,
22,
35,
-15,
18,
-5,
-24,
-13,
-6,
51,
-4,
9,
-41,
-21,
10,
50,
6,
16,
-27,
23,
43,
11,
-16,
13,
-22,
18,
37,
-26,
16,
73,
-8,
-28,
-5,
-15,
57,
23,
23,
-16,
0,
29,
49,
47,
-12,
21,
24,
71,
30,
-13,
37,
10,
60,
12,
5,
-52,
-44,
-7,
24,
-44,
-1,
-16,
34,
35,
18,
-40,
62,
15,
-2,
7,
9,
47,
30,
18,
37,
-87,
16,
19,
-51,
-34,
15,
27,
0,
-17,
-34,
-5,
-24,
-28,
-5,
-39,
6,
-10,
-27,
28,
32,
18,
9,
-2,
-21,
61,
-24,
-11,
33,
17,
-79,
7,
-10,
21,
8,
-26,
-18,
6,
-26,
-3,
-35,
22,
32,
-14,
4,
25,
-63,
9,
-37,
8,
-22,
-21,
19,
7,
7,
41,
-5,
50,
20,
-71,
-39,
29,
-12,
39,
33,
2,
15,
35,
36,
-13,
-6,
9,
14,
-16,
-35,
10,
-3,
-24,
10,
-53,
-13,
23,
-35,
20,
7,
3,
36,
5,
-29,
-10,
74,
16,
32,
-47,
-49,
-44,
32,
32,
15,
-28,
-43,
-12,
39,
34,
25,
-7,
0,
-44,
-23,
-6,
-25,
-32,
32,
28,
-23,
6,
-34,
-51,
-1,
-3,
-22,
46,
-26,
-39,
21,
36,
-15,
-37,
-23,
23,
-2,
26,
53,
-24,
49,
12,
2,
19,
30,
31,
12,
24,
-62,
16,
-7,
-31,
15,
-48,
-22,
-1,
27,
24,
-10,
-1,
-34,
-38,
33,
-35,
18,
51,
5,
-11,
-5,
-9,
1,
-19,
-37,
1,
12,
-15,
44,
12,
30,
23,
-34,
-7,
7,
23,
-42,
-59,
25,
-24,
-48,
25,
-34,
52,
-10,
-4,
0,
49,
12,
-14,
-1,
-26,
51,
12,
-86,
-20,
34,
12,
19,
38,
-39,
-38,
40,
6,
-2,
12,
-49,
10,
-24,
-5,
-70,
-6,
-37,
-48,
23,
-22,
-57,
-42,
-22,
6,
30,
65,
1,
18,
9,
19,
21,
-16,
-3,
15,
72,
-24,
-8,
-63,
-7,
22,
37,
14,
-26,
6,
-35,
-5,
-13,
0,
9,
30,
-35,
31,
12,
-5,
-17,
28,
8,
25,
11,
0,
-9,
-3,
13,
-48,
-10,
45,
-48,
-15,
-15,
-61,
-1,
-13,
-9,
6,
23,
-12,
-4,
5,
-16,
4,
-49,
-1,
58,
18,
34,
-53,
-17,
-7,
-72,
-8,
-20,
4,
-3,
-11,
-2,
-10,
-40,
23,
17,
-36,
-10,
19,
0,
-22,
0,
-68,
2,
17,
-16,
-15,
-32,
-36,
20,
7,
-51,
20,
8,
-7,
18,
34,
46,
24,
11,
-20,
35,
14,
7,
-12,
-7,
-37,
20,
52,
-12,
48,
20,
-8,
0,
4,
67,
-58,
9,
15,
4,
-18,
-33,
28,
21,
70,
1,
77,
-5,
5,
20,
17,
-72,
-53,
28,
56,
-23,
-7,
-45,
49,
9,
0,
-51,
5,
-8,
-4,
0,
7,
13,
45,
-20,
10,
-5,
-21,
11,
32,
32,
-5,
-44,
44,
-12,
39,
-47,
-24,
8,
-23,
-6,
58,
48,
13,
11,
-24,
-61,
54,
-25,
33,
34,
-13,
-23,
-7,
7,
43,
-16,
-68,
8,
19,
5,
31,
27,
-36,
-7,
16,
11,
0,
-4,
8,
-13,
38,
-26,
10,
12,
-61,
6,
-42,
-28,
17,
-4,
-29,
8,
-1,
-28,
24,
47,
-4,
-47,
23,
17,
1,
9,
16,
13,
-24,
10,
-1,
22,
-24,
-14,
-23,
28,
-27,
-29,
-57,
-49,
-12,
-38,
-37,
-17,
-5,
50,
32,
16,
25,
4,
-31,
5,
11,
37,
32,
-2,
18,
29,
-10,
-17,
-32,
-52,
-32,
-7,
-55,
-10,
23,
-21,
-39,
-12,
15,
12,
-54,
42,
-22,
-16,
-34,
-26,
-15,
-48,
36,
3,
-7,
0,
43,
-15,
-21,
35,
-8,
17,
24,
10,
-34,
-1,
-29,
9,
10,
45,
-9,
36,
13,
18,
1,
-24,
19,
-35,
22,
16,
27,
6,
-51,
18,
-22,
22,
0,
-21,
-47,
-7,
0,
-11,
30,
8,
-10,
80,
5,
-9,
15,
-41,
-52,
-49,
-18,
11,
-21,
-10,
17,
-9,
40,
18,
-29,
-34,
52,
-52,
30,
-32,
28,
-11,
41,
-3,
-30,
-3,
9,
0,
-25,
-29,
-8,
-56,
10,
-9,
22,
-19,
59,
14,
0,
9,
-6,
28,
10,
15,
37,
-27,
-51,
-55,
-5,
-39,
27,
-47,
-62,
-9,
36,
18,
83,
-28,
-20,
-73,
10,
3,
3,
41,
6,
6,
16,
-17,
0,
9,
-53,
7,
-29,
-5,
-44,
8,
39,
-23,
13,
35,
-27,
-1,
-21,
19,
11,
-35,
29,
-11,
4,
52,
-9,
-58,
-2,
-2,
23,
0,
-23,
-45,
-6,
6,
-32,
24,
30,
3,
-8,
-21,
-28,
1,
38,
30,
-27,
-2,
9,
2,
19,
-25,
0,
13,
0,
36,
45,
56,
-69,
26,
25,
32,
1,
-3,
10,
-5,
15,
0,
57,
50,
51,
-24,
52,
24,
35,
-23,
-44,
1,
-69,
36,
-4,
15,
-12,
0,
-10,
25,
-20,
-39,
-14,
1,
7,
-92,
30,
10,
36,
0,
19,
66,
-48,
23,
-7,
16,
-4,
5,
24,
-83,
23,
2,
-17,
-13,
-20,
-43,
-33,
-41,
-12,
3,
3,
-39,
-51,
12,
20,
24,
39,
-45,
16,
-4,
-36,
17,
33,
16,
12,
23,
-37,
9,
2,
9,
-9,
10,
42,
-13,
-9,
1,
54,
-32,
0,
1,
24,
47,
-4,
-34,
-18,
-17,
-34,
57,
-34,
-6,
-43,
-43,
-9,
32,
61,
-47,
23,
24,
-25,
13,
-31,
49,
18,
64,
-33,
-17,
-29,
75,
-4,
-24,
-10,
19,
-36,
33,
-5,
2,
-27,
-14,
21,
28,
-15,
-28,
25,
-5,
4,
5,
-24,
62,
-4,
-2,
-13,
-23,
15,
17,
-32,
18,
-31,
-38,
-30,
-12,
-51,
-42,
44,
-13,
11,
26,
-17,
2,
-30,
-30,
-60,
75,
20,
-12,
11,
-20,
36,
0,
0,
73,
15,
6,
16,
-22,
23,
-49,
-50,
4,
4,
-23,
48,
20,
6,
4,
24,
20,
5,
14,
-39,
5,
32,
-2
] |
Per Curiam.
Plaintiff appeals from the trial court’s order granting summary judgment in favor of defendant.
Plaintiff claims that he is entitled to no-fault benefits for injuries he received on July 30, 1982, while employed as an automobile mechanic. While at work, plaintiff walked from his work area, to another work area to get some parts. On the way, plaintiff passed an idling vehicle just as another mechanic sprayed a fluid into the vehicle’s carburetor, which caused the car’s exhaust system to emit a cloud of exhaust. Plaintiff inhaled these fumes and became dizzy and nauseated. He suffered bouts of unconsciousness and was taken to a hospital for emergency treatment. Since the accident, plaintiff has been treated for shortness of breath, light-headedness, and dizziness and also has received psychiatric treatment. Plaintiff claims to have been unable to work since this accident.
Plaintiff sought no-fault benefits for his injury under a no-fault automobile insurance policy issued by defendant to plaintiff’s wife. Defendant denied plaintiff’s claim because plaintiff’s injuries occurred during the course of his employment as an automobile mechanic and, according to defendant, were barred by § 3106(2) of the no-fault act, MCL 500.3106(2); MSA 24.13106(2). The trial court ruled that plaintiff’s claim was barred by § 3106(2) because plaintiff was doing mechanical work on a vehicle and because the injury arose out of the maintenance of another vehicle rather than the use or operation of another vehicle.
Both parties agree that workers’ compensation is available to plaintiff, that the injury was sustained during the course of plaintiff’s employment, and that a parked vehicle was involved. However, they disagree over whether plaintiff "was doing mechanical work” on the vehicle at the time of the injury and whether "the injury arose from the use or operation of another vehicle”. Plaintiff argues that, since he was walking from one work bay to another to get parts when the accident occurred, he was not actually "doing mechanical work” when he was injured. He argues further that even if he were doing mechanical work, this subsection nevertheless does not bar his recovery because the injury arose from the use or operation of another vehicle being worked on by another mechanic. Defendant contends that walking to get parts is doing mechanical work within the meaning of the statute and that the exception for injuries arising from the use or operation of another vehicle does not include injuries arising from the maintenance of another vehicle.
Section 3106(2) of the Michigan no-fault act provides:
"Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle.”
In the instant case it is undisputed that plaintiff was injured during the course of his employment and that workers’ compensation disability benefits were available to plaintiff. Plaintiff claims that the trial court erred in finding that he was doing mechanical work on a vehicle. We believe that the trial court properly found that plaintiff was performing mechanical work. In Bell v F J Boutell Driveaway Co, 141 Mich App 802; 369 NW2d 231 (1985), this Court found that § 3106(2) was intended to eliminate duplication of benefits for work-related injuries except where the actual driving or operation of a motor vehicle is involved. Accordingly, this Court found it appropriate to broadly interpret the terms "loading” and "unloading”. Likewise, we believe that the phrase "doing mechanical work on a vehicle” should be broadly interpreted. In the instant case, plaintiff was working on an automobile and was injured while walking to another area of the garage to obtain some parts. We believe that plaintiff was performing mechanical work while on his short trip to obtain parts.
Upon finding that plaintiff was performing mechanical work at the time he was injured, we must next consider whether plaintiff’s injuries "arose from the use or operation of another vehicle”. The parties agreed that the injury occurred from the maintenance of another vehicle. The question then is whether the phrase "use or operation” of another vehicle, as used in § 3106(2), encompasses maintenance of the second vehicle. It is apparent from the language of § 3106(2) that the trial court properly considered that maintenance was not included within the meaning of the terms "use or operation”. The opening portion of § 3106(2) refers to injury arising out of the "ownership, operation, maintenance, or use” of the parked vehicle while the "another vehicle” exception refers to injuries arising only from the "use or operation” of the other vehicle. The reference to maintenance in the earlier part of the subsection and its absence in the latter part is a legislatively created distinction. Thus, if the injuries arise only from the maintenance of another vehicle, they don’t fall within the "another vehicle” exception. Since plaintiff’s injuries did not arise from the use or operation of another vehicle, the trial court properly granted summary judgment in favor of defendant.
Affirmed. | [
-38,
36,
-67,
45,
41,
-19,
-7,
-12,
9,
44,
-39,
3,
66,
-10,
-1,
-37,
16,
13,
-42,
17,
-17,
-54,
-2,
36,
-23,
-4,
0,
-45,
-54,
84,
42,
-18,
-14,
-22,
-53,
37,
46,
22,
9,
40,
0,
-16,
-2,
-14,
-2,
-46,
15,
48,
33,
-6,
14,
8,
-7,
-8,
28,
-1,
62,
28,
-27,
12,
-13,
39,
69,
1,
12,
8,
2,
19,
-19,
23,
-90,
33,
-22,
-8,
-16,
-16,
20,
52,
6,
-21,
-6,
-13,
36,
14,
-14,
76,
-44,
1,
-1,
-51,
-38,
-41,
-5,
16,
-53,
38,
-40,
-3,
48,
18,
-58,
37,
30,
26,
-3,
9,
-1,
-30,
-18,
23,
-22,
37,
-16,
18,
4,
-28,
32,
23,
9,
65,
8,
-14,
38,
-8,
-6,
-19,
-22,
-27,
-44,
53,
19,
18,
-13,
-10,
-27,
4,
-30,
-39,
-32,
42,
-10,
23,
-11,
1,
22,
70,
27,
-31,
12,
-25,
12,
7,
-5,
-23,
-31,
3,
-13,
-3,
33,
-5,
7,
4,
22,
73,
10,
-2,
0,
67,
2,
-12,
34,
2,
15,
-49,
31,
-9,
22,
12,
-66,
-6,
-42,
-26,
-15,
28,
-20,
-40,
-25,
1,
-13,
-5,
26,
25,
-29,
10,
-3,
23,
22,
10,
28,
-38,
10,
-57,
23,
-6,
6,
46,
-21,
10,
36,
-5,
4,
-4,
10,
-69,
-3,
-1,
28,
-22,
-31,
-41,
0,
12,
-5,
-45,
-41,
1,
-21,
-60,
46,
-2,
-14,
-54,
7,
7,
-28,
-14,
23,
-82,
57,
0,
21,
16,
-17,
-16,
-35,
-33,
-14,
-12,
10,
-37,
28,
-17,
-20,
-23,
11,
-63,
17,
41,
1,
-17,
-1,
77,
8,
59,
5,
-7,
5,
13,
-5,
7,
-64,
8,
19,
0,
-29,
-55,
12,
39,
66,
0,
-39,
9,
-10,
-17,
-39,
17,
14,
-24,
-2,
14,
32,
-88,
-10,
10,
0,
-19,
42,
30,
-35,
11,
-2,
-42,
-12,
12,
-2,
23,
-19,
-15,
-16,
44,
-25,
-45,
28,
10,
61,
-8,
0,
-22,
-8,
-42,
-19,
39,
-16,
-1,
-10,
-22,
-1,
-38,
27,
-27,
-5,
24,
8,
51,
-24,
-24,
2,
24,
18,
17,
0,
44,
21,
-2,
-24,
26,
70,
-9,
78,
-5,
-27,
-20,
62,
-43,
-22,
10,
63,
-57,
-71,
69,
10,
-46,
-7,
6,
-16,
0,
24,
42,
-54,
31,
-10,
-42,
-7,
-24,
-19,
-46,
4,
18,
-2,
35,
41,
-20,
50,
-91,
-34,
52,
-43,
-37,
4,
-16,
-44,
-37,
36,
26,
-26,
33,
6,
5,
-8,
55,
-2,
-30,
-11,
-22,
22,
-25,
8,
-7,
-32,
15,
-38,
0,
-16,
39,
9,
11,
76,
-9,
-22,
-61,
38,
-24,
-27,
-46,
37,
7,
-11,
25,
-3,
21,
8,
-23,
-10,
-12,
-48,
-43,
-38,
-69,
-5,
22,
-55,
-32,
-16,
-32,
25,
32,
-4,
-34,
70,
-20,
32,
0,
36,
42,
-28,
-9,
22,
7,
-27,
-35,
-42,
-21,
-8,
-4,
71,
-5,
-16,
-7,
26,
-30,
5,
9,
0,
22,
46,
-22,
-41,
-11,
0,
-32,
-52,
-3,
4,
1,
-25,
-31,
-8,
39,
-8,
10,
23,
-11,
-6,
-33,
17,
24,
-62,
27,
-34,
-52,
-30,
-28,
-44,
11,
55,
-67,
-20,
-52,
9,
-39,
-53,
19,
-8,
21,
36,
-18,
-36,
24,
-6,
3,
-14,
11,
10,
5,
-22,
-22,
-44,
-2,
0,
-42,
32,
-38,
29,
20,
45,
-12,
11,
-12,
-39,
-42,
-2,
38,
-44,
8,
8,
-28,
-25,
44,
35,
37,
3,
21,
16,
-5,
30,
21,
39,
26,
43,
9,
-2,
13,
0,
29,
8,
27,
11,
23,
56,
-5,
-79,
28,
26,
-12,
-28,
4,
-17,
15,
-78,
-6,
-2,
11,
50,
1,
-71,
-41,
1,
4,
5,
-49,
-41,
-35,
15,
30,
50,
0,
-29,
-16,
-19,
-13,
7,
-8,
-40,
28,
14,
34,
-6,
43,
65,
-43,
-6,
41,
-13,
-84,
-38,
-49,
-23,
31,
47,
5,
-2,
18,
-37,
58,
8,
39,
-12,
36,
-35,
-45,
-5,
25,
-24,
-47,
-9,
0,
15,
33,
-23,
-28,
2,
7,
60,
-1,
-31,
-32,
31,
20,
-35,
-61,
10,
42,
-37,
-22,
2,
24,
6,
-16,
-57,
-7,
-53,
-39,
-37,
-23,
8,
-7,
-28,
-29,
-39,
-3,
14,
40,
45,
60,
73,
22,
-31,
34,
-31,
-2,
-33,
-40,
44,
8,
-39,
7,
-3,
-4,
65,
-39,
-28,
42,
1,
9,
5,
47,
47,
-2,
-21,
-1,
-38,
-14,
-48,
39,
-7,
13,
-7,
-25,
-10,
-4,
-30,
-8,
-16,
-14,
28,
52,
30,
-37,
-38,
-54,
28,
-11,
-31,
-10,
-20,
62,
11,
16,
-4,
-35,
-31,
8,
1,
11,
-21,
-28,
26,
-11,
-22,
-10,
53,
70,
38,
27,
36,
-1,
-33,
7,
27,
25,
-60,
24,
13,
3,
10,
-12,
29,
-42,
-5,
-10,
10,
-68,
47,
30,
-5,
16,
-10,
-1,
-18,
-14,
-29,
36,
48,
-48,
-34,
26,
-2,
-33,
-27,
-43,
-23,
-34,
28,
8,
-26,
-25,
-37,
-26,
1,
13,
5,
25,
16,
-25,
14,
-35,
22,
11,
35,
-12,
16,
42,
-5,
38,
23,
-46,
46,
10,
39,
-29,
30,
-51,
61,
-10,
21,
-17,
5,
46,
-26,
-2,
32,
60,
-70,
-53,
34,
-4,
3,
-12,
39,
9,
10,
-14,
22,
68,
-14,
48,
49,
-1,
0,
-45,
20,
33,
-11,
65,
61,
-22,
-31,
18,
37,
41,
-42,
-48,
-8,
41,
25,
20,
-19,
-16,
-44,
16,
-1,
-13,
-47,
12,
32,
-28,
-30,
28,
26,
23,
22,
5,
-15,
-24,
-48,
57,
-4,
2,
28,
10,
-13,
-61,
6,
32,
-20,
5,
-29,
-3,
-34,
20,
25,
-1,
2,
-39,
-65,
-2,
12,
52,
12,
-61,
-5,
52,
36,
42,
22,
12,
2,
-33,
-29,
-35,
-21,
-6,
28,
23,
49,
38,
-6,
56,
-1,
44,
-35,
19,
13,
-48,
-11,
11,
-26,
4,
0,
-10,
0,
-36,
27,
-3,
76,
-4,
-2,
-45,
-7,
-15,
47,
18,
0,
49,
-65,
-79,
-6,
-1,
11,
30,
27,
12,
-29,
-13,
8,
-51,
-2,
5,
1,
31,
-2,
29,
19,
28,
31,
-6,
37,
-24,
-36,
-25,
18,
-2,
9,
-12,
12,
-11,
-1,
1,
-11,
38,
23,
-49,
-13,
19,
-20,
-30,
-37,
-31,
-22,
4,
-20,
1,
34,
75,
0,
-4,
-7,
34,
78,
13,
7,
-3,
12,
21,
-3,
38,
1,
-13,
36,
2,
0,
46,
-3,
-43,
19,
51,
-62,
-17,
-19,
0,
17,
9,
44,
-14
] |
Per Curiam.
In this action, plaintiffs sought to recover no-fault automobile insurance work-loss benefits pursuant to MCL 500.3107(b); MSA 24.13107(b). The claim of plaintiff Niksa was based on a truck accident which allegedly occurred in January, 1974. The claims of plaintiff Ross were based on truck accidents which allegedly occurred in May, 1974, and February, 1976. All three accidents occurred in the course of plaintiffs’ employment by Nucar Driveaway, and plaintiffs obtained workers’ compensation benefits for injuries incurred in the accidents. The trucks involved in the accidents belonged to Nucar Driveaway, and defendants were Nucar Driveaway’s carriers for both workers’ compensation and no-fault automobile insurance. This action was commenced on April 30, 1982. The circuit court granted accelerated judgment for defendants, holding that plaintiffs’ claims were barred by MCL 500.3145(1); MSA 24.13145(1), and plaintiffs appeal as of right.
MCL 500.3145(1); MSA 24.13145(1) provides:
"An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.”
For the purposes of this appeal, we will assume without deciding that plaintiffs’ statements to defendants’ agents in connection with plaintiffs’ claims for workers’ compensation were sufficient notice of injury to satisfy the requirements of the statute. The circumstances in which work-loss ben efits can be recovered are specified in MCL 500.3107(b); MSA 24.13107(b), which provides in part:
"Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person ’would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent.”
The most recent allowable work losses were therefore three years after the date of the accidents, and plaintiffs’ action was not commenced within one year after the most recent allowable work losses. Moreover, all of plaintiffs’ claims were based on losses incurred more than one year before commencement of the action. Plaintiffs were therefore barred by MCL 500.3145(1); MSA 24.13145(1), unless the one-year period was tolled.
A split of authority exists on this Court as to whether the one-year periods in MCL 500.3145(1); MSA 24.13145(1) are tolled during the pendency of a claim before denial of the claim by the insurer. Compare, for example, Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), with, for example, Aldrich v Auto-Owners Ins Co, 106 Mich App 83; 307 NW2d 736 (1981). In Welton v Carriers Ins Co, 421 Mich 571; 365 NW2d 170 (1984), the Court declined to resolve this split. Instead, the Court assumed that Richards tolling was permissible under the statute and held that such tolling could not begin until a claim for specific benefits was submitted to the insurer. 421 Mich 579-580. The Court explained, 421 Mich 581:
"Under our analysis, plaintiffs February 1979 workers’ compensation filing would not have tolled the one-year-back rule applicable to plaintiffs no-fault claim. At the time of that filing, plaintiff was not seeking no-fault benefits, nor was it clear under then-existing law that plaintiff was even entitled to recover those benefits in addition to workers’ compensation. To expect Carriers to have denied its no-fault liability in response to plaintiff’s workers’ compensation claim in order to prevent a tolling of the one-year-back rule, would not be reasonable. Wolar v State Farm Mutual Automobile Ins Co, 111 Mich App 152; 314 NW2d 460 (1981). [Emphasis in Welton.]
It is not disputed that plaintiffs here never made any specific claim for no-fault benefits. Welton therefore shows that Richards tolling is unavailable to these plaintiffs.
Anticipating footnote 6 of Welton, plaintiffs argue that defendants are estopped from relying on MCL 500.3145(1); MSA 24.13145(1) because of misrepresentations and fraudulent concealments concerning the availability of no-fault benefits. Plaintiffs rely on alleged statements by defendants’ workers’ compensation claims adjuster that no benefits other than workers’ compensation benefits were available to plaintiffs. As footnote 5 of Welton shows, such statements by an insurer were reasonable where, as here, they were made before the Supreme Court’s decision in Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708, on March 20, 1980. Such statements, if made before the Mathis decision, cannot support claims of misrepresentation or fraudulent concealment. Robinson v Associated Truck Lines, supra, p 576.
Affirmed.
"5 This Court had not decided that simultaneous recoveries of both workers’ compensation and no-fault benefits were permissible until March 20, 1980, Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980), over fifteen months after plaintiff in this case was injured. Thus, until Mathis was decided, Carriers could reasonably have refused to pay a no-fault claim (had one been submitted) on the ground that plaintiff was already receiving workers’ compensation benefits.
"6 We do not intend to foreclose the possiblity of a single claim triggering both workers’ compensation and no-fault liabilitites under circumstances not before us today, and we therefore do not address ourselves to the legitimate concerns expressed in Justice Levin’s opinion. A different result might be reached on grounds of estoppel, for example, where an employee requests 'whatever benefits’ the employee is entitled to from an employer and the employer misprepresents or conceals the availability of certain benefits. See, e.g., Robinson v Associated Truck Lines, Inc, 135 Mich App 571; 355 NW2d 282 (1984) (fraudulent concealment not borne out by pleadings or affidavits).” | [
-46,
19,
-52,
18,
60,
11,
33,
-87,
-12,
40,
-4,
15,
52,
10,
-50,
2,
48,
19,
-31,
10,
0,
-41,
36,
6,
-44,
-55,
21,
-83,
-21,
28,
-58,
-33,
-25,
-56,
-42,
12,
-38,
15,
1,
19,
-46,
20,
33,
-3,
5,
-30,
6,
-2,
25,
31,
33,
-9,
8,
-5,
47,
3,
32,
25,
-10,
18,
-30,
28,
59,
13,
0,
2,
-41,
8,
43,
8,
-21,
37,
-19,
3,
-43,
-10,
2,
60,
1,
-17,
3,
-36,
80,
6,
8,
36,
-68,
-3,
24,
-33,
-62,
-33,
-22,
2,
-37,
16,
-45,
-21,
15,
28,
-55,
-29,
18,
-12,
-18,
26,
-3,
-77,
12,
25,
17,
-10,
-2,
-16,
32,
-7,
14,
8,
61,
32,
19,
14,
27,
-5,
-20,
9,
3,
25,
-68,
54,
-6,
40,
37,
5,
20,
7,
15,
-31,
-17,
-9,
3,
-7,
-11,
-5,
5,
52,
52,
-38,
10,
-12,
-6,
70,
-2,
17,
-10,
-21,
9,
-6,
16,
-33,
-26,
-41,
27,
40,
23,
-5,
-14,
5,
9,
4,
69,
-55,
20,
-4,
25,
24,
27,
14,
-37,
6,
-61,
-12,
-12,
26,
-36,
-50,
-17,
26,
-31,
-13,
40,
-25,
-1,
-22,
-2,
-11,
21,
24,
12,
0,
42,
-70,
39,
-28,
-1,
57,
21,
-20,
29,
-13,
7,
-11,
6,
-75,
0,
41,
3,
-25,
-28,
-55,
10,
-10,
-24,
-76,
-44,
-4,
-24,
-50,
40,
-3,
-1,
-69,
10,
22,
-53,
6,
-16,
-59,
53,
14,
73,
4,
-5,
-23,
20,
16,
-23,
2,
55,
-5,
21,
-43,
-43,
-14,
-12,
-65,
26,
10,
-32,
19,
-41,
47,
-18,
12,
-10,
0,
-16,
-12,
-53,
7,
-54,
7,
28,
-33,
-26,
-80,
29,
-22,
9,
6,
-12,
-1,
-6,
-42,
-58,
-9,
23,
-53,
0,
3,
9,
-24,
44,
24,
-8,
-39,
28,
6,
-20,
44,
14,
-19,
-7,
-52,
2,
-59,
-61,
-28,
-55,
38,
-18,
-33,
31,
-73,
58,
-11,
29,
-11,
2,
-51,
20,
75,
30,
26,
20,
-43,
0,
12,
3,
-21,
-26,
-16,
-17,
18,
7,
-22,
-8,
37,
12,
17,
-7,
45,
24,
28,
-43,
-31,
71,
11,
62,
46,
-11,
4,
24,
-28,
16,
35,
68,
-21,
-68,
79,
54,
-18,
-22,
-26,
44,
-21,
17,
43,
-34,
21,
-18,
-1,
5,
-11,
-9,
-77,
-28,
44,
14,
32,
71,
-17,
26,
-75,
-26,
4,
-32,
-51,
2,
-37,
-52,
-16,
7,
52,
-31,
-3,
-7,
-10,
-25,
37,
-18,
23,
-2,
-23,
7,
18,
21,
-31,
-15,
0,
-26,
-7,
7,
48,
-33,
1,
88,
-9,
-43,
-56,
25,
2,
-29,
-38,
-20,
-23,
34,
41,
-8,
14,
-3,
9,
-2,
-41,
-19,
9,
-42,
-65,
11,
11,
0,
-18,
-39,
-30,
-9,
-5,
-19,
-38,
55,
-80,
39,
27,
37,
11,
-46,
-12,
31,
9,
-58,
-41,
-7,
-45,
-8,
44,
27,
-46,
-8,
-10,
17,
-30,
7,
39,
4,
7,
0,
-31,
-12,
-18,
11,
-2,
-58,
27,
-18,
13,
-3,
-26,
21,
18,
11,
18,
54,
-9,
-29,
-3,
20,
14,
-57,
-8,
-13,
-67,
-39,
-11,
5,
46,
76,
-34,
17,
-51,
-30,
-10,
-26,
22,
12,
15,
49,
27,
-60,
18,
-1,
-15,
-6,
-35,
-31,
25,
-31,
-40,
1,
13,
-27,
-2,
27,
-14,
56,
-20,
-33,
30,
13,
13,
-44,
-31,
9,
46,
-54,
-4,
-14,
-6,
8,
10,
26,
3,
3,
-22,
6,
-44,
16,
7,
18,
6,
16,
-23,
-15,
35,
47,
-1,
15,
19,
-12,
-29,
43,
-7,
-70,
19,
55,
-48,
27,
63,
-26,
3,
-54,
19,
-19,
48,
-2,
9,
-83,
-41,
25,
5,
-7,
-15,
-48,
24,
3,
16,
62,
12,
-29,
-57,
-47,
-32,
19,
2,
-59,
1,
19,
-18,
-24,
40,
32,
-27,
8,
15,
-23,
12,
-13,
-89,
19,
22,
56,
-7,
20,
-7,
-4,
56,
-11,
56,
41,
21,
-8,
9,
6,
11,
-31,
-38,
24,
-35,
4,
58,
-12,
-25,
-31,
49,
65,
33,
-41,
-61,
24,
10,
-31,
-95,
-59,
26,
-12,
-21,
-22,
30,
7,
-25,
-48,
15,
-14,
-26,
10,
4,
-18,
-43,
14,
-31,
1,
53,
7,
-17,
52,
48,
58,
51,
-42,
54,
-25,
1,
-16,
-22,
24,
-8,
-44,
48,
0,
2,
42,
0,
-6,
71,
-10,
-39,
-45,
14,
17,
26,
-26,
-8,
-12,
56,
-42,
22,
-10,
51,
-14,
-18,
65,
58,
-28,
25,
30,
-66,
12,
51,
2,
-10,
-39,
-59,
16,
-36,
-34,
-23,
-37,
80,
45,
-18,
-4,
1,
-25,
16,
-14,
8,
-49,
-14,
31,
-11,
22,
7,
30,
39,
77,
-3,
5,
40,
-66,
43,
47,
30,
-40,
-52,
-9,
-5,
37,
-15,
21,
15,
3,
-27,
10,
-82,
24,
12,
-1,
20,
-12,
28,
22,
-76,
-30,
0,
55,
-27,
10,
6,
18,
-16,
-53,
13,
-34,
7,
43,
28,
-39,
-28,
-9,
-58,
-20,
24,
38,
30,
32,
-45,
4,
25,
-3,
7,
-2,
-4,
-13,
22,
-31,
36,
1,
-39,
32,
-12,
40,
-23,
-25,
-42,
45,
3,
9,
37,
-4,
28,
-10,
-21,
28,
25,
-52,
-6,
23,
-22,
-10,
-27,
65,
20,
-18,
-37,
13,
67,
-13,
24,
49,
14,
7,
-59,
12,
14,
-50,
35,
11,
-1,
-18,
4,
53,
-25,
-12,
-59,
0,
44,
-16,
49,
-2,
-16,
-27,
-29,
-4,
-16,
-18,
-12,
14,
-21,
-6,
17,
-3,
33,
0,
33,
-37,
21,
2,
33,
-33,
-15,
29,
0,
10,
4,
-7,
22,
-48,
-4,
-16,
17,
-11,
-1,
10,
15,
-33,
-43,
-3,
1,
-13,
63,
45,
-60,
-10,
50,
13,
42,
16,
-5,
-8,
-15,
-30,
-22,
25,
-11,
46,
-19,
27,
26,
-1,
79,
-3,
63,
21,
-24,
0,
-48,
33,
-6,
-3,
17,
-11,
12,
6,
-1,
-18,
27,
41,
-16,
8,
-48,
-27,
-8,
6,
-18,
6,
6,
-89,
-41,
37,
-5,
-14,
7,
88,
-18,
-3,
3,
27,
-24,
-20,
11,
37,
31,
-14,
6,
50,
0,
58,
-29,
-8,
-16,
-19,
5,
37,
-12,
-43,
14,
33,
-13,
-22,
14,
-46,
13,
25,
-10,
-17,
0,
-7,
-5,
-50,
-18,
4,
27,
19,
11,
48,
37,
43,
-44,
5,
36,
48,
15,
37,
46,
24,
-25,
-31,
17,
13,
-11,
65,
38,
-23,
24,
-39,
-39,
58,
81,
2,
-21,
-16,
-22,
-7,
-16,
14,
-3
] |
Per Curiam.
A jury convicted defendant of first-degree felony murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, assault with intent to rob while armed, MCL 750.89; MSA 28.284, and felony-firearm, MCL 750.227b; MSA 28.424(2), as charged. The trial court sentenced him to concurrent terms of life imprisonment, from 20 to 40 years, and from 15 to 30 years, in addition to the mandatory, consecutive two-year term for felony-firearm. Defendant appeals as of right, claiming that the trial court erred by refusing to admit evidence of the decedent’s violent, turbulent and aggressive character. We agree with defendant’s assertion that the trial court so erred, but conclude that the error was harmless beyond a reasonable doubt under the circumstances of this case. Therefore, we affirm.
The decedent and a witness were standing behind the counter in a Grand Rapids party store on the evening of November 7, 1983. Defendant entered the store and bought a pack of cigarettes. He then pointed a handgun at the witness’s chest and demanded the contents of the cash register. The weapon was "cocked and all ready to go”. Defendant turned toward the decedent and said, "What do you think this is, some kind of joke?” The decedent and defendant engaged in a scuffle. The witness heard defendant bump into a potato chip rack. "A couple seconds” later, the witness heard a gunshot. While running to the front door, he heard another shot, this one louder than the first.
There were three persons in the back room of the store. One of these witnesses heard two shots. He ran to the main portion of the store and saw defendant. Another of these witnesses was watching the decedent as he was shot. She recalled that the decedent was bending over, as if to obtain a gun under the counter, when he was shot. She saw no fight or scuffle.
A forensic pathologist testified that the fatal bullet entered the decedent’s body at an upward angle. A detective, after finding no powder burns on the victim’s jacket, concluded that the gun must have been four or more feet away when it was fired. An evidence technician found shell fragments on a shelf 46 inches above the floor. The technician surmised that the bullet had traveled in a southwesterly direction, that is, toward the front of the store.
Defendant admitted that he was the perpetrator, but claimed that the gun discharged accidentally because the decedent kicked his hand. Defendant did not remember firing the second shot.
Defendant offered testimony of the decedent’s "violent, turbulent” character. The trial court found the evidence irrelevant because defendant did not claim self-defense.
Defendant argues that the victim’s combative nature was "a pertinent trait of character” because it would, if proved, have made his version of the shooting more credible. MRE 404(a)(2). According to defendant, an aggressive individual would more likely have kicked his hand, causing the inadvertent discharge of the handgun. If the jury believed the shooting was accidental, defendant urges, they would not have convicted him of felony murder.
We think there is some merit in defendant’s argument. An agressive individual would, arguably, be more likely than a submissive person to kick an armed robber. To the extent this is true, it lends support to the defense theory. Of course, the jury might have validly convicted defendant of felony murder even if they concluded that the gun went off accidentally. "A jury can properly infer malice from evidence that a defendant set in motion a force likely to cause death or great bodily harm.” People v Aaron, 409 Mich 672, 729; 299 NW2d 304 (1980) (emphasis in original). The jury could have concluded that, even though defendant did not specifically intend to kill, his actions prior to the shooting showed a wanton disregard "of the likelihood that the natural tendency of [his] behavior [was] to cause death or great bodily harm”. Aaron, supra, p 730. When defendant pointed the gun ("cocked and all ready to go”) at the victims, he took the risk that they might exercise their natural right of self-preservation.
Nevertheless, it was error to exclude the evidence of the decedent’s allegedly violent character. That the jury might have convicted defendant of felony murder even if they thought the shooting itself was accidental does not, in itself, extinguish the possibility that the jurors would have found malice lacking if the evidence had been admitted. "[T]he issue of malice must always be submitted to the jury.” Aaron, supra, p 733.
The people argue, and the trial court ruled, that evidence of the victim’s character is inadmissible where the accused does not claim self-defense. We disagree. Under MRE 404(a)(2) evidence of any "pertinent trait” of the victim is admissible. If the victim’s nature sheds light on whether the killing was intentional or accidental, it is surely pertinent. In this case, the people, in order to secure a conviction, had to prove that defendant acted with malice. Aaron, supra. A concluson that the shooting was accidental, though not necessarily inconsistent with a verdict of guilty of felony murder, would have made conviction of a lesser offense more likely.
In People v Burks, 387 Mich 393, 395; 196 NW2d 777 (1972), the Supreme Court stated that evidence of the deceased’s character may be admissible even if the accused does not interpose a plea of self-defense. The Court quoted from 40 CJS, Homicide, § 222, pp 1138, 1140:
"Aside from the situation where there is a claim of self-defense and some evidence in support thereof * * * the violent, turbulent, and dangerous character of deceased may be shown when from the circumstances of the case it is a part of the res gestae, or it is relevant to illustrate the circumstances attending the homicide * * * or there is evidence of threats by deceased against accused, or when the evidence of the homicide is wholly circumstantial, or where the immediate circumstances of the killing render it doubtful whether the act was justifiable or not, or leave the question of the intention of accused in committing the crime doubtful or the proof evenly balanced, or indicate provocation on the part of the deceased.”
The people contend that, regardless of his character, the decedent had every right to resist an armed attack. We agree that the victim had the right to defend himself. However, if in doing so he caused the gun to discharge, that fact is relevant to defendant’s intent. We must bear in mind that the issue concerns only the degree of homicide, not whether defendant would go completely unpunished for the killing.
A thorough scrutiny of the record convinces us that the error was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). Several aspects of the matter indicate that, even if the testimony concerning the victim’s nature had been allowed, not a single juror would have been convinced the shooting was an accident. People v Gallon, 121 Mich App 183, 189; 328 NW2d 615 (1982).
First, defendant displayed a murderous intent by his assault of the witness as the witness tried to flee by the front door. The jury found that defendant intended to murder the witness. The jury’s finding of the intent required for assault with intent to murder indicates that the panel also would have found the malice required for a felony murder conviction, despite any evidence of the murder victim’s character. Defendant’s unprovoked attempt to shoot the fleeing witness casts doubt on his testimony that the shooting was accidental.
Secondly, the same witness also testified that "a couple seconds” elapsed between the scuffle and the first shot, and that defendant had sprawled backward onto a potato chip rack during the scuffle. This testimony tended to disprove the defense theory, for if the shot rang out after the scuffle, then it was not caused by the alleged kick from the victim.
Furthermore, the witness in the back room, who observed the decedent at the moment of the shooting, saw no scuffle and stated that the victim was shot while reaching under the counter. According to this witness, the victim was bending over as if to obtain a gun. The victim was in no position to kick defendant’s hand. Indeed, the witness saw no such kick. This testimony shows that the decedent succeeded in pushing or kicking defendant away for a moment, but his attempt to reach for a weapon was cut short by the shooting. This proof, also, is contrary to the defense theory.
Finally, evidence of the victim’s character would have added little to defendant’s chances. The jury was already aware that the victim engaged in a struggle with defendant just before the shooting. Therefore, additional testimony that he had character traits that would lead him to resist, although relevant, was somewhat redundant. The main question raised by defendant’s testimony was not whether the decedent was the sort of man who would resist (the jury knew he was from the testimony of the other man behind the counter), but whether in resisting he caused the gun to discharge. As noted above, defendant’s theory of the shooting lacked evidentiary support beyond his own testimony, which was not believed by the jury.
Affirmed. | [
-6,
17,
17,
8,
-25,
-32,
-29,
28,
-8,
40,
-3,
-14,
5,
-3,
41,
39,
0,
28,
8,
-28,
2,
-51,
-56,
40,
-14,
-22,
14,
51,
-4,
13,
16,
23,
32,
-77,
26,
2,
32,
-12,
23,
62,
-17,
-22,
69,
-7,
-25,
-35,
50,
-7,
41,
-2,
42,
-9,
-26,
-33,
-9,
19,
-6,
0,
24,
45,
51,
23,
-6,
-40,
-3,
5,
4,
50,
-29,
25,
28,
-16,
-26,
11,
-11,
4,
-20,
27,
-34,
-32,
-5,
-16,
61,
-6,
-34,
-4,
-6,
-28,
-14,
-47,
13,
31,
-21,
-30,
43,
-5,
17,
0,
13,
-32,
-34,
9,
-12,
32,
-30,
23,
-33,
-24,
-15,
-24,
0,
33,
36,
33,
-12,
-6,
16,
37,
-18,
48,
-8,
30,
51,
-41,
43,
-22,
6,
29,
68,
17,
7,
54,
20,
9,
-37,
-10,
-16,
38,
-11,
12,
-36,
51,
23,
7,
17,
15,
-2,
9,
6,
5,
-66,
3,
-14,
9,
18,
28,
-27,
-36,
-38,
-25,
35,
-48,
22,
-7,
-10,
-52,
-26,
-15,
-48,
-41,
-24,
-16,
63,
21,
78,
28,
14,
-16,
9,
-16,
-6,
30,
25,
14,
14,
-24,
19,
-39,
-25,
-11,
-55,
29,
-9,
-12,
11,
52,
-3,
43,
21,
-21,
2,
-41,
33,
-38,
10,
-38,
0,
9,
-26,
-45,
-15,
7,
-29,
-29,
-10,
-45,
-28,
-23,
-35,
-15,
-87,
-17,
24,
22,
32,
-65,
-6,
-18,
-68,
-51,
33,
-40,
-37,
2,
27,
14,
35,
-39,
16,
22,
48,
-24,
5,
12,
0,
41,
13,
-2,
-8,
-6,
23,
-12,
17,
37,
-29,
6,
-1,
0,
-1,
-1,
-10,
11,
-16,
18,
-48,
71,
-25,
5,
-30,
-11,
25,
-25,
20,
21,
41,
-53,
-25,
55,
41,
-25,
37,
21,
2,
-20,
-18,
-9,
-36,
43,
-26,
-1,
66,
-12,
-33,
-4,
17,
5,
35,
0,
-7,
0,
18,
28,
-2,
-48,
-15,
24,
39,
-14,
-66,
7,
5,
36,
-26,
47,
27,
-11,
-8,
-13,
55,
-1,
0,
-17,
-15,
-28,
-14,
-34,
13,
-18,
-21,
-4,
-16,
32,
-9,
15,
-10,
-32,
-20,
1,
16,
0,
50,
-33,
-22,
28,
5,
35,
7,
27,
-47,
-65,
30,
-14,
17,
27,
-24,
-34,
-34,
-3,
39,
6,
50,
-22,
-18,
7,
6,
10,
7,
-61,
-3,
62,
-19,
-51,
-15,
11,
-11,
19,
40,
-43,
21,
38,
5,
22,
9,
-50,
-26,
41,
-13,
-30,
12,
42,
-42,
-15,
-25,
-54,
0,
-33,
-40,
30,
11,
-25,
-37,
-12,
23,
-23,
-18,
0,
-45,
17,
17,
-9,
29,
-6,
54,
22,
-26,
-34,
14,
-14,
34,
-10,
20,
1,
3,
-27,
4,
-57,
-55,
40,
-34,
-63,
36,
32,
-12,
-1,
9,
9,
-64,
38,
69,
-9,
-50,
-58,
-47,
-40,
53,
9,
-19,
6,
50,
-17,
38,
-1,
21,
-56,
-37,
53,
-4,
-3,
18,
-28,
32,
-62,
-30,
-24,
36,
-24,
-43,
-61,
42,
-11,
9,
-30,
-18,
29,
12,
-8,
21,
21,
20,
-15,
6,
-2,
-11,
-29,
-65,
-23,
-42,
-23,
1,
-27,
18,
0,
15,
14,
-14,
13,
-26,
34,
-12,
-17,
-42,
-37,
-10,
13,
13,
-18,
0,
-9,
13,
-6,
-41,
45,
-44,
3,
-12,
-8,
15,
-28,
-28,
0,
4,
-28,
-25,
40,
-21,
-18,
-6,
1,
-60,
3,
0,
25,
3,
-33,
63,
25,
-35,
-24,
12,
-19,
5,
-5,
42,
28,
-16,
-3,
-23,
-23,
13,
11,
12,
16,
15,
-33,
13,
10,
27,
11,
19,
-33,
-16,
41,
-3,
27,
18,
-38,
-31,
-44,
49,
-85,
-15,
24,
-10,
-3,
-22,
-4,
27,
34,
-24,
45,
36,
27,
-10,
73,
-20,
1,
36,
26,
7,
21,
-36,
10,
40,
3,
-2,
-14,
-12,
-34,
-6,
-41,
23,
-8,
-5,
32,
74,
-6,
-21,
3,
23,
-20,
19,
-18,
-14,
-14,
-20,
10,
8,
-35,
-39,
27,
4,
-6,
-5,
-5,
-40,
17,
-12,
-44,
-17,
-24,
-72,
-14,
34,
-13,
-20,
6,
11,
11,
-65,
-36,
-13,
37,
47,
11,
26,
23,
-5,
44,
33,
-24,
-3,
11,
-16,
30,
22,
-16,
2,
5,
38,
-8,
0,
50,
-59,
-9,
0,
57,
40,
-55,
3,
39,
28,
34,
-28,
-24,
10,
55,
-24,
7,
28,
-32,
-19,
12,
38,
18,
29,
20,
2,
-41,
-4,
1,
-38,
35,
38,
-5,
11,
38,
9,
44,
-45,
-19,
49,
26,
-46,
-19,
-23,
2,
6,
-51,
12,
-12,
-77,
30,
-5,
-6,
8,
-22,
-14,
-69,
13,
18,
-58,
-3,
33,
-11,
21,
10,
17,
38,
11,
20,
16,
-51,
6,
9,
-3,
47,
1,
-1,
6,
4,
-44,
5,
-14,
-19,
1,
-37,
-2,
-48,
12,
12,
40,
84,
31,
-57,
-43,
13,
71,
8,
-34,
-21,
25,
17,
-11,
6,
-25,
-46,
-20,
0,
-5,
-38,
-2,
-40,
28,
41,
-49,
36,
-27,
-44,
40,
-6,
26,
51,
0,
-10,
28,
-45,
-44,
1,
2,
3,
26,
31,
-35,
26,
16,
26,
14,
47,
57,
-11,
42,
23,
29,
-29,
6,
-12,
32,
-20,
-4,
37,
88,
-35,
-29,
-14,
-39,
-3,
-20,
-45,
-32,
-1,
45,
3,
13,
-76,
-29,
5,
14,
-56,
-47,
3,
-13,
35,
36,
20,
-13,
-11,
4,
12,
-6,
-16,
26,
22,
27,
45,
12,
39,
43,
-55,
20,
14,
27,
-42,
13,
-56,
23,
18,
-4,
39,
1,
59,
0,
22,
-27,
-5,
11,
12,
-28,
-3,
-1,
-1,
-14,
-11,
33,
30,
-29,
42,
-31,
-7,
-30,
-21,
15,
-20,
47,
0,
22,
11,
-19,
-43,
-64,
23,
-21,
58,
-13,
1,
-29,
-22,
11,
13,
39,
-38,
17,
-35,
-34,
22,
39,
2,
30,
12,
-27,
-15,
-16,
-17,
32,
42,
22,
35,
0,
8,
48,
-33,
-39,
60,
46,
31,
45,
-42,
-2,
-42,
-17,
3,
-14,
-9,
0,
-39,
-54,
5,
-16,
-22,
26,
-7,
-27,
50,
7,
52,
-37,
13,
6,
-7,
-20,
-23,
7,
-30,
-21,
5,
-14,
34,
-2,
-18,
-59,
28,
-34,
7,
-4,
1,
77,
26,
31,
3,
-4,
-20,
18,
-50,
7,
-31,
17,
-46,
22,
24,
-40,
43,
-24,
-16,
-19,
-18,
-11,
-3,
-10,
0,
-13,
-33,
-24,
-6,
10,
43,
-35,
35,
0,
44,
0,
-19,
1,
4,
1,
15,
-11,
-35,
-6,
-9,
-9,
-40,
-50,
2,
32,
-35,
-3,
28,
-2,
17,
-15,
27,
-22,
40,
-28,
-2
] |
Cynar, J.
This appeal arises out of a products liability action filed by the plaintiff after he was injured when he fell from a trailer manufactured by the defendant. Plaintiff brought suit alleging both negligence and breach of implied warranty against the defendant for its manufacturing of an allegedly defectively designed high-side open-top trailer. It was asserted that the trailer was defective because it did not have a ladder on the exterior of the trailer to allow the driver safe access to the top. A jury trial was held in Wayne County Circuit Court on August 4-11, 1983. The jury returned a verdict in favor of the plaintiff, finding that defendant had been negligent in the design of the trailer but that defendant had not breached an implied warranty. Plaintiff was ultimately awarded $250,000 in damages. Defendant appeals as of right._
In March of 1978, plaintiff was employed as a truck driver for the Standard Lead Company of Detroit. On March 20, 1978, plaintiff was delivering a load of loose copper turnings to the AMX plant in Carteret, New Jersey. Plaintiff was hauling the load in a high-side open-top trailer that had been manufactured by the defendant in 1969 and sold as a used vehicle by defendant to Standard Lead under an "as is” sale agreement in 1975. The trailer involved in this case had no roof over it and a canvas tarpaulin (tarp) is secured over the load to protect it.
Upon plaintiff’s arrival at the AMX facility, he was instructed to remove the tarp from his trailer and to wait for it to be unloaded. The AMX facility provided no dock or catwalk to reach the top of the trailer and the trailer itself did not contain a ladder to assist the driver in climbing to the top of the trailer. As a result, to remove the tarp, plaintiff was required to climb the rear door of the trailer, stand on the load inside the trailer, and roll back the tarp. After plaintiff had completed the rolling up of the tarp, plaintiff began to dismount the trailer in reverse fashion. However, as plaintiff was dismounting, his foot slipped from the door handle and plaintiff fell to the ground. Plaintiff testified he received severe injuries as a result of the fall.
It was plaintiff’s contention at trial that a ladder or some other safety device on the trailer could have prevented the accident. Pursuant to the adverse-witness statute, the plaintiff called Adrian Hulverson, vice-president of engineering for the defendant, to testify. Hulverson indicated that Fruehauf built high-side open-top trailers because certain customers wanted trailers which could be loaded and unloaded from the top by using overhead cranes as opposed to loading or unloading through rear doors. Hulverson opined that there was no consensus standard in the industry as to what equipment should be placed on a high-side open-top trailer except as to body parts concerning strength requirements. He testified that he knew of no standards for safety equipment when the trailer is in a stationary position for loading or unloading.
Defendant first argues that the jury verdict in this case cannot be allowed to stand because it is legally inconsistent. Defendant contends that the verdict was inconsistent because, in a products liability case alleging defective design, it is legally inconsistent for the jury to exonerate a manufacturer on an implied warranty claim but to find liability on a negligent design count. We agree.
The distinction between the elements of negligence and breach of implied warranty were explained in Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88, 89-90; 273 NW2d 476 (1979).
The plaintiff in Squibb based liability of the drug manufacturer on an alleged failure to provide adequate warnings to the medical profession concerning the dangers of the drug in question. It was undisputed that there was no intrinsic defect in the drug. Both a breach of implied warranty and negligence were pled. The trial court refused to instruct the jury concerning the warranty claim. The court recognized that implied warranty and negligence are separate and distinct theories of recovery and under the implied warranty theory plaintiff need only establish that the defect was attributed to the manufacturer, regardless of the care exercised by the manufacturer. The Supreme Court stated that the trial court’s instruction was correct because the factual issue was not whether the product itself was defective but whether the manufacturer provided adequate warnings. The Court noted that in such cases: 1) breach of implied warranty and negligence involved identical evidence and requre proof of exactly the same elements; and 2) the legal standard under either theory is one of reasonable care under the circumstances.
In Prentis v Yale Manufacturing Co, 421 Mich 670, 691-693; 365 NW2d 176 (1984), plaintiffs pled both breach of implied warranty and negligence. The factual inquiry was whether the product was unreasonably dangerous because it lacked a seat or platform for the operator. The test in determining whether the design was "unreasonably dangerous” was whether the alleged defect in design created an unreasonable risk of foreseeable injury. The trial court properly instructed the jury on the theory of negligent design but refused to instruct the jury on breach of implied warranty. The Supreme Court held, noting Squibb, supra, that, under the facts presented, refusal to instruct on breach of warranty did not consitutue error. To instruct on the negligence and implied warranty theories would have been repetitive, unnecessary and the jury could have been misled into believing that plaintiff could recover under the warranty count even if the jury found there was no defect in the design of the product. The Prentis Court noted that, in a case involving a manufacturer who was also the seller, like defendant herein, "it is inconceivable that a jury could determine that the manufacturer had not breached its duty of reasonable care and at the same time find that the product was not reasonably safe for its reasonably foreseeable uses. The question in either case turns on reasonable care and reasonable safety, and * * * the liability of the manufacturer rests 'upon a departure from proper standards of care so that the tort is essentially a matter of negligence’.” 421 Mich 693.
In the present case, the jury was instructed pursuant to the traditional jury instructions concerning negligent design and implied warranty that were recognized as applicable at the time of the trial. The jury was given the standard jury instructions for negligent design cases, SJI2d 25.32, and a separate instruction on implied warranty, SJI2d 25.22. We note that the Supreme Court recently disapproved the use of SJI2d 25.22 in products liability cases alleging defective design. See Prentis, supra, p 695, fn 32.
Defendant moved for a new trial but did not raise the issue of the inconsistent jury verdict in its motion for new trial. Our consideration of this issue is therefore precluded unless a manifest injustice would result.
We find that the jury verdict rendered in this products liability action for an allegedly defective design is inconsistent under the common law and resulted in prejudicial error to defendant. As the Supreme Court stated in Prentis, supra, our holding is based upon a recognition that "under the common law of products liability, in an action against the manufacturer of a product based upon alleged defect in design, 'breach of an implied warranty and negligence involve identical evidence and require proof of exactly the same elements’.” Prentis, supra, p 692. That is, the factual inquiry under either theory is whether the manufacturer disigned a defective product. The jury in this case found that defendant did not breach an implied warranty of fitness but that defendant was negligent in designing the trailer involved in this case. The jury’s verdict was legally inconsistent and self-contradictory. We therefore set the inconsistent jury verdict aside and remand this case for new trial. Harrington v Velat, 395 Mich 359, 360; 235 NW2d 357 (1975).
Defendant next argues that the trial court committed reversible error by admitting into evidence certain exhibits of plaintiffs which were irrelevant and prejudicial. The challenged exhibits were photos of other trailers manufactured by defendant, some after 1969, which were equipped with ladders. The determination of whether evidence is relevant is within the sound discretion of the trial court. The trial court’s decision will not be reversed absent a showing of a clear abuse of discretion. Citizens National Bank of Cheboygan v Mayes, 133 Mich App 808; 350 NW2d 809 (1984), lv den 421 Mich 852 (1984); Blanchard v Monical Machinery Co, 84 Mich App 279; 269 NW2d 564 (1978). Generally, evidence is relevant and admissible if it has a tendency to make the existence of a material fact more or less probable. MRE 401 and 402. However, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or if misleading to the jury. MRE 403.
The first exhibits which defendant claims were erroneously admitted were plaintiffs exhibits 6 through 8: photographs of a 1964 cement trailer, a 1966 bulk semi-trailer with central discharge, and a 1969 dump trailer, all manufactured by defendant and designed with ladders attached. Defendant argues that the exhibits were irrelevant because they involved completely different types of trailers, with different uses and loading procedures than the 1969 high-side open-top trailer involved in the present case. We disagree.
At trial, plaintiff contended that a reasonable seller of a high-side open-top trailer would have attached a ladder to the trailer. In order to per suade the jury that a reasonable seller of such trailers would recognize the utility and safety consequences of attaching such a ladder, plaintiff sought to admit various photographs of trailers with ladders attached. During direct examination, Adrian Hulverson conceded that it was foreseeable that a person would have to have access to the top of this type of trailer. After this admission by Hulverson, plaintiff sought to admit exhibits 6 through 8. Defendant objected to the admission of these exhibits on the basis that they were irrelevant and prejudicial. Plaintiff argued that the exhibits were relevant to show what equipment was placed on trailers when it was recognized that workers would be requried to have access to the top of the trailers.
The exhibits were clearly relevant to show the precautions taken in the manufacturing of other trailers where it was recognized that access to the top of such trailers was required. Our review of the record also convinces us that the introduction of exhibits 6 through 8 did not cause any undue prejudice to defendant or create confusion with the jury. Under the circumstances, we find no clear abuse of discretion in the trial court’s ruling.
We now address defendant’s claim of error concerning the admission of plaintiff’s exhibit 10 — a photo of a Fruehauf trailer manufactured by defendant in 1971. The trailer pictured in exhibit 10 was similar to the trailer involved in this case but was equipped with a ladder and manufactured two years later.
The trial court apparently detemined that exhibit 10 was admissible because it concerned a trailer that was manufactured before defendant sold the 1969 used trailer to Standrad Lead in 1975. In Blanchard, supra, we held that a seller of used products has a duty to act as a reasonably prudent seller would under then existing circumstances when selling goods or equipment that are used or sold "as is”. See also Johnson v Purex Corp, 128 Mich App 736; 341 NW2d 198 (1983), lv den 419 Mich 901 (1984).
In Downie v Kent Products, Inc, 420 Mich 197, 210, 212; 362 NW2d 605 (1984), our Supreme Court held that the rule set forth in MRE 407 and MCL 600.2946(3); MSA 27A.2946(3) on evidence of remedial measures excludes only those remedial measures taken after the event of injury or death in question. In the present case, the challenged evidence was an example of a change in design in a trailer manufactured by defendant and placed in use before defendant resold the trailer involved in this case and before plaintiff sustained the injuries complained of. We find that there was no clear abuse of discretion in the trial court’s decision to admit exhibit 10 into evidence.
Finally, defendant’s argument concerning the prejudicial impact of plaintiff’s exhibits 11 and 15 is totally without merit because they were excluded from evidence by the trial court.
Defendant next argues that the trial court’s refusal to give defendant’s requested jury instruction on the effect of manufacturing a product pursuant to generally recognized standards in the industry deprived defendant of a fair trial. We disagree.
The defendant requested that the following instruction be given:
"Evidence that a product is manufactured and sold pursuant to a general recognized standard customer [sic; standard or custom], is evidence of lack of negligence, and lack of breach of a warranty on the part of the defendant.”
The trial court denied defendant’s request without stating any reasons on the record. However, at defendant’s motion for a new trial, the court stated that the requested instruction was not given because it was only a partial statement of the law.
It is generally recognized that a properly requested jury instruction must be given if it accurately states the law and if it is applicable to the case. Young v E W Bliss Co, 130 Mich App 363; 343 NW2d 553 (1983). However, when, as in this case, a party requests an instruction that is not covered by the Standard Jury Instructions, the trial court may, at its discretion, "give additional concise, understandable, conversational and nonargumentative instructions provided they are applicable and accurately state the law”. Young, supra, p 371. The determination of whether a requested jury instruction is applicable and accurately states the law is within the discretion of the trial court. Moody v Pulte Homes, Inc. 125 Mich App 739, 754; 337 NW2d 283 (1983), lv granted 419 Mich 869 (1984).
In the present case, the instruction requested by the defendant was incomplete and thus an inaccurate statement of the law. The defendant’s instruction failed to state that defendant’s compliance with industry standards did not preclude the trier of fact from finding that certain conduct was negligent. See, Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982); Hartford Fire Ins Co v Walter Kidde & Co, Inc, 120 Mich App 283, 292; 328 NW2d 29 (1982); Elsasser v American Motors Co, 81 Mich App 279; 265 NW2d 339 (1978). Evidence of compliance with industry standards is certainly admissible, MCL 600.2946; MSA 27A.2946, but it is not conclusive and therfore any instruction which does not state that fact is one-sided and unfair.
Because the instruction actually requested in this case was incomplete, the trial court did not abuse its discretion in refusing to give the defendant’s requested instruction and reversal on this point is therefore not required.
Defendant next claims that the trial court committed reversible error when it refused to give defendant’s requested jury instruction on plaintiffs experience as a purchaser of open-top trailers.
The defendant requested the following instruction be given to the jury:
"As an experienced purchaser of trailers, plaintiff is charged with full appreciation of the dangers of purchasing an open-top van trailer without a ladder.”
The trial court refused to give the requested instruction. The court stated that the instruction requested by defendant was sufficently covered by the Standard Jury Instructions and therefore it was unnecessary. A properly requested jury instruction should be given so long as it accurately states the law and is applicable to the case. Young, supra. Whether an additional instruction is accurate and should be given is left to the discretion of the trial court. Moody, supra, p 754.
In the present case, the instruction requested by the defendant was practically identical to its theory of the case. Defendant argued to the jury that, because of plaintiffs experience and the fact that the trailer was purchased on an "as is” basis, he was in the best position to know if a ladder was required, given what was customary in the industry. Apparently, the trial court felt that the instruction was adequately covered by the Standard Jury Instructions on comparative negligence, which were given to the jury. However, defendant relies on Antcliff v State Employees Credit Union, 414 Mich 624; 327 NW2d 814 (1982), reh den 417 Mich 1103 (1983), and argues that the instruction should have been given. We disagree.
Antcliff involved a duty-to-warn case that is clearly distinguishable from the present action. In Antcliff the Court held that under the facts of the case, the defendant was under no duty to instruct about the safe rigging of the product given the plaintiffs experience in the area. However, in Ownes, supra, the Court in a design defect case noted that the fact that a danger is obvious does not necessarily bar recover. Owens, supra, p 425. We conclude that defendant’s requested instruction was not a completely accurate statement of the law and therefore the trial court did not err in rejecting it.
Defendant’s next claim of error involved the trial court’s decision not to admit into evidence defendant’s exhibit 13 — an employee statement signed and verified by plaintiff. The statement contained a different accident date than alleged by plaintiff at trial and omitted any statement concerning how and where the accident took place. Defendant attempted to introduce the statement into evidence in an effort to persuade the jury that the accident never occurred and that plaintiffs story was fabricated. The trial court ruled that defendant’s exhibit 13 was inadmissible because the individual who had filled out the form was not available for cross-examination and a proper foundation had not been laid for its admission.
To be admissible at trial, documents sought to be admitted must be authenticated by the introduction of evidence sufficient to support a finding that the documents are what they claim to be. MRE 901. Under MRE 901(b)(1), a foundation can be laid for admissibility by testimony of a witness with knowledge who can also identify and authenticate the evidence. In the present case, the plain tiff testifed at trial that he signed the document and provided the information contained therein. The fact that the person who actually prepared the document was not present for cross-examination is irrelevant because the authenticity and the validity of the document was supported by the plaintiff and was not questioned. See Pennington v Whiting Tubular Products, Inc. 370 Mich 590, 599-600; 122 NW2d 692 (1963). Therefore, the necessary foundation for admission of the exhibit was laid.
We must now determine whether the trial court’s refusal to admit the exhibit was harmless error.
Generally, a party may not predicate error upon a ruling which excludes evidence unless substantial rights are affected by its exclusion. MRE 103(a). Here, defendant, through the testimony of plaintiff and its own arguments, was able to make full use of the contents of the exhibit. Under the circumstances, the trial court’s refusal to admit the exhibit was harmless. GCR 1963, 529.1 [MCR 2.613(A)].
Defendant next claims that the trial court erred in ruling that a hypothetical question asked of plaintiff’s neurological surgeon, Dr. Latimer, was supported by the evidence introduced at trial. Our review of the record convinces us that there is no basis for reversal on this point.
Plaintiff’s appeal brief demonstrates that the challenged hypothetical question was supported by trial testimony. The hypothetical question was asked for the purpose of determining whether plaintiff’s medical condition was permanent. Prior to plaintiff’s asking the challenged hypothetical question, plaintiff testified that he still experienced numbness through his thumbs and forefinger and pain in his back. He also stated that, if he did any heavy work, he would lose the use of his right arm temporarily. Plaintiffs wife corroborated plaintiffs testimony on this point. Additionally, Dr. Latimer testified that, because plaintiffs condition had not improved significantly after surgery, he did not believe that there was a chance for further improvement.
Thus, the evidence at trial supported the hypothetical question concerning whether plaintiffs injuries were permanent. Defendant was therefore not prejudiced by the hypothetical question and we decline to reverse on this point. Tucker v Sandlin, 126 Mich App 701, 706-707; 337 NW2d 637 (1983), lv den 419 Mich 859 (1984).
Defendant’s final argument involves the trial court’s denial of defendant’s motion for new trial on the basis that references were made during trial to plaintiffs recovery of workers’ compensation.
Prior to trial, an order in limine was entered by the trial court which prohibited the parties from mentioning any workers’ compensation recovery by plaintiff. During the cross-examination of defense witness Ansel Aberly references were made to plaintiff’s workers’ compensation claim. In an unsolicited remark, Aberly indicated that the first time he heard about plaintiffs fall was when plaintiff filed a workers’ compensation claim. Aberly made several other references to workers’ compensation recovery by the plaintiff in response to questioning from plaintiff’s counsel. Plaintiff’s counsel finally objected to the references and the trial court instructed the witness, outside the presence of the jury, not to refer to the workers’ compensation claim filed by plaintiff. The trial court subsequently instructed the jury to disregard the testimony concerning workers’ compensation.
Defendant moved for mistrial claiming that it had been prejudiced by the repeated references to plaintiffs workers’ compensation and the trial court denied defendant’s motion. In denying the motion, the court noted that the defendant had not objected to the references at the time they were made to prevent further inquiry. The court concluded that there was no intentional violation of the court’s order in limine concerning reference to plaintiffs workers’ compensation recovery. The court found that a mistrial was not warranted because curative instructions were given to the jury.
A decision to grant or deny a motion for mistrial is within the sound discretion of the trial court. We will not reverse a trial court’s decision absent an abuse of discretion which has resulted in a miscarriage of justice. Anderson v Harry’s Army Surplus, Inc, 117 Mich App 601, 615; 324 NW2d 96 (1982), lv den 417 Mich 1074 (1983). Reversal is not required if it is evident from the record that the prejudicial references were probably rendered harmless by a proper curative instruction. Reetz v Kinsman Marine Transit Co, 416 Mich 97; 330 NW2d 638 (1982).
In the present case, the references to plaintiffs workers’ compensation were made by defendant’s own witness who apparently had not been instructed by defendant to refrain from referring to any workers’ compensation recovery received by plaintiff. The trial court instructed the jury to disregard the testimony shortly after the references were made. The court also gave an additional curative instruction to the jury during the final instructions. Under the circumstances, we conclude that the trial court did not err in refusing to grant a mistrial.
The jury verdict is set aside and the case remanded for a new trial. | [
-18,
24,
-8,
10,
35,
-16,
-34,
7,
34,
31,
-2,
7,
29,
-30,
-9,
11,
28,
-9,
-9,
0,
24,
-67,
-23,
12,
-23,
-52,
-22,
-49,
-52,
78,
19,
-27,
-9,
-17,
-33,
14,
15,
1,
-18,
30,
-9,
29,
-5,
-50,
34,
-22,
107,
-9,
65,
22,
3,
7,
40,
-41,
-5,
-1,
46,
39,
23,
13,
18,
-10,
-25,
10,
10,
-14,
52,
42,
13,
47,
-58,
62,
-25,
-11,
-1,
6,
-36,
84,
-9,
8,
13,
-30,
39,
-10,
-21,
52,
-62,
15,
-39,
38,
-67,
-23,
-35,
-25,
-52,
27,
-26,
-15,
-49,
-1,
-15,
42,
20,
12,
36,
7,
-16,
-48,
-40,
35,
4,
18,
-16,
6,
-4,
-43,
49,
25,
-24,
39,
46,
11,
55,
-25,
-8,
-21,
39,
-29,
-30,
22,
59,
5,
-45,
57,
-51,
-13,
18,
-63,
24,
18,
38,
28,
31,
2,
-14,
42,
17,
-31,
11,
-36,
-30,
16,
20,
-9,
-1,
23,
-26,
31,
29,
1,
66,
-21,
7,
59,
-26,
-3,
-31,
4,
-17,
3,
56,
-21,
27,
-43,
52,
46,
38,
-31,
-44,
-7,
-41,
-31,
-4,
39,
-26,
-30,
0,
-21,
-8,
21,
27,
-39,
-16,
-21,
-43,
-6,
-2,
39,
36,
40,
15,
-78,
10,
-59,
11,
35,
-48,
3,
-13,
-23,
27,
3,
-20,
-27,
3,
21,
-14,
-8,
-3,
3,
-48,
12,
0,
-22,
0,
-9,
-40,
-36,
51,
-40,
23,
-39,
0,
-13,
-39,
-14,
25,
-63,
34,
-19,
31,
-2,
-40,
-48,
-5,
-40,
-52,
14,
20,
-16,
56,
-9,
-22,
-32,
-37,
-58,
-16,
-1,
0,
4,
-23,
12,
13,
47,
31,
39,
-15,
7,
-43,
-9,
-43,
14,
-4,
3,
-47,
-61,
4,
30,
25,
-3,
15,
0,
-12,
-5,
-3,
49,
26,
28,
-24,
-14,
23,
-44,
21,
-15,
-29,
-6,
33,
-28,
-69,
35,
15,
13,
-38,
-9,
26,
1,
-43,
-2,
8,
29,
-34,
-1,
26,
1,
48,
-7,
23,
-1,
42,
10,
-19,
73,
3,
29,
-28,
-13,
8,
-22,
-8,
13,
-7,
3,
-14,
-2,
11,
-16,
-1,
-29,
-29,
-16,
-18,
44,
31,
13,
-16,
43,
11,
25,
30,
-22,
9,
-4,
-1,
-46,
2,
20,
24,
-13,
-16,
69,
17,
9,
3,
39,
39,
-20,
-29,
14,
-14,
52,
-19,
-21,
25,
-16,
28,
-49,
-59,
7,
-43,
35,
0,
-3,
17,
-46,
-24,
-9,
-11,
-64,
-39,
6,
-67,
-58,
68,
42,
-21,
-7,
-3,
9,
3,
14,
-19,
25,
-22,
-22,
-19,
-46,
41,
-12,
-41,
-64,
-9,
41,
-4,
47,
-33,
-9,
68,
-8,
-41,
-76,
85,
-48,
19,
-75,
64,
3,
16,
15,
1,
-3,
-5,
8,
3,
-10,
-12,
-7,
-13,
-20,
-10,
1,
-50,
-31,
5,
-43,
-3,
-27,
-4,
0,
32,
-29,
28,
3,
77,
5,
3,
1,
19,
-7,
-22,
-18,
-3,
-39,
-3,
-26,
6,
-50,
17,
-45,
18,
-44,
26,
-15,
15,
0,
-24,
-30,
-25,
-1,
-5,
-5,
-7,
75,
-3,
-13,
12,
-10,
44,
6,
24,
25,
-1,
19,
-31,
1,
-22,
53,
-64,
47,
-10,
-47,
-84,
-17,
29,
-14,
65,
0,
15,
-18,
5,
45,
-60,
-31,
-5,
60,
-14,
30,
-20,
32,
26,
21,
-44,
-7,
-22,
35,
6,
6,
2,
-13,
-16,
-9,
36,
-19,
39,
-16,
-2,
36,
-34,
-34,
-43,
-16,
21,
26,
-8,
-58,
36,
-74,
5,
56,
44,
22,
58,
-5,
30,
0,
46,
9,
-6,
-7,
-36,
15,
16,
-8,
14,
-2,
39,
-9,
41,
-19,
57,
7,
-44,
-2,
7,
-13,
-60,
7,
-48,
65,
-62,
-18,
-31,
0,
14,
7,
-56,
-8,
39,
-3,
49,
4,
-11,
1,
22,
-32,
34,
-26,
29,
5,
38,
-28,
-13,
6,
-21,
30,
18,
23,
10,
-51,
18,
-10,
51,
-66,
-51,
-31,
-3,
-46,
-33,
-44,
56,
-2,
5,
-47,
-23,
60,
-4,
-33,
3,
9,
-37,
36,
-58,
19,
-65,
-30,
-17,
-10,
27,
60,
0,
30,
-9,
-36,
31,
-44,
-58,
-89,
-15,
-35,
-38,
0,
-44,
39,
21,
38,
-24,
51,
18,
4,
-12,
-26,
-17,
15,
-35,
-4,
10,
-3,
1,
4,
-10,
-2,
6,
3,
5,
29,
25,
6,
-41,
30,
23,
40,
7,
-1,
42,
-37,
17,
-7,
16,
11,
55,
-37,
-44,
64,
2,
29,
4,
76,
19,
-8,
11,
17,
-17,
-12,
-7,
35,
-40,
47,
25,
-14,
-7,
28,
-30,
37,
20,
23,
45,
53,
-11,
-52,
-42,
-24,
51,
-43,
42,
5,
3,
4,
34,
-29,
-6,
27,
-14,
13,
-9,
8,
-14,
15,
-10,
-9,
16,
-8,
40,
-6,
15,
-6,
11,
14,
3,
58,
55,
3,
-28,
1,
18,
10,
26,
-49,
13,
4,
-2,
-21,
5,
-62,
-1,
-14,
-10,
1,
13,
-22,
56,
-37,
-47,
67,
15,
-33,
9,
27,
-37,
-23,
47,
9,
28,
14,
11,
-2,
-28,
-16,
50,
-32,
0,
-49,
20,
19,
7,
-34,
-9,
6,
-15,
43,
-11,
-16,
-17,
-8,
-49,
-1,
20,
-55,
32,
27,
36,
-21,
36,
-2,
-36,
-51,
31,
46,
3,
15,
-32,
79,
-24,
88,
-46,
-59,
-5,
-37,
17,
-20,
48,
-24,
32,
-53,
-32,
-7,
3,
23,
54,
-25,
-5,
-51,
32,
24,
-29,
30,
40,
-27,
-20,
2,
-5,
19,
-44,
-58,
-19,
0,
-20,
-25,
17,
37,
-52,
-10,
24,
-21,
-84,
25,
15,
-40,
-17,
-7,
-38,
41,
33,
35,
11,
43,
-63,
3,
-85,
-44,
25,
19,
35,
-20,
0,
59,
-41,
-51,
-16,
8,
-28,
24,
38,
57,
17,
21,
-3,
-16,
42,
12,
28,
-16,
-32,
29,
0,
10,
40,
-6,
18,
-45,
-107,
-46,
-19,
13,
45,
26,
-9,
31,
-15,
42,
0,
17,
-37,
-29,
14,
-29,
-50,
-21,
11,
-6,
32,
54,
-13,
3,
40,
13,
-50,
-21,
-21,
-80,
7,
-41,
49,
-17,
-11,
54,
-33,
-95,
40,
-18,
-27,
30,
14,
-1,
-11,
33,
40,
-41,
-1,
-8,
0,
7,
46,
2,
-25,
2,
17,
32,
0,
2,
-38,
20,
-4,
3,
14,
-19,
17,
-34,
28,
31,
-14,
-18,
46,
-46,
-5,
11,
29,
-77,
-10,
-15,
-27,
41,
-63,
36,
4,
32,
-26,
-27,
2,
13,
22,
49,
21,
-23,
19,
10,
24,
54,
-2,
-29,
-9,
-23,
-31,
37,
22,
12,
21,
40,
-52,
14,
0,
-26,
27,
-5,
51,
-13
] |
Per Curiam.
Plaintiffs, who are or were inmates of the Department of Corrections serving sentences for sex offenses, brought this action in the circuit court to enjoin the department from excluding sex offenders as a group from eligibility for placement in community correction centers and work camp programs. After a show cause hearing, the lower court ruled that the department lacked statutory authority to exclude sex offenders as a class from community placement and must determine the eligibility of such offenders on a case-by-case basis. Relying on this court’s opinion in Luttrell v Dep’t of Corrections, 116 Mich App 1; 321 NW2d 817 (1982), rev’d 421 Mich 93; 365 NW2d 74 (1984), reh den 422 Mich 1201 (1985), the lower court found that MCL 769.2a; MSA 28.1074(1) does not authorize the department to institute and enforce a policy of blanket preclusion of sex offenders from eligibility for community placement and work camp programs and that, in the absence of such authorization, the blanket preclusion policy is in contravention of the legislative intent of MCL 791.265a; MSA 28.2325(1), the community placement statute, and MCL 791.265c; MSA 28.2325(3), the work camp statute. The department appeals as of right. This Court granted a stay pending resolution of this appeal.
The only issue is whether MCL 769.2a; MSA 28.1074(1) authorizes the department to exclude sex offenders from community placement residence programs. We hold that it does.
We find that MCL 769.2a; MSA 28.1074(1) both directly and indirectly supports the department’s policy of excluding sex offenders from community placement residence programs. We read the statute as an express directive of the Legislature to the department that it may not consider sex offenders eligible for community residential programs. We also believe that the statute indirectly supports the department’s policy both because the department is required to carry out the sentences imposed by the courts and because the statute is an expression of legislative policy regarding sex offenders.
I
Direct Support of the Department’s Policy
The lower court found that the statute in question is directed exclusively to sentencing courts and has nothing to do with the department’s power. It based this finding on the context of the statute, concluding that because the statute is located among the statutes governing sentencing by trial courts, it must be directed solely to those courts. We find that interpretation too restrictive.
The statute in question is located in the Code of Criminal Procedure, in the chapter covering judgment and sentence. The location of a statute is not dispositive of to whom it is directed. This is particularly true of statutes concerning sentencing. The state’s policy on sentecing makes it clear that no single branch of government has a monopoly on criminal sentencing. Statutes regarding sentencing are scattered throughout the Penal Code, the Code of Criminal Procedure, and the Corrections Code. The result of this statutory scheme is a continuum of laws regarding criminal offenses and punishments. No one provision of this continuum may be viewed in a vacuum. Each branch of government must cooperate with the others in sentencing, and no one branch can claim exclusivity over the sentencing policies of the state.
The express language of the statute belies the trial judge’s conclusion that the statute in this case is directed exclusively to the sentencing courts:
"Whenever any person shall be lawfully sentenced by any court to imprisonment in the state prison, or in any county jail, for a sexual act or murder in connection with a sexual act, the person so sentenced shall not be eligible for custodial incarceration outside the state penal institution or the county jail building: Provided, That the warden of any state penal institution may authorize any person sentenced under this section to work ouside the state penal institutuion on prison farms as operated by the state penal institution.” (Emphasis added.)
Since part of the statute is directed to wardens of state penal institutions, we conclude that MCL 769.2a; MSA 28.1074(1) is an express directive of the Legislature to the department that it shall not consider sex offenders eligible for community placement.
II
Indirect Support of the Department’s Policy
Even if one assumes that the statute is directed to sentencing courts only, we would still find that the statute supports the department’s exclusion policy. Under MCL 769.2a; MSA 28.1074(1) it is an implicit provision in every sex offender’s sentence that the offender "shall not be eligible for custodial incarceration outside the state penal institution”, except for prison farms. Since the department is required to execute lawful sentences imposed by the judiciary, the department must deny to sex offenders eligibility for community placement or work camp programs.
Furthermore, we believe that the statute supports the department’s policy because it expresses legislative policy concerning placement of sex offenders. Therefore, the department director is justified in concluding, in his discretion, that sex offenders fall outside the category of prisoners "whom there is reasonable cause to believe * * * will honor his trust”, MCL 791.265a; MSA 28.2325(1), MCL 791.265c; MSA 28.2325(3), thus making such offenders ineligible for community placement status. In our opinion, the Legislature’s intent that sex offenders not be released into society until they have served their minimum sentence is clear, regardless of whether that policy is directed to the courts or to the department.
The exclusion-by-category policy was approved by the Supreme Court when it reversed this Court’s decision in Luttrell. Luttrell v Dep’t of Corrections, 421 Mich 93; 365 NW2d 74 (1984). In Luttrell, the Supreme Court addressed the issue of "whether the Legislature intended to preclude the Department of Corrections from denying certain classes of offenders, 'drug traffickers’ in this case, eligibility for placement in community residence programs”. 421 Mich 95. The Supreme Court held that the Legislature, by explicitly defining eligibility requirements for prisoners convicted of certain types of crimes, did not intend to preclude the department from defining eligibility requirements for additional categories of offenders. The Court also held that the Legislature intended to vest the department with broad discretion in deciding which offenders should be eligible for such placement.
As the lower court in this case noted, Luttrell is directly on point with the instant case. Like Luttrell, this case also challenges the validity of the department policy that certain classes of offenders not named in the community placement statutes are wholly precluded from eligibility for such placement. However, the department’s policy in this case is on even stronger ground than Luttrell. The "drug traffickers” preclusion policy upheld in Luttrell was strictly the result of the department’s determination, in its discretion, that persons so classified would not honor its trust. The determination was made without benefit of legislative guidance. In the instant case, on the other hand, when the department adopted its sex offender preclusion policy, it did so consistent with the legislative mandate of MCL 769.2a; MSA 28.1074(1). Furthermore, since the Legislature acquiesced in the department’s long-standing policy of excluding sex offenders from eligibility, it cannot be said that the Legislature intended to pre elude the department from denying the class of sex offenders eligibility for community placement.
The lower court’s order declaring unlawful the department’s blanket exclusion policy for consideration of sex offenders for community placement and work camp programs is reversed.
Reversed. | [
18,
7,
-24,
35,
-7,
14,
-5,
-14,
-58,
30,
-49,
4,
51,
-18,
34,
-27,
-1,
59,
-50,
23,
-23,
57,
36,
50,
-64,
2,
43,
22,
7,
16,
-21,
-52,
32,
-30,
-18,
-26,
3,
36,
74,
16,
25,
-32,
-21,
-37,
-57,
-29,
56,
35,
20,
-16,
-18,
20,
-17,
28,
21,
7,
7,
-44,
8,
2,
-74,
41,
-51,
-6,
2,
-33,
-19,
45,
-18,
1,
46,
17,
-100,
-22,
51,
-4,
-33,
20,
42,
-2,
12,
-12,
24,
45,
8,
13,
-20,
-5,
-20,
1,
-53,
-25,
-36,
-26,
-17,
13,
59,
-33,
51,
-77,
-65,
27,
14,
28,
26,
17,
-12,
29,
22,
33,
9,
-39,
-44,
12,
-5,
-16,
-6,
2,
35,
-7,
-1,
36,
52,
39,
3,
-41,
2,
-2,
-28,
-4,
0,
34,
17,
-21,
36,
39,
44,
41,
39,
-17,
-57,
0,
25,
41,
8,
-22,
-40,
0,
41,
-20,
-29,
-56,
36,
10,
-5,
22,
-28,
8,
-47,
-8,
-14,
-22,
-8,
-14,
4,
-24,
-34,
40,
6,
30,
20,
49,
17,
71,
-16,
0,
-45,
14,
23,
-42,
-52,
3,
25,
11,
-32,
27,
-14,
-58,
-54,
-14,
-1,
17,
11,
-7,
57,
-7,
33,
49,
-48,
17,
-37,
-2,
26,
70,
35,
-35,
-17,
24,
-55,
6,
4,
-4,
7,
9,
34,
-6,
2,
-1,
-13,
-15,
-16,
-7,
5,
-9,
-17,
-36,
-12,
40,
-6,
-4,
9,
4,
37,
14,
-37,
-9,
-15,
46,
53,
13,
20,
27,
-55,
-54,
-24,
-2,
-15,
-33,
-4,
-40,
1,
-27,
-29,
20,
-30,
-34,
-22,
0,
-54,
0,
-3,
-22,
-24,
-14,
-39,
66,
-2,
21,
-55,
-10,
-15,
25,
-12,
-4,
-23,
-17,
0,
7,
20,
-21,
16,
62,
62,
-21,
-61,
-46,
25,
-47,
-22,
-16,
23,
-10,
1,
21,
45,
-27,
2,
-16,
5,
6,
34,
-15,
-14,
-62,
0,
-47,
1,
15,
0,
-12,
-7,
-6,
20,
-13,
-12,
-20,
-12,
-24,
46,
-28,
-22,
-8,
-7,
-69,
-6,
5,
31,
14,
0,
5,
0,
9,
20,
26,
37,
49,
-39,
-20,
-2,
27,
-10,
0,
58,
-41,
-7,
-7,
-33,
6,
32,
-17,
30,
41,
-8,
25,
-15,
-4,
-19,
-51,
-27,
33,
-24,
2,
-83,
-9,
15,
3,
14,
4,
24,
4,
-7,
-54,
-11,
37,
1,
-4,
36,
7,
14,
0,
24,
61,
61,
24,
0,
-9,
-36,
23,
56,
-30,
0,
-20,
-27,
-18,
-37,
-7,
20,
32,
57,
-61,
7,
0,
-28,
-11,
1,
2,
-20,
14,
-42,
14,
-63,
-3,
32,
38,
5,
22,
16,
-55,
-22,
18,
14,
-16,
-2,
-76,
-7,
17,
-29,
40,
-7,
-11,
-33,
5,
-10,
-9,
-35,
25,
-59,
-24,
-29,
-12,
-45,
-1,
-28,
-4,
56,
-46,
21,
-10,
-30,
-35,
47,
33,
-41,
-54,
-29,
44,
5,
-31,
-65,
-66,
-33,
-25,
-17,
0,
37,
20,
-82,
-15,
-21,
-53,
-27,
1,
-13,
61,
49,
18,
-33,
67,
8,
54,
-23,
1,
-33,
-13,
9,
16,
-28,
1,
2,
-25,
-12,
35,
-36,
-18,
42,
23,
11,
3,
20,
53,
19,
0,
-9,
-14,
28,
-32,
31,
22,
-22,
17,
15,
11,
15,
49,
-7,
-2,
10,
-31,
-14,
-21,
19,
-23,
51,
-9,
-18,
24,
1,
-15,
-19,
61,
53,
2,
34,
10,
47,
3,
-45,
-1,
7,
-26,
23,
14,
-13,
18,
30,
16,
-34,
2,
19,
-54,
-63,
-4,
20,
-48,
-29,
-12,
-69,
-8,
-6,
2,
-61,
18,
72,
31,
-1,
23,
-53,
-1,
32,
1,
36,
5,
-35,
-11,
21,
40,
21,
22,
-18,
38,
8,
36,
23,
-25,
-12,
-46,
-2,
7,
-5,
-43,
-10,
9,
-63,
-16,
-3,
3,
-44,
-21,
-35,
-9,
12,
53,
4,
-13,
49,
-12,
17,
27,
-18,
-24,
-7,
23,
11,
-1,
-3,
9,
18,
31,
-36,
-8,
-36,
21,
-16,
-8,
2,
24,
-26,
2,
54,
9,
9,
-1,
16,
-13,
37,
14,
-11,
1,
-9,
-10,
-35,
33,
-26,
22,
24,
12,
-6,
50,
2,
-39,
-7,
63,
-13,
-1,
32,
-37,
-27,
-44,
31,
-23,
-12,
21,
-16,
39,
-5,
-32,
-29,
-19,
13,
-24,
-29,
54,
-2,
52,
-9,
-7,
-27,
15,
16,
-24,
-42,
9,
-14,
-40,
66,
53,
31,
44,
4,
-34,
45,
0,
18,
-14,
17,
-15,
-56,
-18,
-14,
19,
-27,
71,
9,
-17,
-28,
3,
-46,
-43,
-16,
10,
-6,
63,
24,
17,
-21,
28,
-46,
-20,
-17,
-1,
-18,
-3,
-35,
-1,
20,
-14,
3,
-14,
-49,
-37,
-14,
15,
31,
3,
26,
48,
-60,
30,
12,
20,
22,
0,
-62,
9,
-29,
2,
42,
-34,
-15,
34,
7,
-31,
-19,
26,
-32,
5,
49,
25,
-56,
-14,
-63,
-9,
-27,
6,
-3,
-61,
8,
-3,
34,
-29,
45,
-30,
-10,
7,
-2,
-57,
13,
39,
-63,
-25,
-51,
20,
-25,
-7,
-42,
-7,
-27,
-80,
-21,
-4,
-6,
30,
11,
36,
27,
41,
6,
22,
-19,
-2,
15,
49,
-35,
2,
-82,
56,
-19,
-38,
50,
31,
34,
30,
-23,
44,
8,
34,
-20,
1,
8,
-53,
60,
28,
-12,
-32,
48,
30,
45,
-24,
4,
-16,
23,
64,
-15,
23,
18,
-25,
-14,
76,
59,
12,
-21,
-20,
53,
-22,
-12,
40,
4,
4,
75,
45,
28,
-51,
-8,
14,
61,
24,
2,
-38,
23,
-47,
27,
23,
17,
-36,
-40,
71,
-20,
-56,
25,
-16,
-23,
-10,
53,
11,
-27,
-17,
6,
62,
-95,
45,
65,
-25,
30,
-25,
68,
13,
-32,
21,
39,
-42,
-18,
33,
-38,
-23,
-14,
15,
-2,
21,
70,
-95,
-20,
15,
-40,
22,
6,
-7,
39,
52,
0,
-21,
-48,
33,
18,
26,
4,
-22,
-44,
35,
32,
-25,
-27,
42,
52,
-4,
-51,
12,
-29,
-33,
-8,
30,
-32,
30,
-7,
-17,
20,
18,
36,
-7,
-14,
-13,
-17,
-4,
-51,
3,
-26,
14,
-53,
-11,
22,
-46,
2,
-2,
51,
-41,
-10,
17,
-54,
10,
-44,
32,
-67,
12,
-10,
4,
11,
18,
35,
-56,
11,
14,
9,
13,
-24,
-39,
57,
9,
-46,
28,
-3,
-39,
-38,
-56,
13,
-17,
-25,
9,
-27,
18,
-7,
-13,
63,
-17,
36,
28,
-11,
-21,
-1,
10,
-3,
-13,
52,
37,
-29,
54,
-6,
21,
2,
-33,
-9,
-2,
55,
10,
5,
-32,
66,
14,
-16,
6,
-52,
36,
-11,
17,
-31,
36
] |
Allen, J.
In this appeal as of right, we are asked to determine whether petitioner, Dawn Annette Spencer, presented sufficient evidence to establish the necessary elements of MCL 700.111(4)(c); MSA 27.5111(4)(c), which governs one circumstance in which a child born out of wedlock may take by intestate succession.
Charles P. Spencer died on June 29, 1983. He left a will dated May 26, 1983, in which he bequeathed $35,000 to each of his two sons, with the residue of the estate going to his second wife, Mae E. Spencer. Originally, the sons contested the will, claiming that Spencer lacked testamentary capacity and the will was the result of undue influence. However, the sons withdrew their objections and entered into a settlement with Mrs. Spencer, the personal representative of the estate.
Petitioner, Dawn Annette Spencer, filed objections to the entry of the order of settlement and a petition for commencement of proceedings, claiming that she was decedent’s illegitimate child and an heir at law. Although these objections were later withdrawn, petitioner filed a claim against the estate for back child support. Following an evidentiary hearing, the probate judge determined that petitioner is an heir at law, but denied her claim for back child support on statute of limitations grounds. Petitioner has not appealed this ruling. However, Mae E. Spencer, as personal representative of the estate, has appealed the determination that petitioner is an heir at law. Although not clear from the record before us, it appears that petitioner may renew the objections to the will which were originally presented by the decedent’s sons.
As a child born out of wedlock, in order to be deemed an heir at law petitioner must satisfy the prerequisites of MCL 700.111(4)(c); MSA 27.5111(4)(c), which provides:
"(4) If a child is born out of wedlock or if a child is born or conceived during a marriage but not the issue of that marriage, a man is considered to be the natural father of that child for all purposes of intestate succession if any of the following occurs:
"(c) The man and the child have borne a mutually acknowledged relationship of parent and child which began before the child became age 18 and continued until terminated by the death of either.”
At common law, a child born out of wedlock was not permitted to inherit as an heir of his or her father. In re Harper’s Estate, 272 Mich 476, 480; 262 NW 289 (1935). As MCL 700.111(4)(c) is in derogation of the common law, respondent maintains that it must be strictly construed. Yount v National Bank of Jackson, 327 Mich 342, 347-348; 42 NW2d 110 (1950). Respondent asserts that the probate court failed to strictly construe subsection (4)(c), arguing that the evidence was insufficient to show mutual acknowledgment and continuity of the relationship.
Before reviewing the evidence to determine whether these two elements were supported, we believe that it is necessary to determine what kind of relationship the Legislature was referring to when it enacted this statute. Pertinent to this analysis is the rule of statutory construction which dictates that remedial legislation shall be given a liberal construction. As was stated in In re Cameron’s Estate, 170 Mich 578, 582; 136 NW 451 (1912):
"[T]he progress of civilization and the spread of correct ideas upon the subject have tended largely to the amelioration of the condition of illegitimates and to the obliteration of the old common-law doctrine that they were to be regarded as outcasts. The statute in question is remedial in character, and it is to be presumed that the legislature intended the most beneficial construction of the act consistent with a proper regard for the ordinary canons of construction. Notwithstanding the rule that a statute in derogation of the common law must be construed strictly, it is well settled that it must be construed sensibly and in harmony with the legislative purpose.”
The parties have not provided, and we have not been able to unearth, any legislative history or case law which might lend clarity to what was intended by subsection (4)(c). Thus, the question raised is of first impression. However, it is well established that, in attempting to discern the intent of the Legislature, "a court will look to the object of the statute, the evil or mischief it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose”. R & T Sheet Metal, Inc v Hospitality Motor Inns, Inc, 139 Mich App 249, 253; 361 NW2d 785 (1984), quoting Pittsfield Twp v City of Saline, 103 Mich App 99, 104-105; 302 NW2d 608 (1981).
We believe that the purpose of subsection (4)(c) is best illustrated by way of comparison to subsections (4)(a) and (4)(b) of the statute. Subsection (a) allows an illegitimate child to inherit where the father has executed and recorded a written acknowledgment of paternity. Subsection (b) permits an inheritance where the father and mother request in writing that the child’s birth certificate be corrected and a substitute certificate is issued. It appears that the mischief these provisions were intended to obviate is the situation where deceitful claims are made against an estate by individuals posing as the deceased’s long-lost children. These provisions guard against such specious claims by requiring that the father make some acknowledgment, during his lifetime, that the claimant is his child.
It appears that subsection (c) was designed to accomplish the same objective. However, since the relationship of parent and child is not evidenced by a written acknowledgment during the deceased’s lifetime, it appears that the Legislature imposed a more onerous burden on claimants. Despite this burden, we do not believe that the Legislature intended to require a distinct kind of relationship in order for a child coming within the purview of this provision to inherit. Rather, we believe that the Legislature’s concern was to insure that a biological relationship of parent and child did indeed exist. Accordingly, we believe that the statute requires a mutually acknowledged biological relationship of parent and child. The mutually acknowledged aspect of this relationship must begin before the child’s eighteenth birthday. The relationship cannot be legally severed by, for example, adoption or termination of parental rights before the death of either the parent or child.
Respondent has argued that the evidence was insufficient to show a mutually acknowledged and continuing social relationship of parent and child. We do not believe that the statute should be construed to require an ongoing social relationship, since such an interpretation of subsection (c) would render it inconsistent with subsections (a) and (b). Moreover, we find that the evidence was sufficient to show that both parent and child acknowledged a biological relationship and that this relationship continued until the decedent’s death.
The probate court found that the testimony given by all witnesses at the evidentiary hearing was credible. Natalie B. Cairns, the petitioner’s mother, testified that she met the decedent in 1955 while living in Columbus, Mississippi. She and the decedent had a business relationship which grew into a platonic friendship. When the decedent offered Cairns a better paying job, she and her family moved to Jacksonville, Mississippi. They moved once again when the decedent moved his offices to Arlington, Texas. Within six months of moving to Arlington, Cairns left the decedent’s employ because the work was consuming all of her time. She moved to Nashville, Tennessee, and did not communicate with the decedent for approximately two years.
In late 1958 or early 1959, the decedent came to visit Cairns in Nashville and explained that his wife was divorcing him. Around April of 1959, Cairns and the decedent became physically intimate. Thereafter, they began seeing each other every other weekend. Petitioner was conceived on Memorial Day weekend in 1959 during a trip to Cape May, New Jersey, where Cairns and the decedent registered at a motel as "Mr. and Mrs. Spencer”.
When Cairns informed the decedent that she was pregnant, he said that he was not ready to get married but told Cairns to have the baby and tell everyone that they were married. Further, he provided $100 per week in support during the pregnancy, as Cairns’ employment had been terminated.
Petitioner was born on March 6, 1960. The decedent was named as petitioner’s father on her birth certificate and Cairns stated that the decedent furnished all of the necessary information for the certificate. Shortly after the birth, Cairns moved her family to Decatur, Alabama, as she had secured employment in nearby Huntsville. The decedent came to visit several times and voluntarily paid $20 per week in child support. Further, Cairns moved to California in February of 1962 at the decedent’s request when he was transferred to the west coast. Cairns and her family often visited the decedent at his apartment in California. Further, petitioner’s older half-brother often took her to the decedent’s office, where the decedent would play with petitioner.
In May or June of 1963, the decedent moved to Philadelphia, terminated his relationship with Cairns, and ceased making child support payments. However, the decedent never renounced his paternity of petitioner. In 1967, the decedent objected to the adoption of petitioner by Cairns’s new husband. In 1980, Cairns asked the decedent for financial assistance when the petitioner shattered her leg in an accident. Although the decedent had cash flow problems at that time, he promised to catch up on all the back child support payments in the near future. Cairns telephoned the decedent in May of 1984 to request financial assistance with petitioner’s college expenses and to invite the decedent to petitioner’s wedding. It was at this time that Cairns learned that the decedent had died.
We believe that this evidence overwhelmingly supports the probate court’s finding that the decedent acknowledged a parental relationship with the petitioner which was never renounced or terminated. While the evidence of an acknowledgment of this relationship on the part of petitioner is not as compelling, we nonetheless believe that it was sufficient. We find it highly significant that the petitioner has borne the decedent’s surname since her birth. In addition, she looked to the decedent for financial support throughout his lifetime and intended that he be present on her wedding day. Moreover, the evidence indicates that Cairns was open with her children regarding her relationship with the decedent, leading to the inference that petitioner knew the decedent to be her father.
The onerous burden legislatively imposed on claimants such as petitioner should not be construed so as to become insurmountable. The legislative purpose is accomplished through a showing that both parent and child háve acknowledged a biological relationship which neither has disturbed during the course of either’s lifetime. Since the probate court found that evidence supporting such a finding was credible, we uphold the court’s determination that petitioner is an heir at law.
Affirmed.
The statute provides two alternative means by which an illegitimate child may establish the right to inherit. See MCL 700.111(4), subds (a) and (b); MSA 27.5111(4), subds (a) and (b). However, petitioner has not sought to establish and there are no facts to indicate that these two provisions are applicable to the facts of this case. | [
10,
-9,
21,
-47,
11,
45,
-35,
31,
-1,
2,
-38,
-44,
4,
67,
-45,
10,
7,
18,
4,
-31,
34,
23,
-9,
24,
44,
-37,
28,
-13,
-20,
-13,
6,
-35,
-22,
-17,
-14,
11,
52,
3,
74,
37,
37,
-13,
45,
-37,
-9,
-37,
8,
-2,
-22,
42,
-14,
-55,
-3,
-8,
35,
28,
61,
-42,
18,
44,
-18,
30,
10,
52,
-35,
63,
-28,
53,
-21,
-46,
13,
-4,
0,
41,
-13,
-15,
-17,
22,
46,
29,
-1,
3,
23,
-13,
16,
0,
-15,
17,
20,
39,
5,
53,
-36,
-70,
-47,
41,
50,
-64,
27,
-34,
-43,
-19,
21,
-43,
-2,
28,
-15,
27,
2,
-2,
7,
-45,
-8,
26,
-25,
1,
-54,
8,
-29,
-32,
4,
44,
30,
-27,
46,
-7,
-7,
4,
-34,
8,
-18,
58,
-6,
-56,
-16,
19,
26,
-51,
-50,
-56,
5,
14,
24,
-51,
23,
-28,
-7,
-27,
48,
-64,
-2,
91,
-9,
22,
43,
10,
9,
-23,
33,
-39,
0,
14,
1,
-13,
16,
-64,
21,
1,
-18,
23,
34,
21,
-2,
3,
4,
25,
-1,
-10,
-64,
-35,
-43,
31,
51,
0,
-29,
-2,
-18,
11,
-73,
3,
-73,
0,
8,
42,
8,
40,
-26,
-17,
12,
30,
-25,
-27,
56,
11,
5,
-7,
-7,
-41,
-67,
-30,
-1,
0,
-37,
-20,
-13,
4,
-10,
-20,
-33,
42,
19,
24,
42,
-52,
-45,
23,
16,
-11,
-66,
24,
-13,
-1,
-12,
6,
-26,
21,
-19,
-55,
3,
26,
4,
9,
33,
-29,
-15,
23,
31,
43,
52,
16,
13,
-4,
-20,
1,
26,
25,
-6,
38,
0,
-84,
37,
25,
-43,
-14,
-23,
21,
-4,
2,
-20,
22,
59,
-10,
47,
-19,
23,
-12,
10,
-6,
6,
-16,
-15,
53,
27,
24,
-53,
-6,
-26,
26,
14,
51,
-1,
14,
50,
-83,
22,
4,
-45,
-11,
-17,
-23,
6,
39,
49,
0,
-18,
-13,
27,
-44,
13,
1,
32,
50,
-24,
7,
55,
-5,
-62,
-52,
-1,
25,
-8,
-41,
-2,
19,
-53,
1,
38,
4,
30,
30,
-44,
46,
10,
-16,
59,
9,
36,
-18,
-34,
29,
-9,
64,
16,
10,
1,
-46,
12,
-36,
-2,
4,
-19,
49,
10,
-5,
-7,
-19,
0,
-84,
-22,
59,
-28,
6,
10,
-11,
-27,
17,
0,
1,
23,
-14,
-13,
-23,
3,
5,
23,
13,
-26,
54,
-19,
0,
-64,
-74,
20,
20,
46,
4,
-31,
42,
1,
-1,
1,
-43,
19,
-6,
-32,
23,
-11,
24,
-23,
10,
-42,
48,
9,
18,
-14,
65,
-15,
-6,
3,
-12,
27,
46,
38,
36,
0,
-19,
45,
-65,
-25,
84,
-68,
0,
-17,
1,
-21,
-43,
20,
-24,
-4,
-41,
-6,
2,
0,
-22,
30,
-9,
48,
2,
-17,
-6,
-48,
10,
35,
23,
4,
-10,
-49,
-75,
-16,
-53,
-12,
31,
37,
-15,
2,
-53,
15,
24,
-32,
-42,
9,
2,
66,
36,
8,
-15,
-45,
33,
14,
8,
11,
51,
-15,
-38,
-43,
39,
51,
-22,
-42,
16,
15,
-9,
-18,
8,
34,
28,
-20,
-41,
17,
-57,
-18,
15,
-22,
36,
-2,
-47,
-93,
-36,
23,
-7,
6,
17,
1,
19,
39,
-66,
-30,
-13,
-21,
-36,
13,
-1,
-7,
-5,
-17,
-5,
27,
37,
20,
22,
9,
14,
54,
57,
-2,
-14,
3,
5,
1,
38,
5,
19,
34,
5,
-17,
24,
-10,
-1,
-58,
21,
-37,
11,
-27,
17,
-43,
4,
19,
-18,
-39,
-35,
-22,
0,
-33,
6,
-1,
-12,
36,
26,
-52,
-43,
32,
11,
-22,
-72,
3,
-69,
10,
-2,
15,
25,
34,
-11,
4,
8,
-2,
21,
32,
-18,
-9,
-42,
25,
34,
20,
-5,
-61,
6,
-2,
-11,
19,
-12,
-78,
-11,
-24,
-22,
-39,
15,
-14,
-40,
-3,
6,
-36,
11,
0,
-10,
-58,
-5,
35,
79,
7,
-39,
21,
19,
-38,
-12,
-19,
-14,
32,
-11,
-11,
-9,
20,
73,
8,
-32,
-42,
-26,
-32,
6,
54,
41,
35,
-17,
-19,
28,
5,
-21,
-30,
8,
1,
-62,
-9,
31,
-45,
-11,
-13,
-24,
56,
-29,
23,
-7,
-31,
13,
-32,
-7,
2,
-5,
-3,
-29,
10,
-19,
47,
-61,
2,
9,
39,
45,
36,
51,
57,
33,
-5,
24,
-70,
47,
-4,
52,
18,
58,
0,
51,
-1,
-37,
-9,
-17,
-3,
28,
-18,
37,
-24,
19,
-4,
-47,
71,
-33,
-9,
12,
-66,
71,
34,
56,
-15,
55,
-10,
33,
-33,
-29,
-24,
33,
20,
-25,
11,
44,
-26,
-49,
-19,
17,
38,
-30,
64,
-62,
-24,
18,
-2,
-15,
52,
86,
17,
-23,
54,
-46,
-14,
-3,
-11,
-13,
-36,
21,
33,
-46,
24,
20,
-33,
25,
-7,
-28,
-16,
15,
0,
5,
-11,
57,
-16,
-14,
-33,
29,
-25,
-13,
11,
17,
25,
-7,
-23,
-6,
26,
-5,
-19,
47,
-112,
-21,
20,
-31,
-25,
-18,
16,
-32,
-8,
18,
-40,
24,
23,
17,
27,
-8,
-10,
55,
3,
-21,
18,
-37,
49,
50,
3,
24,
-4,
27,
47,
8,
6,
-32,
52,
-21,
23,
-23,
31,
20,
16,
-13,
-33,
21,
-63,
28,
15,
-44,
-36,
14,
-66,
-54,
0,
39,
21,
-37,
0,
13,
48,
-7,
-4,
71,
48,
51,
1,
-2,
1,
-18,
6,
-16,
27,
-62,
15,
54,
4,
-41,
21,
-49,
18,
-2,
39,
33,
18,
-3,
67,
-31,
34,
-1,
8,
21,
-21,
-57,
-68,
-22,
-26,
26,
49,
28,
-8,
-1,
-3,
-32,
24,
54,
42,
4,
-63,
-72,
-77,
-29,
6,
0,
56,
14,
-7,
21,
-10,
40,
-33,
30,
11,
15,
13,
5,
-11,
-19,
-15,
-27,
2,
-23,
-76,
-5,
24,
-73,
-18,
-16,
-29,
-53,
-48,
-22,
-32,
-17,
7,
4,
20,
-24,
-2,
-56,
-8,
-31,
20,
2,
-19,
-6,
-50,
-10,
52,
-8,
-40,
17,
-17,
-7,
7,
-45,
-9,
4,
1,
-22,
-68,
17,
38,
-34,
34,
14,
-14,
0,
-10,
-3,
-46,
9,
-28,
34,
-16,
-11,
-10,
-34,
-35,
-21,
25,
52,
26,
49,
-18,
-14,
-96,
50,
1,
45,
40,
80,
28,
-9,
24,
17,
17,
-5,
-30,
10,
-4,
-29,
12,
-24,
13,
-54,
11,
14,
8,
-12,
-49,
14,
-2,
6,
-2,
-16,
-45,
-17,
50,
11,
26,
-20,
12,
32,
19,
17,
-37,
29,
-29,
-11,
6,
36,
-7,
0,
-15,
42,
-55,
-28,
-38,
17,
-28,
14,
-17,
0,
29,
11,
23,
-15,
9,
-12,
33,
-13
] |
Beasley, J.
On November 14, 1984, defendant, Wheeler Clark, pled guilty to a charge of armed robbery, in violation of MCL 750.529; MSA 28.797. Pursuant to a plea agreement, the prosecutor agreed to recommend a prison term consistent with the sentencing guidelines. On January 9, 1985, defendant was sentenced to serve not less than three years nor more than six years in prison. Defendant appeals as of right.
On appeal, defendant argues that the trial court improperly calculated his status under the sentencing guidelines. Specifically, defendant asserts that the trial judge improperly scored two factors in the offense variable portion of the guideline scoring._
First, the trial judge assigned three points to defendant, as recommended by the guidelines, for "carrying away or holding captive his victim”. Defendant claims that the trial judge should have assigned him zero points for this factor, since the carrying away of his victim in this case did not amount to asportation under Michigan kidnapping law. The guidelines specifically state that if the carrying away of the victim does not amount to asportation the defendant should be assigned a score of zero on this factor.
Second, the trial judge assigned two points to defendant, as recommended by the guidelines, for his being involved in "three or more contemporaneous criminal acts”. Defendant claims that the trial judge should have assigned him one point for this factor, since there was evidence of only two contemporaneous criminal acts.
The second adjustment argued for by defendant would not, alone, alter the sentencing guidelines recommendation of a minimum sentence of from three to six years. However, if either the first adjustment noted by defendant is made, or both adjustments are made, the minimum sentence recommendation under the guidelines would be lowered to from one and one-half to two years.
Initially, in reviewing the trial judge’s calculation of the sentencing guidelines recommendation, it is important to ascertain the proper standard of appellate review in light of the purpose of the Michigan Sentencing Guidelines. The Michigan Supreme Court ordered that use of the sentencing guidelines was mandatory for sentences imposed during the year following March 1, 1984. But, the administrative order and the decisions in this Court reviewing application of the order in the trial courts make it clear that trial judges can depart from the guidelines recommendations as long as they state proper reasons on the record.
In People v Ridley, this Court, citing the departure policy in the statement of purpose of the sentencing guidelines, stated that departures from the guidelines recommendations are invited and encouraged. As the Supreme Court order expressly states, the reason the order requires use of the guidelines is in order to provide data for later evaluation and revision of the sentencing guidelines. It is clear that the sentencing guidelines, at this stage of development, are certainly not etched in stone and revisions may be anticipated.
Support for this conclusion is clearly provided in the "Report of the Michigan Felony Sentencing Project” (July, 1979), which provided the basic statistical studies that underlie the Michigan Sentencing Guidelines. The report indicates that a very limited data base was used in compiling the raw data for eventual development of the guidelines. A sample of 6,000 felony sentencing cases, all from the year 1977, was used. These 6,000 cases came from trial courts throughout the entire state (except for one county that reported no felony sentences in 1977). However, the sample was not a random sample, but was geographically weighted in order to give adequate representation to "rural-type” county sentencing decisions.
Due to this narrow, one-year sample of sentencing cases, the sentence review committee established by the Supreme Court to study implementation of the guidelines concluded that an experi mental stage for use of the guidelines was necessary. This experimental stage would require trial judges to use the guidelines, but would allow departures based on judicial discretion. The reason for the experimental stage would be to allow for revision of the sentencing guidelines recommendations. The committee advised the Supreme Court that it was necessary to add the views of current trial judges in current felony sentencing decisions to the 1977 sample base before even considering whether to make mandatory the guideline ranges themselves.
The Supreme Court administrative order began the experimental stage of application of the sentencing guidelines. The sentence review committee report went on to address the appropriate standard of appellate review during this experimental stage and stated:
"Coerciveness of Appellate Review During Experimental Period. In the preceding section the thought was expressed that, although use of the guidelines procedure should be mandatory for all sentencing judges during a two-year experimental period, it would be a serious mistake to require the judges to conform with the guideline sentence ranges before they had some experience with the procedure and some opportunity for input in the determination of the appropriate sentence ranges for various categories of crime.” Sentence Review Committee Report and Recommendation, p 22 (July, 1982).
The committee report went on to state that, even if the guidelines recommendations are made mandatory, trial courts should be allowed to depart from them if proper reasons are stated on the record. Appellate review of departures from the sentencing guidelines should be very limited:
"Standard For Review. The intention of the committee is to recommend only a very limited review of sentence in the Court of Appeals. The court should not substitute its judgment for that of the trial judge in determining the appropriateness of the reason given for deviation from the guideline and should reverse only when the reason is very clearly devoid of any validity. It is the contemplation of the committee that mandatory use of the guidelines system in imposing sentences will, in itself, eliminate most of the serious inequitites in the indeterminate sentence process and thus obviate to a great extent the necessity for appellate review of sentences.” Sentence Review Committee Report and Recommendation, pp 29-30 (July, 1982).
Thus, as this Court has consistently held, the proper standard of sentence review after the ordered use of the guidelines remains the "shocking the judicial conscience” standard enunciated in People v Coles.
Specifically addressing the issue that faces this Court in the within case, the sentence review committee report states:
"Thought must also be given to the question of how to respond when the parties request the Court of Appeals to review the scoring decisions which the trial court must make to arrive at the guideline sentence. The committee believes that it is absolutely crucial that the Court of Appeals never get bogged down in a close review of these many scoring decisions. The committee therefore believes very strongly that the underlying factual findings which the sentencing judge may have to make must be upheld if there is any evidence to support them.” Sentence Review Committee Report and Recommendation, p 30 (July, 1982).
We agree with the sentence review committee report and refuse to get bogged down in second-guessing the trial judge’s mechanics in scoring the sentencing guidelines. In the within case, the trial judge had evidence to support his scoring of three points for defendant’s "carrying away or holding captive is victim”. Thus, no adjustment of the trial judge’s calculation of the guideline recommendation as it relates to defendant under his armed robbery conviction is necessary.
It should be noted that this case is distinguishable from the recent decision of People v Love, where the prosecutor admitted that there had been a scoring error in the trial court. In that case, this Court went through the guidelines scoring procedure in more detail. But, there was no such admission of error in this case. As noted above, this Court will not get bogged down in second-guessing the detailed calculations under the sentencing guidelines. In the overwhelming majority of cases, review of the sentencing guideline calculation should be perfunctory. Only in the very extreme case should there be any appellate review. Since here the trial judge had adequate evidence to score defendant as he did under the sentencing guidelines, resentencing of defendant is unnecessary.
Affirmed.
Administrative Order No. 1984-1, 418 Mich lxxx.
See People v Purzycki, 143 Mich App 108; 371 NW2d 490 (1985); People v Ridley, 142 Mich App 129; 369 NW2d 499 (1985).
Ridley, supra.
Sentencing in Michigan, Report of the Michigan Felony Sentencing Project, pp 59-61 (July, Í979).
Sentence Review Committee Report and Recommendation, pp 19-25 (July, 1982). For example, a significant number of trial judges believe the sentencing guideline recommendation for armed robbery is too light. It may be necessary to formalize a procedure whereby the trial judge will get more input into the sentencing guidelines data base.
417 Mich 523; 339 NW2d 440 (1983).
144 Mich App 374; 375 NW2d 752 (1985). | [
52,
20,
-6,
9,
-105,
-18,
-2,
-47,
-58,
36,
46,
-37,
-27,
-67,
38,
-3,
-32,
-1,
8,
24,
-6,
42,
-4,
76,
-12,
4,
26,
52,
40,
25,
28,
28,
37,
-5,
-1,
36,
19,
0,
11,
56,
26,
-30,
-34,
18,
-24,
-6,
34,
37,
51,
-62,
-23,
16,
29,
-9,
7,
25,
-5,
-2,
5,
50,
-21,
19,
-56,
16,
41,
-23,
3,
13,
6,
-13,
0,
-16,
-3,
92,
-10,
28,
40,
29,
8,
34,
16,
6,
-3,
30,
8,
-21,
18,
-37,
0,
-23,
-42,
33,
-23,
-45,
10,
-49,
21,
-30,
40,
-50,
-15,
41,
12,
-67,
3,
15,
18,
-31,
-25,
44,
6,
20,
-26,
-45,
-62,
-10,
-33,
43,
29,
20,
-4,
-1,
-13,
38,
92,
-33,
22,
-29,
36,
-24,
-22,
29,
25,
-37,
-25,
42,
0,
30,
2,
5,
-1,
-21,
39,
29,
-14,
-39,
-6,
5,
1,
29,
-35,
41,
0,
52,
32,
-11,
-37,
-8,
-16,
-50,
12,
11,
-3,
17,
-27,
-5,
-69,
-7,
-5,
-31,
-4,
-32,
60,
39,
25,
54,
-16,
37,
-1,
-42,
-32,
5,
18,
-10,
-13,
49,
-22,
-15,
-67,
-36,
-20,
7,
32,
-56,
52,
-36,
29,
21,
23,
29,
-29,
-15,
3,
41,
14,
-16,
-9,
-54,
-23,
12,
-10,
-18,
26,
-40,
7,
51,
-51,
-14,
0,
31,
-44,
-46,
32,
-64,
-3,
-35,
-28,
38,
-9,
24,
36,
33,
33,
2,
-16,
27,
15,
-10,
52,
-4,
6,
-42,
27,
-13,
29,
8,
-25,
8,
-25,
0,
10,
40,
-52,
11,
-54,
2,
-10,
-33,
11,
50,
-2,
0,
5,
8,
0,
57,
-4,
2,
-11,
-13,
34,
-11,
14,
-24,
-24,
-12,
-33,
-10,
0,
-2,
48,
18,
25,
2,
-43,
-27,
-44,
14,
27,
-2,
53,
-27,
8,
-23,
61,
-17,
34,
28,
-33,
-47,
1,
-14,
8,
18,
32,
-24,
13,
-5,
-24,
-38,
-8,
-44,
-14,
36,
-13,
-21,
-28,
-44,
21,
-31,
-31,
11,
3,
-24,
11,
6,
43,
-4,
28,
-4,
-16,
1,
1,
4,
34,
42,
2,
-2,
-29,
32,
-37,
-7,
10,
37,
-13,
31,
-15,
15,
-32,
-27,
11,
11,
12,
19,
4,
-19,
16,
-37,
-4,
-66,
46,
-7,
0,
-82,
-6,
-4,
2,
-15,
41,
42,
66,
-21,
-11,
-43,
34,
52,
59,
19,
2,
1,
-35,
55,
37,
-20,
25,
-61,
-51,
-28,
40,
-12,
-59,
-9,
-17,
-44,
16,
20,
-31,
29,
33,
-34,
-26,
-20,
27,
3,
15,
4,
-3,
18,
-10,
-5,
-44,
-24,
54,
74,
14,
-41,
4,
-31,
-33,
-38,
49,
-1,
4,
-24,
-25,
24,
10,
-44,
-35,
-1,
2,
29,
-13,
-19,
35,
23,
-49,
-7,
20,
-34,
-8,
-48,
-27,
23,
58,
5,
6,
-22,
-20,
-35,
42,
-1,
-22,
-13,
-10,
36,
-3,
12,
-94,
5,
55,
-14,
-70,
-19,
33,
-61,
-44,
7,
54,
-58,
-27,
42,
23,
29,
3,
-15,
22,
42,
24,
45,
-14,
4,
-70,
-3,
9,
-47,
-33,
-69,
16,
-11,
17,
33,
14,
-14,
-9,
9,
-46,
48,
2,
23,
-8,
-27,
24,
3,
63,
-47,
33,
-31,
54,
20,
26,
-6,
-10,
18,
-53,
-95,
-19,
-5,
20,
37,
15,
-16,
35,
-16,
-11,
-18,
-57,
-27,
-94,
39,
14,
35,
-31,
27,
9,
9,
-24,
-68,
-12,
-12,
37,
6,
-26,
46,
38,
18,
31,
23,
22,
-30,
64,
23,
26,
-9,
-30,
-44,
15,
56,
-3,
-71,
-5,
8,
30,
42,
-6,
-11,
-30,
-19,
54,
-11,
57,
84,
-68,
-15,
-30,
74,
12,
33,
-17,
39,
47,
49,
-39,
-30,
19,
-44,
8,
7,
13,
32,
-33,
-27,
-23,
50,
9,
-34,
-11,
-42,
21,
15,
30,
56,
-16,
-2,
60,
-29,
0,
14,
-14,
10,
37,
-36,
-38,
-14,
5,
15,
33,
-38,
-53,
36,
-3,
-40,
4,
-28,
2,
-56,
-2,
-15,
-1,
-32,
-3,
6,
22,
-28,
-34,
-4,
-38,
-2,
-57,
35,
-4,
77,
-24,
21,
56,
31,
-52,
38,
-2,
-35,
16,
27,
-10,
-53,
71,
-11,
12,
-3,
-23,
14,
-14,
60,
-30,
48,
-10,
50,
-17,
-56,
60,
1,
-22,
28,
1,
1,
-13,
21,
-23,
-37,
8,
13,
-47,
-3,
13,
-51,
-23,
-7,
-70,
49,
49,
32,
-28,
37,
-16,
9,
44,
-24,
52,
38,
-61,
-24,
39,
-14,
46,
-50,
-17,
-19,
8,
-6,
-4,
-3,
-60,
92,
-15,
-2,
7,
-31,
-72,
-24,
-58,
22,
11,
-8,
0,
-8,
14,
11,
3,
3,
47,
-24,
6,
13,
17,
-2,
43,
-4,
-23,
11,
-16,
-16,
9,
-38,
-64,
-70,
-23,
35,
22,
-22,
-23,
17,
68,
62,
40,
32,
-37,
57,
61,
6,
-20,
-59,
-25,
1,
-40,
7,
-39,
-49,
30,
-12,
57,
-9,
-35,
-10,
-28,
39,
-22,
-33,
-29,
1,
-3,
-39,
-30,
58,
-3,
16,
0,
9,
-62,
-65,
-35,
-29,
-1,
25,
-30,
36,
25,
39,
-47,
10,
0,
-32,
35,
-1,
24,
-25,
-53,
36,
17,
-28,
-36,
-8,
62,
64,
5,
59,
21,
-23,
38,
18,
-29,
25,
11,
47,
-17,
-40,
-12,
-13,
-28,
-37,
17,
33,
21,
23,
46,
-2,
-16,
9,
-11,
73,
-44,
11,
44,
-30,
3,
-7,
55,
5,
5,
-52,
19,
-7,
19,
1,
-4,
10,
-1,
17,
-14,
0,
-24,
-34,
-27,
24,
-15,
-15,
-14,
62,
-20,
-12,
-29,
-8,
-55,
35,
-5,
36,
-71,
22,
-20,
26,
-47,
-31,
35,
-2,
59,
15,
24,
-56,
-75,
0,
-47,
13,
-32,
31,
22,
-20,
-36,
5,
-24,
-12,
9,
-48,
27,
3,
-55,
5,
49,
34,
14,
-23,
-34,
4,
15,
16,
-25,
59,
24,
-30,
-51,
-25,
60,
-41,
-32,
1,
55,
21,
12,
-53,
22,
-34,
-7,
18,
-29,
11,
-31,
-32,
-46,
8,
-3,
-14,
0,
-10,
-65,
-17,
5,
17,
-64,
14,
-38,
20,
2,
-26,
23,
6,
-28,
42,
-9,
-24,
-9,
45,
2,
-21,
-34,
7,
33,
-11,
30,
19,
19,
-71,
-59,
13,
-19,
-96,
34,
-31,
40,
13,
-4,
2,
-25,
-41,
-51,
-20,
-6,
-3,
25,
-12,
2,
-24,
1,
49,
-24,
-68,
29,
11,
21,
21,
27,
-17,
6,
0,
9,
39,
48,
26,
-21,
12,
-36,
22,
-55,
0,
27,
4,
6,
-14,
-3,
22,
9,
-1,
-44,
19,
-34,
31,
-18,
19
] |
Per Curiam.
Defendant pled guilty to assault with intent to commit murder, MCL 750.83; MSA 28.278, and appeals as of right, claiming that the court erred in accepting his plea of guilt because it had lost jurisdiction over him under the 180-day rule, MCL 780.131; MSA 28.969(1).
Defendant escaped from a Department of Corrections camp on October 18, 1982. On December 23, 1982, he walked to the front door of a cottage and shot the complainant several times in the back when she came to the door. Defendant was arrested and jailed that day. The complainant was expected to die as a result of her injuries from the shootings, but in fact lived and was released from the hospital on August 14, 1983, 234 days later. A warrant and complaint were issued on August 29, 1983, charging defendant with assault with intent to commit murder. Defendant’s plea was taken on February 13, 1984, less than 180 days after the warrant was issued.
Defendant claims that the statutory 180-day period began to run on December 23, 1982, the date he was incarcerated following his escape and the assault, so that the circuit court did not have jurisdiction to accept his guilty plea. MCL 780.131; MSA 28.969(1) states, in pertinent part:
"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney * * * such warrant, indictment, information of complaint * * (Emphasis added.)
In People v Williams, 9 Mich App 676, 686-687; 158 NW2d 42 (1968), this Court explained that "the key word is 'untried.’ As long as a charge, once formally lodge, remains untried, it is part of an untried warrant, indictment, information or complaint”. (Emphasis added.) Here, no formal charges were lodged against defendant, and no warrant, indictment, information, or complaint was issued or pending against defendant until August 29, 1983.
Since the warrant and complaint were issued less than 180 days from defendant’s guilty plea, no violation of the 180-day rule occurred.
Affirmed. | [
0,
-20,
-33,
8,
-39,
4,
-15,
-16,
-39,
57,
-7,
6,
-26,
-52,
0,
47,
20,
48,
0,
12,
-4,
22,
1,
57,
-56,
-36,
41,
49,
26,
41,
17,
31,
-20,
-55,
19,
-59,
15,
-25,
25,
58,
-12,
-15,
12,
8,
-29,
-33,
13,
32,
62,
10,
38,
5,
-10,
-24,
0,
-5,
-21,
-45,
19,
59,
-12,
18,
-41,
-41,
-51,
-27,
-7,
22,
-43,
-13,
39,
-9,
-54,
29,
9,
25,
-6,
17,
37,
-15,
17,
37,
26,
5,
5,
-45,
-39,
-68,
18,
-28,
1,
14,
-55,
-53,
7,
17,
4,
-17,
43,
-43,
-6,
-11,
0,
24,
0,
0,
1,
-28,
-37,
31,
-4,
30,
-2,
-7,
1,
-14,
-30,
-15,
-3,
14,
18,
1,
64,
27,
42,
-40,
-5,
3,
85,
-2,
-23,
51,
39,
-34,
-31,
45,
33,
-5,
30,
-19,
-36,
13,
54,
-26,
21,
14,
6,
-14,
21,
69,
-47,
30,
7,
26,
-5,
36,
19,
-16,
-77,
23,
52,
-14,
2,
-65,
8,
-47,
-54,
-33,
-3,
-65,
0,
-1,
46,
50,
32,
13,
-12,
10,
59,
18,
-57,
-14,
29,
-18,
17,
18,
4,
-44,
-65,
-37,
1,
22,
45,
14,
81,
4,
-22,
13,
37,
19,
-7,
-24,
35,
13,
-36,
-4,
-2,
17,
36,
0,
8,
-59,
-10,
-5,
21,
-8,
0,
11,
-6,
21,
-64,
32,
13,
2,
-1,
-42,
25,
30,
-29,
29,
29,
-20,
5,
34,
-5,
10,
28,
5,
23,
3,
-5,
0,
4,
-11,
47,
46,
15,
-6,
-28,
-22,
20,
5,
3,
-12,
-16,
-16,
23,
-12,
1,
10,
-57,
-37,
24,
7,
-43,
59,
-15,
-4,
-50,
11,
27,
-25,
0,
1,
3,
-3,
-29,
17,
33,
-56,
36,
23,
25,
18,
-43,
-37,
-29,
24,
3,
10,
30,
-39,
-20,
12,
13,
0,
33,
-31,
-26,
0,
31,
-3,
-5,
-73,
12,
8,
57,
-11,
-9,
-21,
10,
56,
-10,
-2,
16,
-33,
73,
-51,
71,
-74,
-52,
-16,
1,
0,
-18,
-60,
36,
0,
-34,
-1,
22,
-1,
18,
-15,
-7,
7,
-31,
46,
-10,
2,
20,
12,
-6,
29,
-8,
30,
69,
-3,
-15,
-12,
-5,
-20,
-30,
-6,
-9,
-46,
-35,
-32,
-13,
-11,
14,
-16,
-71,
5,
-1,
-28,
16,
-28,
61,
26,
13,
-37,
5,
-33,
-33,
21,
32,
-44,
-22,
11,
-1,
29,
22,
-5,
19,
0,
-9,
-11,
57,
44,
-41,
-18,
-31,
-74,
-1,
-57,
24,
37,
21,
-12,
2,
-4,
49,
5,
23,
21,
-49,
52,
11,
10,
-30,
-6,
44,
52,
-44,
-38,
-3,
-48,
51,
-16,
19,
-24,
13,
-83,
-43,
-5,
-28,
58,
11,
-66,
55,
13,
2,
-28,
12,
66,
-76,
-4,
10,
-4,
49,
-32,
-32,
-1,
52,
-26,
15,
-4,
24,
3,
24,
-5,
5,
-59,
-37,
17,
1,
17,
-3,
-74,
-2,
-55,
-31,
13,
29,
-14,
-44,
-28,
39,
10,
22,
-4,
-15,
57,
-30,
-26,
16,
27,
65,
4,
-10,
-12,
-3,
-29,
-12,
7,
17,
-56,
46,
25,
5,
-24,
0,
57,
-29,
25,
-41,
-17,
-28,
13,
-50,
0,
-15,
29,
62,
-21,
36,
-22,
32,
-10,
0,
20,
-35,
16,
27,
-13,
17,
-34,
11,
-37,
-27,
13,
44,
-7,
-14,
23,
-7,
-25,
-62,
0,
20,
-23,
-25,
13,
0,
33,
-56,
-48,
-16,
7,
21,
48,
68,
29,
45,
8,
-5,
-32,
-31,
24,
-15,
9,
-2,
-38,
-25,
-26,
-8,
-7,
10,
-12,
6,
44,
51,
5,
-46,
6,
-58,
-8,
20,
-11,
-6,
20,
-8,
0,
-9,
27,
-36,
10,
14,
3,
36,
25,
-38,
25,
-12,
-21,
29,
-14,
-16,
-11,
-53,
-32,
9,
-22,
-1,
-24,
-37,
-58,
-3,
-20,
40,
19,
-20,
24,
79,
-14,
43,
33,
-4,
-5,
20,
-11,
9,
-3,
-13,
2,
39,
-3,
-90,
23,
-37,
3,
-26,
36,
-34,
-9,
3,
-33,
-16,
-5,
-38,
20,
6,
15,
-8,
-17,
43,
-11,
-2,
-26,
-54,
66,
-18,
-21,
0,
43,
11,
8,
-6,
-22,
-42,
18,
-27,
-11,
0,
28,
9,
-7,
37,
-25,
0,
32,
-49,
-43,
35,
-17,
-13,
-91,
23,
18,
10,
10,
-34,
-27,
-28,
22,
-15,
11,
30,
23,
2,
-16,
30,
-37,
-5,
4,
-1,
-2,
-13,
44,
-75,
34,
19,
4,
36,
-5,
0,
56,
-30,
18,
23,
69,
-19,
-5,
-6,
-16,
11,
-68,
-17,
-2,
-56,
8,
-8,
-6,
-40,
-22,
-92,
-27,
-18,
40,
-14,
-27,
36,
6,
0,
12,
52,
-16,
29,
-33,
23,
-2,
-16,
-23,
7,
9,
-37,
29,
14,
29,
-20,
19,
-5,
-20,
20,
-7,
3,
-15,
3,
-3,
59,
-6,
-2,
4,
-26,
-22,
38,
-27,
-41,
17,
-17,
49,
0,
-10,
-29,
-22,
-31,
-11,
27,
17,
-2,
-12,
41,
29,
6,
25,
18,
-20,
45,
-18,
-68,
41,
-43,
-29,
-3,
-33,
-49,
-8,
-7,
-19,
40,
21,
0,
25,
-7,
16,
21,
14,
-34,
25,
30,
10,
0,
10,
-29,
8,
12,
24,
-27,
47,
22,
20,
-44,
37,
-9,
-21,
-6,
-22,
56,
-32,
0,
24,
-12,
-31,
54,
33,
22,
-36,
9,
-5,
-24,
29,
8,
20,
29,
-27,
15,
33,
-17,
1,
-4,
1,
71,
-44,
2,
16,
26,
-22,
35,
54,
39,
-23,
-17,
-28,
-24,
-4,
11,
56,
1,
-13,
-16,
-5,
10,
-57,
-19,
47,
32,
-20,
-17,
-16,
-31,
-24,
24,
47,
-40,
40,
-35,
11,
-18,
-14,
26,
-36,
28,
-1,
30,
-78,
-49,
-51,
-41,
-9,
-8,
37,
-21,
12,
4,
11,
25,
3,
-22,
-26,
41,
5,
-12,
-7,
32,
0,
42,
-8,
-46,
8,
-35,
-17,
8,
-5,
-1,
24,
-47,
9,
29,
-38,
-18,
27,
50,
0,
19,
-12,
17,
-4,
8,
-1,
13,
-36,
-75,
-34,
-61,
-15,
8,
-65,
2,
19,
-43,
30,
-23,
29,
-22,
96,
21,
-23,
6,
1,
-11,
-10,
36,
13,
8,
30,
22,
-10,
-43,
4,
-3,
18,
-14,
12,
36,
39,
36,
-24,
-29,
19,
-19,
-46,
-35,
10,
56,
42,
0,
21,
-34,
-5,
16,
-47,
-35,
-31,
31,
9,
-2,
5,
-17,
-34,
25,
0,
32,
31,
25,
8,
11,
2,
-40,
19,
-5,
23,
5,
35,
10,
2,
24,
49,
-20,
-15,
-8,
4,
0,
-42,
-3,
42,
-30,
39,
-26,
11,
-9,
4,
-51,
1
] |
Per Curiam.
Defendant appeals as of right and plaintiff cross-appeals from a judgment in favor of plaintiff on certain issues and a judgment of no cause of action against defendant. This action arose from an accident while plaintiff was driving her car home from a meeting. A pick-up truck collided with her car, causing her injuries that are at least partially incapacitating. Defendant is plaintiff’s no-fault insurance carrier. After the accident, plaintiff petitioned for a hearing before the Bureau of Workers’ Disability Compensation. This dispute was settled for $22,500,* which defendant claims should be relinquished to it as setoff and reimbursement. Defendant thereafter refused to disburse any further monies to plaintiff, assert ing that the injuries were covered by workers’ compensation benefits.
On appeal, defendant contends that it may claim the full amounts which plaintiff is due from workers’ compensation; that in the alternative, defendant is entitled to a setoff for medical benefits; that plaintiff’s claim for replacement services is barred by the statutory period of limitation; and that plaintiff should not be entitled to recover for mental anguish and emotional distress.
Plaintiff alleges that she is entitled to penalty interest for defendant’s refusal to pay medical bills and that the termination of benefits in 1979 was unreasonable.
Defendant alleges that the trial court erred in not allowing it to set off the entire amount which plaintiff received or was entitled to receive from workers’ compensation. MCL 500.3109; MSA 24.13109 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.” The Supreme Court has defined the "required to be provided” clause as:
"The 'required to be provided’ clause of § 3109(1) means only that the injured person is obliged to use reasonable efforts to obtain available workers’ compensation payments. The clause does not authorize subtraction of unavailable workers’ compensation benefits.” Perez v State Farm Mutual Automobile Ins Co, 418 Mich 634, 650; 344 NW2d 773 (1984).
Plaintiff alleges that she was not entitled to workers’ compensation payments and, thus, the lump sum she was paid was a bonus. It is clear that plaintiff is not entitled to a double recovery, Combs v Commercial Carriers, Inc, 117 Mich App 67, 75; 323 NW2d 594 (1982), and Thick v Lapeer Metal Products, 419 Mich 342, 347; 353 NW2d 464 (1984). Even if the Worker’s Disability Compensation Act were found not to be applicable to plaintiffs injuries, defendant would still be entitled to a setoff for those amounts which plaintiff received for the same injuries. Thick, supra, pp 348-351. However, we do not know if plaintiff would have been entitled to full workers’ compensation benefits. The determination of whether the injuries were suffered in the course of employment is within the exclusive jurisdiction of the Bureau of Workers’ Disability Compensation. Sewell v Clearing Machine Corp, 419 Mich 56; 347 NW2d 447 (1984). We must remand for a determination of this issue.
As was said in Perez, supra, p 646:
"If workers’ compensation payments are available to him, he does not have a choice of seeking workers’ compensation or no-fault benefits; the no-fault insurer is entitled to subtract the available workers’ compensation payments even if they are not in fact paid because of the failure of the injured person to use reasonable efforts to obtain them. ” (Emphasis supplied.)
Accordingly, we remand to the circuit court with instructions that plaintiff shall have 20 days after the filing of this opinion to petition the bureau for a determination of compensable injury. If plaintiff fails to petition, or if the bureau finds that it was a compensable injury, then the circuit court shall grant defendant a setoff for the entire amount plaintiff would have received from workers’ compensation. If the injury is not compensable, then defendant may only set off the amount received for the same injury.
Defendant argues that it should be allowed to set off the amount plaintiff actually received from workers’ compensation for medical benefits. We have already agreed with this, see Thick, supra, and Perez, supra.
Defendant alleges that plaintiff’s claim for replacement service benefits is barred by the statutory period of limitation. Plaintiff was injured on January 8, 1976, and by her own admission made no claim until March of 1980. MCL 500.3145; MSA 24.13145 requires that notice be given to the carrier within one year after the most recent allowable expense. Since the last allowable expense for replacement services must have arisen within three years of the accident, MCL 500.3107; MSA 24.13107, the last date plaintiff could have claimed these benefits was January 9, 1979. By her own admission, plaintiff failed to do so. As plaintiff did not file a suit or give notice to defendant, her claim is barred.
Plaintiff contends that she should receive penalty interest in addition to her medical expenses, as defendant was overdue in making the payments and unreasonable in terminating her medical benefits. MCL 500.3142(2); MSA 24.13142(2) provides in part that "[p]ersonal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and the loss sustained”. Such overdue payments bear simple interest at the rate of 12 percent per annum. MCL 500.3142(3); MSA 24.13142(3). The statute requires that the insurer be presented with a reasonable proof of loss before the payment becomes due. Fortier v Aetna Casualty & Surety Co, 131 Mich App 784, 793; 346 NW2d 874 (1984); Nash v DAIIE, 120 Mich App 568, 572; 327 NW2d 521 (1982), and Sharpe v DAIIE, 126 Mich App 144, 148; 337 NW2d 12 (1983). The trial court held that plaintiff had submitted such reasonable proof.
We need not decide the good faith issue defendant raised, as we find that assessment of penalty interest should have occurred here due to defendant’s behavior. Wood v DAIIE, 413 Mich 573, fn 17; 321 NW2d 653 (1982). We find that defendant did act unreasonably in terminating plaintiffs medical benefits. Since the only dispute was which insurer was liable, we agree with Kalin v DAIIE, 112 Mich App 497, 510; 316 NW2d 467 (1982), where we said:
"A claimant who is clearly entitled to no-fault benefits should not be forced to hire an attorney merely because the circumstances of his accident create problems of priority among insurers.”
In the instant case plaintiff clearly would have been entitled to no-fault benefits as a result of her car accident. However, an issue had arisen regarding whether workers’ compensation was liable for her injuries. Just because defendant may be entitled to reimbursement under MCL 500.3109; MSA 24.13109 is not a sufficient reason to withhold benefits. As the purpose of no-fault insurance is to pay insureds promptly for economic losses, Shavers v Attorney General, 65 Mich App 355; 237 NW2d 325 (1975), aff'd in part 402 Mich 554; 267 NW2d 72 (1978), it would defeat the purpose of no-fault insurance if we were to allow an insurance company to delay payments in its hope that it was entitled to reimbursement. Accordingly, we find defendant liable for penalty interest under MCL 500.3142; MSA 24.13142 and remand for a determination of the date when plaintiff was unreasonably denied benefits and the amount of the benefits. Interest should then run from 30 days after that date.
Plaintiff also contends that she should be enti tied to compensation for mental anguish and emotional distress. We do not agree. Even if we were to assume that there is such a tort, plaintiff has not proven that defendant committed that tort. Butt v DAIIE, 129 Mich App 211; 341 NW2d 474 (1983). While defendant may have acted wrongfully in refusing to pay plaintiff’s medical benefits, we do not find defendant’s actions to constitute extreme or outrageous behavior.
Reversed and remanded with instructions. Costs to abide the final result.
This figure represents $3,630 for attorney fees, $10,000 for medical expenses, and $8,870 for the balance of her claim. | [
-52,
-5,
-28,
18,
-8,
4,
6,
-23,
-30,
23,
-35,
3,
21,
-24,
21,
1,
0,
15,
-8,
35,
-58,
-48,
-5,
62,
-27,
-12,
30,
-43,
6,
57,
-19,
-14,
-42,
2,
-44,
6,
0,
21,
-2,
44,
22,
4,
35,
-13,
-8,
-25,
25,
43,
53,
-12,
16,
16,
-1,
-3,
22,
0,
53,
-31,
5,
25,
-19,
-28,
37,
6,
19,
5,
-9,
23,
-15,
11,
-45,
35,
25,
9,
12,
-6,
-14,
8,
6,
7,
12,
-22,
23,
-37,
-8,
91,
-36,
7,
26,
-29,
-54,
-33,
-36,
16,
-13,
36,
19,
13,
44,
40,
-24,
0,
17,
-2,
1,
11,
25,
-14,
-10,
40,
0,
-2,
-11,
-31,
-48,
-6,
-38,
-8,
24,
36,
6,
-35,
24,
1,
7,
31,
-8,
2,
-11,
4,
32,
8,
23,
-4,
19,
8,
-31,
-19,
15,
31,
14,
-5,
2,
-17,
27,
31,
11,
-2,
11,
-7,
23,
53,
15,
38,
-8,
-24,
-47,
-22,
24,
-31,
19,
-20,
-6,
39,
-19,
-24,
5,
64,
26,
-24,
45,
-32,
-10,
-53,
0,
-4,
26,
-31,
-73,
17,
-53,
-11,
20,
13,
14,
-41,
-26,
25,
-10,
12,
23,
-36,
2,
14,
14,
23,
31,
40,
-7,
26,
34,
-59,
-13,
32,
11,
-14,
16,
-46,
14,
-2,
1,
-15,
-9,
-57,
-11,
24,
1,
-34,
-27,
-6,
0,
14,
47,
-1,
-26,
-17,
-28,
-51,
57,
16,
-19,
3,
4,
40,
-26,
-16,
5,
-47,
80,
-15,
27,
-5,
14,
-47,
-12,
-7,
-15,
4,
-15,
-29,
40,
-24,
-24,
0,
11,
-46,
8,
40,
-6,
-10,
-3,
49,
-20,
48,
-4,
-8,
-8,
-8,
-2,
-36,
22,
17,
37,
-36,
-9,
-77,
24,
-3,
56,
-34,
-49,
52,
-5,
-42,
-69,
3,
-11,
-38,
41,
41,
47,
-78,
31,
15,
-1,
3,
30,
8,
-12,
-7,
-20,
-19,
2,
5,
31,
-13,
-46,
0,
-39,
-7,
-17,
-39,
57,
-14,
44,
2,
-39,
-47,
-15,
-7,
2,
32,
-19,
-4,
22,
-23,
-11,
-20,
27,
-26,
-34,
26,
16,
36,
48,
-5,
-31,
34,
5,
16,
30,
16,
-7,
-5,
-10,
1,
44,
-20,
26,
21,
-48,
14,
24,
1,
35,
28,
58,
-37,
-45,
26,
14,
-31,
-2,
-46,
15,
-17,
21,
4,
-26,
62,
-13,
-34,
0,
-36,
-70,
-49,
-8,
45,
-32,
11,
36,
-36,
44,
-34,
-1,
3,
-53,
-21,
-17,
-15,
-32,
-48,
19,
40,
-4,
52,
-38,
-23,
-34,
31,
-11,
-5,
2,
17,
-25,
-1,
56,
-9,
-58,
54,
9,
0,
-19,
29,
-11,
19,
72,
15,
-14,
-48,
63,
-14,
-17,
-41,
7,
-7,
2,
-10,
-38,
8,
-9,
-14,
8,
-31,
-14,
17,
-34,
-60,
-14,
-6,
-22,
24,
-19,
-26,
-8,
13,
-11,
-43,
25,
-41,
5,
-18,
41,
32,
-56,
-16,
22,
-6,
-35,
-58,
0,
-8,
-49,
58,
75,
-60,
-22,
38,
46,
3,
38,
14,
12,
8,
19,
15,
-31,
-10,
-12,
-15,
-27,
2,
-6,
-34,
-15,
-30,
-17,
56,
13,
-46,
55,
-41,
-4,
-22,
-5,
-27,
-47,
28,
-48,
-12,
-9,
-15,
13,
3,
66,
-75,
-16,
-50,
8,
-26,
-38,
-4,
29,
40,
38,
-8,
-14,
11,
20,
22,
6,
-22,
-63,
-55,
-31,
-44,
-49,
23,
6,
-2,
-11,
-8,
32,
-20,
13,
4,
12,
-4,
-35,
-26,
0,
47,
-26,
10,
13,
-23,
8,
-8,
38,
1,
6,
-20,
0,
-9,
37,
12,
25,
0,
20,
-15,
-27,
0,
-6,
51,
24,
24,
29,
-26,
44,
5,
-49,
4,
0,
-50,
-10,
14,
3,
-14,
-44,
27,
-11,
11,
-2,
-22,
-66,
-40,
9,
41,
6,
-25,
-16,
-22,
24,
34,
55,
-1,
-11,
-36,
-37,
5,
-2,
-5,
-84,
-18,
12,
36,
-6,
20,
84,
-9,
-6,
49,
-16,
-43,
-9,
-53,
-33,
23,
14,
3,
30,
44,
28,
11,
-2,
6,
-26,
23,
-44,
-15,
65,
-7,
-31,
-34,
-16,
12,
10,
59,
-19,
22,
-41,
51,
73,
20,
-35,
-48,
22,
27,
-36,
-70,
-26,
59,
-16,
-43,
-9,
22,
-37,
11,
-52,
-34,
-21,
8,
-4,
-13,
-22,
13,
-1,
-7,
10,
-2,
28,
-1,
47,
57,
83,
21,
-3,
27,
-36,
-7,
-27,
-20,
16,
42,
-42,
12,
-28,
12,
54,
-11,
-3,
32,
-23,
-5,
-23,
-7,
8,
24,
-17,
-6,
6,
23,
-34,
-20,
-20,
50,
-53,
-20,
1,
13,
-40,
-12,
-36,
-33,
24,
64,
-24,
-18,
-22,
-15,
9,
-45,
6,
-7,
-8,
47,
38,
-23,
-32,
-28,
-6,
6,
-10,
46,
-14,
-21,
-10,
26,
-41,
-25,
40,
64,
29,
0,
-6,
-17,
-51,
21,
10,
11,
-2,
-21,
15,
27,
-2,
1,
6,
17,
5,
-61,
-6,
-48,
-28,
16,
-4,
14,
-3,
6,
7,
-12,
-47,
13,
27,
-47,
-7,
-4,
56,
-18,
-64,
-21,
11,
-50,
34,
15,
-39,
-24,
10,
-39,
-64,
-7,
-17,
-4,
3,
-51,
31,
-20,
17,
-14,
-14,
-20,
10,
49,
-16,
-17,
5,
17,
29,
-7,
29,
-35,
27,
-66,
9,
26,
-6,
14,
35,
51,
0,
0,
14,
58,
-23,
-30,
-1,
-33,
17,
-18,
-2,
29,
-18,
-2,
-27,
50,
2,
61,
28,
-16,
-27,
-49,
60,
-20,
-32,
29,
37,
13,
-27,
10,
-2,
45,
11,
-78,
13,
46,
-2,
-5,
-39,
-24,
6,
8,
-28,
4,
-49,
31,
16,
35,
-40,
23,
11,
42,
8,
42,
2,
-8,
-13,
44,
-8,
4,
17,
-50,
-5,
1,
8,
66,
-26,
0,
-8,
-12,
-61,
72,
26,
0,
-30,
-27,
-41,
-36,
-51,
49,
19,
-46,
5,
53,
20,
43,
32,
61,
3,
-16,
-48,
32,
-19,
7,
-2,
-19,
75,
19,
17,
-8,
28,
4,
-26,
23,
-26,
-37,
-24,
-4,
29,
4,
0,
13,
-17,
-29,
-16,
46,
53,
-29,
-1,
-48,
0,
4,
24,
28,
10,
34,
-84,
-44,
-7,
0,
45,
39,
14,
-10,
40,
5,
-17,
-81,
13,
26,
-9,
8,
-19,
23,
32,
6,
72,
-3,
22,
-25,
-49,
28,
1,
-39,
-12,
-49,
52,
-19,
21,
-6,
-2,
8,
22,
-46,
-25,
28,
-27,
-13,
-28,
-1,
-32,
-27,
32,
-12,
24,
66,
12,
-23,
27,
41,
40,
13,
-5,
32,
15,
3,
-36,
5,
5,
10,
45,
39,
1,
30,
-1,
2,
38,
71,
-12,
-16,
-24,
-48,
25,
26,
41,
-4
] |
R. M. Maher, P.J.
When this case was originally before this Court, we affirmed defendant’s convictions of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and felonious assault, MCL 750.82; MSA 28.277. Docket No. 59862, decided September 15, 1983 (Unreported). Defendant sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded to this Court for reconsideration of our previous opinion in light of People v Bladel (After Remand), 421 Mich 39; 365 NW2d 56 (1984).
In People v Bladel, supra, the Supreme Court sought to delineate and distinguish the scope of an individual’s Fifth Amendment right to counsel and Sixth Amendment right to counsel, US Const, Am V and Am VI. Regarding the Fifth Amendment, the Supreme Court noted:
"Once an accused invokes his right to have counsel present during custodial interrogation, the police must refrain from further interrogation until counsel is made available, unless the accused initiates further communications, exchanges or conversations with the police. Neither Miranda [v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)] not its progeny limits the Fifth Amendment right to counsel to custodial interrogations conducted prior to arraignment.” (Citations omitted.) Bladel, supra, p 51.
The Supreme Court then focused on the Sixth Amendment:
"Regardless of whether the accused is in custody or subjected to formal interrogation, the Sixth Amendment right to counsel exists whenever the police attempt to elicit incriminating statements. This right to counsel does not depend upon a request by the accused and courts indulge in every reasonable presumption against waiver.” (Citations omitted.) Bladel, supra, p 52.
Recognizing, therefore, that the Sixth Amendament right to counsel is broader than the Fifth Amendment right to counsel, the Supreme Court set itself the task of determining wheter a waiver of the Fifth Amendment right to counsel also waives the Sixth Amendment right to counsel. Of relevance to this case, the Supreme Court held that, to satisfy the Sixth Amendment, where an accused requests an attorney at arraignment, no further interrogation of the accused may be conducted until counsel has been made available— unless the accused initiates further communications. Bladel, supra, p 66.
Turning to the facts of this case, it is noted that on December 24, 1980, defendant was arraigned in the hospital and, at that time, requested that counsel be appointed to represent him. Counsel was not appointed until January 5, 1981. Nevertheless, later on December 24, 1980, Detective Smith returned to the hospital and conversed with defendant for over an hour. He again returned on December 29, 1980, and secured a tape-recorded statement from defendant.
We note specifically that on each occasion, Detective Smith took pains to make sure that the requirements of Miranda were satisfied. We may surmise, with some confidence, that neither Detective Smith nor the trial court could foretell the nature of the decision in People v Bladel, supra. Nevertheless, that decision compels the suppression of the statements of December 24 and 29, 1980. The trial court’s failure to so order constitutes reversible error. The statements of December 24 and 29, 1980, implicated defendant on the charges of the first-degree murder of Eleanor Bailey and the assault on Marilyn Creekmore. Therefore, we reverse those convictions and remand for a new trial. Defendant’s conviction for the felonious assault on Raymond Grametbauer is affirmed.
Reversed in part and remanded._
We do not necessarily intimate any substantial disagreement with People v Bladel (After Remand), 421 Mich 39; 365 NW2d 56 (1984). We merely note the difficulty that law enforcement personnel and lower courts sometimes have in anticipating decisions from higher tribunals. | [
27,
-25,
6,
38,
1,
-17,
-37,
-7,
-57,
-4,
16,
-17,
-15,
-40,
50,
-1,
2,
37,
50,
-7,
27,
-10,
16,
28,
12,
-63,
22,
5,
-2,
4,
3,
0,
10,
-59,
-35,
-38,
33,
5,
-23,
29,
25,
1,
31,
12,
-32,
-18,
35,
-13,
0,
11,
15,
21,
-3,
24,
-27,
-38,
-6,
-5,
18,
49,
-9,
37,
-24,
-30,
-24,
2,
-19,
0,
0,
-83,
-32,
-34,
-42,
-6,
-2,
29,
8,
-11,
45,
-13,
32,
24,
32,
-14,
2,
50,
-8,
-42,
19,
-24,
-21,
-11,
-50,
-65,
-22,
-4,
35,
-35,
22,
-10,
42,
-18,
3,
-32,
32,
-2,
-10,
13,
48,
-6,
2,
8,
16,
-32,
32,
-55,
-4,
29,
-53,
30,
5,
16,
12,
-2,
37,
-34,
1,
-40,
26,
20,
-47,
59,
37,
-43,
52,
20,
-10,
26,
-5,
-10,
-79,
30,
-1,
-37,
63,
-39,
0,
29,
11,
30,
60,
36,
-25,
35,
24,
-54,
14,
-3,
-55,
38,
13,
-15,
3,
-50,
17,
-2,
-24,
-36,
-3,
-56,
59,
6,
11,
75,
-12,
-56,
-60,
53,
17,
24,
-48,
23,
14,
0,
-24,
9,
-20,
13,
1,
12,
-45,
-31,
12,
-24,
70,
6,
-21,
44,
39,
-63,
-15,
49,
51,
-16,
43,
-55,
-41,
-17,
0,
-22,
-30,
21,
-11,
-57,
-1,
-9,
-32,
3,
-65,
39,
0,
-14,
10,
-61,
-47,
-2,
-23,
34,
0,
-8,
37,
4,
-64,
52,
-5,
47,
32,
0,
70,
-79,
-3,
-1,
39,
-64,
7,
61,
25,
-84,
-9,
-6,
73,
35,
32,
0,
-34,
-30,
-4,
-36,
23,
-11,
18,
42,
-19,
10,
5,
80,
-45,
-11,
0,
39,
-41,
-15,
42,
41,
4,
-13,
5,
-21,
-16,
1,
4,
38,
-21,
24,
-32,
-49,
-14,
-29,
35,
24,
26,
13,
-17,
12,
38,
0,
25,
1,
-19,
4,
53,
11,
3,
-31,
-43,
-4,
33,
-16,
19,
-33,
29,
50,
-16,
26,
38,
-9,
-27,
16,
27,
-3,
-44,
-20,
26,
11,
19,
-5,
76,
-6,
79,
-37,
-30,
-7,
34,
27,
-25,
11,
-13,
41,
53,
57,
-12,
-7,
7,
-23,
-44,
4,
0,
36,
0,
-21,
24,
-11,
-22,
8,
-43,
37,
-30,
-9,
5,
-11,
23,
11,
-44,
26,
-12,
51,
-7,
-7,
-24,
-28,
40,
-26,
4,
-76,
-27,
-2,
40,
-31,
-5,
30,
-48,
-26,
31,
-55,
-28,
17,
-11,
26,
29,
-3,
-35,
-43,
0,
-53,
-74,
47,
9,
15,
115,
-18,
-29,
-37,
33,
-8,
-51,
-36,
-17,
62,
-13,
18,
7,
64,
37,
80,
-11,
-37,
10,
-12,
1,
-19,
-42,
-43,
3,
19,
51,
49,
-29,
49,
-12,
-52,
-23,
-26,
10,
-53,
28,
-7,
-33,
-24,
-4,
-10,
-61,
-63,
-4,
34,
8,
-63,
-53,
-17,
-60,
-25,
-2,
-3,
24,
-27,
-40,
-30,
6,
33,
-24,
-15,
-12,
-8,
-77,
25,
47,
-25,
-89,
-21,
29,
-30,
64,
7,
9,
-40,
-40,
6,
-30,
44,
-8,
-31,
32,
-10,
23,
13,
-29,
32,
18,
36,
43,
-39,
-7,
-40,
23,
-21,
12,
18,
13,
-24,
-26,
0,
36,
30,
30,
13,
0,
13,
48,
7,
63,
28,
-18,
18,
-67,
18,
-13,
-18,
-43,
23,
14,
-70,
36,
-26,
63,
0,
-12,
-42,
-15,
6,
-33,
7,
51,
-14,
7,
11,
-15,
11,
-48,
-39,
36,
-16,
-3,
-20,
20,
-29,
33,
-1,
37,
-9,
37,
40,
-17,
-5,
6,
10,
10,
-34,
-56,
24,
46,
-47,
-22,
-20,
72,
14,
-47,
8,
-38,
40,
53,
-18,
-5,
54,
-3,
64,
0,
75,
48,
19,
-30,
-5,
45,
26,
-39,
-18,
-29,
-1,
27,
-5,
40,
-25,
-94,
-3,
28,
-44,
-23,
-31,
40,
-31,
-17,
35,
-8,
8,
3,
-5,
30,
2,
44,
-8,
11,
-19,
30,
0,
2,
-13,
-43,
-12,
-13,
-10,
-17,
-15,
-53,
32,
-59,
-13,
-9,
-32,
-30,
35,
37,
-76,
15,
-17,
-45,
-2,
-10,
-4,
16,
15,
-4,
6,
-27,
19,
-7,
0,
-18,
38,
30,
15,
-28,
-21,
-21,
36,
10,
-33,
36,
-13,
-2,
12,
9,
17,
7,
19,
-43,
-17,
-5,
10,
12,
-25,
30,
-20,
25,
10,
-10,
-19,
-22,
-23,
32,
-10,
-56,
-31,
-40,
-12,
-8,
-11,
36,
72,
-6,
15,
33,
1,
34,
-27,
54,
-48,
-10,
-14,
45,
34,
-11,
-13,
18,
9,
21,
-39,
-3,
-28,
-3,
3,
-29,
24,
-3,
9,
-57,
-26,
32,
12,
-62,
0,
42,
53,
29,
56,
16,
-15,
2,
45,
-48,
-4,
1,
-16,
-13,
-33,
0,
-35,
-6,
-1,
-51,
8,
29,
5,
-23,
31,
-40,
-22,
-13,
-19,
20,
-3,
55,
49,
23,
21,
-11,
21,
-61,
23,
33,
-9,
-38,
-72,
-19,
31,
-18,
-27,
16,
-5,
-17,
11,
7,
42,
50,
-67,
49,
3,
-70,
30,
23,
26,
-24,
-14,
-4,
3,
-35,
-5,
16,
-4,
-29,
1,
-35,
8,
32,
-39,
-21,
36,
54,
21,
9,
-17,
-11,
52,
-1,
-11,
22,
-17,
31,
-4,
14,
11,
14,
-21,
-9,
-4,
-11,
-3,
-56,
-4,
31,
-7,
32,
-20,
21,
-7,
-54,
16,
1,
63,
11,
-14,
10,
14,
-47,
27,
-25,
84,
-25,
-41,
-18,
12,
17,
2,
-23,
16,
11,
-2,
26,
49,
17,
1,
19,
50,
26,
42,
3,
38,
-24,
-33,
-43,
44,
13,
8,
53,
53,
33,
-47,
-39,
75,
17,
11,
68,
-5,
-48,
-40,
32,
-12,
3,
26,
-31,
16,
-45,
73,
-2,
0,
-27,
-20,
19,
25,
-26,
-11,
44,
-16,
21,
-2,
25,
44,
-11,
0,
3,
47,
40,
-78,
0,
-55,
8,
33,
71,
0,
13,
20,
-21,
1,
3,
-35,
-1,
-11,
22,
43,
-50,
1,
48,
-32,
-16,
83,
12,
-12,
-12,
-26,
-8,
-43,
-3,
-9,
7,
8,
-10,
-60,
40,
-16,
9,
-63,
-62,
3,
23,
11,
-28,
48,
-8,
56,
-33,
-33,
-18,
8,
-32,
-90,
39,
3,
-3,
-17,
6,
50,
-50,
-9,
-73,
-41,
-14,
26,
3,
-22,
-12,
-61,
-12,
-6,
9,
-5,
44,
-39,
-9,
-36,
-62,
-13,
20,
-19,
-32,
-30,
41,
11,
-7,
72,
26,
-26,
-39,
-15,
34,
-12,
-34,
-2,
28,
63,
-47,
-1,
33,
16,
-6,
83,
8,
1,
-83,
-8,
-21,
0,
12,
-32,
35,
-39,
36,
-69,
-23,
-4,
10,
31,
-38,
-30,
1,
42,
-58,
22
] |
Per Curiam.
Defendant appeals from an "order amending judgment of divorce and setting amount of child support arrearages” which increased defendant’s child support obligations from $25 per week per child to $40 per week per child.
On December 22, 1980, a default judgment of divorce was entered in the trial court which ordered defendant to pay child support of $25 per week per child. Plaintiff and defendant have four children so the weekly child support payment totalled $100. This amount was $80 per week less than the friend of the court’s recommendation. Approximately three years later, plaintiff filed a motion alleging that defendant refused to make support payments and failed to report raises in his income. This matter was referred to the friend of the court which concluded that the child support should remain at the same amount. Both defendant and plaintiff filed written objections to the friend of the court’s recommendation. Plaintiff argued that the child support payments should be increased and defendant argued that they should be decreased. The circuit court then referred this matter back to the friend of the court for further recommendation in light of the parties’ objections. The friend of the court then recommended that defendant should pay child support in the sum of $172 per week. Plaintiff accepted this recommendation, but defendant objected arguing that plaintiff failed to present any proofs as to any increased need or change in circumstances with the minor children and that the friend of the court’s recommended minimum support schedule should not be used without other proofs. The trial court granted plaintiff’s motion for acceptance following brief oral argument. Defendant objected to entering the order, and the trial court stated: "Your client told me that he takes home $350 per week”. When defense counsel did not disagree with this fact, the court denied the request for an evidentiary hearing and entered an order increasing child support to $150 per week. The terms of the final order required defendant to pay $40 per week per child.
Defendant now appeals as of right from the circuit court’s decision. It is well-settled that the trial court has the discretion to modify child support orders, including the discretion to cancel arrearages retroactively. Ozdaglar v Ozdaglar, 126 Mich App 468, 473; 337 NW2d 361 (1983). Before a court can modify a child support provision contained in a divorce decree, either parent or the friend of the court must petition for the modifica tion. McCarthy v McCarthy, 74 Mich App 105; 253 NW2d 672 (1977). If the parties fail to consent to the modification and there exists a factual dispute concerning the circumstances relating to the petition for modification, the court is obliged to hold an evidentiary hearing. Cochran v Buffone, 137 Mich App 761, 766; 359 NW2d 557 (1984). The trial court must consider all relevant factors in determining whether there has been a sufficient change in circumstances to justify modification of the child support provisions. Jacobs v Jacobs, 118 Mich App 16; 324 NW2d 519 (1982). In reaching its determination, the trial court may consider the report of the friend of the court, but the report is inadmissible as evidence unless all the parties agree to the contrary. McCarthy, supra. Review of the trial court’s decision is de novo; however, great weight is to be given to the trial judge’s finding of fact. Krachun v Krachun, 355 Mich 167; 93 NW2d 885 (1959); McCarthy, supra.
We feel that the trial court erred in denying defendant’s request for an evidentiary hearing. The defendant objected to the friend of the court’s recommendation, claiming that there has been no changed circumstances since the divorce judgment was entered. Plaintiff argued that there was a sufficient change in circumstances and the friend of the court accepted plaintiff’s argument. Despite this, the trial court seemed to be solely concerned with defendant’s income, noting that there was no dispute as to that amount. We note, however, that defendant’s income had decreased approximately $20 per week since the judgment granting the divorcé was entered. In McCarthy, supra, p 109, this Court stated:
"There is no question that the trial court erred in its modification order of February 26, 1975, both procedur ally and substantively. The order was made without a hearing and there was no agreement expressed or implied to allow the court to utilize the Friend of the Court’s recommendation. [Citations omitted.] Additionally, the recommendation was based totally upon the fact of defendant’s increase in salary. All relevant factors are to be considered in determining whether there has been a sufficient change in circumstances. [Citations omitted.] The isolated consideration of income is error. [Citations omitted.]”
Likewise, in the instant case,, the trial court erred in relying solely on defendant’s income as a basis for increasing child support. The trial court should have granted defendant’s request for an evidentiary hearing on this matter. We therefore remand for a hearing in accordance with Cochran, supra, .pp. 767-768. We do not retain jurisdiction. | [
-22,
10,
-33,
-32,
-3,
-16,
13,
8,
-32,
-8,
32,
-51,
35,
7,
28,
9,
-14,
-51,
92,
-42,
-61,
10,
3,
46,
10,
37,
40,
-34,
30,
20,
-20,
-18,
-28,
7,
-11,
-6,
16,
26,
0,
19,
36,
-58,
-2,
-8,
-40,
-34,
21,
-39,
-15,
27,
-20,
-1,
19,
12,
24,
71,
-2,
8,
-20,
-10,
-43,
20,
-4,
78,
1,
19,
0,
31,
17,
-14,
-19,
4,
42,
2,
3,
-24,
10,
-43,
-16,
62,
-19,
14,
-19,
65,
17,
-2,
0,
15,
-36,
10,
-44,
62,
-35,
-5,
-24,
7,
8,
-42,
40,
19,
7,
-40,
34,
1,
51,
51,
-5,
-42,
-48,
12,
38,
-14,
42,
-26,
3,
16,
-63,
-41,
17,
-54,
-14,
41,
29,
-11,
47,
-1,
-16,
17,
36,
-49,
-35,
57,
25,
-25,
11,
-20,
34,
-31,
0,
-19,
39,
-39,
39,
-7,
35,
-23,
18,
-40,
-21,
-15,
26,
38,
30,
51,
60,
-22,
-38,
-2,
16,
-47,
53,
36,
-94,
9,
-19,
-19,
-21,
7,
-19,
-10,
35,
-11,
26,
-25,
28,
14,
-6,
-27,
-36,
-4,
-27,
72,
-12,
-3,
21,
44,
-15,
-22,
-20,
-36,
-3,
-22,
6,
8,
62,
19,
46,
50,
24,
17,
-26,
15,
50,
14,
-3,
-59,
-22,
0,
-42,
-17,
19,
30,
-36,
-7,
-49,
-7,
-12,
33,
-21,
2,
-7,
-30,
11,
-33,
-57,
6,
3,
11,
1,
35,
-13,
21,
-14,
-29,
-37,
31,
9,
2,
9,
7,
-21,
39,
33,
-68,
-17,
26,
3,
41,
3,
1,
-9,
43,
-38,
23,
-14,
-47,
-10,
29,
5,
29,
22,
32,
24,
42,
18,
-4,
0,
41,
-7,
39,
6,
-58,
30,
-56,
3,
-5,
-54,
-29,
0,
56,
0,
15,
6,
18,
-28,
18,
-2,
52,
24,
56,
30,
-2,
21,
-30,
63,
17,
-42,
4,
13,
-14,
-12,
-38,
34,
16,
-55,
-47,
-8,
2,
-32,
-4,
11,
17,
-24,
22,
27,
-25,
-79,
-45,
10,
-38,
47,
15,
-34,
52,
14,
1,
58,
-27,
-40,
-34,
-32,
14,
-4,
18,
59,
-14,
0,
-5,
7,
35,
14,
47,
-32,
74,
6,
24,
6,
-8,
-12,
-2,
-18,
37,
21,
54,
-48,
-19,
-12,
-70,
21,
-5,
16,
-14,
11,
-81,
-8,
79,
41,
4,
-13,
59,
-7,
0,
-31,
-30,
-18,
-17,
-4,
39,
6,
-6,
-69,
-48,
-31,
9,
54,
-4,
-16,
14,
-41,
-53,
-30,
15,
28,
-35,
25,
17,
4,
-4,
8,
0,
-13,
-19,
-8,
6,
17,
46,
12,
-17,
-20,
-8,
22,
-30,
-7,
59,
54,
-15,
41,
-48,
2,
14,
44,
9,
-1,
9,
15,
27,
6,
-71,
20,
33,
-54,
-11,
9,
-8,
25,
19,
-3,
-34,
-7,
-16,
-31,
74,
17,
28,
17,
-29,
-59,
-36,
23,
-40,
24,
-43,
11,
-23,
-5,
-68,
-32,
-4,
-49,
-44,
-7,
-15,
-5,
-2,
0,
-48,
-54,
57,
18,
48,
-6,
12,
18,
6,
-32,
-1,
14,
-16,
18,
21,
-27,
-38,
-48,
15,
-3,
32,
-40,
-42,
-30,
12,
20,
2,
-30,
-9,
68,
-15,
-14,
15,
-7,
23,
-17,
-15,
9,
-38,
51,
-40,
37,
-60,
16,
-17,
-6,
-14,
44,
-15,
-17,
12,
19,
47,
28,
11,
-17,
32,
26,
-8,
37,
7,
-29,
23,
-39,
63,
-9,
75,
-12,
10,
-36,
19,
-16,
0,
-36,
23,
32,
0,
-13,
-11,
40,
-21,
-5,
11,
-6,
4,
20,
-33,
-5,
18,
-38,
53,
-15,
39,
-30,
-70,
-3,
4,
-8,
31,
-5,
4,
0,
-13,
13,
12,
13,
16,
-27,
30,
-3,
40,
3,
2,
-54,
-3,
13,
29,
-63,
-11,
2,
-30,
43,
9,
20,
-24,
-79,
0,
23,
-13,
-20,
-76,
-11,
-37,
73,
5,
-1,
40,
-26,
-12,
-22,
0,
10,
48,
9,
-50,
53,
33,
-31,
-18,
34,
2,
-27,
-15,
0,
-1,
31,
-12,
8,
-32,
-1,
-39,
29,
19,
-43,
30,
10,
-43,
67,
-37,
26,
5,
9,
8,
-31,
6,
-16,
59,
-42,
11,
15,
-27,
-5,
12,
-36,
-27,
14,
89,
35,
-23,
41,
-19,
10,
-16,
-5,
-24,
16,
0,
-16,
32,
38,
33,
-53,
41,
30,
17,
-62,
-20,
27,
34,
2,
20,
-50,
35,
-2,
-26,
-36,
27,
-37,
16,
-63,
10,
12,
4,
-32,
10,
41,
5,
16,
8,
-18,
-34,
-16,
114,
-44,
21,
19,
-10,
-18,
-52,
-22,
0,
16,
25,
21,
-4,
-49,
3,
0,
15,
3,
-28,
51,
15,
-61,
-23,
40,
48,
-4,
37,
-15,
13,
2,
-5,
-26,
-44,
-28,
-11,
-5,
-11,
-23,
10,
20,
-17,
-48,
0,
31,
-59,
11,
-17,
-56,
16,
43,
19,
-50,
50,
18,
-25,
-14,
33,
-66,
42,
35,
-11,
7,
33,
-3,
4,
32,
91,
-11,
-22,
15,
-25,
39,
-30,
-65,
-12,
42,
22,
10,
-75,
-9,
-7,
17,
-71,
11,
34,
62,
-16,
5,
-66,
73,
-61,
-5,
30,
44,
-31,
-26,
-17,
50,
55,
-37,
-26,
56,
-50,
31,
22,
58,
-25,
-31,
25,
-53,
4,
30,
-9,
17,
-3,
-8,
15,
-8,
7,
-14,
0,
-41,
25,
48,
63,
34,
-8,
-9,
-31,
15,
32,
-4,
37,
32,
-34,
85,
-10,
-36,
40,
41,
-24,
-33,
21,
16,
-33,
3,
-2,
7,
50,
-4,
18,
2,
19,
30,
-16,
3,
19,
6,
0,
-67,
-8,
-21,
-30,
-11,
27,
16,
-32,
18,
30,
6,
-1,
1,
-47,
0,
-40,
-18,
22,
-25,
-20,
10,
-32,
-37,
-19,
10,
-2,
-49,
-33,
7,
-34,
-32,
2,
-47,
62,
27,
29,
65,
2,
0,
-32,
-61,
-36,
-8,
-18,
1,
-3,
-31,
-36,
45,
2,
-28,
11,
-4,
-19,
-15,
-5,
44,
15,
28,
1,
7,
-20,
-11,
-21,
-8,
-28,
-58,
-43,
27,
-51,
-5,
-33,
-25,
-32,
24,
-10,
-30,
0,
30,
-36,
-12,
3,
6,
-22,
-21,
30,
-3,
27,
-20,
-6,
-38,
-27,
-2,
-27,
-20,
26,
-8,
37,
29,
-28,
-54,
8,
-17,
32,
-26,
53,
40,
-18,
28,
-47,
10,
43,
-16,
18,
28,
-40,
-9,
-25,
-2,
-21,
30,
-2,
17,
-16,
2,
4,
-37,
7,
-58,
22,
-39,
-34,
-25,
6,
0,
-50,
18,
-39,
10,
-14,
22,
-30,
37,
-4,
-29,
39,
28,
12,
-48,
-71,
-37,
60,
-31,
-14,
29,
13,
8,
14,
-20,
5,
-12,
-35,
-16,
-25,
31,
15,
-6,
1
] |
R. B. Burns, P. J.
Plaintiff brought this action against the Genesee County Sheriff and seven named deputies for assault without lawful authority, excessive force, destruction of evidence, and deprivation of civil rights under 42 USC 1983. Pursuant to local court rule, the case was mediated and the value of plaintiff’s claim was assessed at $7,500. Both parties rejected the mediation award and the case was tried.
At trial, during its deliberation, the jury sent a handwritten note to the judge asking if it could "find liability without compensatory or punitive damages”. The judge responded in handwriting on the same note, "You should attempt to complete the seven sheets comprising the verdict forms and you may find whatever amount of damages the evidence warrants whether it be none, nominal or any other amount”._
The jury returned a verdict in favor of all defendants on Counts I and II. Under Count III, the civil rights count, only defendant Safford was found liable. The jury did not assess damages against Safford. The foreman of the jury, in reciting the verdict, was allowed to explain why the jury found no damages. The foreman stated that the jury had found that the disciplinary action taken against Safford by the sheriffs department had been "appropriate”.
In the days that followed the trial, the parties made several post-trial motions. After hearing, the trial judge, in a written opinion, substantially ruled against plaintiff on almost all issues. The court recognized that its reply to the jury’s question during deliberation had been partly erroneous. In Carey v Piphus, 435 US 247; 98 S Ct 1042; 55 L Ed 2d 252 (1978), the Court held that a deprivation of constitutional rights which is not shown to have resulted in actual damages entitles the plaintiff to an award of nominal damages. The trial judge said that he would cure the erroneous instruction by approving plaintiffs motion for additur. The amount of additur which the trial judge granted was $1.
Plaintiff also had made a post-trial motion requesting that the trial court grant attorney fees to him pursuant to 42 USC 1988. Defendants moved to have attorney fees and costs awarded to them pursuant to GCR 1963, 316 and Genesee County Circuit Court Rule 29, because plaintiff had rejected the mediation award. Originally, the trial court granted both motions and, offsetting the fees, found that defendants owed $5.23 to plaintiff.
In granting plaintiffs motion for attorney fees under § 1988, the court stated that it had not considered the issues on which plaintiff had not prevailed. Also, plaintiff had presented actual costs totalling $7,815.14, but the trial court granted costs only for the amount of $786.25. The court explained that some of plaintiffs actual costs had been for docket fees, deposition expenses, witness expenses and the cost of charts and maps. The court found that these costs were not recoverable under 42 USC 1988.
Plaintiff then moved for reconsideration of the trial judge’s disposition of attorney fees. Two years after the court’s original opinion, the trial judge reversed himself and stated that the policy considerations which were promoted by 42 USC 1988 prohibited defendants from recovering attorney fees, and that § 1988 governed to the exclusion of county or state court rules. The trial court disallowed defendants’ motion for attorney fees and granted plaintiff attorney fees in the amount of $14,667 and costs in the amount of $786.25 for a total of $15,453.25.
Defendants appeal from the order granting plaintiff attorney fees and denying attorney fees to defendants. Plaintiff responds but does not cross-appeal.
I
Did the trial judge abuse his discretion in determining that plaintiff was a "prevailing party” entitled to an award of attorney fees under 42 USC 1988?
Title 42 USC 1988 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as a part of the costs”.
In Hensley v Eckerhart, 461 US 424, 433; 103 S Ct 1933, 1939; 76 L Ed 2d 40, 50 (1983), the United States Supreme Court, citing Nadeau v Helgemoe, 581 F2d 275, 278-279 (CA 1, 1978), held that "plaintiffs may be considered 'prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit”. The Supreme Court characterized this standard as a "generous formulation”.
In the instant case, the jury found one of the eight defendants liable on one of the three counts. The defendnat who was found liable on the civil rights count appears to have been the defendant most responsible for the alleged assault on plaintiff.
On appeal, the trial court’s determination of whether or not plaintiff "prevailed” may be overturned only if this Court finds that the trial judge abused his discretion. Reichenberger v Pritchard, 660 F2d 280, 288 (CA 7, 1981). Because the jury did find plaintiff’s civil rights had been violated by one defendant, and because the Supreme Court has adopted a "generous formulation” of the term "prevailing party” under 42 USC 1988, we cannot say that the trial court abused its discretion in finding plaintiff a "prevailing party”.
II
Was the amount of attorney fees awarded pursuant to 42 USC 1988 reasonable?
The amount of an attorney fee must be determined on the facts of each case. The starting point for determining a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley, 461 US 433. In the instant case, there is no dispute as to the hours expended or the hourly rate.
Next, the level of a plaintiff’s success is relevant to the amount of fees to be awarded. In Hensley, supra, 461 US 434, the Court explained:
"This factor is particularly crucial where a plaintiff is deemed 'prevailing’ even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?” (Footnote omitted; emphasis added.)
In regard to the first question, the Supreme Court wrote:
"In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants — often an institution and its officers, as in this case — counsel’s work on one claim will be unrelated to his work on another claim.
* * *
"In other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id., pp 434-435.
Since the instant case involved common core facts and related legal theories, the suit cannot be viewed as a series of discrete claims. In awarding attorney fees the trial judge stated that he did not consider any issue upon which plaintiff did not prevail. Therefore, we focus upon the second inquiry, "the significance of the overall relief obtained”. Id., p 435.
In the instant case, plaintiff brought three related counts against eight defendants and prevailed only upon the count specifically addressing the civil rights violation and then against only one defendant. Plaintiff was awarded $1 in damages. Because the relief that plaintiff obtained was slight, the fee award in the instant case should have been limited. Id., pp 436, 438, fn 14. Because the opinion and order of the trial court did not consider the significance of the results achieved by plaintiff, we remand to the trial court for a determination of the reasonableness of the attorney award in light of Hensley.
Ill
Should a local court rule which allows a party to collect costs and attorney fees incurred after mediation be enforced in favor of defendants?
Fee awards are authorized by 42 USC 1988 in order to encourage public interest and civil rights litigation by private individuals. A prevailing plaintiff should ordinarily recover an attorney fee unless special circumstances would make such an award unjust. On the other hand, a prevailing defendant in a civil rights case may recover attorney fees only if the trial court, in its discretion, determines that the suit was vexatious, frivolous or brought to harass. Hensley, supra, 461 US 429, fn 2.
We agree with the trial judge that the instant suit cannot be viewed as frivolous. Accordingly, the trial court did not abuse its discretion in denying defendant attorney fees under 42 US 1988.
Defendants also contend they were entitled to receive attorney fees pursuant to Genesee County Court Rule 29, which concerns mediation and provides in pertinent part:
"In the event both parties reject the evaluation of the mediation board and the judgment or verdict is within 10 percent above or below the mediation board’s evaluation, each party shall be responsible for his own costs from the date of mediation. Should the verdict or judgment be more than 10 percent above the evaluation of the mediation board, the Defendant shall be taxed actual costs, and should the verdict or judgment be more than 10 percent below the evaluation of the mediation board, the Plaintiff shall be taxed actual costs.”
Prior to trial in this case, a mediation panel assessed the value of plaintiff’s claim at $7,500. Both parties rejected the mediation evaluation. Since the verdict was "more than 10 percent below the evaluation of the mediation board”, if the court rule is applied, plaintiff is required to pay actual costs. Rule 29.14 of the relevant local court rule defines "actual costs” to "include those costs and fees taxable in any civil action, and in addition, an attorney fee at the rate of $350.00 for each day of trial in Circuit Court”.
Thus, the issue here involves the interplay between a federal statute which awards this plaintiff attorney fees and a local court rule which awards them to the defendants. The trial judge reversed his initial decision that offset the fee awards against each other, finding that the federal statute had preempted the local court rule. We agree.
The attorney fee award to a prevailing plaintiff under 42 USC 1988 is intended to encourage those deprived of their civil rights to seek legal redress as well as to ensure victims of discrimination access to the courts. Hensley, supra. The right to attorney fees created by 42 USC 1988, while procedural for some purposes, is designed to achieve a substantive objective — compliance with the civil rights laws. Chesny v Marek, 720 F2d 474, 479 (CA 7, 1983).
The local court rule involved in this case is similar to the mediation rules under the General Court Rules, GCR 1963, 316.7, 3.16.8. See MCR 2.403(0). In Maple Hill Apartment Co v Stine, 131 Mich App 371, 375; 346 NW2d 555 (1984), our Court, while recognizing that the line of demarcation between substantive and procedural rules is not easy to resolve, found that the provision for the award of costs, GCR 1963, 316.8, "may reasonably be classified as 'procedural’ in nature”. The policy underlying the rule is to place the burden of litigation costs upon the party who insists upon a trial by rejecting a proposed mediation award. 131 Mich App 376.
We think that the effectiveness of 42 USC 1988 would be undermined if the rejection of a mediation award that turned out to be more favorable than the judgment the plaintiff eventually received prevented the plaintiff from getting an award of attorney fees. Chesny, supra, p 478.
This is not a situation where defendants may recover attorney fees in defending the counts which did not allege civil rights violations, because the record before us does not indicate that the counts are so distinct that in actuality there were two or three different lawsuits. In sum, because all the counts in the instant case involve a common core of facts and related legal theories and because Congress through 42 USC 1988 has expressed a desire to encourage private enforcement of civil rights, we conclude that the local court rule upon which defendants rely has been preempted and, therefore, defendants are not entitled to recover attorney fees.
IV
Should a plaintiff who has been awarded $1 in damages be allowed to collect costs in disregard of GCR 1963, 526.6?
GCR 1963, 526.6 provides:
"Costs in Certain Trivial Actions in Circuit Court. In any action brought in the Circuit Court for damages in contract or tort, if the plaintiff recovers less than 100 dollars, unless his claim is reduced below 100 dollars by counterclaim, he shall recover no more cost than damages.”
Defendants have not cited, nor are we aware of, any case which holds that a civil rights action under § 1988 is a tort for purposes of GCR 1963, 526.6. Moreover, in the instant case, plaintiff presented actual costs to the trial court totaling $7,815.14. The trial judge allowed only $768.25, or approximately 10% of these costs, in reliance upon Northcross v Bd of Ed of Memphis City Schools, 611 F2d 624 (CA 6, 1979). Thus, the only costs that were allowed were those expenses "included in the concept of attorney’s fees as 'incidental and necessary expenses incurred in furnishing effective and competent representation,’ and thus are authorized by section 1988”. Id., p 639. The over $7,000 in costs which were not allowed were "those costs incurred by a party to be paid to a third party, not the attorney for the case, which cannot reasonably be considered to be attorney’s fees”. Id.
Therefore, the costs which defendants now contest are in actuality part of the attorney fee award which we have addressed in our discussion of the previous issues.
Remanded.
R. M. Maher, J., concurred.
At trial, Sheriff O’Brien testified that Safford was disciplined because he falsely certified that plaintiff had refused to take a Breathalyzer test. A drunk driving charge against plaintiff was then dismissed because plaintiff never received the opportunity to take the Breathalyzer test. Safford was suspended from work without pay for two weeks because of the incident.
As Justice Brennan wrote in Hensley, supra, pp 57-58:
"In enacting § 1988, Congress rejected the traditional assumption that private choices whether to litigate, compromise, or forgo a potential claim will yield a socially desirable level of enforcement as far as the enumerated civil rights statutes are concerned.
" 'All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.
" 'In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must recover what it costs them to vindicate these rights in court.’ ” (Quoting S Rep No. 94-1011, 94th Cong., 2d Sess, Report 2.) (Footnote omitted.)
The General Court Rules concerning mediation were not adopted until after the mediation award on this case was rejected. | [
-24,
27,
-14,
36,
-20,
-16,
13,
-45,
-52,
47,
29,
-14,
19,
13,
38,
-30,
-14,
-5,
38,
-39,
-49,
-77,
-9,
27,
4,
-5,
-12,
25,
-17,
16,
-37,
36,
-8,
11,
-54,
-11,
-17,
63,
-68,
46,
54,
-37,
48,
-20,
-43,
-8,
42,
-1,
45,
-4,
-38,
-11,
-11,
-2,
5,
44,
59,
21,
-10,
-24,
-7,
2,
-65,
-14,
7,
-54,
-2,
-12,
-12,
-5,
-22,
-37,
-10,
-24,
3,
3,
-43,
-38,
-22,
54,
-26,
-9,
29,
45,
-22,
2,
47,
-54,
35,
7,
-45,
67,
-36,
10,
37,
15,
35,
18,
36,
-15,
-23,
-12,
-5,
36,
0,
-16,
-13,
-50,
3,
16,
-5,
17,
30,
-14,
-29,
-44,
20,
-55,
11,
31,
5,
-16,
43,
23,
20,
35,
7,
-3,
42,
8,
43,
39,
-11,
7,
8,
-46,
-7,
-9,
39,
1,
-2,
-15,
1,
-21,
6,
-2,
34,
-23,
-8,
-11,
1,
46,
1,
19,
-17,
-6,
30,
-43,
-20,
-43,
60,
17,
-53,
-19,
13,
-66,
29,
49,
-7,
-27,
32,
-15,
32,
-34,
37,
21,
9,
-10,
-5,
-10,
-3,
19,
-37,
9,
4,
5,
1,
14,
-26,
26,
64,
-24,
-62,
-49,
44,
3,
59,
24,
-28,
28,
17,
-26,
-11,
-16,
5,
-7,
59,
-85,
10,
-12,
-9,
-4,
1,
-29,
1,
-4,
26,
-3,
-7,
-65,
-63,
4,
-35,
-7,
-16,
-45,
-6,
10,
31,
1,
41,
41,
-25,
3,
-3,
-54,
-3,
-47,
43,
-12,
-46,
-14,
22,
-50,
12,
21,
-45,
0,
-33,
41,
-7,
33,
-26,
21,
-21,
-36,
22,
23,
-50,
-3,
-16,
31,
-37,
-12,
12,
7,
0,
32,
-20,
11,
-16,
-21,
9,
40,
23,
-31,
-33,
6,
22,
13,
-17,
-14,
-8,
20,
-37,
43,
21,
29,
2,
-21,
8,
-2,
-27,
11,
22,
52,
61,
-26,
77,
11,
-44,
-1,
8,
0,
-30,
-78,
-18,
-44,
-78,
17,
-3,
-9,
-18,
31,
52,
-44,
-51,
49,
-1,
-63,
10,
18,
-5,
-58,
-2,
14,
39,
-30,
-30,
11,
-16,
-9,
-38,
-5,
19,
-28,
-23,
10,
20,
-6,
35,
-46,
-19,
11,
24,
34,
-4,
34,
9,
24,
-26,
-14,
3,
28,
-9,
-33,
-34,
18,
-14,
-6,
41,
5,
-1,
-37,
43,
-11,
17,
-28,
-14,
56,
-24,
22,
32,
-52,
-52,
-15,
20,
-22,
7,
49,
-41,
-22,
-2,
-19,
25,
18,
-40,
-79,
-52,
-9,
-47,
-4,
16,
4,
-22,
39,
0,
-47,
17,
27,
-8,
-11,
5,
3,
-48,
-12,
-20,
-9,
-16,
-19,
12,
-26,
14,
-3,
15,
15,
24,
-3,
4,
-20,
31,
-2,
32,
-45,
20,
-35,
2,
26,
14,
17,
-19,
8,
34,
-31,
67,
22,
-23,
-5,
-23,
40,
-19,
7,
-32,
-5,
10,
-38,
-32,
42,
11,
10,
53,
-31,
0,
4,
3,
22,
-8,
-37,
-33,
-21,
8,
-18,
-40,
-14,
47,
-32,
-37,
12,
-1,
12,
24,
10,
4,
12,
-24,
-22,
-19,
-19,
-7,
26,
22,
-13,
-43,
-41,
-11,
25,
22,
-7,
-37,
-41,
0,
20,
5,
9,
20,
81,
-11,
80,
11,
6,
-37,
25,
-27,
-39,
32,
17,
-8,
-10,
-6,
27,
-32,
41,
33,
6,
-9,
-21,
-15,
13,
-7,
17,
-29,
-45,
-14,
-7,
-38,
-71,
-13,
12,
-5,
12,
16,
26,
24,
-39,
-30,
33,
-53,
-5,
24,
-22,
-15,
24,
-5,
23,
39,
-67,
-45,
3,
61,
9,
72,
-92,
18,
25,
22,
33,
-15,
-66,
29,
-61,
34,
13,
24,
10,
27,
-32,
-20,
8,
36,
-14,
12,
19,
6,
0,
-8,
3,
-21,
37,
-30,
0,
10,
-4,
-13,
8,
21,
-34,
59,
30,
31,
65,
-20,
58,
-60,
16,
-5,
-16,
-22,
-50,
31,
-25,
13,
23,
-3,
11,
36,
-9,
-8,
-17,
11,
-20,
23,
23,
8,
-19,
17,
-6,
23,
-13,
18,
54,
24,
-58,
-8,
-13,
-29,
-6,
15,
-10,
-27,
-7,
28,
-19,
-27,
9,
-22,
59,
-45,
33,
-19,
5,
-22,
-27,
10,
-32,
-15,
-7,
-7,
21,
-47,
-42,
-4,
31,
11,
-83,
-9,
29,
14,
0,
10,
-24,
60,
38,
-66,
42,
-94,
-4,
25,
5,
50,
62,
3,
-22,
19,
26,
9,
-30,
-11,
17,
-24,
30,
15,
5,
-20,
14,
-8,
8,
-22,
24,
-4,
-22,
12,
62,
-7,
13,
33,
-29,
26,
81,
-53,
20,
-9,
-9,
-50,
-24,
11,
49,
-6,
16,
34,
-57,
-21,
8,
-24,
5,
8,
19,
7,
-8,
3,
32,
-4,
-21,
9,
-28,
-25,
-14,
-3,
32,
4,
14,
9,
39,
-14,
55,
-11,
11,
-4,
21,
-31,
-7,
-41,
-36,
19,
-11,
-13,
-1,
43,
4,
-62,
38,
10,
23,
-24,
5,
-45,
43,
20,
-28,
-1,
-29,
61,
38,
-33,
-6,
-17,
-15,
27,
-43,
27,
35,
-13,
40,
2,
-73,
28,
-8,
41,
-33,
-48,
-47,
45,
-18,
2,
-10,
-13,
-39,
53,
-33,
-73,
-6,
26,
-20,
-23,
-24,
21,
-28,
18,
10,
42,
-28,
44,
45,
33,
22,
18,
8,
3,
4,
10,
35,
24,
3,
10,
-25,
-17,
-7,
-7,
13,
-14,
19,
30,
-5,
-24,
27,
7,
-11,
20,
-51,
-23,
-4,
23,
16,
1,
10,
24,
8,
4,
-15,
10,
12,
-11,
-13,
-40,
37,
32,
-3,
-18,
-30,
-21,
-16,
20,
-51,
0,
-16,
-35,
12,
6,
-1,
14,
-15,
12,
20,
0,
-23,
0,
36,
22,
-33,
-19,
19,
10,
11,
12,
21,
-33,
16,
22,
-8,
-6,
-56,
-14,
-7,
-38,
-21,
13,
22,
-7,
-63,
-40,
51,
20,
22,
50,
70,
-22,
-40,
-15,
-4,
58,
-79,
-7,
33,
1,
-4,
56,
-5,
5,
-25,
14,
44,
34,
-2,
9,
-10,
20,
7,
6,
11,
44,
-16,
-4,
7,
1,
-25,
-32,
31,
-2,
-31,
-25,
43,
-4,
-17,
-8,
-36,
9,
19,
-20,
-49,
-10,
-10,
37,
-19,
-10,
1,
-7,
-21,
-52,
38,
-28,
29,
-31,
-28,
66,
15,
-45,
2,
2,
20,
1,
14,
-33,
29,
33,
0,
4,
-3,
14,
17,
-22,
-3,
4,
12,
1,
-46,
-7,
10,
33,
15,
-5,
-1,
-44,
-32,
-9,
14,
12,
12,
-19,
5,
-18,
27,
16,
7,
9,
26,
-11,
2,
-28,
-30,
-38,
-6,
-7,
38,
-19,
13,
33,
-43,
-4,
16,
30,
69,
-25,
1,
32,
-9,
-11,
44,
19,
-29,
-31,
-25,
24,
35,
50,
22
] |
W. J. Caprathe, J.
The City of Detroit, on behalf of Detroit General Hospital, appeals by leave granted from a Wayne County Circuit Court order denying its motion to set aside a default enterd against Detroit General Hosptial, which the city owned and operated. The city raises two issues. The first concerns the court’s refusal to set aside the default. The city claims that the trial court should have set aside the default on three grounds: (1) that the court lacks personal jurisdiction over the city due to defective service, (2) that the default was not entered against the proper legal entity, and (3) that plaintiff failed to obtain leave to file the amended complaint which alleged a cause of action against the hospital. We find that the court was not required to set aside the default for any of these reasons. However, we find that the confusion plaintiff caused by serving the complaint upon the hospital rather than the city and by failing to name either the city or the hospital in the caption of the third amended complaint created an irregularity in the proceedings. This irregularity, in conjunction with plaintiff’s offer to set aside the default and proceed to trial on the merits, amounts to good cause for setting aside the default. We thus reverse the circuit court’s refusal to do so.
The second issue raised by the city concerns its motion for accelerated judgment. The city claims it was entitled to accelerated judgment because the statutory period of limitation on the action against the hospital had expired at the time the hospital was served with process. We find that, since service of process was proper, the city was not entitled to accelerated judgment and, thus, we remand this case for trial on the merits.
Kathleen A. Tucker, as administratrix of the estate of Edward J. Tucker, sued defendant Edward Eckel Eaton in September of 1980 for assault and battery. Allegedly, Eaton stabbed Tucker while the two were drinking at the Whistle Stop Bar in December of 1978. Tucker died in January of 1979, following hospitalization at Detroit General Hospital. Without obtaining leave of the court, plaintiff filed a second amended complaint on January 5, 1981, adding a medical malpractice claim against the hospital. A copy of the second amended complaint was served on Ella Alston, the secretary to the hospital controller, on January 28, 1981.
In June of 1981, an order was entered authorizing a third amended complaint naming Kathleen A. Tucker as plaintiff not only in her capacity as administratrix of decedent’s estate, but also, individually, and as next friend of the decedent’s child, Edward W. Tucker. The case caption on that complaint failed to name the hospital as one of the defendants. However, the malpractice claim against the hospital was incorporated by reference to the second amended complaint._
A default was entered against the hospital in May of 1982. Also in May of 1982, plaintiffs attorney mailed a letter to City of Detroit attorney Mercedes Mueckenhein, advising her that the hospital had been served in January of 1981 and no answer had been filed. Plaintiff’s counsel offered to stipulate to setting aside the default entered against the hospital if the city would file an answer. In July of 1982, copies of the second amended complaint and summons were sent to the city’s law department. Copies of the second amended complaint and summons were mailed to the city’s present counsel in September of 1982. The city filed motions on behalf of the hospital to set aside the default, quash service of process, and quash the second amended complaint.
The lower court held two hearings, both of which were adjourned for further discovery and research. By August of 1983, when a third hearing was held, the city had filed a motion for accelerated judgment, claiming that it was never served with a summons and complaint, that no leave to amend had ever been obtained for the second amended complaint, that the default should be set aside, and that the státutory period of limitation had expired. The lower court declined to set aside the default. In light of that ruling, it did not rule on the city’s other motions. Since we are remanding this case for trial, we will address all of the city’s contentions to avoid further delay.
I. Setting Aside Default
We first turn to the city’s assertion that the trial court erred in refusing to set aside the default. We agree that the default should be set aside, but on grounds other than the three offered by the city.
GCR 1963, 520.4 contained the requirements for setting aside a default. It provided, in pertinent part:
"4. Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 528. * * * A proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.”
The city first claims that the trial court should have set aside the default on the ground that it lacked in personam jurisdiction over the city because service of process was not made in accordance with the court rule. Plaintiff counters that service on the hospital’s administrative personnel was sufficient to give the court personal jurisdiction over the city because the city had an established and customary practice of accepting service which had been made upon administrative personnel at the hospital. Therefore, plaintiff argues, the trial court did not err in refusing to set aside the default on that ground. We agree with the plaintiff.
GCR 1963, 105.6 prescribed the method of service of process on cities:
"Service of process upon public, quasi-municipal, or governmental corporations, unincorporated boards, or public bodies, may be made by leaving a summons and a copy of the complaint with
"(2) the mayor, city clerk, or city attorney, in the case of cities; * * *.”
In Brooke v Brooke, 272 Mich 627; 262 NW 426 (1935), our Supreme Court construed 1929 CL 14098 (now MCL 600.1925; MSA 27A.1925), which is the basic source statute for GCR 1963, 105.6, and held that the word "may” is permissive as to the mayor or city clerk or city attorney, but is mandatory in that it designates those upon whom service may be made and no other. 272 Mich 629-630. The statute and the court rule contain identical language, i.e., they both use the work "may,” which, under Brooke, must thus be construed as mandatory.
In the instant case, a summons and complaint were served upon Ella Alston, secretary to the controller at the hospital. Thus, service was not effecutated in accordance with the court rule. We recognize that due process requires proper service of process in order to obtain in personam jurisdiction over a defendant. Fulton v Citizens Mutual Ins Co, 62 Mich App 600, 604; 233 NW2d 820 (1975). Nonetheless, we find that plaintiff’s failure to serve the city in the manner required by the court rule was not fatal, because service in this case falls within an exception to that rule. The exception is that a defendant who has established a systematic alternative method of accepting service of process is estopped from asserting that service in accordance with that method was improper. This exception was recognized in dicta in Fulton, supra:
"Plaintiff contends that the defendant has established a systematic method of accepting service of process through its receptionist-telephone operator and has led the public in general and process servers in particular to believe that valid service is accomplished by leaving the specific documents in the possession of this agent of the defendant. There was insufficient time to conduct discovery to determine whether the switchboard operator actually had the authority to accept service. Substantiating this allegation, however, is the fact that the defendant in the instant case was also the defendant in Guastello, [v Citizens Mutual Ins Co, 11 Mich App 120; 160 NW2d 725 (1968)] and there it was also represented by counsel that 'an employee’ of the company accepted service.” 62 Mich App 606-607.
Plaintiff in the present case cites at least 13 instances since 1975 wherein the hospital was named as a defendant and service of process was made and accepted by administrative personnel at the hospital. Plaintiff claims that 11 of these 13 cases were defended on the merits. We also note that there was evidence in the present case that the hospital received and accepted numerous subpoenas for medical records which were served upon administrative personnel. This further buttresses plaintiff’s argument that the city established a systematic alternative method of accepting service, both as to the service of summons and complaints and the service of subpoenas for medical records. Because of this established system of accepting service, we find that the city is estopped from asserting that service on administrative personnel at the hospital was improper. We thus conclude that the court had in personam jurisdiction over the city. See Dogan v Michigan Basic Property Ins Ass’n, 130 Mich App 313, 318; 343 NW2d 532 (1983). Thus, the court did not err in refusing to set aside the default on that ground.
The city next claims that the trial court should have set aside the default because it was not entered against the proper legal entity. Apparently the hospital, which is no longer in operation, was not a separate corporate entity from the city, which owned and operated it. We find, however, that naming the hospital as a defendant, and subsequently entering a default against it, rather than the city, is a mere misnomer which may be corrected by amendment. Wells v Detroit News, Inc, 360 Mich 634, 641; 104 NW2d 767 (1960); Bensinger v Reid, 17 Mich App 219, 223-224; 169 NW2d 361 (1969). The city has not been misled or substantially prejudiced by this misnomer, in view of the fact that it had adopted an alternative method of accepting service at the hospital and that plaintiff gave it the opportunity to set aside the default and defend on the merits. Thus, this misnomer was insufficient cause to require the court to set aside the default. The trial court shall allow amendment of the pleadings to name the proper defendant.
The city lastly claims that the trial court should have set aside the default because plaintiff’s second amended complaint was rendered invalid by her failure to obtain leave of court to amend the complaint, as required by GCR 1963, 118.1. This is a question of first impression in Michigan. The city claims that plaintiff’s failure to obtain leave of court to file the second amended complaint led it to believe that no suit was pending against it, as the third amended complaint, for which leave was granted, did not name either the city or the hospital in the case caption. Although plaintiff should have obtained leave to file the second amended complaint, the city has not been prejudiced or misled by this failure to do so. Thus, we find that plaintiffs failure to obtain leave to file the second amended complaint was not fatal and did not amount to good cause sufficient to require the court to set aside the default. GCR 1963, 118.1 provided that leave shall be freely given when justice so requires. In the absence of prejudice, leave to amend is a litigant’s right. Ben P Fyke & Sons, Inc v Gunter Co, 390 Mich 649, 657-658; 213 NW2d 134 (1973). Given that the city has failed to establish prejudice which would prevent a fair trial on the merits, we uphold the validity of the second amended complaint. Leave to amend the complaint is, therefore, granted nunc pro tunc.
Although we reject the grounds advanced by the city, we nevertheless believe that good cause to set aside the default has been shown in the instant case. Plaintiff created a great deal of confusion by serving the city at the hospital and by failing to name either the city or the hospital in the case caption on the third amended complaint. We find that this amounted to an irregularity in the proceedings which explains the city’s initial failure to answer. We do not believe plaintiff will be prejudiced by our finding that good cause was shown, as plaintiff made an offer to the city, which has never been withdrawn and which was reiterated at oral argument, to set aside the default should the city agree to defend on the merits. This also relieves the city of complying with the requirement of filing an affidavit showing a meritorious defense. Therefore, we remand this matter for trial on the merits.
II. Accelerated Judgment
The city also asserts that it is entitled to accelerated judgment under GCR 1963, 116.1(5) because plaintiff failed to properly serve it with process until July of 1982. Inasmuch as we have held that service on the hospital controller’s secretary on January 28, 1981, was adequate to confer personal jurisdiction over the city, and as the city does not contend that proper service on that date fails to comply with the statute of limitations as extended by MCL 600.5852; MSA 27A.5852, accelerated judgment based on the expiration of the statute of limitations would have been improper.
Reversed and remanded for trial on the merits.
ln December of 1980, plaintiff filed a first amended complaint adding a dramshop claim against both Helen’s Transportation Bar and the Whistle Stop Bar.
The Brooke Court did not face the factual situation presented in the instant case, where a systematic alternative method of service had been established. That Court utilized a rule of construction wherein the word "may” should be construed to mean "shall,” and vice-versa, to effectuate legislative intent.
The facts in this case are even stronger than those in Wells, given that in the instant case, defendant hospital and the city were not separate and distinct legal entities but, rather, were the same legal entity. In Wells, the Court noted that where no one has been misled in any manner by a misnomer, amendment should be permitted. 360 Mich 641. | [
-63,
14,
1,
9,
-20,
-28,
10,
-54,
-9,
20,
0,
-1,
15,
3,
5,
20,
-42,
-11,
-43,
6,
-10,
-5,
-39,
1,
0,
16,
38,
-55,
6,
-27,
-22,
-29,
-8,
43,
-19,
-20,
2,
-22,
32,
22,
-16,
-23,
5,
-23,
-30,
9,
7,
28,
28,
-41,
-17,
50,
-25,
20,
-51,
-32,
-4,
-3,
-4,
3,
-7,
-3,
-2,
-42,
-5,
46,
-3,
20,
-24,
-6,
-17,
1,
-9,
-27,
12,
-35,
22,
-29,
3,
-21,
31,
3,
4,
7,
13,
6,
35,
23,
-18,
-2,
-7,
-5,
-20,
12,
-1,
44,
-17,
-33,
20,
-20,
-24,
56,
-34,
23,
14,
19,
25,
-64,
-32,
-8,
-2,
19,
-3,
-2,
-5,
13,
13,
19,
17,
32,
16,
-28,
45,
-11,
41,
30,
31,
9,
17,
5,
-8,
22,
21,
-14,
-6,
6,
-4,
5,
2,
38,
-1,
11,
43,
-9,
25,
13,
15,
27,
54,
-20,
15,
27,
34,
54,
11,
15,
-52,
-4,
-35,
16,
18,
-18,
4,
3,
-29,
-17,
-39,
68,
21,
25,
-4,
7,
16,
-12,
-32,
42,
-46,
8,
-56,
-8,
-25,
-6,
-11,
-39,
59,
-28,
53,
-50,
-7,
-18,
-10,
-35,
-36,
23,
7,
23,
29,
14,
3,
23,
26,
-29,
-35,
4,
20,
-22,
12,
0,
26,
4,
7,
8,
-22,
23,
46,
-10,
46,
-82,
-30,
27,
-27,
13,
4,
-19,
6,
49,
-8,
-34,
-11,
-25,
19,
-6,
2,
47,
6,
-18,
61,
40,
31,
15,
-5,
60,
24,
6,
-50,
15,
-10,
-41,
-32,
-1,
20,
-7,
-12,
4,
-25,
-17,
-31,
-20,
0,
23,
40,
47,
-40,
14,
-4,
56,
-23,
-9,
41,
-74,
-7,
16,
4,
-26,
-4,
-30,
15,
0,
42,
39,
-23,
-20,
-18,
40,
0,
45,
-13,
26,
-9,
62,
2,
2,
-30,
28,
9,
24,
22,
-33,
2,
2,
-35,
64,
37,
19,
-19,
-10,
-73,
57,
42,
-18,
43,
17,
-25,
17,
48,
-52,
24,
-15,
11,
-18,
7,
45,
-48,
12,
-51,
-5,
-18,
-17,
-26,
-32,
2,
22,
-12,
-10,
-28,
-19,
-25,
19,
-13,
5,
26,
13,
-26,
-13,
-7,
3,
13,
-63,
-9,
-4,
-11,
-1,
16,
-12,
-12,
17,
-3,
-19,
-27,
50,
-7,
-6,
-47,
15,
-24,
-44,
-17,
23,
56,
63,
4,
-9,
-39,
-40,
-51,
16,
11,
-20,
14,
25,
32,
-48,
-2,
28,
19,
3,
9,
30,
42,
43,
-27,
15,
7,
-1,
-18,
3,
-12,
31,
-22,
-16,
12,
17,
-10,
50,
11,
-36,
-21,
-17,
4,
36,
-11,
-8,
19,
19,
-43,
33,
-13,
-17,
39,
-22,
-12,
32,
-5,
-37,
0,
3,
24,
-15,
13,
-22,
14,
-2,
-3,
-35,
38,
42,
-72,
-62,
-5,
-7,
1,
-20,
16,
-17,
0,
12,
24,
4,
-24,
55,
18,
53,
33,
18,
-52,
-1,
-16,
0,
-20,
-32,
50,
-84,
-6,
8,
1,
-7,
-14,
44,
-17,
7,
-13,
-9,
5,
-39,
0,
4,
-9,
8,
-15,
-12,
-20,
-2,
-3,
-6,
-4,
49,
-9,
-22,
-12,
25,
12,
2,
-59,
-14,
10,
23,
-2,
-8,
-7,
-9,
-11,
-22,
-53,
-11,
32,
-57,
-23,
-65,
-22,
-5,
-44,
6,
23,
70,
47,
25,
40,
-11,
39,
-29,
0,
21,
-14,
-26,
-20,
9,
-7,
-2,
-6,
-72,
29,
-7,
7,
-43,
-17,
-13,
-63,
-7,
-32,
-14,
8,
36,
8,
33,
10,
-42,
4,
10,
38,
10,
-26,
-32,
-33,
-22,
24,
11,
-34,
-3,
16,
23,
-21,
28,
7,
30,
3,
21,
-8,
-50,
-5,
-16,
-9,
26,
-2,
2,
-10,
-8,
-22,
-11,
-34,
-43,
-48,
0,
-44,
-5,
-4,
-31,
0,
-9,
-16,
4,
-24,
-8,
19,
-30,
68,
40,
0,
-8,
53,
9,
-2,
-7,
14,
12,
-37,
-4,
-28,
-19,
-9,
-49,
16,
12,
-59,
-12,
-34,
-5,
-3,
22,
8,
59,
0,
15,
6,
32,
-49,
-37,
50,
-36,
-6,
-18,
26,
-3,
32,
10,
3,
-18,
37,
23,
0,
41,
-41,
33,
29,
-16,
0,
53,
2,
0,
4,
0,
-31,
60,
-5,
20,
1,
-5,
9,
-31,
0,
-57,
-17,
18,
-10,
30,
45,
20,
26,
-11,
21,
-34,
31,
53,
20,
12,
28,
-33,
-14,
2,
28,
-7,
-55,
62,
-23,
9,
-30,
-42,
-41,
11,
3,
23,
1,
0,
-2,
-1,
46,
-2,
17,
74,
11,
0,
5,
23,
28,
35,
17,
0,
16,
31,
-31,
-56,
37,
-28,
-21,
-32,
28,
10,
29,
2,
31,
10,
-12,
-13,
-19,
-30,
30,
11,
-27,
-21,
-16,
-46,
3,
-64,
16,
36,
-44,
-40,
-42,
-24,
-52,
1,
32,
28,
-7,
27,
-33,
-25,
35,
9,
-19,
1,
20,
10,
-22,
9,
-21,
-8,
12,
7,
-27,
6,
10,
-44,
43,
22,
-14,
-51,
27,
58,
-11,
18,
5,
20,
26,
-56,
-3,
20,
-7,
-68,
-17,
-1,
5,
-10,
18,
19,
-9,
-13,
7,
22,
-39,
-26,
13,
-84,
-44,
-41,
43,
10,
20,
-27,
-1,
-5,
34,
51,
51,
-19,
-9,
-26,
-38,
47,
-7,
2,
-5,
-4,
13,
12,
-20,
-56,
-30,
21,
-14,
-2,
0,
-15,
4,
0,
-7,
-7,
-22,
10,
35,
40,
-1,
26,
30,
8,
0,
7,
16,
24,
16,
-11,
-11,
-28,
-30,
33,
-11,
-8,
12,
7,
15,
60,
-36,
-10,
1,
20,
42,
-40,
-20,
-25,
-1,
-26,
34,
36,
-32,
-28,
-31,
34,
-56,
-25,
20,
0,
-16,
14,
-2,
10,
-46,
0,
-4,
-10,
18,
-67,
13,
-8,
-4,
17,
-6,
-7,
15,
21,
-40,
26,
34,
32,
-46,
-2,
6,
9,
-45,
-7,
63,
-40,
-5,
-53,
38,
-8,
-48,
24,
-36,
-29,
-61,
23,
-41,
-4,
-21,
7,
-18,
48,
-32,
-2,
-23,
-11,
-24,
-24,
32,
-35,
-22,
-37,
27,
17,
12,
40,
-1,
-10,
-49,
31,
30,
-56,
23,
-9,
6,
-13,
10,
33,
21,
-12,
-3,
9,
6,
0,
-1,
36,
12,
-26,
39,
2,
10,
65,
2,
-63,
-13,
12,
-15,
-30,
-15,
-5,
64,
-4,
-43,
-33,
11,
-27,
-25,
-12,
29,
-1,
-18,
-12,
-25,
28,
26,
0,
11,
2,
7,
16,
-27,
0,
27,
-14,
-57,
1,
7,
-1,
-38,
5,
19,
25,
21,
1,
0,
28,
48,
33,
22,
36,
18,
-37,
38,
-28,
5,
22,
19,
30,
15,
24,
-33,
-16,
-24,
1,
-3,
-2,
23,
-22,
-51,
30
] |
D. E. Holbrook, Jr., P.J.
This action arises from a wrongful death action filed by the administrator of the estate of Timothy Kirk against Ford Motor Company alleging that the negligent design and placement of the gas tank resulted in fatal burn injuries when the automobile which Timothy Kirk was driving was involved in an accident. After a two-month jury trial, a verdict of $3,500,000 was returned in favor of plaintiff. Since the jury also found decedent to be ten percent negligent, the award was reduced to $3,150,000. Defendant is appealing as of right and alleges that numerous errors in the admission and exclusion of evidence and arguments of plaintiffs counsel require reversal.
Defendant first argues that it should have been allowed to utilize a jury instruction which stated in part that:
"If you find that a reasonably prudent driver would have used a seat belt, and that he would not have received some or all of his injuries had he used the seat belt, then you may not award any damages for those injuries you find he would not have received had he used the seat belt. The burden of proving that some or all of Mr. Kirk’s injuries would not have been received had he used the seat belt rests upon the defendant.
"Therefore, if you find that the decedent was negliegent for not using the seat belt and if you find that plaintiffs decedent’s non-use of a seat belt contributed as a proximate cause to his death you will consider this non-use of the seat belt as comparative negligence on the part of plaintiffs decedent.”
Extensive argument and briefs have been filed with this Court regarding this instruction. While the instant case has been pending before this Court, other panels have held that the seat belt defense was not available in Michigan. Schmitzer v Misener-Bennett Ford, Inc, 135 Mich App 350, 358-360; 354 NW2d 336 (1984), and DeGraaf v General Motors Corp, 135 Mich App 141; 352 NW2d 719 (1984). We are aware that the Legislature has recently required the use of seat belts and provided for a limited mitigation of damages for the failure to wear seat belts. 1985 PA 1, MCL 257.710e et seq.; MSA 9.2410(5) et seq., effective July 1, 1985. However, this legislation is not retroactive. As the accident and trial occurred long before the effective date of the passage of this act, we do not find the new legislation to be controlling. Accordingly, for accidents that occurred prior to July, 1985,
"We conclude that under our system of comparative negligence, evidence of a plaintiffs failure to use a seat belt is not admissible as evidence of plaintiff’s contributory negligence or of plaintiff’s failure to mitigate damages.” Schmitzer, supra, pp 359-360.
Thus we find no eror in the trial court’s refusal to give a jury instruction regarding the seat belt defense at the time of the trial.
Defendant contends that the trial court abused its discretion in admitting into evidence proposed government standards of crashworthiness that were never adopted. As the standards were not in effect at the time of the accident, defendant states that MCL 600.2946; MSA 27A.2946 prohibits their admission. Without deciding the merits of that particular argument, we hold that that statute only applies when such evidence is offered for the purpose of proving liability. These standards were not introducted to show that defendant was liable for failure to comply with them, rather they are relevant to show why, after testing and design of vehicles which would meet these standards, defendant abandoned its attempt at providing a safer over-the-axle fuel tank location. The proposed standards were not admitted as exhibits.
We find that this evidence was relevant and therefore was admissible.
"This Court will not reverse a trial judge’s determination that the prejudicial effect of evidence outweighs its probative value or his decision that certain proffered evidence is not relevant unless we are convinced that the judge’s rulings in these matters amount to an abuse of discretion. See Aetna Life Ins Co v Brooks, 96 Mich App 310; 292 NW2d 532 (1980), Jarecki v Ford Motor Co, 65 Mich App 78; 237 NW2d 191 (1975).” Keefer v C R Bard, Inc, 110 Mich App 563, 568; 313 NW2d 151 (1981).
Ford argues that the introduction of evidence regarding defects which were not related to the particular cause of the accident constituted error. We disagree. This action was based on plaintiffs claim that the fuel tank design was defective. As defendant had no duty to produce a crash-proof automobile, Rutherford v Chrysler Motors Corp, 60 Mich App 392; 231 NW2d 413 (1975), and Dayhuff v General Motors Corp, 103 Mich App 177, 181; 303 NW2d 179 (1981), lv den 412 Mich 914 (1982), it was imperative that plaintiff demonstrate that this was not the only circumstance in which the fuel system design would result in injury or death. Additionally, the design of the auto as a whole had to be ascertained. We find no error in the trial court’s decision. Muniga v General Motors Corp, 102 Mich App 755, 761; 302 NW2d 565 (1980).
Defendant contends that the crash-test evidence, consisting of reports, films and photos, was inadmissible because plaintiff did not prove that the tests were conducted under conditions substantially similar to those involved in the accident.
"In order for results obtained in out-of-court experiments to be admissible in evidence, the conditions of the experiment must be sufficiently similar to those involved in the particular case. The decision to admit experimental test results rests within the trial court’s sound discretion.” Przeradski v Rexnord, Inc, 119 Mich App 500, 506; 326 NW2d 541 (1982). (Footnotes omitted.)
However, this evidence did not purport to have been conducted under similar conditions, rather it was to illustrate certain general principles.
"Where motion pictures are offered to recreate the scene of an accident, they are not admissible unless they portray conditions almost identical to those prevailing at the time of the accident itself. Green v General Motors Corp, 104 Mich App 447, 449; 304 NW2d 600 (1981). On the other hand, where a film is not offered for the purpose of duplicating or recreating an accident, but instead merely to illustrate certain general principles, differences in surrounding conditions are less relevant and do not require the film’s exclusion. Id.” Gorelick v Dep’t of State Highways, 127 Mich App 324, 336; 339 NW2d 635 (1983).
Plaintiff was attempting to illustrate the vulnerability of under-the-floor fuel tanks in rear-end collisions and to establish defendant’s negligence in the design. Since this evidence showed generalities rather than a specific instance, we find no error in its admission.
"As a general rule, a trial court has broad discretion in ruling on the relevancy of evidence submitted at trial, Wilson v W A Foote Memorial Hospital, 91 Mich App 90, 96-97; 284 NW2d 126 (1979), Orquist v Montgomery Ward, 37 Mich App 36, 41; 194 NW2d 392 (1971). This Court will not reverse a trial court’s decision absent an abuse of discretion. Wilson, supra, 97.” Muniga, supra, p 761.
Defendant has made a blanket objection to the admission of documents given by Ford to plaintiff pursuant to a discovery order, on the grounds that $hey are hearsay. These documents are numerous, yet defendant has argued in this appeal its objections as to the documents without specificity. Specific objections to specific documents must be raised by counsel via appellate brief for us to consider such objections. It is for counsel to point out specific errors to this Court. Couple-Gear Freight Wheel Co v Lake Shore & M S R Co, 196 Mich 429, 433-434; 163 NW 25 (1917). "Failure to object specifically and for proper reasons to the admission of evidence precludes appellate review unless there is manifest injustice.” George v Travelers Indemnity Co, 81 Mich App 106, 116; 265 NW2d 59 (1978).
Ford alleges that the trial court abused its discretion in permitting rebuttal testimony. Our review of the record reveals that decedent’s contributory negligence was at issue. Defendant introduced evidence and testimony to show that decedent was at fault for the accident. Plaintiff then produced a rebuttal witness to testify that steering problems were common to the type of car in question and to introduce the psossibility of a defect as the cause of the accident.
"The rule of rebuttal evidence is stated in People v Utter, 217 Mich 74, 83; 185 NW 830, 833-834 (1921):
" 'Rebuttal evidence is broadly defined as that given by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. In paractical application the line of demarcation between rebuttal evidence and that which should properly be given in chief before the prosecution rests is frequently more or less obscure, and it is a general rule that whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court.’
"See also Litle v Grieve, 25 Mich App 107; 181 NW2d 5 (1970); Gonzalez v Hoffman, 9 Mich App 522; 157 NW2d 475 (1968).” Barrows v Grand Rapids Real Estate Board, 51 Mich App 75, 97; 214 NW2d 532 (1974).
While this testimony might have been more properly presented in plaintiff’s case in chief, we cannot say that the trial court abused its discretion in permitting such testimony. As the jury did deduct ten percent of the award for decedent’s negligence, we believe any error was harmless, GCR 1963, 529.1, and that no manifest injustice occurred.
Defendant addditionally contends that its motion for remittitur or for a new trial should have been granted as the damage award was excessive, contained punitive damages, and was influenced by passion, prejudice and sympathy as well as being enhanced by errors in the proceedings. We do not agree.
The decedent’s siblings are entitled to damages for loss of companionship even when the person is survived by parents or a spouse. Crystal v Hubbard, 414 Mich 297; 324 NW2d 869 (1982).
Defendant in the instant case has argued as did the defendant in May v Grosse Pointe Park, 122 Mich App 295, 297; 332 NW2d 411 (1982):
"On appeal, defendant first alleges that the verdict was excessive and influenced by passion or prejudice and that the trial judge abused his discretion in denying the motion for new trial or remittitur. The appropriate standard of review is the 'shock the judicial conscience’ standard. Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981). If the amount awarded does not 'shock the judicial conscience’, the trial judge has not abused his discretion in denying the motion for a new trial or remittitur.”
This Court went on to say that:
"The wrongful death act provides for compensation for the loss of society and companionship. Bradfield v Estate of Burgess, 62 Mich App 345, 350-351; 233 NW2d 541, 544 (1975). Just as no marketplace formula exists to mathematically calculate pain and suffering, no precise formula exists for the loss of society and companionship. Those determinations are for the jury, and a reviewing court will not arbitrarily substitute its judgment for that of the factfinder. Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914, 918 (1942). Furthermore, placing a monetary value on a human life is at best a nebulous decision-making process which does not lead itself to an exacting type of review.” May, supra, p 298.
See also Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977), lv den 402 Mich 867 (1978). The amount of the jury award of over $3 million for the loss of society and companionship of a 19-year-old son and brother is within the limits of what reasonable minds might deem just compensation. We cannot say that the trial judge abused his discretion.
Defendant has also argued that it was reversible error not to instruct the jury on the income tax consequences of an award. While this allegation may have some merit in federal cases, Michigan law does not require this. The majority view is not to discuss taxes with the jury. Anno., Propriety of Taking Income Tax into Consideration in Fixing Damages in Personal Injury or Death Action, 63 ALR2d 1393, 1408, and Grant v National Acme Co, 351 F Supp 972 (WD Mich, 1972).
"Defendant also specifically objects to the court’s refusal to instruct the jury as to the tax consequences of any damage award. The law is clear that such an instruction is within the trial court’s discretion. Indeed, the majority view apparently favors withholding all reference to income tax consequences.” Grant, supra, p 979.
The trial court was correct in refusing to instruct the jury on exemplary damages. King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984).
Defendant alleges that plaintiff’s counsel improperly inflamed the passions of the jury and attempted to influence the jury to impose punitive damages. Our review of the transcript reveals that defendant did object four times during plaintiff’s closing argument and over 30 allegations of error are listed in its appeal. While defendant did not make a motion for a mistrial or a curative instruction, which is generally required before we will review on appeal, this requirement is not immutable.
"* * * a litigant has no right to appellate review unless he has requested a curative instruction or made a motion for mistrial. Nevertheless, the rule is not an absolute bar to review, for it does not preclude an appellate court from correcting substantial errors which were not preserved in the trial court.
"Our prior cases have clearly stated that incurable errors are not shielded from appellate review because an attorney fails to request what in that case would be a futile instruction.” Reetz v Kinsman Marine Transit Co, 416 Mich 97, 100-101; 330 NW2d 638 (1982). (Footnotes omitted.)
While we agree that plaintiff’s counsel’s remarks were improper, we feel that such error was curable. In the instant case, the trial court gave a sua sponte curative instruction. This instruction was identical to that given in Belue v Uniroyal, Inc, 114 Mich App 589, 596-597; 319 NW2d 369 (1982):
"Any alleged prejudicial effect of the argument in question was further eliminated by the trial court’s instruction to the jury that: 'Arguments, statements, and remarks of attorneys are not evidence, and you should disregard anything said by an attorney which is not supported by the evidence or by your own general knowledge and experience.’ See, e.g., Dalm v Bryant Paper Co, 157 Mich 550; 122 NW 257 (1909).”
We fail to find that any substantial prejudice resulted; any error in the argument was rendered harmless. While defendant may have been entitled to a more specific curative instruction, failure to request it precludes reversal. Kinsman Marine Transit, supra, and Koepel v St Jospeh Hospital, 381 Mich 440; 163 NW2d 222 (1968).
While we agree that awarding damages solely to punish defendant is prohibited in Michigan, Willett v Ford Motor Co, 400 Mich 65; 253 NW2d 111 (1977), we are not convinced that such damages were included in the award. The jury was instructed properly as to what to include in their award and punitive damages were not an element. We will not upset the trial court’s decision on the mere speculation that the trial court disregarded the curative instruction.
Affirmed. Costs to appellee.
Wahls, J., concurred. | [
0,
59,
-22,
-3,
20,
-6,
32,
-11,
8,
-20,
0,
-50,
26,
57,
25,
0,
64,
0,
-26,
-16,
-28,
-43,
-23,
-12,
-25,
-36,
41,
-21,
-30,
-48,
14,
6,
18,
-20,
-22,
11,
1,
13,
-5,
61,
28,
-20,
51,
-52,
10,
-18,
24,
-28,
28,
6,
-14,
-11,
-12,
-24,
18,
33,
53,
21,
-62,
1,
31,
-25,
36,
19,
-47,
-37,
-20,
83,
-63,
50,
-2,
5,
8,
28,
-52,
-15,
0,
27,
13,
6,
-15,
4,
63,
-25,
-9,
-3,
-24,
-20,
-51,
-36,
-51,
-4,
-25,
-26,
10,
-28,
-6,
-29,
-12,
-2,
43,
13,
28,
13,
-22,
27,
0,
-29,
7,
-13,
-8,
24,
-1,
-1,
10,
-23,
13,
21,
45,
53,
-3,
-55,
34,
7,
-7,
14,
65,
-38,
22,
25,
34,
35,
36,
-24,
0,
-20,
17,
-26,
-5,
9,
-8,
62,
2,
17,
58,
29,
27,
-34,
26,
-3,
-31,
111,
-17,
-13,
3,
-65,
-10,
7,
9,
11,
9,
5,
30,
64,
-9,
-41,
5,
32,
18,
-37,
5,
34,
36,
-28,
32,
23,
8,
-1,
-61,
33,
0,
18,
28,
21,
-55,
-24,
62,
39,
-20,
32,
39,
-20,
-31,
0,
-19,
25,
16,
40,
19,
39,
54,
-46,
-4,
-36,
13,
10,
-18,
-58,
16,
-22,
20,
-8,
-25,
-13,
-16,
-10,
13,
-44,
-13,
-67,
6,
-33,
21,
-28,
-17,
17,
-30,
-15,
-41,
-45,
35,
-12,
-4,
-5,
-31,
-38,
-36,
-76,
27,
-17,
59,
-39,
49,
-13,
-13,
-10,
3,
-7,
-37,
-13,
26,
-38,
-2,
-26,
5,
25,
17,
57,
-31,
-2,
-10,
63,
-26,
18,
2,
31,
1,
-29,
-25,
-56,
-39,
-44,
-12,
46,
-15,
-62,
-50,
19,
31,
-10,
6,
11,
2,
-53,
-18,
20,
-15,
32,
-31,
-20,
26,
-50,
13,
-8,
28,
34,
76,
-33,
-23,
10,
41,
32,
5,
16,
10,
-14,
-56,
13,
-61,
51,
-29,
-59,
4,
8,
21,
29,
19,
-34,
59,
-9,
-46,
57,
-29,
-44,
1,
15,
-9,
-8,
-39,
31,
-50,
-42,
-47,
31,
47,
-112,
40,
-6,
-3,
62,
-18,
3,
18,
28,
-9,
-20,
14,
37,
-15,
-13,
12,
43,
17,
13,
-53,
7,
27,
-46,
-12,
6,
1,
-28,
-16,
54,
-8,
-31,
-10,
-6,
-41,
66,
46,
7,
-13,
9,
-23,
-59,
-23,
17,
-25,
60,
-4,
0,
-9,
-68,
-21,
-8,
-29,
-28,
-19,
20,
-42,
-28,
19,
-12,
-58,
20,
-21,
-17,
5,
24,
-27,
31,
-2,
-73,
13,
-31,
24,
17,
-4,
-43,
-4,
1,
76,
-1,
12,
12,
58,
-33,
-41,
-35,
6,
14,
23,
-29,
1,
-52,
0,
43,
-34,
6,
33,
42,
39,
-19,
67,
-16,
-4,
-15,
55,
-9,
-51,
14,
20,
-25,
-9,
-5,
-40,
73,
42,
-37,
36,
22,
21,
-3,
-24,
21,
81,
7,
-17,
-88,
-46,
-38,
19,
-28,
23,
-36,
-45,
-2,
41,
-41,
31,
6,
-28,
9,
17,
-38,
-9,
-27,
-34,
33,
-45,
18,
-34,
-30,
-27,
22,
-23,
-10,
25,
0,
24,
34,
-60,
-14,
-15,
11,
-29,
48,
6,
-9,
-1,
-6,
-39,
0,
37,
-47,
24,
-92,
-51,
-24,
36,
35,
-1,
47,
-35,
0,
-14,
2,
52,
54,
-38,
-19,
-28,
25,
-10,
-15,
2,
-17,
-40,
-4,
22,
29,
-3,
-25,
1,
-20,
-53,
-48,
-50,
-18,
14,
29,
-18,
-53,
10,
-59,
12,
-24,
57,
-1,
-7,
-48,
-19,
-27,
20,
-22,
52,
-22,
0,
-25,
35,
8,
0,
25,
6,
2,
-29,
-60,
48,
3,
-6,
44,
-11,
-47,
-24,
20,
45,
36,
-71,
0,
29,
22,
0,
2,
-42,
-31,
2,
26,
2,
-25,
-28,
38,
9,
18,
22,
20,
23,
-20,
-1,
-54,
-2,
31,
-28,
37,
41,
48,
-47,
-5,
24,
-66,
34,
-21,
-15,
-25,
-26,
-1,
-1,
-45,
19,
23,
-18,
-29,
61,
-7,
6,
22,
22,
-10,
2,
-52,
7,
7,
-23,
-13,
11,
20,
-2,
77,
13,
-60,
-6,
5,
69,
-23,
18,
-35,
-4,
-18,
-45,
-73,
-42,
3,
-51,
16,
-3,
-2,
1,
12,
-32,
12,
33,
-8,
-38,
-7,
-15,
29,
-36,
-12,
26,
39,
36,
-3,
-18,
11,
24,
63,
0,
60,
-7,
50,
-49,
-29,
24,
3,
-31,
7,
-40,
-21,
31,
-63,
4,
50,
-16,
5,
-30,
-32,
-18,
40,
-29,
43,
-21,
3,
-25,
16,
-56,
23,
10,
26,
28,
4,
-14,
85,
11,
4,
-2,
29,
16,
-63,
-18,
-16,
-10,
-63,
-31,
-48,
33,
-6,
-13,
19,
-27,
-35,
10,
-20,
29,
40,
-15,
-4,
81,
7,
16,
-55,
-4,
64,
48,
-18,
-19,
-26,
-9,
49,
87,
-1,
-6,
12,
39,
60,
-23,
-1,
80,
15,
-11,
-12,
24,
-8,
28,
12,
-16,
16,
-17,
40,
19,
-37,
-10,
30,
22,
-7,
-16,
4,
-48,
-30,
-20,
33,
1,
-19,
10,
-31,
-58,
-10,
21,
-53,
-22,
-3,
71,
-3,
-1,
-11,
57,
-8,
12,
13,
-3,
-20,
21,
21,
31,
-34,
-13,
-11,
53,
18,
35,
12,
15,
-43,
17,
18,
57,
-29,
20,
-18,
-69,
28,
73,
11,
-57,
-61,
5,
-15,
15,
-44,
15,
-11,
-30,
-32,
2,
28,
-32,
-7,
27,
-17,
-17,
-34,
30,
35,
-39,
54,
61,
19,
23,
-9,
23,
40,
-29,
-53,
-4,
15,
-23,
-17,
-8,
1,
-28,
12,
5,
-7,
-39,
19,
12,
4,
-1,
-2,
-21,
0,
-20,
-11,
52,
72,
-24,
-3,
24,
16,
3,
31,
18,
8,
15,
31,
-26,
38,
-53,
-39,
-36,
-20,
14,
31,
5,
-24,
-58,
-32,
8,
53,
31,
-82,
-11,
2,
-26,
6,
48,
16,
9,
-4,
-49,
-28,
-18,
-20,
-8,
25,
0,
-7,
-27,
52,
14,
7,
8,
7,
-18,
-22,
-9,
2,
-8,
-32,
-39,
-3,
-38,
9,
-12,
-34,
4,
15,
33,
-18,
18,
-53,
38,
13,
-12,
12,
-37,
-7,
-34,
-31,
-21,
28,
56,
0,
-2,
60,
-1,
-5,
-2,
11,
1,
49,
-11,
44,
24,
27,
46,
-21,
-27,
-27,
-12,
44,
24,
23,
-33,
-7,
22,
-5,
19,
15,
-70,
-52,
-15,
27,
-17,
-6,
-4,
-10,
-6,
-15,
-53,
4,
-19,
33,
-35,
29,
-33,
55,
23,
26,
7,
27,
-28,
30,
33,
57,
20,
33,
5,
45,
23,
58,
-16,
25,
-78,
0,
26,
82,
-21,
-42,
12,
-30,
37,
15,
18,
-34
] |
Per Curiam.
In a previous lawsuit, plaintiff, Karen Courtney, and defendant James Courtney (hereafter defendant) were divorced. One of the major issues in the divorce proceedings was the value of James Courtney’s property, including his interest in two corporations, Century 21 of Michigan, Inc., and Century 21-Hartford West, Inc. Based on the information Mr. Courtney supplied, the parties reached a property settlement in which Mr. Courtney’s interest in the two corporations was valued at $115,000. This property settlement was incorporated in the judgment of divorce. Plaintiff subsequently learned that approximately one year after the judgment of divorce was entered Mr. Courtney sold his interest in the two corporations for $1,266,963. Ms. Courtney also learned that during the divorce proceedings Mr. Courtney was negotiating for the sale of his interest in these corporations and was offered $712,670. Ms. Courtney then brought this lawsuit alleging, inter alia, that Mr. Courtney fraudulently concealed the value of his interest in the two corporations during the divorce proceedings which induced her to enter into the unfavorable property settlement. The trial court denied defendant’s motion for accelerated judgment on Count II which alleged that res judicata bars this action and defendant now appeals by leave granted.
The trial court properly found that plaintiffs cause of action for fraud, Count II, is not barred by res judicata. As a general proposition, the principles of res judicata may not be invoked to sustain fraud. 37 Am Jur 2d, Fraud and Deceit, §488, p 676. Defendant’s reliance on Rogoski v Muskegon, 107 Mich App 730; 309 NW2d 718 (1981), is misplaced. In Rogoski, this Court noted that there were no previous Michigan cases which allowed an independent action for fraud which occurred during a prior lawsuit. The Court then assumed for the sake of argument that the plaintiff could bring such an action, but found that she had no claim for damages for the defendant’s alleged conspiracy to commit perjury. 107 Mich App 735-736. The Court in Rogoski therefore did not hold that actions to recover damages for fraud are not permitted. This Court in Rogoski did consider whether a claim of extrinsic fraud is sufficient to seek relief from an earlier judgment. 107 Mich App 736. Since, in the instant case, Count I of plaintiffs complaint, which was based on fraud and sought equitable relief from the earlier divorce judgment, was dismissed pursuant to defendant’s motion for accelerated judgment on Count I, this issue is not before us and this portion of Rogoski is inapplicable.
Plaintiff may maintain an independent claim for damages resulting from defendant’s alleged fraudulent conduct. To hold otherwise is contrary to the general rule that the principles of res judicata may not be invoked to sustain fraud. As stated in 37 Am Jur 2d, Fraud and Deceit, § 488, p 676:
"It has been held that a judgment or decree entered in accordance with the settlement of a claim does not bar an action for damages resulting from fraud where the wrongdoer fraudulently conceals his wrong from the injured person, who agrees, in ignorance of the wrong, to the settlement and entry of the judgment or decree. ”
In light of this rule, we are unable to distinguish this case from Gorman v Soble, 120 Mich App 831; 328 NW2d 119 (1982). In that case, this Court recognized a claim for damages based on fraudulent inducement to enter a consent judgment. The fact that Mr. Courtney, the defendant in this fraud action, also was the defendant in the divorce proceedings does not make him immune from a civil action for damages for alleged fraudulent conduct which partly occurred during the divorce proceedings. Michigan follows a broad rule of res judicata which bars not only claims actually litigated in the prior action, but every claim arising out of the same transaction which the parties, exercising reasonable diligence, could have raised but did not. Gose v Monroe Auto Equipment Co, 409 Mich 147, 160; 294 NW2d 165 (1980); Curry v Detroit, 394 Mich 327, 332; 231 NW2d 57 (1975); Gursten v Kenney, 375 Mich 330, 333-335; 134 NW2d 764 (1965). In order for actionable fraud to exist, the plaintiff must have suffered damage. Mazzola v Vineyard Homes,Inc, 54 Mich App 608; 221 NW2d 406 (1974). In the instant case, plaintiff did not suffer damage until the unfavorable property settlement was incorporated in the judgment of divorce. Plaintiff therefore did not have a claim of fraud against defendant while the divorce proceedings were pending. While the value of defendant’s interest in the two corporations was an issue in the divorce proceedings, the plaintiff has a separate and independant claim of fraud which could not have been raised during the divorce proceedings since it did not accrue until the judgment of divorce was entered. The trial court therefore properly denied defendant’s motion for accelerated judgment on Count II of plaintiff’s complaint.
Affirmed.
"16 Ross v Preston, 292 NY 433; 55 NE2d 490 (1944) (the court saying that in such a case the entry of a judgment is merely an incident of the fraud which has been perpetrated outside the action, and the reason that the judgment settling the claim does not preclude proof of the antecedent fraud is that the trial and judgment are only a step in the consummation of the antecedent fraud), reh den 293 NY 664; 56 NE2d 258 (1944); Gould v Cayuga Co Bank, 99 NY 333; 2 NE 16 (1885); Verplanck v Van Buren, 76 NY 247 (1879).” | [
-31,
16,
-13,
1,
-33,
-11,
29,
-41,
24,
45,
-12,
-7,
22,
5,
33,
-32,
-3,
5,
-38,
30,
0,
-21,
-32,
-3,
-17,
36,
-4,
-14,
4,
-7,
-14,
-31,
-13,
-13,
-27,
0,
-19,
-8,
6,
2,
15,
-42,
15,
34,
-49,
-16,
27,
-46,
17,
-45,
43,
10,
14,
-18,
24,
38,
27,
-7,
21,
-36,
-28,
-2,
12,
-6,
5,
-18,
63,
0,
31,
-15,
-14,
-23,
-8,
7,
-16,
-42,
-7,
21,
6,
23,
-10,
-66,
4,
0,
-19,
-3,
7,
0,
-25,
4,
6,
-33,
-39,
3,
1,
47,
25,
17,
9,
35,
-9,
-5,
-5,
-9,
22,
15,
52,
-44,
19,
17,
10,
-3,
17,
-6,
11,
-18,
-10,
-48,
-18,
-63,
-7,
-1,
36,
24,
37,
43,
14,
11,
-3,
8,
14,
3,
-30,
23,
1,
-47,
-10,
4,
-8,
-44,
8,
-10,
-8,
13,
8,
0,
38,
-29,
2,
-11,
-22,
-32,
21,
19,
-19,
4,
-41,
-24,
34,
-35,
16,
-28,
-38,
43,
0,
13,
1,
29,
-18,
-28,
49,
-17,
-54,
-50,
3,
37,
-6,
9,
-44,
-40,
27,
44,
2,
-43,
-29,
-47,
3,
-32,
18,
-40,
33,
-6,
-6,
50,
42,
19,
-4,
72,
0,
-6,
7,
-73,
10,
17,
-11,
-49,
51,
-15,
-39,
38,
-27,
8,
0,
-44,
-27,
-32,
-13,
-37,
15,
-19,
68,
4,
30,
24,
-47,
-21,
9,
-31,
27,
36,
5,
-24,
7,
-25,
-28,
-44,
-5,
43,
12,
-10,
-4,
-14,
0,
-7,
18,
32,
-48,
16,
26,
10,
9,
-35,
-60,
14,
-10,
-29,
-64,
40,
-5,
-4,
-49,
62,
-97,
20,
-15,
-35,
17,
47,
-48,
18,
-2,
45,
0,
-18,
-7,
-29,
12,
42,
4,
31,
-18,
8,
-19,
-6,
-53,
40,
-10,
19,
14,
-4,
37,
35,
-6,
17,
-5,
-6,
-12,
-42,
15,
28,
36,
-19,
40,
5,
1,
-27,
-22,
11,
-15,
-16,
-34,
15,
16,
0,
43,
1,
-38,
19,
28,
-31,
47,
38,
-3,
7,
-40,
-33,
44,
-73,
8,
18,
-48,
35,
2,
46,
28,
-39,
53,
-61,
-55,
-17,
12,
-35,
38,
-3,
1,
1,
-22,
25,
-11,
27,
-45,
-2,
-35,
44,
5,
-5,
20,
-13,
-52,
15,
36,
25,
3,
-9,
10,
53,
-9,
10,
19,
66,
11,
-10,
-18,
9,
29,
-10,
-43,
44,
-46,
27,
-11,
-18,
49,
6,
4,
17,
-53,
-60,
-66,
2,
-68,
6,
62,
7,
7,
0,
-13,
11,
-30,
38,
-3,
42,
4,
36,
-37,
-43,
51,
-77,
-50,
20,
-2,
-12,
-14,
7,
-29,
-20,
69,
-20,
-15,
-15,
30,
22,
-3,
-48,
-8,
-25,
-36,
28,
30,
-10,
-4,
36,
48,
-98,
60,
10,
-23,
11,
-24,
31,
0,
28,
-44,
-3,
-2,
29,
-45,
-16,
16,
-12,
0,
4,
-41,
13,
0,
2,
-2,
-22,
0,
-35,
67,
-46,
32,
4,
30,
-79,
-27,
-38,
64,
34,
11,
15,
-46,
74,
-32,
-5,
3,
-33,
-6,
-1,
-40,
36,
-37,
14,
-43,
29,
-11,
-21,
-26,
-5,
-6,
-23,
30,
19,
-49,
-20,
-1,
-1,
22,
-23,
5,
1,
10,
5,
29,
34,
-3,
-42,
-44,
36,
-36,
12,
54,
21,
-24,
37,
25,
-28,
27,
22,
-22,
-5,
-24,
22,
-7,
-20,
6,
19,
-4,
5,
38,
42,
24,
-38,
-41,
-14,
45,
-14,
-31,
-8,
18,
37,
-35,
-5,
36,
32,
22,
-65,
-24,
30,
-39,
-44,
2,
40,
42,
17,
39,
-19,
-15,
1,
-25,
10,
33,
-23,
65,
-42,
-37,
-10,
3,
16,
-26,
-21,
24,
19,
18,
6,
13,
11,
-23,
-8,
6,
10,
11,
-63,
0,
-3,
17,
6,
82,
9,
11,
-32,
28,
-21,
-8,
12,
12,
-35,
-29,
12,
36,
-10,
-67,
-56,
19,
-44,
-14,
47,
28,
-36,
8,
37,
5,
2,
8,
-3,
-9,
-12,
4,
13,
31,
-10,
50,
-35,
23,
13,
47,
-15,
-42,
21,
44,
-10,
25,
21,
0,
-9,
-1,
-21,
-37,
0,
-15,
58,
-7,
22,
32,
-69,
-17,
23,
-55,
-20,
28,
26,
10,
-23,
51,
10,
36,
2,
16,
-65,
-23,
-9,
16,
47,
17,
7,
0,
-33,
17,
-5,
-23,
-10,
61,
1,
4,
13,
0,
-10,
3,
29,
-16,
-2,
-29,
-33,
-22,
-56,
27,
-15,
17,
-15,
1,
-12,
-59,
-15,
13,
2,
28,
1,
-6,
-9,
0,
21,
45,
47,
-18,
17,
-16,
11,
4,
-15,
-23,
34,
-20,
-58,
-38,
37,
-26,
11,
-20,
-53,
-67,
-30,
9,
-40,
7,
-25,
77,
-18,
5,
23,
-3,
32,
-16,
-42,
-33,
35,
23,
-35,
-32,
22,
19,
-4,
19,
-25,
-5,
29,
44,
34,
25,
20,
14,
16,
16,
81,
0,
0,
-29,
-23,
-6,
12,
3,
34,
-19,
8,
0,
18,
-35,
-21,
18,
-27,
-57,
0,
-31,
20,
0,
33,
-22,
29,
48,
-7,
23,
-4,
9,
45,
-11,
-61,
22,
-1,
-21,
73,
2,
-39,
25,
-44,
3,
19,
42,
20,
14,
-6,
27,
-5,
-23,
-22,
5,
7,
-25,
8,
4,
-33,
-17,
-21,
-13,
-14,
-12,
-5,
-34,
32,
-21,
0,
12,
-14,
-63,
-8,
-66,
21,
-20,
-13,
-21,
37,
12,
-26,
-12,
18,
2,
3,
18,
-18,
-14,
-10,
0,
-31,
-78,
49,
42,
11,
-51,
-33,
0,
-22,
-13,
0,
-12,
-34,
0,
33,
-4,
37,
18,
17,
5,
4,
-13,
-32,
25,
-8,
4,
35,
10,
-10,
21,
37,
-49,
-6,
3,
28,
29,
-29,
-23,
-25,
3,
49,
-18,
6,
-20,
-3,
42,
-8,
-35,
30,
20,
49,
12,
-28,
23,
-1,
-24,
-59,
10,
-6,
-15,
2,
-8,
-14,
41,
61,
53,
1,
-8,
14,
32,
18,
9,
49,
-48,
-36,
26,
32,
25,
2,
37,
40,
-57,
4,
-23,
-9,
21,
25,
-51,
28,
11,
16,
-37,
32,
18,
-14,
-39,
-29,
22,
16,
-9,
-14,
0,
23,
-38,
-29,
-4,
25,
24,
-17,
-42,
-30,
27,
30,
-27,
-42,
74,
0,
-12,
-9,
-9,
31,
-34,
-6,
-6,
-26,
12,
5,
11,
4,
-45,
-43,
-58,
-53,
-46,
-11,
58,
49,
-78,
-26,
45,
-8,
10,
11,
27,
-59,
37,
-8,
-17,
-47,
13,
24,
37,
-8,
-38,
27,
19,
-38,
24,
4,
17,
5,
48,
5,
19,
-2,
57,
17,
18,
15,
-24,
5,
69,
-3,
-43,
24,
-22,
-28,
2,
-30,
-13,
63,
44,
58
] |
Cynar, J.
Defendants Bill Cody’s Ranch Inn and Best Western International, Inc., appeal by leave granted from Wayne County Circuit Court Judge Marvin R. Stempien’s denial of a motion for accelerated judgment and a motion to decline jurisdiction brought by Bill Cody’s Ranch and Best Western, respectively.
This cause of action arises from a personal injury accident that occurred on or near the premises of Bill Cody’s Ranch, located in the State of Wyoming. Plaintiff, a resident of Michigan, filed suit in Wayne County Circuit Court against Bill Cody’s Ranch, Best Western, the American Automobile Association, and the Automobile Club of Michigan seeking damages for the injuries sustained as a result of the accident.
Defendant Bill Cody’s Ranch filed a motion for accelerated judgment averring that it was a Wyoming corporation, doing business exclusively in the State of Wyoming, with no business office or agents located in Michigan, and that the Wayne County Circuit Court therefore lacked personal jurisdiction over it. Defendant Best Western filed a motion to decline jurisdiction based on the doctrine of forum non conveniens. The circuit court found that Michigan had in personam jurisdiction over Bill Cody’s Ranch and that Michigan was a convenient forum in which to bring this action. The circuit court consequently denied the motion for accelerated judgment and the motion to decline jurisdiction by order dated June 12, 1984.
The underlying facts of this case are as follows. On or about August 28, 1983, plaintiff, Michelle Witbeck, a minor and novice rider, was allegedly placed on a horse selected for her by William Cody, an agent and officer of Bill Cody’s Ranch. Plaintiff was allegedly thrown from the horse, and was placed back on the horse by Ken White, also an agent of Bill Cody’s Ranch, despite her objections. She was then thrown from the horse a second time. Plaintiff was allegedly injured as a result of being thrown from the horse.
Plaintiff subsequently filed suit in Wayne County Circuit Court against Bill Cody’s Ranch, Best Western, the American Automobile Association, and the Automobile Club of Michigan. The basis of plaintiff’s complaint and allegations against Bill Cody’s Ranch was that the agents of the ranch had been negligent in selecting a horse for a novice rider and in insisting that plaintiff remount the same horse from which plaintiff had been thrown.
The basis of the complaint against Best Western was that Best Western was negligent in recommending Bill Cody’s Ranch to plaintiff and her family.
Two issues are presented for oür review: I, Does Michigan have limited personal jurisdiction over Bill Cody’s Ranch? and II, Did the trial court err in finding that Michigan was not an inconvenient forum?
Issue I: Does Michigan have long-arm jurisdiction over Bill Cody’s Ranch?
MCL 600.715; MSA 27A.715 authorizes Michigan courts to exercise limited personal jurisdiction over a nonresident corporation and enter judgments against the corporation as a result of an act which creates or consists 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 this 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.”
The above-quoted statute was intended to give Michigan courts the full extent of power possible to gain personal jurisdiction over nonresident defendants as is consistent with the principles of due process. Kriko v Allstate Ins Co, 137 Mich App 528; 357 NW2d 882 (1984); Kircos v Lola Cars, Ltd, 97 Mich App 379; 296 NW2d 32 (1980). The United States Supreme Court first set forth the modern constitutional test for the assertion of personal jurisdiction over a nonresident defendant by a state court in International Shoe Co v Washington, 326 US 310, 316; 66 S Ct 154; 90 L Ed 95 (1945). That case established the due process "minimum contacts” test. Under this test a state may not exercise in personam jurisdiction over a nonresident defendant unless the defendant has certain "minimum contacts” with the forum state such that the maintenance of the suit "does not offend 'traditional notions of fair play and substantial justice’ ”. This test was reaffirmed by the Supreme Court in World-Wide Volkswagen Corp v Woodson, 444 US 286; 100 S Ct 559; 62 L Ed 2d 490 (1980).
In deciding if Michigan is the proper forum for the maintenance of plaintiff’s action, an essential consideration is whether defendant Bill Cody’s Ranch "purposefully availed” itself of the privilege of conducting activities within Michigan, thus invoking the benefits and protections of Michigan’s laws. Khalaf v Bankers & Shippers Ins Co, 404 Mich 134, 148; 273 NW2d 811 (1978). The following facts are presented for our consideration.
Defendant Bill Cody’s Ranch is in the business of providing services to resort vacationers in Wyoming. The ranch is incorporated and located in Wyoming and has no business offices or registered agents located in Michigan for the purpose of accepting service. However, in an effort to promote its ranch resort, defendant directly advertised in Michigan’s American Automobile Association (AAA) Tour Guide and paid for the display ad. AAA allegedly recommended Bill Cody’s Ranch to its Michigan club members. Also, agents of the ranch allegedly sent direct mail advertisements into Michigan and accepted telephone reservations from Michigan.
We find that Bill Cody’s Ranch purposefully availed itself of the privilege of transacting business in Michigan, thus invoking the benefits and protections of Michigan’s laws when it solicited business in Michigan by directly advertising its resort in a magazine reasonably calculated to reach consumers in Michigan, sent direct mail advertisements into Michigan and accepted telephone reservations from Michigan. We also find that plaintiffs cause of action relates to the advertisement since plaintiff, who relied upon the ad, vacationed at Bill Cody’s Ranch where the injury resulted. Based on the above factors, we conclude that the requirements for long-arm jurisdiction under MCL 600.715(1); MSA 27A.715(1) are satisfied.
Defendant Bill Cody’s Ranch cites and relies on the United States Supreme Court’s holding in Woodson, supra, and argues that Michigan lacks sufficient minimum contacts with the ranch to exercise personal jurisdiction over defendant. We disagree. Here, unlike in Woodson, Bill Cody’s Ranch did solicit business for its resort through advertising reasonably calculated to reach Michigan. By advertising in the Michigan AAA Tour Guide, Bill Cody’s Ranch did seek to serve the Michigan market. These factors distinguish this case from the Woodson case. See Woodson, supra, p 500.
Issue II: Did the trial court err in finding that Michigan was not an inconvenient forum?
The decision to decline jurisdiction based upon the doctrine of forum non conveniens is within the discretion of the trial court. Cray v General Motors Corp, 389 Mich 382, 396; 207 NW2d 393 (1975). In Cray, the Supreme Court listed the following factors to be considered and weighed in deciding a motion for dismissal based on forum non conveniens:
"1. The private interest of the litigant.
"a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
"b. Ease of access to sources of proof;
"c. Distance from the situs of the accident or incident which gave rise to the litigation;
"d. Enforcibility [sic ] of any judgment obtained;
"e. Possible harassment of either party;
"f. Other practical problems which contribute to the ease, expense and expedition of the trial;
"g. Possibility of viewing the premises.
"2. Matters of public interest.
"a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
"b. Consideration of the state law which must govern the case;
"c. People who are concerned by the proceeding.
”3. Reasonable promptness in raising the plea of forum non conveniens.”
Application of the foregoing factors is left to the trial court’s discretion.
In Anderson v Great Lakes Dredge & Dock Co, 411 Mich 619, 628-629; 309 NW2d 539 (1981), the Supreme Court stated that a plaintiff’s selection of a forum is ordinarily accorded deference. Quoting Gulf Oil Corp v Gilbert, 330 US 501, 508; 67 S Ct 839; 91 L Ed 1055 (1947), the Court stated that " 'unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed’ ”. The court must consider the plaintiff’s choice of forum, and weigh the relative advantages and disadvantages of jurisdiction, and the ease of and obstacles to a fair trial in this state, in determining whether the balance strongly favors the defendant.
In the present case, the trial court considered the fact that plaintiff and several other witnesses were school-age children and concluded that since defendants were commercial enterprises it would be more convenient for defendants to travel to Michigan than for plaintiff and the other minor witnesses to travel to Wyoming, especially if it would be disruptive of their school life. The trial court stated that it considered the Cray factors and that there was no reason to disturb the plaintiff’s choice of forum. We find no abuse of discretion.
Affirmed.
H. E. Deming, J., concurred. | [
14,
10,
-16,
16,
4,
-5,
44,
52,
-29,
26,
-11,
-3,
12,
19,
27,
0,
0,
-9,
-27,
5,
-80,
-38,
-83,
55,
-2,
-12,
16,
-54,
-12,
-19,
-28,
-10,
1,
13,
-14,
-43,
0,
38,
-6,
25,
-8,
-27,
30,
-19,
15,
-17,
8,
-40,
-4,
-44,
17,
-4,
-29,
45,
-49,
4,
33,
-44,
5,
1,
15,
7,
-7,
-31,
17,
-9,
-8,
14,
14,
-22,
-17,
0,
-18,
47,
-39,
10,
-17,
13,
1,
60,
20,
5,
17,
72,
-22,
-3,
16,
6,
17,
-41,
-62,
10,
-39,
-41,
-20,
-1,
-41,
31,
-21,
-40,
-62,
-11,
14,
-10,
-18,
9,
-21,
-51,
48,
-15,
29,
-7,
-50,
-49,
6,
-34,
-8,
-4,
-25,
6,
-20,
-38,
25,
34,
8,
-43,
21,
-10,
-1,
54,
48,
-32,
50,
4,
15,
29,
1,
-71,
-23,
-28,
92,
42,
8,
-1,
-10,
30,
-13,
-56,
19,
-23,
-60,
60,
-17,
48,
8,
1,
32,
21,
14,
-39,
31,
13,
-32,
2,
-43,
-30,
6,
14,
35,
-7,
22,
52,
36,
-6,
10,
36,
31,
22,
-41,
14,
-13,
35,
-10,
-17,
-35,
-17,
53,
-33,
-44,
40,
23,
-83,
2,
36,
16,
-33,
47,
-10,
2,
18,
1,
-11,
41,
-9,
38,
-11,
26,
-12,
20,
-56,
-20,
-58,
16,
-38,
-7,
-19,
41,
1,
40,
-48,
38,
52,
22,
13,
-10,
-11,
-39,
-41,
-29,
-20,
7,
-9,
59,
-17,
-35,
-47,
-7,
-36,
0,
0,
28,
-33,
9,
5,
27,
5,
-52,
3,
-7,
-1,
-12,
-3,
-53,
-8,
-5,
27,
41,
-6,
-41,
35,
-15,
-10,
-23,
64,
-1,
25,
-76,
16,
22,
-41,
29,
6,
-2,
-25,
-6,
-83,
26,
7,
31,
1,
77,
6,
26,
17,
-43,
40,
44,
23,
-14,
-16,
-5,
-23,
-17,
9,
-22,
13,
65,
-32,
47,
-32,
0,
-2,
51,
22,
-19,
-71,
13,
22,
12,
-14,
-20,
-38,
46,
-26,
25,
-5,
2,
20,
18,
-49,
9,
4,
7,
-26,
-22,
11,
25,
-29,
36,
12,
-19,
-24,
-16,
28,
9,
-40,
45,
-18,
-68,
25,
33,
-16,
49,
43,
-14,
56,
19,
-14,
34,
12,
11,
7,
-10,
-17,
-51,
-22,
9,
-45,
-31,
48,
-36,
-22,
-60,
0,
25,
-67,
-34,
-3,
29,
24,
-9,
24,
54,
-30,
20,
-30,
-27,
77,
-21,
40,
-1,
-43,
-6,
29,
59,
-81,
-38,
-38,
-18,
-15,
-9,
-1,
52,
50,
5,
-25,
4,
-9,
-30,
30,
-16,
-5,
28,
-10,
-22,
-63,
15,
-19,
-33,
0,
10,
-67,
12,
-3,
-9,
81,
13,
26,
-20,
-11,
50,
0,
-26,
-45,
51,
-63,
9,
-34,
-18,
22,
33,
10,
4,
13,
28,
30,
-43,
40,
-40,
23,
25,
-15,
7,
-22,
-36,
-55,
-40,
17,
14,
-48,
30,
21,
-25,
-5,
-77,
60,
44,
38,
-40,
15,
58,
-58,
2,
-4,
17,
-57,
19,
2,
23,
16,
43,
-18,
-8,
33,
-5,
-43,
-21,
17,
1,
20,
-26,
30,
-17,
3,
55,
-35,
-28,
12,
81,
72,
12,
9,
-43,
-25,
-26,
40,
-24,
80,
51,
9,
-90,
-26,
63,
18,
41,
-8,
10,
0,
-54,
47,
-30,
-60,
31,
30,
-16,
65,
35,
-7,
-27,
19,
0,
-18,
-58,
-15,
-12,
-28,
21,
-27,
31,
-25,
-23,
-35,
34,
-25,
1,
9,
-9,
20,
-9,
-2,
0,
-28,
-22,
-11,
23,
-38,
-16,
-59,
21,
-9,
20,
-6,
22,
-40,
-13,
26,
-19,
-24,
-30,
-11,
1,
57,
21,
-12,
63,
13,
0,
-27,
20,
36,
-41,
53,
55,
-9,
-4,
4,
-3,
69,
-61,
15,
-33,
-27,
-35,
41,
-28,
-28,
16,
5,
-1,
14,
-61,
47,
9,
16,
-6,
-37,
31,
-14,
46,
6,
-22,
-4,
-29,
22,
-16,
-3,
-3,
-4,
-11,
13,
-30,
11,
-49,
-15,
2,
6,
-13,
-14,
50,
54,
-41,
-49,
25,
25,
-64,
18,
24,
27,
48,
-16,
-12,
18,
-52,
-15,
-11,
22,
-26,
53,
-48,
1,
-22,
24,
-2,
1,
-35,
-43,
-55,
-16,
11,
-28,
-28,
36,
-5,
37,
6,
18,
10,
28,
-43,
-7,
-20,
5,
-48,
46,
-42,
-29,
14,
16,
45,
21,
17,
16,
49,
-15,
30,
-17,
-13,
21,
2,
24,
-12,
42,
69,
-54,
-5,
25,
-27,
44,
40,
25,
-6,
27,
9,
1,
-29,
-8,
-43,
-14,
-60,
-25,
-1,
1,
5,
27,
16,
2,
24,
-38,
18,
35,
20,
71,
6,
-6,
17,
14,
27,
-46,
-16,
-13,
7,
-15,
-5,
-32,
72,
15,
-18,
-13,
72,
9,
3,
42,
35,
17,
-27,
37,
-5,
17,
-56,
-22,
11,
-37,
-3,
40,
-17,
-9,
38,
11,
30,
-58,
-5,
38,
-18,
1,
-5,
-39,
11,
-24,
-8,
-41,
32,
-16,
-38,
-8,
-26,
-5,
-15,
-3,
43,
-27,
1,
62,
-32,
-62,
-2,
7,
44,
-43,
17,
5,
-7,
-40,
9,
14,
15,
-1,
-11,
-8,
-30,
26,
43,
-56,
-15,
-43,
-44,
-17,
-17,
8,
2,
7,
0,
-27,
-27,
25,
-13,
-43,
27,
21,
-21,
-14,
10,
24,
-44,
0,
42,
-33,
6,
44,
-70,
-8,
-18,
-14,
-16,
4,
-23,
-10,
-5,
-18,
0,
-7,
-9,
-44,
-15,
-22,
-5,
-14,
44,
4,
7,
-6,
-24,
2,
-21,
-1,
27,
-48,
-45,
8,
-40,
-38,
-28,
-22,
-24,
30,
-46,
-23,
-43,
12,
-76,
-18,
12,
-64,
-11,
-33,
-47,
-2,
-26,
0,
-48,
71,
3,
12,
-30,
95,
14,
12,
-10,
-6,
4,
-35,
23,
-3,
-42,
54,
-6,
-24,
22,
9,
-5,
11,
13,
-44,
-81,
39,
5,
3,
-54,
1,
50,
-13,
-28,
65,
54,
-14,
-9,
-9,
41,
18,
-30,
0,
-6,
-2,
7,
28,
-7,
5,
4,
56,
-26,
20,
43,
35,
0,
-16,
-69,
18,
1,
8,
46,
24,
-40,
9,
-7,
-13,
-99,
-10,
-2,
12,
42,
22,
5,
34,
-9,
-12,
14,
-45,
-15,
34,
-46,
81,
40,
4,
7,
38,
21,
28,
-18,
26,
21,
1,
63,
31,
14,
-15,
-34,
-32,
-25,
38,
-16,
88,
-40,
-3,
11,
-2,
11,
-18,
4,
66,
33,
20,
25,
-31,
-5,
60,
-15,
15,
-44,
0,
-32,
46,
-45,
32,
-48,
35,
23,
89,
1,
25,
-42,
-22,
39,
-40,
-10,
23,
82,
29,
6,
-28,
-12,
-7,
-30,
11,
34,
-3,
3,
46,
39,
-30,
32,
30,
0,
-16,
28,
20
] |
Per Curiam.
In these three consolidated cases, two individual defendants appeal from trial court orders denying their motions to withdraw guilty pleas under GCR 1963, 785.7. We affirm the plea convictions in all three cases.
Defendants were two of many individuals arrested in April of 1984 as the result of a massive drug bust in Lenawee County. Defendant Anita Alcorta was charged in nine separate informations with delivery offenses. In Case No. 82004, Alcorta pled guilty to one count of unlawful delivery of less than 50 grams of a controlled substance (heroin), MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv), and to being a second-time felony offender, MCL 769.10; MSA 28.1082. In return for this plea, the prosecution agreed to dismiss the other eight charges and to file a supplemental information against the defendant under the habitual offender statute rather than under the controlled substance sentence enhance ment statute, MCL 333.7413(2); MSA 14.15(7413X2), which would have increased by 10 years the maximum allowable sentence to which defendant would have been subjected. See People v Hatch, 126 Mich App 399, 406-407; 337 NW2d 79 (1983). On July 16, 1984, Alcorta was sentenced to a term in prison of from 20 to 30 years.
In Case No. 82005, defendant Esequiel Guevara pled guilty to two counts of unlawful delivery of less than 50 grams of a controlled substance (heroin), MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401X1), (2)(a)(iv). In Case No. 82114, Guevara pled guilty to another count of unlawful delivery of less than 50 grams of heroin, before a different judge. In return for these pleas, the prosectuion dismissed four other charges and agreed not to file an habitual offender information. Defendant was subsequently sentenced on all three plea convictions to concurrent terms of from 13 to 20 years in prison.
In September of 1984, both defendants filed motions to withdraw their guilty pleas in all three cases relying upon the same three grounds: (1) ineffective assistance of counsel, (2) coercion and (3) lack of understanding as to sentencing implications. A separate hearing was conducted on each motion, and all the motions were denied.
Defendants then filed three separate claims of appeal which were eventually consolidated in this Court. One attorney is representing both defendants in all three files and is the same attorney who filed the motions to withdraw the guilty pleas at the trial court level, thus preserving each defendant’s right to appellate review. People v Baugh, 127 Mich App 245, 247; 338 NW2d 199 (1983), lv den 419 Mich 896 (1984). On appeal, however, counsel has failed to cite any authority in support of the arguments advanced and offers only conclu sory assumptions and statements contrary to the rule announced in Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959), and applied in the criminal context in People v Sims, 62 Mich App 550; 233 NW2d 645 (1975). We nevertheless consider the substance of the arguments raised by defendants on appeal in light of the record developed at the postsentencing hearings to preclude further state or federal proceedings.
The essence of each of defendants’ arguments on appeal is that they were pressed into pleading guilty by their respective attorneys and did not fully comprehend the implications of their decisions. Defendants were represented by two different attorneys; defendant Guevara’s attorney represented him in both cases. Defendants do not allege that the trial court coerced their pleas, or imparted misinformation, or failed to comply with any of the requirements of GCR 1963, 785.7. Our analysis thus focuses on the adequacy of counsel throughout the plea negotiations and proceedings.
Appellate counsel contends plain error in that neither defendant was allowed to be present at the hearings on the motions to withdraw their guilty pleas. Defendants argue on appeal that their absence from the hearings contravened their statutory and constitutional rights, both state and federal, and violated Michigan Court Rules. Defendants do not support the allegations with any authority.
MCL 768.3; MSA 28.1026 guarantees the right of a defendant in a criminal felony proceeding to be "personally present during the trial”. The Supreme Court has recently interpreted this statute to mean that:
"A defendant has a right to be present during the voir dire, selection of and subsequent challenges to the jury, presentation of evidence, summation of counsel, instruction to the jury, rendition of the verdict, imposition of sentence, and any other stage of trial where the defendant’s substantial rights might be adversely affected.” People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984).
In People v Medcoff, 344 Mich 108, 115; 73 NW2d 537 (1955), the Supreme Court noted that the term "trial”, when considered in the context of a defendant’s right to be present at any stage of trial where substantial rights may be affected, does not include "matters occurring after the hearing on the merits or rendition of the verdict”. We find no statutory right to be present at postsentencing hearings on motions to withdraw guilty pleas. We do not consider whether defendants have a constitutional right to be present since this issue is not adequately presented for appellate consideration. Instead, we simply review the trial courts’ decisions in these cases denying defendants’ motions to withdraw their guilty pleas for an abuse of discretion. People v Bencheck, 360 Mich 430, 432; 104 NW2d 191 (1960).
We are not persuaded that the trial courts abused their discretion in concluding that defendants were adequately represented by counsel in the proceedings. See People v Johnson (After Remand), 125 Mich App 76; 336 NW2d 7 (1983), lv den 419 Mich 867 (1984). While defendants both claim that they did not comprehend all of the sentence possibilities or the effects of any supplemental informations, the records of the various plea hearings belie these contentions. At each hearing, the trial judge carefully explained the sentence ramifications of each plea, specifically pointing out the different máximums depending upon whether an habitual conviction was or was not obtained. It is apparent from the responses of each defendant that both fully understood the nature and effect of the possible supplemental charges. At one point in defendant Guevara’s plea-taking hearing in Case No. 82005, defendant even inquired: "They are going to drop the supplements on me, right? The habituáis?” During a brief exchange between defendant Alcorta and the trial court during her plea-taking, defendant clearly indicated that she understood her maximum allowable sentence would be 30 years under the plea agreement as opposed to 40 years if supplemental charges under the controlled substance sentence enhancement statute were to stand. We think both defendants understood the sentence benefits of their plea bargains.
Nor are we persuaded that defendants were pressured by their attorneys into pleading guilty. Counsel’s prompting of defendant Guevara on the record was in response to defendant’s inability to recall his involvement in a particular transaction. After a brief recess, defendant simply testified that although he could not recall the specific circumstances, he was sure that he was present in the house at the time the delivery was made and that he and defendant Alcorta had a partnership arrangement in which they shared any profits obtained from the sale of drugs regardless of who actually delivered the contraband. Counsel’s admonishment of defendant Alcorta at her plea-taking, when considered in the context of the entire record, does not suggest coercion in the decision to plead but rather a warning as to the propriety of defendant’s comments on the judicial system and the effect of those comments on the acceptance of her plea.
Nor are we persuaded that defendants’ attorneys failed to properly prepare and investigate their cases prior to recommending guilty pleas. Mere failure to interview witnesses does not establish inadequate preparation. People v Johnson, supra, p 81. Neither defendant sets forth on appeal any meritorious defenses which could have been discovered through counsel’s investigative efforts, and the plea-taking records in all cases clearly establish that both defendants committed the acts charged. As already noted, defendant Guevara explained his partnership with defendant Alcorta in the sale of narcotics. Defendant Alcorta specificially explained to the trial court that she sold narcotics to support her own habit.
We are inclined to agree with the trial courts in these cases that defendants’ attempts to withdraw their pleas are due to their dissatisfaction with the sentences imposed. Each defendant received a favorable plea agreement resulting in the dismissal of other charges and supplemental charges which reduced the maximum sentences allowable. All of the reasons advanced by defendants in support of their motions to withdraw existed prior to sentencing yet neither defendant attempted to withdraw the plea prior to or at the sentencing hearing, in which case their motions would have been more favorably viewed. See People v Cannon, 145 Mich App 100; 377 NW2d 354 (1985).
Affirmed. | [
52,
22,
37,
35,
-27,
-7,
-56,
9,
-23,
28,
50,
-29,
-50,
-6,
26,
19,
9,
7,
31,
-6,
-17,
-15,
29,
53,
1,
-3,
53,
69,
23,
21,
-17,
-23,
66,
-47,
9,
4,
46,
16,
1,
-12,
-15,
-33,
-2,
-21,
-65,
16,
25,
50,
72,
-52,
9,
52,
17,
0,
-47,
29,
21,
-25,
54,
10,
0,
37,
-30,
-17,
-8,
-24,
-19,
40,
13,
-24,
27,
0,
-2,
24,
70,
20,
-4,
-9,
-7,
65,
-1,
38,
33,
35,
-21,
-18,
-11,
-66,
38,
-13,
-22,
-45,
-41,
15,
15,
-16,
-9,
-20,
16,
-43,
-29,
44,
26,
24,
7,
-21,
36,
-12,
-31,
12,
-36,
0,
0,
-37,
-2,
-42,
-15,
7,
-12,
17,
-55,
5,
48,
50,
11,
-10,
-41,
-13,
2,
18,
-23,
54,
10,
-46,
-2,
53,
41,
35,
85,
46,
-36,
25,
31,
30,
20,
-3,
-13,
-3,
41,
33,
-36,
-34,
-35,
30,
7,
22,
11,
-2,
-52,
39,
4,
0,
-4,
-51,
-20,
-56,
-51,
36,
-31,
-3,
36,
-33,
39,
35,
12,
-37,
-34,
38,
29,
10,
-17,
-2,
-24,
-1,
9,
-25,
9,
-27,
-51,
-54,
-3,
-4,
-7,
-8,
48,
-1,
34,
41,
7,
55,
-11,
-8,
28,
-17,
-1,
25,
-18,
16,
18,
-5,
34,
-65,
9,
-26,
7,
-27,
-2,
-5,
8,
-3,
-44,
-23,
25,
-1,
23,
18,
-4,
48,
6,
13,
62,
-37,
48,
7,
-1,
5,
-9,
20,
70,
28,
-28,
-30,
-44,
-50,
21,
55,
-3,
-34,
-24,
8,
25,
24,
-46,
-9,
-72,
-44,
33,
-25,
-29,
41,
6,
22,
18,
23,
-68,
43,
-27,
25,
-56,
29,
-62,
7,
0,
-29,
-17,
29,
-39,
46,
25,
36,
62,
-25,
40,
-35,
-9,
4,
-46,
64,
-3,
-46,
13,
13,
-44,
15,
37,
5,
-15,
-19,
-50,
30,
-4,
-15,
-2,
-46,
2,
-14,
25,
-1,
-37,
-32,
4,
-31,
72,
2,
-29,
-78,
40,
-11,
42,
9,
-60,
29,
0,
4,
-52,
-30,
15,
35,
29,
17,
-11,
26,
-28,
-70,
-45,
35,
-60,
-5,
-43,
11,
-22,
-43,
-18,
-4,
8,
-25,
3,
42,
-8,
-14,
64,
-15,
56,
10,
-14,
-16,
-10,
-6,
21,
5,
31,
-35,
-28,
-2,
13,
-15,
25,
25,
-4,
34,
5,
-45,
-27,
-5,
-31,
-1,
0,
-2,
4,
-8,
-8,
-8,
25,
20,
31,
-80,
-27,
11,
1,
1,
-19,
15,
-26,
-68,
1,
22,
54,
39,
19,
-3,
40,
16,
79,
39,
31,
-27,
3,
56,
32,
-12,
-10,
-33,
-4,
52,
-10,
-32,
-27,
-16,
-6,
-42,
47,
37,
3,
-38,
4,
35,
-2,
-4,
-17,
-16,
-16,
52,
9,
-45,
4,
42,
-34,
-18,
41,
5,
-4,
-21,
-22,
29,
68,
-3,
-15,
-13,
38,
-9,
-3,
24,
-44,
-40,
-41,
27,
3,
-4,
-34,
-24,
-9,
-57,
-53,
4,
31,
-37,
-20,
-7,
41,
-63,
-31,
5,
-4,
0,
-24,
14,
53,
29,
16,
8,
1,
23,
-14,
-45,
15,
23,
-14,
-2,
-63,
-1,
-2,
-101,
-3,
25,
-21,
21,
-7,
-16,
26,
49,
15,
5,
-23,
31,
28,
48,
-6,
31,
11,
36,
-21,
8,
-30,
-31,
-11,
-32,
11,
-32,
11,
5,
6,
31,
37,
-8,
12,
12,
-9,
-56,
-48,
-19,
12,
-58,
27,
-40,
6,
5,
-48,
21,
-18,
-16,
26,
32,
-36,
-3,
20,
-31,
-49,
-2,
34,
-19,
-1,
48,
-26,
-60,
-10,
9,
-9,
4,
-5,
-47,
-99,
-40,
36,
24,
11,
12,
1,
-12,
80,
26,
35,
33,
17,
8,
7,
64,
29,
14,
-13,
-29,
47,
27,
13,
-34,
-12,
-2,
34,
11,
-55,
-23,
22,
-18,
-12,
-15,
19,
-8,
-37,
-23,
-15,
24,
61,
7,
2,
-5,
38,
-45,
4,
-35,
-7,
-55,
49,
-10,
-29,
-17,
-31,
-8,
-2,
-17,
-33,
23,
-17,
-5,
5,
17,
6,
-9,
-62,
15,
14,
34,
-4,
9,
-2,
-2,
-16,
19,
-11,
40,
-47,
-42,
-9,
57,
-52,
28,
33,
22,
8,
5,
-8,
21,
-34,
7,
-46,
-19,
46,
-51,
-17,
8,
-3,
-42,
-30,
48,
-27,
0,
12,
-35,
11,
-30,
16,
14,
-63,
-26,
-52,
0,
11,
-51,
-18,
29,
15,
-45,
-20,
-18,
26,
-57,
-26,
-10,
-21,
65,
-2,
29,
2,
76,
-1,
9,
-8,
-24,
26,
10,
-9,
-12,
31,
78,
-61,
-3,
-28,
6,
29,
0,
11,
0,
-74,
-9,
3,
0,
-35,
-14,
-53,
-21,
-61,
-23,
-1,
-35,
-4,
37,
44,
-10,
-25,
-55,
6,
-50,
44,
-23,
15,
13,
21,
3,
-27,
36,
-31,
40,
25,
-24,
-30,
-3,
0,
12,
-29,
8,
-5,
-16,
9,
33,
39,
50,
-7,
7,
93,
-36,
-29,
6,
-49,
22,
-53,
24,
-34,
3,
-10,
9,
44,
18,
-8,
-1,
-4,
-13,
-62,
-22,
-35,
-7,
26,
-41,
-21,
-20,
-43,
-48,
42,
-16,
-17,
-21,
-24,
19,
-31,
-64,
27,
2,
43,
29,
9,
19,
-6,
-24,
60,
12,
-4,
-16,
22,
27,
-25,
-23,
42,
4,
-17,
29,
46,
-12,
62,
45,
-4,
-88,
9,
-6,
28,
1,
-32,
19,
-44,
45,
1,
-34,
-22,
-7,
37,
32,
19,
3,
-60,
3,
54,
-17,
-23,
24,
-3,
-19,
0,
-3,
19,
-10,
28,
-7,
44,
2,
41,
-82,
6,
-1,
-4,
63,
-37,
4,
4,
-23,
42,
12,
-14,
-18,
-44,
54,
21,
2,
6,
27,
-62,
-19,
8,
7,
6,
-11,
-47,
-20,
-33,
-15,
-21,
-65,
51,
29,
23,
-7,
-40,
0,
-19,
-23,
-8,
30,
-51,
0,
-31,
-1,
33,
-30,
13,
-14,
64,
0,
-34,
-20,
13,
14,
-3,
16,
-40,
-5,
-11,
32,
50,
34,
-65,
-69,
18,
-11,
48,
-35,
-44,
38,
53,
45,
8,
-6,
-4,
14,
-36,
25,
12,
3,
10,
-58,
-8,
0,
77,
-15,
55,
-35,
-19,
53,
-64,
13,
-23,
17,
1,
-29,
4,
-21,
12,
-4,
-18,
-8,
-49,
0,
48,
18,
-25,
17,
-29,
34,
-8,
-26,
-4,
-9,
-26,
-8,
15,
45,
9,
-43,
-46,
-8,
55,
-79,
34,
18,
53,
-22,
-30,
-55,
-21,
-22,
31,
10,
18,
37,
-28,
17,
40,
2,
26,
9,
9,
7,
13,
-48,
-36,
-29,
16,
-17,
41,
16,
-3,
7,
27,
-24,
2,
35,
-4,
-5,
15,
-41,
37,
11,
-4,
11,
-30,
34,
-43,
48,
-31,
48
] |
R. M. Maher, P.J.
On August 14, 1977, plaintiff, then a healthy 18-year-old man, dove from the southeast abutment of the 118th Avenue Bridge in Allegan County into the Swan Creek Pond. The dive proved disastrous, as plaintiff felt his head strike something in the water and heard his neck "pop”. Since that date, plaintiff has been a quadriplegic.
Plaintiff brought this action, and a similar one against the Allegan Board of County Road Commissioners, seeking damages for the accident which occurred in the Allegan State Game Area. The trials were consolidated and ended in a jury verdict of no cause of action against the Allegan Board of County Road Commissioners and a bench finding of defendant’s liability to plaintiff for negligence. The court originally found plaintiff’s damages to be $1,441,732 and reduced them by 95 percent due to plaintiff’s comparative negligence. The finding of the damages was subsequently altered to be $1,911,732, and was then again reduced by 95 percent. The trial court also found that defendant had been guilty of creating and maintaining an intentional nuisance but found that plaintiff was barred from recovering under this claim because he was himself guilty of willful and wanton misconduct in making the dive. Plaintiff appeals from the latter ruling, from the amount of damages found by the trial court, and from various other rulings. Defendant cross-appeals from the court’s finding that defendant’s maintenance of Swan Creek Pond as a recreation area was not a governmental function entitling defendant to governmental immunity with respect to plaintiff’s negligence claim and from the court’s award of damages.
The evidence presented at trial by plaintiff included plaintiff’s testimony that he, a cousin, Joseph Slevats, and a friend, Stacy Richardson, parked their car in a parking lot on the northeast side of the 118th Avenue Bridge and proceeded to the south side of the bridge. On the way, plaintiff saw and read a sign which stated that diving and fishing from the bridge were prohibited. Plaintiff did not refrain from diving, because he thought the sign was only to prevent traffic hazards. Plaintiff testified that, before diving, he carefully checked the water into which he and his companions were going to be diving by donning snorkling equipment and swimming about to check the water’s depth. Plaintiff also testified that he did not touch the bottom of the pond on either of his first two dives into the pond. It was established that plaintiff had Red Cross certification in swimming up to the level just below the lifeguard level. Plaintiff’s testimony was supported by Slevats and Richardson, although neither of them could recall plaintiff’s testing the water’s depth before they began diving. Both men had testified at their depositions that no one had gone into the water to make sure that it was safe to dive before the men began diving.
At the end of testimony on August 11, 1982, plaintiff rested. Trial counsel for the Allegan Board of County Road Commissioners then indicated that he had been informed only minutes previously of the existence of an eyewitness. The road commission then rested subject to the court’s ruling on the newly-discovered witness. The DNR had not yet rested.
The next morning, the discovery of the new eyewitness, William Wamack, was discussed. It was established that no one had been aware of Wamack’s existence, and the court ruled that each of the defendants had exercised reasonable diligence. The court also found that Wamack’s testimony would be very relevant and would not be cumulative. Defendants were granted permission to call Wamack and his wife as witnesses, but the Wamacks did not testify until after their depositions had been taken. At trial, which resumed several days later, William Wamack testified that he was at the Allegan State Game Area when plaintiff was injured. He stated that he witnessed plaintiff diving from the southeast bridge abutment wall and that, after plaintiff’s first dive, he heard plaintiff say to his companions, "Damn, I hit the bottom”. Wamack saw abrasions on plaintiff’s chest as if he had scraped a gravel bottom. Plaintiff then dove a second time, this time telling his friends that he had hit the bottom with the "forearm-elbow-hand area”. The Wamacks left the immediate area before plaintiff’s third and final dive, but were called back due to plaintiff’s injury. Mary Wamack testified that she was not in ’the same vicinity as her husband and so neither saw plaintiff dive nor heard him speak afterwards. Because she was a registered nurse, she tended plaintiff until ambulance personnel took over. She could not recall seeing an abrasion on plaintiffs chest or a large lump on his forehead.
After testimony, the trial court found that defendant DNR was guilty of creating and maintaining an intentional nuisance but barred any recovery by plaintiff on this count due to his willful and wanton misconduct. Both parties challenge the legal and factual underpinnings of these rulings on appeal.
As preliminary matters, we find that the Supreme Court’s decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), did not abolish the common law intentional nuisance exception to governmental immunity recognized in Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). See Veeneman v Michigan, 143 Mich App 694; 373 NW2d 193 (1985). We also reject plaintiffs contention that defendant waived the defense of willful and wanton misconduct by failing to properly raise it. Defendant’s answer to plaintiffs second amended complaint alleged as an affirmative defense that plaintiff failed to take any precautionary measures to determine whether the depth of the water or condition of its bottom was suitable for diving, that plaintiff was fully aware of the prohibition against diving from the bridge, and that plaintiff knew it was dangerous to dive but did so anyway, in reckless disregard of the consequences. The trial court found that defendant was guilty of creating and maintaining an intentional nuisance under the following analysis:
"Applying the above definitions to the evidence adduced at trial, this Court concludes that the Department of Natural Resources created and maintained an intentional nuisance in fact. The bridge structure from which Plaintiff dove and the shallow dark waters into which he entered comprised a hazardous condition, primarily because of the proximity to the recreational area created and maintained by the Department of Natural Resources. The bridge and the abuttments [sic] were an inviting diving platform for persons attracted to the Swan Creek area. The bridge is within a short swim and eyesight of a beach, boat launch and other recreational facilities by the bridge.
"The Department of Natural Resources was well aware of the dangers posed by the bridge and the shallow waters several years prior to Plaintiffs accident. Area Department of Natural Resources employees knew the waters were shallow and dark near the bridge structure. They also knew that individuals would dive and jump from the bridge. They even occasionally warned these persons verbally of the dangers inherent in this activity. However, in spite of this special knowledge, the Department of Natural Resources did not adopt rules or regulations prohiting [sic] this activity nor did they take any other steps to deny access to the bridge structure by swimmers and potential divers.
"For all the reasons noted herein this Court concludes that the site of this accident constituted an intentional nuisance in fact at the time Plaintiff was injured. The Department of Natural Resources brought about this condition by creating the recreational and swimming facilities of Swan Creek and by neglecting to effectively curb the use of the bridge as a diving platform despite its knowledge of such use.
"Prior, during, and subsequent to the year 1977, 118th Avenue and the Swan Creek Bridge were maintained, controlled, and repaired by the Allegan County Road Commission. 118th Avenue, including the bridge, was certified by the Road Commission to the State of Michigan, Department of Transportation, as a county primary road. * * *.
"The Department of Natural Resources takes the position that since there was no local ordinance prohibiting such activity and since they did not have control of the bridge there was no way to effectively control use that they thought to be dangerous. However, the waters of the pond were under their jurisdiction and they adopted no rule or regulation prohiting [sic] this dangerous activity when such a rule or regulation would have been enforceable by its officers.”
Defendant now argues that these findings are clearly erroneous. However, after examining the voluminous trial transcript and the trial court’s carefully drafted opinion, we cannot agree. We also find that these facts clearly describe the condition which constitutes the tort of "intentional nuisance”, a tort recognized to exist as a matter of law in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952), as interpreted in Justice Moody’s opinion in Gerzeski v Dep’t of State Hwys, supra. This definition has been succinctly stated in Hall v Dep’t of State Highways, 109 Mich App 592, 599-600; 311 NW2d 592 (1981), lv den 413 Mich 942 (1982):
"In Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970), the Supreme Court identified the factors necessary for a finding of nuisance:
" 'Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.’
"In Rosario v City of Lansing, 403 Mich 124, 132-133; 268 NW2d 230 (1978), the Supreme Court, citing Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959), classified nuisances as follows:
" ' "From the point of view of their nature, nuisances are sometimes classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circum stances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property. The number of nuisances per se is necessarily limited, and by far the greater number of nuisances are nuisances per accidens. For this reason whether or not a particular thing or act is a nuisance is generally a question of fact * * V”
"Nuisances in fact are divided into two categories, consisting of intentional and negligent nuisances. Gerzeski v Dep’t of State Highways, 403 Mich 149, 161; 268 NW2d 525 (1978). Justice Blair Moody, Jr., joined by four other justices, defined an intentional nuisance as a 'nuisance created by conduct intended to bring about conditions which, in fact, constituted a nuisance * * *’. Id., [sic] The requirements for determining the presence of an intentional nuisance were summarized in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952):
" 'A second [category of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.’ ”
After comparing the court’s findings of fact in this case with this definition, and with the extremely similar factual situations found to be intentional nuisances in such cases as Melendres v Soales, 105 Mich App 73; 306 NW2d 399 (1981), lv den 413 Mich 916 (1982), and Radloff v Michigan, 116 Mich App 745; 323 NW2d 541 (1982), remanded for reconsideration on other grounds 417 Mich 894; 330 NW2d 692 (1983), we find that the trial court did not err in ruling that defendant had created and maintained an intentional nuisance.
The trial court also found that plaintiff had been guilty of willful and wanton misconduct. In reaching this legal conclusion, the trial court made the following factual findings: 1) plaintiff hit the bottom of the pond after each of his first two or three dives; 2) plaintiff did not adequately test the depth of the water into which he would be diving; and 3), as a trained diver and swimmer, plaintiff should have discovered that the depth of the water ranged from only 3 feet to 5 feet 7 inches. Plaintiff argues on appeal that these findings are premised almost entirely upon William Wamack’s testimony and that they should be found to be clearly erroneous because Wamack was not a credible witness. However, the trial court was able to fully observe Wamack while he testified and was, therefore, in a superior position to judge his credibility. Furthermore, nothing in Wamack’s testimony was inherently incredible or worthy of disbelief. Finally, we note that plaintiff’s own claim that he carefully examined the depth of the water before diving was unsupported, even by his cousin and friend.
Plaintiff also argues that, even if Wamack is found to be credible and the trial court’s findings of fact not to be clearly erroneous, legally this conduct constituted no more than negligence. We disagree. In Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982), the Supreme Court discussed the concept of willful and wanton misconduct in an effort to distinguish it from ordinary negligence. The Court first noted the test for willful and wanton misconduct which had been adopted in Gibbard v Cursan, 225 Mich 311, 322; 196 NW 398 (1923):
"(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.” 414 Mich 455, fn 2.
The Court then stated:
’’Gibbard is a well-reasoned case whose three-element formula for determining willful and wanton misconduct, however, is poorly stated. If the three-prong test is read in the context of the instructive analysis which precedes it in Gibbard, it becomes evident that the rule of the case is that willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not, as the Gibbard Court observed, a high degree of carelessness. The poorly phrased three-prong test for willful and wanton misconduct in Gibbard is cast entirely in language of ordinary negligence until, in the third element, it is said that it must be shown that an injury 'is likely’. It is in that concept — the notion that in the circumstances of a given case the injury is probable, or to be expected, or likely — that is found the requisite indifference to harm tantamount to a willingness that it occur, if not a specific intent that it does, which distinguishes willful and wanton misconduct from ordinary negligence.” (Footnote omitted.) 414 Mich 455-456.
In this case, plaintiff’s conduct certainly presaged a probable injury, given the court’s finding that plaintiff dove three times into water which he knew to be shallow because he had already struck the bottom twice. While plaintiff obviously did not intend to injure himself, he displayed an "indifference to harm tantamount to a willingness that [the harm] occur”.
Having found that defendant was guilty of creating and maintaining an intentional nuisance and that plaintiff was guilty of willful and wanton misconduct, the trial court ruled that plaintiffs conduct completely barred him from recovering under his nuisance claim. Although Michigan law has never reached this conclusion, the trial court concluded that "if one encounters a nuisance and then acts [wantonly] or recklessly there should be no recovery”. The trial court’s position is supported by a number of authorities in other jurisdictions. See 58 Am Jur 2d, Nuisances, § 223, pp 826-827; 73 ALR2d 1378, § 7, pp 1397-1398. However, after carefully considering these authorities and the current state of Michigan law, we conclude that the better approach is to permit the trier of fact to consider both the tortfeasor’s fault in creating or maintaining an intentional nuisance and the plaintiff’s fault in approaching that nuisance in willful and wanton disregard of the high probability of harm and then to determine the degree to which each party’s fault proximately caused the ultimate injury. This position is supported by Judge Bronson’s well-reasoned opinion in Melendres v Soales, supra. In Melendres, Judge Bronson concluded that the newly-adopted doctrine of comparative negligence was not applicable to a case in which the fact finder has concluded that a nuisance was intentionally created:
"Where defendant intentionally commits a tort, comparative negligence is no defense which can serve to reduce his potential liability. The reason is clear from the very name of the comparative negligence doctrine. In such circumstances, defendant has simply not been negligent. There are no degrees of negligence to compare. A person’s obligation to guard himself from injury caused by design is insignificant, if existent at all, compared to his obligation to guard himself from injury caused by another’s simple lack of care.” 105 Mich App 81-82.
In the present situation, however, where degrees of fault may be compared, and where a person’s obligation to guard himself from injury is significant, comparison is warranted. The definitions of both intentional nuisance and willful and wanton misconduct, cited earlier in this opinion, indicate the similarity in the conduct involved and the possibility of intelligent comparison. We also note that the Supreme Court’s reasons for adopting comparative negligence apply as well in this situation:
"The doctrine of pure comparative negligence does not allow one at fault to recover for one’s own fault, because damages are reduced in proportion to the contribution of that person’s negligence, whatever that proportion is. The wrongdoer does not recover to the extent of his fault, but only to the extent of the fault of others. To assume that in most cases the plaintiff is more negligent than the defendant is an argument not based on equity or justice or the facts. What pure comparative negligence does is hold a person fully responsibile for this or her acts and to the full extent to which they cause injury. That is justice.” Placek v Sterling Heights, 405 Mich 638, 661; 275 NW2d 511 (1979), quoting from Kirby v Larson, 400 Mich 585, 645; 256 NW2d 400 (177).
We therefore find that the trial court erred by finding that plaintiff was barred from recovering under his intentional nuisance claim. Because the trial court acted as trier of fact in this case, we remand to the court to permit it to determine from the evidence the liability for plaintiff’s injuries properly attributed to the parties’ fault. We caution the trial court that this evaluation must be made separately from the comparison of negligence made in its analysis of plaintiff’s negligence claim.
Defendant argues in its cross-appeal that the trial court erred by concluding that defendant’s maintenance of Swan Creek Pond as a recreation area was not a governmental function and therefore defendant was not entitled to governmental immunity with respect to plaintiffs negligence claim. Defendant also argues that the trial court’s finding that defendant was liabile for five percent of plaintiffs injuries is clearly erroneous. We do not reach the second claim because we find that defendant was immune under the authority of Ross v Consumers Power Co (On Reh), supra. The Swan Creek Pond was part of the system of state recreational facilities either expressly or impliedly mandated or authorized by the constitution and statute and was not proprietary in nature. 420 Mich 591.
Plaintiff argues that the trial court abused its discretion by permitting the Wamacks, in particular William Wamack, to testify. However, it is apparent from the record that there had been no previous indication that these eyewitnesses existed and that their testimony was both highly relevant and not cumulative. Finally, we note that, even on appeal, plaintiff has not demonstrated any means by which he would have impeached William Wamack had he had the additional time originally contemplated by the pretrial discovery order.
Plaintiff next argues that the trial court abused its discretion by refusing to permit plaintiffs expert witness to testify with respect to whether or not plaintiff had been negligent. We disagree. The trial court’s stated reasons for excluding this testimony were proper.
Both parties challenge the trial court’s award of damages. After reviewing the court’s findings and the testimony of the only witness who testified on the subject, we conclude that a remand is necessary to allow the court to more fully explain the source of the figures used by the court before we can properly review this issue. In addition, on remand the court is to follow the direction of this Court in Gorelick v Dep’t of State Highways, 127 Mich App 324, 341-343; 339 NW2d 635 (1983), and refrain from reducing the amount of damages in light of income tax consequences. We retain jurisdiction.
Plaintiffs final claim, that the Court of Claims judgment interest statute is unconstitutional, is without merit. Sweetman v State Highway Dep’t, 137 Mich App 14, 28; 357 NW2d 783 (1984); Henley v Dep’t of State Highways & Transportation, 128 Mich App 214, 220-223; 340 NW2d 72 (1983).
Affirmed in part; reversed in part. Remanded for proceedings consistent with this opinion. We retain jurisdiction. | [
-41,
56,
-48,
-28,
3,
-27,
51,
0,
23,
5,
-23,
-33,
39,
-13,
4,
-34,
-5,
-36,
-50,
-25,
-14,
-9,
49,
3,
-27,
-8,
27,
-2,
-5,
-40,
21,
15,
-56,
22,
4,
42,
-2,
24,
-6,
-8,
6,
-32,
24,
-64,
5,
-13,
57,
-3,
-10,
1,
-23,
12,
42,
-29,
-15,
-50,
24,
13,
-25,
-36,
-15,
1,
35,
-23,
37,
4,
-23,
10,
5,
-13,
-26,
75,
-7,
-4,
-58,
-8,
-41,
16,
11,
28,
-41,
48,
36,
10,
-52,
-30,
-43,
49,
37,
-6,
26,
-10,
-2,
-21,
-15,
0,
-15,
-20,
-15,
3,
24,
43,
35,
1,
22,
17,
-4,
-32,
-27,
-24,
11,
40,
6,
-7,
-20,
-69,
1,
-9,
49,
71,
52,
-5,
58,
-48,
-14,
-24,
34,
-35,
2,
89,
9,
-8,
-17,
4,
-39,
39,
-72,
-2,
43,
-4,
-12,
22,
-20,
-43,
-42,
67,
-2,
-27,
47,
-4,
-57,
-30,
13,
-11,
7,
-7,
19,
-23,
15,
23,
39,
-5,
-12,
14,
-43,
-12,
16,
-33,
33,
0,
75,
38,
68,
-49,
2,
-4,
6,
-15,
9,
-3,
-27,
-12,
-3,
34,
-71,
-69,
-5,
-20,
-49,
77,
85,
-83,
-90,
13,
23,
56,
25,
4,
-39,
17,
33,
-30,
47,
3,
-13,
-14,
2,
-24,
-4,
-3,
39,
-30,
22,
-29,
0,
-9,
40,
55,
3,
-50,
-6,
5,
30,
1,
-55,
-28,
-39,
6,
-1,
-42,
14,
-67,
12,
25,
-5,
-20,
38,
1,
21,
-26,
5,
35,
25,
-12,
-1,
27,
-33,
-55,
-56,
31,
-20,
-54,
-45,
-9,
-28,
78,
0,
40,
-36,
27,
2,
46,
12,
5,
4,
-6,
-26,
-3,
-18,
-23,
-62,
-13,
53,
-27,
-49,
-33,
-7,
8,
28,
26,
28,
-47,
21,
10,
-10,
62,
-10,
20,
-53,
-9,
-11,
0,
5,
-27,
37,
1,
34,
-92,
10,
22,
20,
17,
5,
-10,
-10,
21,
-9,
-2,
-11,
38,
0,
-13,
13,
24,
73,
18,
-12,
30,
44,
-25,
41,
-2,
-30,
11,
-86,
-2,
19,
1,
-8,
42,
-16,
21,
-18,
18,
50,
-33,
-28,
-29,
-25,
55,
10,
-19,
35,
-12,
-22,
-23,
5,
37,
3,
-21,
-39,
6,
-3,
9,
-11,
-15,
0,
-14,
16,
51,
25,
34,
-25,
-4,
1,
-29,
-15,
-1,
-15,
53,
19,
-2,
-32,
9,
-6,
-15,
23,
38,
-28,
29,
2,
46,
29,
-2,
-21,
-24,
-15,
-99,
-61,
20,
-65,
-17,
0,
25,
-38,
38,
28,
4,
-17,
-38,
6,
16,
2,
2,
-3,
33,
-21,
4,
17,
-4,
-34,
-10,
17,
6,
-22,
-13,
59,
11,
-18,
-42,
41,
58,
5,
-95,
18,
-84,
19,
25,
25,
27,
21,
85,
35,
-42,
27,
-23,
-32,
-6,
-21,
9,
-55,
-22,
51,
-44,
5,
-12,
-24,
65,
6,
-71,
45,
39,
-23,
9,
13,
13,
-14,
1,
-27,
-38,
-20,
-19,
-35,
-51,
-19,
-42,
-48,
-22,
12,
-32,
-7,
0,
9,
-1,
-35,
-32,
43,
-10,
-12,
50,
-5,
-13,
-55,
-10,
-51,
-46,
5,
-11,
9,
14,
25,
12,
-25,
-10,
25,
73,
-13,
18,
-8,
-22,
-6,
0,
-52,
35,
3,
1,
40,
-26,
-28,
24,
-53,
-15,
-26,
81,
-9,
9,
-22,
1,
-39,
-4,
-28,
-4,
0,
12,
-3,
-10,
-26,
-21,
-36,
-42,
21,
-66,
-43,
-32,
-26,
-39,
-39,
7,
-27,
26,
45,
-5,
22,
-44,
32,
0,
1,
54,
32,
22,
38,
-12,
16,
18,
-12,
1,
4,
-55,
7,
-55,
11,
-22,
-7,
-7,
-25,
37,
42,
-20,
37,
-19,
-5,
1,
42,
-45,
-12,
17,
-7,
27,
-22,
67,
-15,
-34,
-13,
8,
-35,
3,
39,
7,
11,
30,
-26,
4,
-4,
10,
34,
-24,
91,
-13,
8,
-45,
8,
-21,
5,
56,
65,
34,
-42,
-13,
23,
38,
27,
-9,
-16,
-17,
-24,
-40,
0,
-27,
-10,
39,
25,
-29,
45,
-20,
-7,
31,
-3,
40,
-26,
-32,
-45,
-14,
-64,
-16,
65,
-16,
11,
55,
8,
30,
-23,
-6,
0,
12,
-13,
-47,
17,
-21,
-98,
13,
5,
29,
-46,
20,
18,
15,
-39,
3,
-9,
9,
-6,
17,
0,
-49,
-11,
28,
-24,
-10,
-3,
-35,
14,
11,
-14,
23,
6,
-57,
-29,
38,
14,
14,
50,
-23,
0,
-33,
3,
-15,
-28,
36,
24,
7,
-6,
8,
-16,
36,
29,
59,
-4,
20,
-44,
42,
-12,
-19,
-66,
3,
-58,
15,
62,
-8,
-27,
32,
-33,
49,
-10,
52,
33,
54,
-22,
-31,
-67,
26,
0,
-10,
-3,
-10,
28,
-15,
-38,
26,
8,
15,
-22,
14,
7,
3,
15,
15,
-21,
1,
-33,
-32,
30,
-82,
-21,
-26,
20,
-6,
39,
-17,
65,
-4,
-64,
26,
-22,
24,
5,
-3,
29,
26,
-29,
37,
42,
47,
0,
-17,
-25,
-17,
44,
-17,
19,
-18,
-10,
42,
4,
-30,
-34,
23,
-21,
-40,
-10,
-4,
-30,
0,
-12,
14,
-44,
-12,
-17,
-10,
26,
-19,
-2,
-27,
-30,
59,
49,
9,
53,
19,
-11,
28,
-15,
39,
14,
53,
20,
-11,
28,
-20,
33,
9,
-20,
16,
64,
-8,
12,
23,
36,
3,
-5,
8,
3,
18,
-34,
-19,
0,
27,
-13,
-14,
54,
-36,
6,
42,
-25,
16,
49,
-32,
15,
-6,
-41,
-59,
-25,
7,
-29,
-14,
6,
-35,
51,
-20,
-2,
12,
-6,
1,
-8,
-16,
-44,
55,
-61,
14,
19,
-6,
27,
-39,
-51,
2,
-12,
40,
17,
6,
-52,
-37,
32,
-30,
-101,
-5,
-20,
28,
-12,
-38,
15,
1,
38,
-53,
9,
-19,
-22,
-9,
9,
-30,
59,
28,
17,
58,
46,
-19,
-52,
9,
-73,
78,
16,
-63,
44,
-23,
54,
-15,
-21,
-56,
8,
-24,
4,
56,
-2,
2,
23,
3,
-32,
-7,
-18,
35,
3,
-12,
-14,
18,
24,
-25,
-50,
47,
-36,
-1,
-28,
29,
-21,
-6,
-54,
15,
5,
31,
40,
-71,
-20,
39,
59,
15,
-3,
80,
13,
-3,
17,
-29,
-34,
32,
15,
11,
-16,
66,
0,
-22,
-4,
32,
-9,
4,
24,
24,
-5,
43,
2,
-17,
0,
-51,
-1,
44,
-48,
39,
-41,
-20,
-21,
19,
2,
-30,
12,
-45,
20,
-39,
13,
-35,
8,
16,
13,
15,
31,
7,
-10,
-20,
12,
46,
21,
-17,
-6,
-10,
-55,
-60,
7,
0,
17,
62,
32,
9,
36,
27,
10,
14,
28,
74,
41,
-24,
1,
60,
-29,
-5,
15,
21,
17,
-32,
5,
11
] |
Per Curiam.
Both plaintiffs appeal from grants of partial summary judgments against them. The appeals were consolidated by the Court of Appeals. The two cases arose out of the same automobile accident but were heard before different trial judges of the Oakland County Circuit Court, both judges concluding that defendants David and Joan Dolezel had no common-law duty to prevent their 18-year-old son from drinking alcoholic beverages in their home or to provide safe transportation for his similarly-aged friends.
Five young people, all but one of them at least 18 years old, including David Dolezel, Jr., age 18, purchased alcoholic beverages on the evening of November 24, 1982, and were consuming them in the home of defendants David and Joan Dolezel. Sometime after midnight the group decided to go to the home of another friend. They left in two cars, David Dolezel, Jr., driving his father’s car, with plaintiff Reinert’s decedent, Kathleen Reinert, in the front seat and plaintiff Daniel Kasco in the back seat. The car failed to negotiate a curve and crashed. Kathleen Reinert was killed; plaintiff Kasco and defendant David Dolezel, Jr. were both injured. These lawsuits resulted.
Plaintiff Reinert obtained a consent judgment against the Seven-Eleven store defendant for $25,-000, and later obtained a consent judgment against all three Dolezels for $50,000. Although plaintiff Reinert claims an appeal from the partial summary judgment entered prior to the consent judgment with the Dolezels, we consider the consent judgment to have settled the matter.
Plaintiff Kasco (hereinafter plaintiff) agreed to dismiss his claim against the Seven-Eleven store defendant, but pursued his claim against the Dolezels. After defendants David and Joan Dolezel obtained a partial summary judgment, an order of dismissal with prejudice "with regard to defendants Dolezel only, as it would relate to Count I of the complaint and those portions of Count II dealing with auto negligence” was entered. Thus, the only remaining issue on appeal concerns plaintiff Kasco’s allegations in Count II that defendants David and Joan Dolezel (hereinafter defendants) negligently permitted minors to consume alcohol in their home.
Specifically, plaintiff alleges in Count II that defendants David and Joan Dolezel were negligent in that:
"A. Defendants knowingly permitted the use and consumption by under-aged individuals of intoxicating beverages on and about their premises in the presence of other under-age individuals causing unsafe conditions without proper supervision;
"B. Defendants negligently allowed said Defendant, David Dolezel, Jr., under-aged son, to consume intoxicating beverages and to become visibly intoxicated without proper intervention;
[Paragraphs C, D, and E deal only with automobile negligence.]
"F. Defendants did nothing to terminate the consumption of alcohol by the minors or prohibit the driving of automobiles which ultimately led to the Plaintiffs injuries;
"G. Defendants after allowing minors to consume alcoholic beverages failed to provide safe transportation to the Plaintiff, when the aforesaid Defendants knew or should have known in the exercise of ordinary care that the providing of safe transportation was necessary;
"H. Defendants in allowing minors to consume alcoholic beverages had reason to know, or should have known in the exercise of ordinary care that they were dealing with minors whose characteristics make it especially likely that said minors would do unreasonable things and it would be expected by virtue of their youth alone and in connection with the circumstances be involved in dangerous activities after the consumption of alcoholic beverages; and,
"I. Defendants further violated the statutory and common laws by furnishing or allowing alcoholic beverages to be furnished to minors in their home.”
Defendants responded with a motion for partial summary judgment "pursuant to Rule 117”, contending that plaintiff’s complaint failed to state a claim for which relief could be granted. This ground for summary judgment is authorized by GCR 1963, 117.2(1), which tests the legal adequacy of the pleadings. In ruling on such a motion, the court determines whether plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323; 343 NW2d 164 (1984). The Court accepts as true all well-pleaded facts. Id., p 324.
Plaintiffs allegations of negligence fall basically into three categories: that defendants permitted alcohol to be consumed by persons under 21 years of age in their home; that defendants furnished alcohol to these young persons; and that defendants had a duty to provide safe transportation to plaintiff.
A person who knowingly sells or furnishes alcoholic liquor to a person who is less than 21 years of age, or who fails to make diligent inquiry as to whether the person is less than 21 years of age, is guilty of a misdemeanor. MCL 436.33(1); MSA 18.1004(1). Violation of a penal statute gives rise to a prima facie case of negligence. Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976). This statute, part of the Michigan Liquor Control Act, gives rise to a civil cause of action for injuries or death caused by the furnishing of liquor to a minor by a social host or other persons not falling under the purview of the Liquor Control Act. Longstreth v Fitzgibbon, 125 Mich App 261, 266; 335 NW2d 677 (1983), lv gtd 418 Mich 876 (1983). However, averments that defendants negligently supervised the dispensation and consumption of alcohol by persons under 21 years of age do not state a cause of action upon which relief can be granted. Id., p 267. Where the under-21 drinkers purchased their alcoholic beverages elsewhere and merely consumed them in defendants’ home, no cause of action arises from the statute. Christensen v Parrish, 82 Mich App 409; 266 NW2d 826 (1978), lv den 403 Mich 845 (1978). In Christensen, supra, where the defendant did not supply the intoxicants, and was not present in the house when additional intoxicants were served or when an intoxicated minor left the house with the plaintiff, no common-law duty to refrain from know ingly permitting minors to consume alcoholic beverages in the defendant’s home was found to exist.
To the extent that plaintiff in this case alleged that defendants furnished alcoholic beverages to persons under 21 years of age in their home, plaintiff stated a cause of action upon which relief can be granted. However, plaintiff’s pleading offers no details supporting this allegation, and plaintiff has not advanced the "furnishing” theory either before the trial court or before this Court. Instead, plaintiff argues that there should be a cause of action against parents who permit persons under age 21 to drink in their home.
Although plaintiff refers to the young people involved in this case as "minors”, they were not. At the time of this incident, decedent Reinert was 19 years old, plaintiff Kasco was 18 years old, as was defendant David Dolezel, Jr. A person who is 18 years of age is deemed to be an adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age, notwithstanding any other provision of law to the contrary. MCL 722.52; MSA 25.244(52). These people were not minors; they were adults who were not old enought to drink alocholic beverages legally. Any duty the parents had to supervise their child’s conduct ended when that child became an adult. To make homeowners civilly liable for illegal activity being conducted by adults in their home, of which the homeowners have no part, would be to break new ground in Michigan jurisprudence. The problem of teenagers who drink and drive is a serious one. But we know of no jurisdiction which imposes a duty upon homeowners to stop adults from illegally drinking in their home. As plaintiff concedes, courts have extended liability to social hosts, based either on statute or common law, only where the defendant host actively furnished or served the alcohol, e.g., Congini v Portersville Valve Co, 504 Pa 157, 163; 470 A2d 515 (1983) ("It is the person’s service which forms the basis of the cause of action”); Wilson v Steinbach, 98 Wash 2d 434; 656 P2d 1030 (1982).
There is no duty to control the conduct of a third party so as to prevent him from causing physical harm to another unless a special relationship exists. 2 Restatement of Torts, 2d, § 315, p 122. Such a special relationship, making an employer liable for injuries caused by an intoxicated employee after leaving an office party, has been held to arise from the master-servant relationship. Romeo v Van Otterloo, 117 Mich App 333; 323 NW2d 693 (1982), lv den 417 Mich 1004 (1983). Parents are under a duty to exercise reasonable care to control their minor child, 2 Restatement of Torts, 2d, § 316, p 123, American States Ins Co v Albin, 118 Mich App 201; 324 NW2d 574 (1982), lv den 417 Mich 955 (1983), but this duty ends when the child becomes an adult, and that happens in Michigan at age 18.
Plaintiff also contends that defendants had a common-law duty to provide safe transportation for the teenagers drinking in their home. Plaintiff cites no authority for such a duty, and we have found none. To the contrary, this Court held in Westcoat v Mielke, 108 Mich App 115; 310 NW2d 293 (1981), lv den 413 Mich 862 (1982), That the plaintiff there had no cause of action against the defendants who allegedly forced him, while intoxicated, to leave their home and attempt to drive his automobile. Defendants in this case did not force the young people to leave, and the only person alleged to be intoxicated that evening was defen dants’ son, David Dolezel, Jr., who was already home.
The trial court correctly determined that plaintiff failed to state a cause of action against defendants.
Affirmed. | [
-33,
59,
34,
32,
8,
-49,
4,
12,
-22,
22,
-27,
-40,
34,
57,
42,
-25,
-15,
28,
-39,
-23,
48,
-8,
0,
44,
-26,
-17,
16,
-11,
22,
-9,
-2,
-16,
16,
-37,
-22,
34,
63,
6,
19,
0,
-34,
-14,
43,
50,
-45,
-2,
24,
-11,
61,
0,
30,
-30,
32,
5,
14,
-6,
8,
24,
6,
-11,
-49,
19,
47,
4,
16,
-5,
4,
13,
-9,
25,
19,
37,
-67,
5,
-4,
-4,
-26,
25,
30,
-14,
-30,
34,
81,
51,
-59,
8,
0,
2,
17,
-4,
-13,
15,
-48,
-29,
-4,
48,
-64,
-32,
27,
-38,
13,
-26,
4,
33,
-9,
27,
17,
-56,
-8,
-36,
0,
15,
38,
-6,
-27,
-2,
-16,
18,
-38,
43,
5,
-3,
39,
-6,
-3,
-27,
13,
-25,
-81,
37,
11,
39,
-13,
8,
-1,
21,
19,
10,
35,
-4,
54,
10,
35,
-21,
52,
31,
-35,
-4,
-8,
-10,
3,
5,
-46,
25,
-12,
8,
29,
-38,
13,
-40,
-28,
-20,
1,
39,
8,
-45,
-9,
27,
-27,
-6,
1,
-4,
49,
-42,
55,
0,
8,
-24,
-62,
18,
-56,
27,
-4,
-6,
-34,
-62,
-24,
-17,
-28,
-19,
-18,
-34,
-13,
1,
-31,
25,
41,
43,
21,
-25,
-35,
-41,
42,
19,
28,
-23,
-7,
8,
-13,
-41,
15,
3,
21,
-67,
1,
-46,
16,
2,
-43,
-13,
-3,
-43,
-31,
-5,
-58,
-21,
15,
-38,
-47,
-25,
10,
-40,
59,
21,
16,
-13,
37,
-28,
39,
16,
36,
26,
-13,
-16,
-53,
51,
-39,
2,
-5,
-11,
0,
3,
-66,
6,
-21,
-59,
-34,
20,
44,
16,
23,
69,
21,
3,
-26,
21,
-3,
-5,
-19,
-1,
-1,
-34,
28,
-29,
-16,
-10,
8,
75,
24,
94,
6,
9,
21,
-11,
13,
53,
-21,
45,
-12,
15,
26,
15,
-31,
-20,
67,
-12,
-24,
20,
-48,
23,
15,
-32,
5,
12,
-37,
-13,
-4,
-1,
-4,
-20,
-2,
-46,
26,
10,
22,
-18,
-30,
1,
56,
-4,
-26,
-22,
0,
37,
-88,
-47,
24,
-41,
28,
8,
-74,
46,
15,
-14,
-45,
-18,
14,
27,
-6,
13,
18,
31,
-25,
26,
14,
24,
32,
-20,
-27,
-26,
-36,
-34,
12,
14,
17,
0,
12,
-52,
13,
56,
22,
-23,
-53,
32,
5,
47,
59,
17,
-12,
19,
2,
13,
-35,
6,
-49,
-21,
-17,
-2,
14,
68,
-4,
-35,
58,
-14,
4,
-9,
-28,
2,
-57,
8,
-8,
-32,
27,
-37,
13,
-9,
-59,
19,
30,
-27,
5,
-4,
7,
-36,
5,
-22,
8,
35,
39,
-33,
-24,
-6,
37,
17,
-8,
37,
7,
-18,
-27,
4,
-5,
50,
-28,
-62,
25,
-51,
18,
10,
-13,
57,
-19,
32,
-38,
-19,
25,
-14,
-27,
-11,
16,
8,
-29,
-5,
-16,
26,
38,
-19,
-33,
30,
60,
0,
21,
12,
9,
9,
-36,
28,
7,
14,
-49,
-32,
27,
4,
-27,
-42,
35,
-18,
-40,
-17,
-6,
-38,
-21,
8,
-7,
32,
0,
34,
-5,
27,
-9,
50,
-15,
-19,
-19,
-14,
-65,
-7,
-24,
21,
-21,
10,
47,
-23,
-12,
26,
-23,
-14,
-25,
11,
-40,
-6,
-3,
-11,
-40,
34,
30,
-44,
2,
6,
-38,
-28,
-11,
19,
-10,
-20,
-37,
-30,
24,
0,
-17,
21,
15,
8,
-55,
49,
-52,
-16,
36,
-61,
-10,
-29,
15,
-54,
-17,
-35,
12,
9,
22,
-15,
-3,
13,
21,
20,
14,
-16,
35,
13,
1,
4,
69,
-9,
33,
23,
-48,
-15,
1,
-8,
-5,
0,
-8,
-39,
-27,
45,
44,
11,
26,
18,
4,
-15,
39,
3,
-47,
49,
1,
-26,
-20,
68,
-13,
1,
-53,
-16,
24,
61,
-5,
-2,
-41,
35,
29,
7,
-31,
-15,
-11,
34,
37,
-34,
17,
-8,
22,
-29,
8,
46,
20,
-2,
20,
24,
3,
17,
-45,
3,
-24,
-46,
54,
-29,
-35,
-38,
37,
-14,
44,
18,
1,
11,
-25,
-35,
-58,
42,
28,
12,
-6,
-22,
-10,
-27,
-17,
-16,
-2,
-37,
9,
-8,
12,
58,
-12,
-49,
20,
38,
-2,
67,
39,
-55,
21,
31,
-17,
-6,
-45,
26,
2,
29,
-5,
-17,
-28,
-23,
-23,
-43,
-19,
37,
-42,
33,
-9,
15,
8,
-13,
9,
26,
3,
15,
-6,
9,
49,
-2,
-11,
8,
-37,
37,
-65,
2,
17,
-54,
-31,
-17,
-2,
-26,
46,
-38,
-14,
15,
-26,
-28,
7,
45,
-15,
38,
-9,
2,
-44,
36,
-17,
16,
-30,
21,
27,
8,
8,
10,
-24,
28,
15,
-45,
17,
-24,
12,
-15,
-33,
-22,
-4,
11,
34,
-32,
37,
-17,
1,
-7,
13,
22,
17,
-29,
14,
3,
49,
44,
11,
-75,
16,
-14,
10,
12,
8,
2,
9,
-7,
-50,
32,
40,
29,
-53,
28,
-32,
30,
-2,
-6,
41,
6,
0,
4,
-7,
-29,
16,
31,
22,
-25,
-11,
17,
20,
-9,
-47,
34,
22,
-49,
-52,
13,
-20,
-23,
5,
6,
-18,
-6,
26,
-24,
9,
-22,
43,
18,
19,
27,
28,
-37,
26,
27,
17,
19,
14,
20,
33,
-22,
23,
44,
43,
30,
-26,
-2,
-12,
-34,
50,
19,
30,
-19,
30,
-4,
-8,
22,
-11,
-72,
-9,
11,
43,
-46,
-47,
14,
-33,
2,
-17,
-14,
18,
-27,
24,
-30,
-12,
41,
-71,
14,
35,
-38,
-3,
22,
-20,
29,
-26,
17,
-1,
4,
19,
28,
3,
9,
-16,
-61,
18,
0,
26,
33,
-5,
9,
-21,
48,
-13,
-16,
-31,
5,
-20,
-4,
-5,
29,
-5,
16,
-33,
-5,
-31,
66,
-10,
-20,
-23,
-49,
-6,
-11,
63,
-42,
-29,
15,
39,
44,
-12,
-5,
-40,
28,
-28,
27,
3,
-16,
-24,
12,
-20,
0,
7,
-26,
-1,
22,
-6,
-21,
-24,
2,
37,
-6,
-35,
-18,
-19,
-3,
25,
67,
11,
-14,
-43,
2,
13,
2,
28,
29,
-55,
-18,
9,
-5,
-23,
41,
-34,
3,
-7,
-18,
8,
-30,
-21,
27,
1,
-13,
30,
-13,
13,
13,
-14,
17,
-1,
-9,
2,
-60,
-37,
-1,
-17,
20,
-42,
18,
-7,
-1,
-13,
42,
-65,
75,
-7,
54,
10,
68,
-11,
-84,
-41,
16,
14,
12,
0,
-19,
16,
36,
-36,
-54,
17,
7,
-15,
31,
-46,
27,
-13,
-31,
-56,
49,
-30,
20,
-64,
17,
-18,
7,
46,
5,
-12,
50,
-55,
54,
0,
-38,
0,
-19,
38,
-36,
-10,
-19,
-28,
34,
20,
35,
-15,
-29,
-17,
-6,
8,
-12,
-15,
1,
-10,
38,
-40,
24,
10,
-11
] |
On Remand
Before: Bronson, P.J., and T. M. Burns and Mackenzie, JJ.
T. M. Burns, J.
Plaintiff rejected a mediation panel evaluation and failed to obtain a verdict which was more than ten percent greater than the panel’s evaluation. The trial court ruled that, pursuant to GCR 1963, 316.7(b)(1), defendant was entitled to "actual costs”. The term "actual costs” is defined in GCR 1963, 316.8 to include "a reasonable attorney fee as determined by the trial judge for services necessitated by the rejection of the panel’s evaluation”. In our earlier opinion in this case, 131 Mich App 371; 346 NW2d 555 (1984), we construed the meaning of GCR 1963, 316.8, and remanded the case for recalculation of the recoverable fee. On April 17, 1985, the Supreme Court vacated our judgment and remanded the case for reconsideration in light of former Oakland County Circuit Court Rule 18.12, for the reason that GCR 1963, 316 did not take effect until after the mediation proceedings had been concluded. 422 Mich 862 (1985).
Former Oakland County Circuit Court Rule (OCCR) 18.12 defines the term "actual costs” to include "reasonable attorney fees to be determined by the judge to whom the case is assigned”. The wording of former OCCR 18.12 differs from the wording of GCR 1963, 316.8. While under either rule, attorney fees are to be "reasonable” and are to be determined by the judge assigned to or presiding over the case, GCR 1963, 316.8 contains an additional requirement that the attorney fees be "for services necessitated by the rejection”.
Our previous opinion relied on this terminology to hold that a party rejecting a mediation evaluation is not to be burdened with unlimited liability for any costs which are "but-for” caused by the decision to proceed to trial. The result reached in our earlier opinion was based on the requirements that attorney fees be "reasonable” and that those fees be only for services "necessitated” by the rejection. Thus, under GCR 1963, 316.8 attorney fees are recoverable only for services which are made necessary or unavoidable by the rejection. Attorney fees are not always recoverable for all services rendered. Causation principles require an inquiry into which consequences would not have occurred but for the rejection and an inquiry into which consequences are reasonably foreseeable. However, GCR 1963, 316 does not provide for recovery of attorney fees for all services "caused” by the rejection. Rather, the court rule provides for recovery of attorney fees for services which are "necessitated” by the rejection. Services may be foreseeable while at the same time they are not necessitated. An attorney may rationally choose to provide many legitimate services requested by clients, but at the same time such services may not be necessary. Grossly inefficient and unduly wasteful conduct is never necessitated by a rejection. Such services are avoidable and unnecessary. The resulting costs incurred through no fault of the party rejecting the award are not recoverable.
In addition to the requirement that the services be necessitated, an attorney fee based on such services is recoverable under GCR 1963, 316 only if the fee is "reasonable”. The determination of the reasonableness of a fee involves a consideration of whether the attorney acted properly in supplying the underlying services. A fee charged for unnecessary conduct might not be reasonable. Both the "reasonableness” requirement and the requirement that services be "necessitated” led to the result reached in our earlier opinion.
However, the court rule which is applicable in this case is former OCCR 18.12. That rule required only that the attorney fees be "reasonable”. In Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973), this Court set forth several guidelines for determining the "reasonableness” of attorney fees. The Crawley factors have been applied in a multitude of cases in which reasonable attorney fees are authorized by statute or court rule. See Burke v Angies, Inc, 143 Mich App 683; 373 NW2d 187 (1985); Johnston v Detroit Hoist & Crane Co, 142 Mich App 597; 370 NW2d 1 (1985); Nelson v DAIIE, 137 Mich App 226; 359 NW2d 536 (1984); Bowen v Nelson Credit Centers Inc, 137 Mich App 76; 357 NW2d 811 (1984); King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984); In re L’Esperance Estate, 131 Mich App 496; 346 NW2d 578 (1984); Bradley v DAIIE, 130 Mich App 34; 343 NW2d 506 (1983); Butt v DAIIE, 129 Mich App 211; 341 NW2d 474 (1983); Petterman v Haverhill, 125 Mich App 301; 335 NW2d 710 (1982); Heath v Alma Plastics Co, 121 Mich App 137; 328 NW2d 598 (1982); Medbury v General Motors Corp, 119 Mich App 351; 326 NW2d 139 (1982); and Liddell v DAIIE, 102 Mich App 636; 302 NW2d 260 (1981). In addition, the Supreme Court adopted the Crawley factors and applied them to the no-fault insurance scheme in Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982). While a trial court should consider the guidelines of Crawley, it is not limited to those factors in making its determination. Id. Further, the trial court need not detail its findings as to each specific factor considered. Id. The award will be upheld unless it appears upon appellate review that the trial court’s finding on the "reasonableness” issue was an abuse of discretion. Id. However, if any of the underlying facts, such as the number of hours spent in preparation, are in dispute, the trial judge should make findings of fact on those issues. See Desender v De Meulenaere, 12 Mich App 634; 163 NW2d 464 (1968).
In the instant case, plaintiff challenged the amount of attorney fees requested by defendant. The trial court merely found that the bill of costs was reasonable and accepted the bill on its face. This was error. The trial court abused its discretion by failing to consider the Crawley factors and to determine a reasonable fee.
As to the awards for expert witness fees and defense of the counterclaim, we adopt the analysis in our original opinion. See 131 Mich App 371, 379-380.
Reversed and remanded for proceedings in which the Crawley factors are applied and any underlying disputed issues of fact are resolved.
Bronson, P.J., concurred. | [
-18,
10,
-8,
20,
-6,
4,
16,
-46,
-57,
0,
78,
-30,
-11,
-27,
40,
14,
-22,
28,
20,
-73,
-21,
-7,
33,
58,
0,
-4,
24,
-17,
54,
-24,
-52,
27,
-26,
46,
-24,
-14,
-43,
9,
-41,
3,
16,
-35,
8,
-6,
-69,
17,
30,
-7,
-13,
-41,
-31,
24,
-26,
32,
-19,
18,
14,
-15,
-61,
-30,
-9,
11,
-24,
30,
41,
12,
-28,
25,
42,
18,
-62,
-11,
30,
-3,
25,
-31,
0,
-66,
-34,
23,
-18,
42,
17,
5,
-19,
11,
16,
-40,
2,
24,
-23,
52,
-33,
7,
42,
7,
16,
-42,
-1,
-17,
-10,
5,
21,
20,
-12,
15,
0,
-59,
-22,
8,
0,
26,
12,
-56,
-29,
-3,
-29,
-25,
21,
18,
-18,
-24,
21,
-15,
-23,
-27,
40,
24,
5,
-11,
16,
10,
5,
-28,
-28,
-36,
23,
1,
-35,
12,
-5,
4,
29,
7,
32,
-5,
50,
-8,
-65,
-15,
-3,
2,
8,
57,
38,
-46,
45,
-67,
21,
16,
60,
8,
-8,
-13,
17,
-14,
13,
0,
26,
-58,
39,
15,
17,
8,
31,
0,
5,
25,
-36,
46,
-7,
21,
0,
-31,
24,
10,
12,
16,
-28,
18,
19,
-38,
-37,
35,
-1,
26,
32,
55,
-17,
25,
3,
-11,
-33,
11,
1,
31,
40,
-73,
37,
-5,
-17,
-3,
-42,
-39,
36,
16,
-3,
5,
-2,
11,
-10,
-41,
21,
-7,
-18,
-9,
-22,
49,
74,
-55,
0,
-12,
-87,
-16,
10,
-14,
7,
79,
63,
-21,
-2,
-2,
22,
-54,
-34,
1,
-56,
13,
-22,
10,
11,
-16,
-9,
-24,
-17,
-22,
26,
35,
-41,
6,
-4,
2,
-52,
-10,
-33,
30,
-46,
12,
31,
5,
-14,
31,
13,
37,
22,
-15,
-56,
-2,
10,
18,
-4,
6,
-21,
12,
14,
26,
-25,
16,
45,
10,
32,
0,
15,
-35,
43,
23,
36,
11,
13,
0,
19,
-8,
11,
16,
-16,
-5,
-14,
23,
-19,
-10,
39,
-19,
48,
-27,
29,
-13,
-91,
2,
18,
-41,
46,
34,
1,
-9,
-18,
12,
36,
-4,
13,
-51,
-30,
-20,
0,
-14,
29,
-55,
-39,
7,
28,
21,
13,
-17,
-26,
-8,
22,
-24,
-25,
-26,
11,
-1,
-14,
35,
-19,
49,
17,
-39,
9,
3,
-55,
27,
39,
0,
20,
-13,
6,
33,
12,
-7,
0,
55,
-30,
7,
-38,
-30,
-1,
9,
-3,
17,
-41,
23,
-33,
1,
-21,
56,
33,
-25,
-26,
1,
-43,
6,
-8,
30,
2,
6,
-11,
80,
-35,
0,
-15,
-41,
30,
4,
-12,
12,
-16,
-33,
1,
-25,
11,
-36,
0,
-31,
8,
12,
3,
4,
-1,
-25,
2,
-32,
40,
-33,
-8,
10,
-19,
-37,
27,
-23,
16,
34,
-28,
0,
50,
7,
7,
30,
-43,
4,
-58,
45,
-15,
-9,
-15,
-17,
4,
-50,
-37,
0,
44,
19,
20,
-19,
-3,
0,
-51,
20,
-54,
-41,
-31,
-6,
9,
-51,
-35,
0,
5,
-91,
17,
78,
21,
4,
-14,
36,
-15,
9,
-19,
-17,
-1,
-36,
-25,
21,
1,
3,
-31,
31,
-11,
60,
-4,
-36,
-13,
-64,
-7,
-4,
16,
28,
-18,
40,
-26,
3,
-5,
-57,
-19,
-23,
18,
-21,
54,
-31,
-30,
3,
-17,
4,
14,
24,
64,
15,
-42,
0,
12,
-13,
69,
18,
-41,
24,
-41,
-50,
3,
-12,
-14,
-7,
15,
21,
40,
-34,
3,
-56,
-68,
21,
-49,
31,
47,
16,
-4,
49,
25,
-11,
3,
-3,
-38,
-2,
0,
-14,
-11,
-63,
24,
3,
-3,
8,
-45,
-26,
0,
-31,
4,
44,
-8,
52,
28,
12,
-13,
-2,
61,
26,
61,
28,
36,
13,
2,
-17,
9,
-15,
-32,
17,
4,
42,
-41,
-23,
-47,
-2,
13,
56,
12,
28,
-48,
28,
28,
47,
1,
-45,
11,
-56,
54,
-9,
13,
20,
-24,
-9,
0,
-29,
12,
9,
6,
13,
44,
-10,
-56,
-33,
5,
0,
9,
-12,
6,
23,
17,
6,
-2,
7,
-40,
-17,
30,
-9,
-23,
24,
30,
-9,
-19,
17,
-25,
-1,
34,
-1,
-19,
-23,
-26,
58,
-17,
-27,
-53,
-14,
-37,
5,
-62,
-4,
25,
33,
45,
-8,
-28,
-22,
-2,
-30,
18,
-9,
46,
0,
16,
38,
-71,
26,
18,
-3,
64,
4,
-29,
-32,
7,
19,
69,
-44,
-29,
48,
25,
29,
-30,
9,
-20,
-26,
2,
14,
-40,
33,
26,
42,
24,
25,
-17,
-20,
24,
-12,
3,
34,
0,
-5,
-31,
-11,
0,
-13,
-46,
57,
-49,
7,
-1,
-17,
-7,
33,
20,
-44,
-8,
9,
-35,
12,
-24,
-7,
-30,
-6,
-5,
59,
-13,
-29,
-3,
-1,
-16,
-47,
-8,
17,
-29,
-19,
-55,
15,
0,
8,
-42,
36,
-13,
35,
-7,
-16,
-21,
-7,
-27,
38,
-68,
19,
-7,
5,
-20,
56,
-72,
23,
56,
-16,
3,
5,
43,
-15,
-4,
23,
-23,
-10,
20,
-38,
4,
43,
-77,
3,
2,
-22,
-36,
48,
-27,
9,
-23,
-38,
0,
23,
-3,
16,
-53,
-72,
13,
-29,
-54,
23,
-38,
-39,
11,
17,
42,
23,
11,
-14,
19,
8,
-15,
20,
-7,
-19,
25,
-8,
-82,
-25,
38,
-8,
5,
2,
15,
-15,
5,
-40,
-10,
-6,
5,
7,
-8,
16,
-18,
20,
-21,
-26,
11,
-17,
-9,
-7,
16,
22,
-4,
-7,
-54,
24,
-7,
47,
-14,
29,
-7,
-47,
-91,
41,
12,
74,
-11,
7,
-20,
-33,
2,
-46,
-4,
12,
-8,
10,
-24,
21,
10,
-18,
43,
38,
19,
-25,
15,
105,
22,
-37,
14,
-10,
-3,
23,
10,
-40,
8,
16,
8,
36,
20,
-54,
23,
-8,
-2,
-19,
24,
-22,
24,
-41,
23,
29,
78,
50,
38,
4,
29,
-13,
-44,
6,
48,
-41,
-17,
-11,
-14,
11,
70,
-3,
-75,
-36,
-15,
40,
-17,
21,
-24,
43,
4,
-44,
19,
7,
-13,
38,
22,
34,
-15,
-4,
-25,
-2,
15,
4,
-72,
31,
9,
-1,
-10,
3,
34,
-40,
11,
-14,
-34,
-9,
-6,
10,
9,
5,
3,
-9,
-39,
30,
-20,
50,
-25,
-40,
67,
45,
-36,
-9,
-3,
40,
4,
-11,
-31,
11,
-5,
2,
23,
35,
1,
-13,
-24,
26,
-42,
15,
-7,
-30,
0,
-18,
14,
-12,
-7,
-24,
-7,
14,
9,
35,
-28,
-37,
-27,
15,
-10,
10,
49,
-80,
8,
41,
0,
27,
-2,
-9,
-36,
-14,
-21,
35,
-8,
3,
47,
-7,
64,
18,
17,
6,
20,
103,
47,
7,
-13,
2,
41,
-40,
2,
-36,
59,
49,
-18,
6
] |
Per Curiam.
Valentin Schlega (hereinafter referred to as plaintiff) appeals as of right from an accelerated judgment dismissing his appeal under the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq., from a decision of the Detroit Board of Zoning Appeals. The court ruled that plaintiff’s appeal was untimely because the claim of appeal had not been filed by the plaintiff within 20 days after entry of the order by the board, as required under the General Court Rules. GCR 1963, 701-706 (now MCR 7.101-7.105). The court rejected plaintiff’s argument that the 60-day filing requirement found in the Administrative Procedures Act (APA) was applicable to appeals from decisions by the Detroit Zoning Board of Appeals. We affirm.
The plaintiff’s argument is without merit. Plaintiff incorrectly assumes that the Detroit Zoning Board of Appeals is a state administrative agency. In fact, the board is a municipal administrative agency and the terms of the APA simply do not apply. Detroit v General Foods Corp, 39 Mich App 180, 185-186; 197 NW2d 315 (1972); Villa v Fraser Civil Service Comm, 57 Mich App 754, 757-758; 226 NW2d 718 (1975). The title of the APA clearly refers only to state departments, bureaus, divisions, boards or commissions, MCL 24.203(2); MSA 3.560(103)(2); Hanselman v Wayne County Concealed Weapon Licensing Bd. 419 Mich 168; 351 NW2d 544 (1984), and the fact that a local board is authorized by a state statute does not make that board a state board for purposes of the APA.
Therefore, the procedures for perfecting an appeal from a municipal zoning board are set out in the General Court Rules. In Villa v Fraser Civil Service Comm, supra, this Court discussed the issue of the proper appeal procedure from a municipal administrative agency and concluded:
"Where the law provides the right to such an appeal, it should also provide a procedure for the appeal. Indeed, GCR 1963, 11 indicates the existence of a flexibility in the court rules which allows their application in this case. Rule 11.1 indicates that all civil practice in the circuit courts is governed by the rules. Thus the rules must govern every allowable civil appeal to the circuit court. Rules 701 through 706 are clearly appropriate to appeals from municipal agencies to circuit court and, as such, they are applicable to this case.” Id., p 759.
The trial court did not err when it ruled that plaintiffs appeal was untimely. Under GCR 1963, 701, plaintiff was required to file a claim of appeal within 20 days after the board’s decision. Because the plaintiff failed to do so in this case, the trial court properly dismissed his appeal.
Plaintiff argues that, even if he did use the incorrect appeal procedure, the court should not have dismissed his appeal because the board suffered no prejudice due to the late appeal. Plaintiffs argument is without merit. The failure to file a timely claim of appeal deprives the circuit court of jurisdiction to hear the appeal. Shippey v Madison District Public Schools, 55 Mich App 663, 667; 223 NW2d 116 (1974). Plaintiff should have filed a delayed application for leave to appeal. GCR 1963, 701.1(c). Had a delayed application been made, the decision of whether to hear the appeal would have been discretionary with the trial court. However, because no such application was made, plaintiff’s claim of no prejudice cannot be reviewed by this Court.
Affirmed. | [
-16,
0,
25,
3,
-2,
16,
-26,
-13,
-46,
61,
-19,
5,
-22,
-39,
63,
12,
27,
44,
-18,
32,
51,
28,
-4,
51,
24,
16,
48,
-6,
40,
2,
-23,
-37,
-13,
-3,
2,
28,
-13,
29,
37,
46,
40,
-9,
-5,
-21,
-43,
-25,
35,
60,
50,
0,
17,
63,
-15,
29,
-55,
-11,
-13,
-11,
16,
7,
2,
48,
-25,
16,
58,
58,
-26,
18,
1,
-61,
-1,
-10,
22,
7,
-9,
-16,
28,
0,
4,
29,
0,
-30,
57,
-16,
-9,
14,
25,
25,
0,
-12,
6,
4,
-22,
-20,
1,
66,
27,
-35,
40,
-12,
-4,
83,
38,
24,
-68,
15,
13,
-49,
3,
3,
26,
10,
-18,
-37,
-24,
7,
32,
75,
29,
18,
-22,
0,
18,
13,
26,
-45,
10,
15,
-12,
49,
-7,
46,
24,
-3,
0,
33,
19,
-3,
41,
19,
21,
-10,
51,
-34,
-6,
-65,
97,
-38,
3,
7,
13,
-36,
-14,
40,
-20,
21,
42,
-23,
14,
-5,
17,
-18,
-24,
-6,
14,
0,
-39,
-16,
10,
-11,
0,
-27,
48,
-13,
23,
-38,
17,
-17,
20,
15,
-52,
-4,
30,
-43,
42,
-16,
-5,
-33,
-1,
-53,
45,
-27,
3,
15,
30,
7,
0,
79,
4,
-15,
-15,
-28,
54,
-6,
35,
-1,
-11,
-22,
10,
37,
-5,
-20,
16,
-23,
25,
-27,
-21,
-18,
-13,
25,
-9,
-19,
-24,
-15,
24,
10,
-25,
29,
47,
-10,
18,
-15,
34,
43,
23,
2,
-25,
41,
30,
-5,
-10,
67,
-18,
-11,
-11,
56,
-21,
-9,
39,
-20,
16,
4,
-5,
-40,
19,
-39,
-24,
-39,
-39,
29,
0,
50,
-26,
-10,
-50,
27,
-6,
-9,
-13,
8,
-33,
41,
12,
8,
1,
-38,
-4,
-45,
27,
-21,
-16,
17,
-24,
-23,
-19,
53,
16,
-38,
17,
65,
-27,
22,
-44,
51,
-6,
-49,
54,
-32,
37,
3,
-33,
23,
-26,
12,
17,
-73,
-96,
-16,
29,
-38,
-25,
-19,
6,
15,
23,
-4,
-7,
-36,
12,
-49,
18,
5,
4,
9,
-24,
-28,
47,
-33,
-1,
-38,
33,
-33,
5,
56,
18,
-13,
-8,
1,
-53,
12,
0,
-14,
32,
25,
40,
8,
-2,
-44,
54,
15,
-22,
20,
-5,
5,
17,
-31,
13,
-44,
-81,
33,
41,
74,
6,
-2,
-7,
-2,
-35,
3,
31,
45,
-26,
-22,
-26,
-9,
-24,
-24,
7,
5,
2,
29,
21,
-13,
5,
-45,
36,
-12,
12,
-12,
47,
-25,
-36,
-55,
-38,
5,
-6,
3,
44,
46,
-7,
4,
15,
-12,
-8,
50,
42,
8,
-33,
9,
0,
22,
-9,
8,
25,
15,
-38,
45,
-9,
-3,
48,
-15,
-41,
-30,
14,
-38,
-13,
-9,
-10,
-20,
-17,
21,
-6,
30,
-23,
-53,
-23,
53,
-33,
-35,
-19,
10,
-8,
-17,
-54,
-12,
-25,
0,
-18,
30,
-33,
-5,
31,
21,
0,
-17,
-11,
-38,
-27,
-14,
-1,
-26,
11,
-45,
-64,
5,
-24,
-44,
-50,
2,
41,
-44,
-47,
28,
-15,
25,
-2,
-21,
-6,
42,
-34,
-50,
3,
23,
3,
-3,
-57,
-4,
-40,
-9,
-35,
8,
-17,
10,
-15,
-2,
-43,
-2,
20,
-4,
-14,
3,
-18,
-27,
57,
-14,
14,
-16,
27,
-8,
26,
28,
-35,
-19,
-1,
45,
25,
-4,
-3,
9,
12,
-5,
-39,
-26,
-26,
-5,
-16,
-15,
-20,
-49,
23,
-19,
59,
0,
-3,
-36,
-24,
11,
-26,
35,
6,
5,
-1,
16,
-16,
26,
5,
23,
-14,
-13,
20,
7,
58,
-37,
-46,
-58,
33,
-49,
-75,
52,
22,
-12,
-1,
25,
38,
46,
26,
-14,
-33,
-29,
20,
-6,
-15,
19,
-2,
-49,
-7,
-14,
61,
0,
-5,
-37,
-7,
-1,
-42,
-22,
-4,
-48,
5,
-2,
37,
7,
-18,
-14,
7,
-14,
36,
-5,
-39,
11,
56,
2,
30,
44,
-16,
-9,
-14,
32,
-29,
29,
18,
-17,
17,
-37,
-75,
-40,
-72,
-34,
-10,
70,
58,
7,
-36,
17,
14,
7,
-23,
-15,
-3,
29,
0,
35,
0,
16,
9,
-10,
12,
4,
50,
-12,
-23,
8,
-1,
18,
27,
10,
-1,
6,
-3,
5,
17,
-14,
-3,
60,
-16,
-42,
5,
-10,
9,
-32,
6,
-39,
-31,
-8,
-48,
-2,
-8,
0,
-12,
-40,
4,
-32,
7,
40,
17,
10,
44,
-16,
-37,
-1,
-13,
11,
-19,
-18,
-36,
-37,
-4,
18,
-6,
33,
42,
5,
0,
43,
22,
-52,
-7,
10,
20,
66,
-5,
-21,
-2,
-17,
-7,
-5,
-52,
17,
-8,
5,
48,
-21,
-9,
-17,
30,
10,
-3,
9,
-6,
-57,
-22,
15,
-33,
-5,
-41,
3,
37,
16,
-26,
-33,
-15,
-12,
-7,
-4,
6,
6,
-75,
-2,
-33,
22,
-23,
17,
23,
0,
15,
-15,
-9,
-4,
-12,
-3,
-28,
-57,
-1,
-31,
20,
13,
-10,
15,
13,
-34,
-60,
25,
-18,
-32,
-14,
23,
-14,
-4,
31,
34,
-7,
-17,
24,
-38,
1,
-20,
7,
2,
-1,
-53,
49,
-53,
-6,
9,
12,
21,
-6,
-31,
-2,
-21,
-58,
8,
-20,
-43,
-28,
-26,
20,
29,
14,
-13,
18,
-19,
3,
-13,
15,
-44,
-7,
27,
-38,
0,
-23,
-22,
14,
27,
-8,
-25,
-6,
8,
-14,
36,
-16,
-7,
-19,
29,
-15,
1,
0,
-8,
50,
-32,
25,
78,
36,
0,
32,
49,
19,
-46,
16,
6,
35,
-24,
13,
0,
7,
40,
27,
30,
-11,
8,
16,
-5,
-29,
-49,
27,
18,
71,
-1,
-23,
-1,
32,
4,
75,
23,
-15,
-19,
-6,
49,
-23,
-41,
35,
50,
1,
14,
-2,
5,
-16,
3,
-52,
14,
-31,
-33,
33,
-18,
4,
-29,
-5,
-9,
-21,
-29,
-61,
-26,
36,
19,
-15,
23,
2,
22,
-42,
4,
66,
-45,
3,
-8,
63,
6,
25,
50,
-26,
-52,
-51,
-11,
-28,
6,
15,
-11,
43,
12,
-44,
-19,
12,
19,
-27,
17,
-35,
-24,
-8,
-35,
-24,
-14,
28,
19,
4,
-32,
12,
43,
9,
-20,
-6,
-17,
17,
-6,
-37,
-13,
31,
26,
-54,
4,
-17,
0,
-6,
16,
12,
-14,
36,
3,
-9,
16,
-28,
3,
5,
-31,
10,
25,
-4,
25,
10,
-32,
23,
-26,
-5,
35,
-27,
-35,
13,
27,
-11,
-5,
2,
29,
0,
7,
13,
-45,
-12,
27,
29,
36,
10,
22,
-9,
-14,
9,
-39,
1,
3,
-1,
9,
-37,
18,
-3,
26,
28,
63,
0,
0,
13,
-37,
-9,
-59,
-31,
45,
-11,
-7,
17,
28,
-8,
-19,
10,
10,
-34,
-26,
-20,
-31,
-45,
0
] |
Cynar, J.
Defendant was convicted by a jury in Bay County Circuit Court of breaking and entering a motor vehicle with intent to commit larceny, MCL 750.356a; MSA 28.588(1), and larceny over $100, MCL 750.356; MSA 28.588. Defendant was sentenced to from 5 to 10 years on each count, to run concurrently. He now appeals as of right.
On or about April 28, 1983, defendant allegedly broke into a car parked in front of a residence located at 3016 East Birch Drive in Bangor Township. After breaking into the car, defendant removed several items, including: a cassette tape deck, two speakers, a console, several cassette tapes, and a watch missing a crystal.
On April 29, 1983, defendant was stopped by Police Officer Gibson for a traffic equipment violation. During the stop Officer Gibson observed that there was a Realistic* cassette player and four speakers located in defendant’s car. Because the property had not yet been reported as stolen, Officer Gibson did not arrest defendant. Shortly thereafter, Gibson’s partner contacted him to advise him of a stolen property report, and Gibson realized that the stolen property matched the property he had seen in defendant’s car. A search warrant was secured. Some of the property was eventually recovered.
Relying on People v West, 122 Mich App 517; 332 NW2d 517 (1983), lv den 418 Mich 909; 342 NW2d 522 (1984), defendant argues that his conviction for both breaking and entering a motor vehicle with intent to commit larceny, MCL 750.356a; MSA 28.588(1), and larceny over $100, MCL 750.356; MSA 28.588, violated his constitutional right to be protected against double jeopardy. The West Court found double jeopardy where the defendant pled guilty to both breaking and entering a store with intent to commit larceny and larceny in a . store on the basis that defendant’s plea-based convictions were based on proof of a single act. The Court stated that:
"* * * under Michigan law rather than federal, if, factually, the convictions are based on proof of a single act, the separate crimes are held to consist of nothing more than a greater crime and certain of its lesser included offenses. See People v Jankowski, 408 Mich 79, 86; 289 NW2d 674 (1980). In such a case, multiple convictions cannot be allowed to stand. Jankowski, supra, p 86.” 122 Mich App 521.
The above analysis was rejected in People v Wakeford, 418 Mich 95, 110-111; 341 NW2d 68 (1983), where the Supreme Court stated:
"[Djefendant’s claim of factual double jeopardy depends not upon whether most or all of the same evidence was utilized to convict of both counts of armed robbery, but whether the legislative intent or statutory purpose was that two convictions should result. To the extent certain language in Martin [People v Martin, 398 Mich 303; 247 NW2d 303 (1976)], Stewart [People v Stewart (On Reh), 400 Mich 540; 256 NW2d 31 (1977)], and Jankowski suggests that the critical test is whether the defendant committed 'one single wrongful act’, we specifically disavow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense. The so-called 'factual double jeopardy’ doctrine simply asks whether the Legislature authorized multiple punishment under the circumstances.”
The Wakeford Court did not deal with the issue of multiple punishment under two statutes, but, instead, with multiple punishment under a single statute. The issue before the Court was whether the robbery of two grocery store cashiers constituted one or two robberies under the robbery statute.
In the instant case we are confronted with a single prosecution which resulted in multiple punishments under two statutes. In People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), our Supreme Court considered a defendant’s right against double jeopardy in single-trial multiple punishment cases involving more than one statute and concluded that "[t]he only interest of the defendant is in not having more punishment imposed than that intended by the Legislature”. 419 Mich 485. In determining whether the Legislature intended multiple punishments under two statutes, the Robinson Court rejected the commonly called Blockburger test, Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1936), and set forth the following general principles to aid courts in the double jeopardy analysis.
"Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments. A court must identify the type of harm the Legislature intended to prevent. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments. For example, the crimes of larceny over $100, MCL 750.356; MSA 28.588, and larceny in a building, MCL 750.360; MSA 28.592, although having separate elements, are aimed at conduct too similar to conclude that multiple punishment was intended.
"A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature. Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual convictions.
"We do not intend these principles to be an exclusive list. Whatever sources of legislative intent exist should be considered. If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended.” (Footnotes ommited.) 419 Mich 487.
Applying the above principles to the present case, we conclude that the Legislature intended multiple punishment for both the breaking and entering with intent to commit larceny and the subsequent larceny. We believe that the Legislature intended to punish for the crime of breaking and entering when it enacted MCL 750.356a; MSA 28.588(1). As this Court concluded in People v Wise, 134 Mich App 82, 93; 351 NW2d 255 (1984), lv den 422 Mich 852 (1985), a case decided before Robideau, supra, "[breaking and entering is not a continuing offense. It is completed once the burglar is inside the building”, or, as in this case, the motor vehicle. Hence, any crime the burglar commits once inside the motor vehicle is a separate act and defendant is not placed in double jeopardy if convicted of both the breaking and entering charge and the larceny charge. People v Petrella, 124 Mich App 745, 765; 336 NW2d 761 (1983).
We conclude that defendant’s convictions on the charged offenses did not place defendant in double jeopardy.
Defendant next argues that the trial court erred in instructing the jury on the alternative charges of larceny over $100 and receiving and concealing stolen property over $100 without instructing that the jury could not find defendant guilty of both offenses.
Defendant failed to object to the challenged jury instruction. Indeed, defendant agreed to the trial court’s instruction. Defendant’s failure to object to the jury instruction precludes appellate review absent manifest injustice. People v Vicuna, 141 Mich App 486, 492; 367 NW2d 887 (1985). The trial court entered a conviction on the larceny offense only. The penalties for larceny over $100 and receiving and concealing stolen property over $100 are equivalent. Defendant therefore did not receive a sentence in excess of what he should have received. While the better practice would have been to inform the jury that they could only convict on one of the alternative charges, under the circumstances no manifest injustice resulted from the trial court’s jury instruction. We therefore decline to reverse on this point.
Relying on People v Allen, 252 Mich 553; 233 NW 412 (1930), defendant claims that the jury verdict in this case is void and must therefore be overturned. In Allen the information contained two counts. In the first the defendant was charged with larceny of personal property over $100, and in the second with the receiving of such property, knowing it to be stolen. The trial judge in his instruction to the jury carefully defined both offenses. The jury rendered a verdict "guilty as charged”. Our Supreme Court reversed the jury verdict, finding that the two charges were distinct offenses and a "conviction on one count works an acquittal on the other”. 252 Mich 554.
Because the jury in this case rendered a separate verdict finding defendant guilty of both larceny and receiving or concealing stolen property, instead of a general guilty verdict, this case is distinguishable from the facts presented in Allen. The Allen Court concluded that under the verdict rendered in that case, "a part of the jury might have found the defendant guilty of the larceny, and the rest of the jury might have found him guilty of receiving the stolen property”. Id. In the present case, the verdict form submitted to the jury indicates that the entire jury found defendant guilty of both larceny and receiving or concealing stolen property. The dangers present in Allen do not exist in this case.
Next defendant argues that he was denied a fair trial by the prosecutor’s comment on a fact not in evidence.
Defendant did not object to the prosecutor’s comment concerning defendant’s admission that the stolen property was taken from the owner’s car on the night in question. Defendant now argues for the first time on appeal that he was prejudiced by the challenged statement because it refers to facts not in evidence. Defendant’s failure to object at trial or to request a curative instruction precludes appellate review absent manifest injustice. People v Duncan, 402 Mich 1, 15-17; 260 NW2d 58 (1977). Inasmuch as the trial court properly instructed the jury that the prosecutor’s comments were not to be considered as evidence and other evidence was presented which indicated that defendant admitted that the goods were "hot”, we find no reversible error. Id. Our refusal to address this issue would not result in a miscarriage of justice.
Defendant’s final argument involves the trial court’s admission of evidence of defendant’s two prior convictions for attempted breaking and entering and larceny over $100. The record indicates that the prosecutor did not question defendant about his prior convictions. However, defense counsel did refer to the two prior convictions during opening statement, apparently because of the trial court’s ruling.
The admissibility of evidence of prior convictions is governed by MRE 609(a), which provides in pertinent part:
"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect.”
In People v Cook, 131 Mich App 796, 803-804; 347 NW2d 720 (1984), we set forth the following three factors for determining whether the probative value of admitting evidence of a prior conviction outweighs its prejudicial effect: 1) the nature of the previous conviction, 2) whether the conviction was for substantially the same conduct as the charged offense, and 3) the effect on the decisional process if the accused does not testify for fear of impeachment.
In the present case the trial court noted that because the prosecution’s theory of the case was directly opposite the defendant’s theory of the case, credibility of the witnesses was important. If there is a direct conflict between the testimony of a complainant and a defendant, the probative value of evidence of prior convictions of either witness is enhanced. See People v Floyd, 71 Mich App 462, 463-464; 248 NW2d 586 (1976).
As the trial court recognized, defendant’s prior convictions for attempted breaking and entering and larceny over $100 are similar to the offenses charged in this case. This similarity does not automatically require exclusion of the prior convictions for impeachment purposes. The similarity of a prior conviction and the charged offense is a factor weighing against the admissibility of the prior conviction. However, a trial court still has discretion to allow impeachment by evidence of an identical prior conviction if there is reason to conclude that the probative value of the evidence outweighs the prejudicial effect. People v Pedrin, 130 Mich App 86; 343 NW2d 243 (1983).
Prior to the trial court’s ruling on the. admissibility of evidence of defendant’s prior convictions, defendant informed the court that he would testify regardless of whether he was impeached by the evidence of the prior convictions. Also, the prosecutor never questioned defendant about his prior convictions.
We conclude that the trial court’s determination, that the probative value of admitting evidence of defendant’s prior convictions outweighed the prejudicial effect of admitting such evidence, was proper in this case. We therefore decline to reverse on this point.
Affirmed.
Three justices would have granted leave to appeal.
In People v Robideau, 419 Mich 458, 480-485; 355 NW2d 592 (1984), our Supreme Court distinguished between a defendant’s double jeopardy interest in single prosecution cases and successive-prosecution cases, stating that the latter cases involve "the core values of the Double Jeopardy Clause, the common-law concepts of autrefois acquit and convict. * * * Where successive prosecutions are involved, the Double Jeopardy Clause protects the individual’s interest in not having to twice 'run the gauntlet’, in not being subjected to 'embarrassment, expense and ordeal’, and in not being compelled 'to live in a continuing state of anxiety and insecurity’, with enhancement of the 'possibility that even though innocent he may be found guilty’.”
The Blockburger test was set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), as follows:
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
The Robideau Court explained the Blockburger test, stating:
"If two statutes constitute the 'same offense’ under the Blockburger test, it is presumed that the Legislature did not intend to allow the defendant to be punished under both statutes.” Robideau, supra, p 470. | [
20,
9,
21,
-4,
-46,
-58,
-20,
-6,
-25,
59,
-8,
-14,
-10,
-56,
23,
0,
26,
45,
58,
16,
57,
-74,
-23,
66,
-12,
-39,
40,
56,
-24,
41,
-6,
-29,
41,
-46,
-36,
15,
23,
-16,
2,
9,
25,
-33,
-10,
6,
-25,
-49,
28,
-18,
18,
-29,
15,
-29,
-2,
21,
34,
49,
38,
13,
70,
18,
28,
44,
-29,
0,
-9,
-3,
10,
6,
-9,
-56,
17,
10,
-8,
-1,
7,
42,
-15,
41,
10,
39,
-22,
-8,
29,
37,
44,
-26,
-34,
-95,
-23,
-96,
-29,
23,
-17,
-45,
67,
-34,
6,
-71,
7,
-55,
-44,
10,
-9,
33,
-1,
-4,
-36,
-7,
-41,
0,
9,
-12,
35,
-47,
30,
-22,
-3,
49,
70,
26,
-7,
8,
66,
3,
7,
-37,
-48,
0,
19,
0,
25,
35,
-2,
-18,
17,
33,
7,
57,
16,
42,
8,
12,
29,
33,
21,
-3,
-18,
-3,
76,
10,
-42,
10,
-11,
11,
-12,
38,
-45,
-2,
-8,
20,
-48,
-21,
-15,
2,
5,
-45,
-26,
-8,
12,
-3,
14,
-9,
52,
0,
41,
-3,
-27,
-4,
-9,
-26,
-28,
12,
38,
25,
-59,
-50,
31,
17,
-46,
-8,
18,
16,
-13,
-58,
2,
28,
6,
68,
-5,
-56,
-14,
-69,
39,
-21,
-10,
-41,
46,
26,
-6,
3,
14,
-15,
-19,
-16,
21,
6,
36,
-12,
34,
-28,
0,
-9,
9,
-22,
-7,
-11,
-31,
45,
55,
9,
24,
-17,
52,
-42,
-49,
0,
-14,
-45,
45,
10,
-8,
-18,
0,
-11,
75,
4,
-51,
0,
21,
-20,
50,
-32,
-57,
-20,
-58,
-16,
57,
-5,
-2,
46,
-23,
58,
-2,
23,
-57,
33,
56,
-9,
-105,
12,
-62,
-17,
-32,
-38,
-21,
15,
-31,
10,
30,
-6,
37,
-22,
19,
5,
13,
-2,
-33,
38,
43,
4,
-30,
0,
-5,
-1,
-28,
1,
41,
-34,
-66,
52,
-18,
11,
-33,
-14,
22,
-15,
22,
-40,
5,
38,
13,
-16,
35,
44,
51,
-39,
7,
-26,
51,
39,
-14,
-13,
-20,
43,
-34,
-9,
12,
19,
5,
-31,
16,
-22,
-6,
-4,
-3,
-6,
32,
-8,
13,
55,
-21,
-16,
21,
-10,
28,
12,
1,
12,
-54,
-53,
51,
6,
11,
3,
-13,
15,
-43,
4,
14,
-7,
36,
25,
12,
46,
18,
14,
-29,
-15,
-7,
44,
-12,
-58,
0,
78,
3,
-30,
27,
-60,
-37,
16,
32,
-41,
24,
-44,
7,
-44,
-12,
-45,
-26,
6,
-27,
-1,
21,
-48,
-17,
-15,
31,
7,
1,
12,
11,
52,
46,
24,
-63,
-22,
35,
-3,
-16,
-53,
-28,
0,
12,
97,
3,
26,
27,
-33,
-26,
-73,
-7,
69,
-28,
-39,
37,
-10,
-23,
29,
-5,
31,
36,
33,
25,
-31,
42,
35,
-72,
-13,
4,
-40,
1,
33,
-31,
22,
30,
37,
-53,
-30,
5,
26,
24,
-9,
-36,
-2,
-27,
68,
22,
26,
-44,
-63,
6,
-26,
-1,
-27,
6,
-94,
-45,
-53,
22,
-22,
10,
2,
-40,
0,
-19,
6,
12,
-29,
9,
-42,
8,
25,
2,
3,
-19,
-42,
-45,
-5,
-1,
21,
10,
-4,
42,
26,
5,
-26,
-52,
-19,
30,
25,
-21,
-15,
-5,
22,
38,
-12,
63,
-13,
3,
-2,
10,
62,
29,
15,
-33,
-7,
-56,
-29,
-27,
17,
3,
7,
31,
37,
-4,
32,
-20,
-56,
-46,
34,
22,
-15,
54,
6,
34,
6,
3,
-28,
-28,
-18,
65,
22,
1,
-34,
-29,
11,
29,
-31,
30,
-23,
-28,
0,
19,
-40,
-37,
-11,
3,
52,
-32,
14,
-57,
-39,
49,
-7,
-17,
17,
-13,
-3,
66,
-22,
-23,
26,
36,
-14,
-27,
28,
26,
-30,
-53,
3,
31,
69,
-7,
14,
-33,
34,
12,
-1,
52,
-29,
-42,
16,
39,
-39,
-40,
34,
-80,
-31,
3,
-19,
58,
-35,
-35,
29,
23,
-21,
37,
22,
12,
-20,
78,
6,
-32,
-13,
0,
-8,
-31,
0,
-14,
-1,
29,
-32,
4,
2,
-27,
-47,
-26,
-30,
-39,
4,
-28,
-22,
-50,
-11,
4,
22,
2,
31,
-88,
-26,
-15,
7,
0,
3,
6,
-5,
0,
-35,
-30,
-37,
-64,
50,
-12,
21,
30,
9,
-21,
10,
23,
-30,
15,
39,
-50,
19,
18,
4,
3,
-24,
56,
4,
1,
-25,
-4,
0,
21,
15,
-33,
0,
14,
-43,
10,
-22,
2,
-33,
43,
7,
12,
-30,
53,
-37,
-21,
20,
19,
9,
30,
0,
9,
27,
-35,
0,
-9,
28,
5,
4,
-59,
8,
33,
-30,
-32,
33,
-16,
15,
-6,
27,
5,
-39,
-40,
-11,
-40,
11,
-37,
-24,
-3,
-15,
33,
-9,
12,
-69,
37,
-14,
11,
-20,
-20,
-56,
14,
13,
-3,
35,
-18,
63,
-25,
7,
12,
-41,
17,
-78,
-4,
13,
37,
-19,
-19,
34,
45,
42,
-39,
11,
31,
0,
-34,
-19,
-27,
-3,
-1,
-7,
-11,
-3,
13,
1,
39,
-18,
-42,
-35,
-10,
21,
-48,
15,
-29,
9,
9,
9,
-6,
19,
9,
-13,
-2,
8,
-1,
-27,
-6,
-27,
4,
-2,
6,
-9,
-23,
6,
31,
17,
18,
-16,
30,
52,
40,
-3,
-24,
20,
0,
0,
23,
34,
8,
2,
-25,
-56,
24,
14,
38,
-35,
-24,
-18,
15,
-22,
-63,
-24,
-73,
15,
65,
-15,
16,
25,
0,
35,
-6,
15,
-55,
13,
18,
-37,
-35,
42,
33,
-11,
3,
38,
-6,
13,
25,
-29,
55,
6,
8,
-44,
-44,
-4,
-25,
21,
27,
60,
26,
0,
-10,
14,
-22,
-3,
-7,
-5,
7,
-24,
-21,
42,
-20,
0,
48,
18,
-16,
6,
16,
2,
-79,
-16,
17,
16,
-16,
23,
12,
-35,
-44,
-26,
-27,
-3,
-30,
14,
0,
14,
-32,
-31,
15,
-20,
20,
-31,
60,
-24,
-75,
3,
38,
21,
34,
-6,
-34,
-20,
7,
-12,
3,
50,
-5,
-41,
-32,
25,
46,
-23,
8,
61,
22,
33,
20,
-39,
-32,
-28,
-58,
39,
-42,
27,
1,
-19,
15,
-19,
45,
-41,
68,
-27,
-20,
-34,
-39,
11,
-28,
34,
45,
-5,
-25,
-9,
10,
13,
-7,
10,
25,
2,
58,
-49,
5,
-6,
0,
61,
2,
-1,
3,
22,
-20,
-9,
-11,
70,
1,
-22,
-25,
-45,
68,
-50,
17,
80,
9,
-5,
12,
-58,
9,
39,
17,
-20,
33,
5,
-50,
38,
-15,
-6,
30,
-19,
-6,
7,
22,
-9,
-5,
-13,
-12,
-1,
5,
2,
-18,
-3,
-9,
-12,
16,
34,
-20,
16,
0,
-40,
0,
25,
2,
58,
-28,
19,
-63,
35,
-10,
57
] |
Shepherd, J.
Defendants appeal as of right from a judgment of foreclosure on a land contract. The court granted acceleration of the payments remaining on the contract. Defendants have filed a separate claim of appeal from the trial court’s subsequent order confirming the foreclosure sale and from a deficiency judgment against defendants of $88,559.34. We affirm.
The deceased, Henry Lang, sold defendants certain real estate in Genesee County. The land contract shows a price of $88,000, with a $30,000 down payment and monthly installments of $500. Lang also sold his bar business (conducted on the same property) and equipment to defendant J. D. Smith for $80,000, with a $20,000 down payment. Lang accepted a promissory note of $60,000, payable in $600 monthly installments.
Later, the bar building and equipment burned. There was a fire insurance policy with coverage up to $120,000. The parties agreed that Lang would receive $44,000 from the insurance proceeds, to be credited against the balance on the promissory note. The note was cancelled and the remaining balance added to the balance under the land contract. Defendants agreed to an increase of the monthly payments to $800. They also agreed to reconstruct the bar building in a manner equivalent to its former condition. Defendants received $76,000 from the insurance proceeds.
Before trial, defendants stipulated that they had no intention of fulfilling any of their obligations under the agreement written after the fire. They had made no payments on the land contract and no repairs to the building. They also failed to pay the property taxes as required by the land contract. Defendants had stripped the property of valuable fixtures. The local authorities condemned the building. In addition, defendants entered into a contract to sell the liquor license.
Though the land contract contained no acceleration clause, the trial court granted acceleration of the remaining payments. The court concluded that, since defendants had evinced an intention to renounce the contract, "the doctrine of anticipatory breach [was] clearly applicable”.
The court entered the judgment of foreclosure on April 9, 1984, and fixed April 13 as the time for payment. The sheriff posted notice of the foreclosure sale on April 10. Publication began on April 20 and continued once each week until May 25. The estate of Henry Lang purchased the property at the foreclosure sale on May 29, 1984, Mr. Lang having died. On June 18, 1984, the trial court entered the deficiency judgment against defendants, "jointly and severally”.
Defendants raise four issues.
I. Acceleration of Payments in Absence of Acceleration Clause.
Defendants argue that the trial court erred by granting acceleration of the payments in the absence of an acceleration clause. We conclude that the court properly applied the doctrine of anticipatory repudiation to this matter.
Ordinarily, the court lacks authority "to decree the entire amount due in the absence of an acceleration clause in the contract”. Lutz v Dutmer, 286 Mich 467, 488; 282 NW 431 (1938), Benincasa v Mihailovich, 31 Mich App 473, 478; 188 NW2d 136 (1971). But "where there has been an anticipatory breach of a contract by one party * * * the other party may treat the entire contract as broken and may sue immediately for the breach”. 17 Am Jur 2d, Contracts, § 448, p 910 (citations omitted). An unqualified refusal to perform enables the other party to sue immediately for future pay- merits. Mott v Penoyar, 153 Mich 273, 276; 116 NW 1110 (1908); Obenauer v Solomon, 151 Mich 570, 576; 115 NW 696 (1908); Hosmer v Wilson, 7 Mich 294, 304; 74 Am Dec 716 (1859). "In ascertaining whether an anticipatory breach of a contract has been committed by a party, it is the intention manifested by his acts and words which controls, and not his secret intention.” 17 Am Jur 2d, supra, p 911.
In this case, defendants’ conduct shows an intention not to perform their contractual obligations. They made no payments and did not begin to reconstruct the building. They paid no property taxes and arranged to sell the liquor license. These actions amount to a complete renunciation of the contract. In addition, defendants stipulated that they had no intention to perform at any time in the future and chose to rely solely on the absence of an acceleration clause in the land contract.
In their reply brief, defendants cite Restatement Contracts, 2d, § 243 for the proposition that the doctrine of anticipatory repudiation does not apply where the only remaining obligation is payment of money in installments. This rule may also be found in Jackson v American Can Co, 485 F Supp 370 (WD Mich, 1980). Defendants cannot find refuge there, however, since their contractual obligations include restoration of the building in addition to the monthly payments.
II. Adequacy of Notice and Publication
Defendants argue that the notice of foreclosure sale was inadequate under MCL 600.6052; MSA 27A.6052:
"Prior to the sale of any real estate taken on execution, notice of the time and place of holding the sale, the notice to describe the real estate with common certainty by setting forth the name or number of the township in which it is located, and the number of the lot, or by other appropriate description of the premises shall be given as follows:
"(1) A written or printed notice shall be displayed in 3 public places in the township or city where the real estate is to be sold at least 6 weeks prior to the sale, and if the sale is in a township or city other than that wherein the premises are located, notice shall also be displayed in 3 public places in the township or city in which the premises are located.
"(2) A copy of the notice shall be published once each week for the 6 successive weeks prior to the sale in a newspaper printed in the county in which the premises are located * * *.” (Emphasis added.)
Also noteworthy is GCR 1963, 745.3:
"Sales under judgments of foreclosure shall not be ordered on less than 6 full weeks or 42 days’ notice, and publication shall not commence until the time fixed by the judgment for payment has expired * *
See, also, MCR 3.410(C).
Each of these provisions requires a full 42 days notice of some sort. Plaintiff contends that notice was sufficient because the sheriff posted a written notice on April 10, 49 days before the sale, and a copy was published once during each of the six weeks in advance of the sale. Defendants argue that publication, as well as posting, must begin at least six full weeks before the sale.
We hold that publication was sufficient in this case because it was made once in each of the six weeks prior to the sale and there were more than 42 days notice by posting. The statute and court rule each allow for a distinction between posting and publication. The statute clearly requires a full six weeks notice by posting, but does not clearly require the same of publication. MCL 600.6052. The Legislature could have easily used the same language with respect to publication as with the posting requirement, but it did not. The court rule is no clearer. It requires "6 full weeks” notice, but discloses nothing as to the method.
The courts of other jurisdictions are split in their resolutions of this precise issue:
"The statutes regarding foreclosure sales usually specify the length of time for which a notice thereof must be given or published. Where notice of a mortgage sale is required to be given for a certain number of weeks successively, there is a difference of judicial opinion as to whether or not 7 days must be given as a week’s notice. In some jurisdictions such a provision is considered to be complied with if notice is published once in each week for that number of weeks, although the number of days from the first publication to the day of sale is not equal to the number of days in that number of weeks. But other authorities take the view that a publication for a certain number of weeks must be made for as many days before the day of sale as there are days in the number of weeks required.” 55 Am Jur 2d, Mortgages, § 638, p 599 (citations omitted).
A statement in 16 Michigan Law & Practice, Mortgages, § 313, p 543, supports defendants’ interpretation of the statute, but is itself supported only by reference to a single, ancient circuit court opinion. Goodwin v Burns, 1 Mich NP 228 (1870), aff'd 21 Mich 211 (1870). In Wesbrook Lane Realty Corp v Pokorny, 250 Mich 548, 550; 231 NW 66 (1930), the Supreme Court held that, in calculating the number of days of notice given, the first day of publication does not count but the date of sale should be counted. The Court appeared to assume that the first publication must be made at least 42 days before the sale. However, the Court’s opinion does not disclose whether in that case, as here, notice was posted well in advance of the initial publication. We are satisfied that a reasonable interpretation of the statute makes publication sufficient if it occurs one time in each of the six weeks prior to sale even if 42 days do not elapse between the first publication and the date of sale— provided that the 42 day notice requirement has been met.
Although we hold that there was sufficient notice in this case, we would not grant defendants relief even if we held the opposite view. Defendants did not challenge the adequacy of the notice in the trial court. Where, for the first time on appeal, the defendant challenges the foreclosure sale "based upon mere technical irregularities”, the sale will not be set aside. Madill v Michigan National Bank, 302 Mich 251, 255; 4 NW2d 538 (1942). For example, in Goodwin, supra, the Supreme Court acknowledged that the foreclosure sale "had not been sufficiently noticed”, but affirmed the trial court’s refusal to reopen the matter because the defendant did not make a timely objection on that ground in circuit court. 21 Mich 212-213. In this case, defendants objected only on the ground that the judgment did not fix a time for payment, an objection which was properly denied because the judgment specifically set April 13, 1984, as the payment date. Defendants have waited too long to raise the notice issue.
III. Joint and Several Liability of Husband and Wife
Next, defendants assert that defendant Ina Smith’s assets may not be used to satisfy the joint debt which she entered into with her husband. In City Finance Co v Kloostra, 47 Mich App 276; 209 NW2d 498 (1973), one panel of this Court held that the Married Women’s Property Act, MCL 557.52 et seq.; MSA 26.182 et seq., was not superseded by Const 1963, art 10, § 1. The Court held that execution was limited to the personal assets of a woman who co-signed a promissory note with her husband, "unless consideration for the note passed directly to her separate estate”. 47 Mich App 284-285. We agree with the panels which have more recently reached the opposite conclusion. Manufacturers National Bank of Detroit v Pink, 128 Mich App 696, 699-700; 341 NW2d 181 (1983); Schenck v Seamon, 124 Mich App 438, 441-442; 335 NW2d 63 (1983); Michigan National Leasing Corp v Cardillo, 103 Mich App 427; 302 NW2d 888 (1981). We also note that the above-cited statute has been repealed. Defendants may be held jointly and severally liable.
IV. Adequacy of Foreclosure Sale Price
Defendants challenge the adequacy of the foreclosure sale price, which was $14,200. According to defendants, this was grossly inadequate, given the state equalized value of more than $15,000 and the location of the property on a main thoroughfare.
"[T]he court may fix and determine the minimum price at which the real property covered by the mortgage or land contract may be sold” at the foreclosure sale. MCL 600.3155; MSA 27A.3155, Kramer v Davis, 371 Mich 464, 471; 124 NW2d 292 (1963). The court may exercise its discretion to decline confirmation of a foreclosure sale if the amount bid is so inadequate as to shock the conscience of the court. Detroit Trust Co v Hart, 274 Mich 144, 146; 264 NW 321 (1936).
We find no abuse of discretion in this case. Mr. Lang, the land contract vendor, was the only bidder. His bid was based on an appraisal by a local realtor. Defendants submitted no real evidence of the property’s value. The state equalized value does not reflect the forced nature of the foreclosure sale. "[T]he element of compulsion reduces the value of property.” United Growth Corp v Kelly Mortgage & Investment Co, 86 Mich App 82, 86; 272 NW2d 340 (1978), lv den 406 Mich 855 (1979). "Reality requires that the court make some concession to the forced nature of the sale.” Id.
Affirmed.
R. B. Burns, P.J., concurred.
1981 PA 216. See, MCL 557.29(c); MSA 26.165(9)(c). | [
22,
40,
-40,
42,
21,
9,
14,
-2,
7,
30,
54,
-25,
-4,
21,
14,
0,
-5,
-21,
-22,
43,
-24,
-46,
-44,
20,
4,
8,
10,
-31,
8,
44,
21,
-10,
-71,
-6,
-53,
11,
-32,
-14,
26,
-2,
-12,
-17,
36,
-21,
-58,
-16,
34,
-39,
19,
20,
19,
-17,
73,
-21,
-11,
-8,
9,
-7,
-15,
24,
0,
-39,
-25,
-6,
12,
13,
-16,
15,
13,
-5,
-5,
-38,
16,
-4,
7,
5,
-6,
14,
-45,
-25,
0,
-21,
35,
31,
-13,
0,
10,
-34,
-20,
14,
-53,
33,
-2,
10,
-32,
-3,
0,
14,
28,
58,
-40,
-22,
-1,
50,
-17,
-3,
-16,
-46,
-29,
-39,
-19,
-9,
53,
-10,
-39,
-9,
-18,
-4,
-12,
16,
-6,
-7,
22,
-63,
35,
18,
-14,
-5,
-49,
-9,
-28,
-6,
-32,
28,
-44,
-20,
12,
19,
-29,
-9,
-12,
-24,
-38,
-43,
20,
-3,
26,
-43,
-19,
5,
-65,
17,
-22,
58,
6,
-18,
8,
-37,
-26,
-73,
48,
-53,
-24,
-4,
-11,
-6,
-27,
9,
-16,
-9,
8,
15,
0,
16,
38,
-6,
31,
-52,
-35,
-23,
-4,
24,
0,
-4,
51,
-46,
-14,
-16,
20,
34,
5,
30,
-45,
18,
-24,
4,
-20,
28,
13,
1,
-33,
-34,
12,
-17,
23,
-18,
46,
-28,
18,
9,
-9,
15,
-30,
-48,
-34,
27,
-24,
7,
15,
-26,
27,
4,
-73,
-1,
-38,
-17,
-8,
18,
10,
-11,
-15,
-22,
0,
23,
-3,
-2,
26,
22,
11,
33,
18,
13,
0,
-8,
-39,
48,
-16,
6,
-22,
-4,
-39,
0,
-50,
75,
11,
47,
8,
-14,
-13,
1,
26,
40,
-5,
-10,
-6,
17,
0,
-23,
-37,
50,
-21,
6,
45,
8,
-35,
-12,
-71,
1,
-27,
17,
42,
-4,
-19,
5,
-13,
32,
-4,
42,
-53,
-6,
25,
-22,
16,
3,
24,
-6,
-43,
1,
59,
-8,
-67,
-15,
3,
-42,
-37,
-5,
-10,
-31,
-15,
-35,
16,
-7,
-18,
2,
35,
-1,
-28,
-31,
-15,
-34,
83,
14,
-15,
4,
37,
-10,
26,
-34,
-4,
42,
-68,
-16,
-14,
8,
26,
39,
6,
-23,
-63,
15,
15,
37,
3,
5,
47,
44,
1,
15,
-14,
28,
-14,
-7,
-32,
56,
-8,
-2,
-7,
30,
16,
22,
61,
-1,
3,
-28,
-9,
-3,
-22,
-38,
30,
14,
-7,
61,
-32,
-31,
-37,
20,
-51,
20,
-49,
27,
51,
-26,
33,
38,
32,
-4,
-3,
-39,
-8,
14,
-38,
-40,
7,
-13,
28,
-54,
-10,
-24,
-45,
-47,
29,
-11,
-6,
2,
-31,
14,
-11,
-13,
8,
-2,
2,
-35,
35,
-35,
-11,
29,
46,
5,
-8,
0,
37,
-8,
23,
-2,
29,
-47,
35,
15,
-8,
23,
-30,
49,
0,
-22,
47,
33,
-40,
-16,
-42,
42,
-10,
11,
1,
-10,
48,
-28,
-52,
-16,
47,
32,
-13,
13,
25,
4,
-33,
11,
37,
-32,
-31,
-16,
58,
-25,
-25,
-38,
32,
-18,
-46,
5,
15,
-34,
16,
30,
8,
-26,
-21,
-10,
20,
21,
-6,
34,
47,
-27,
-23,
6,
-7,
-34,
-57,
14,
0,
-61,
33,
13,
33,
-22,
-11,
-35,
-9,
-8,
31,
-3,
-3,
-34,
-9,
39,
-16,
-14,
-17,
-7,
30,
45,
-14,
-26,
1,
4,
27,
23,
8,
0,
50,
59,
27,
-18,
-26,
-6,
-2,
-23,
10,
68,
9,
-10,
-45,
-24,
-4,
14,
-30,
11,
0,
13,
3,
-13,
-57,
1,
-41,
77,
-21,
34,
12,
3,
26,
-7,
15,
-68,
18,
10,
-31,
7,
21,
-22,
1,
-11,
-11,
41,
32,
-25,
44,
-39,
-7,
-57,
-19,
-37,
-20,
44,
21,
-23,
23,
-56,
-18,
-19,
1,
36,
-44,
11,
0,
-34,
19,
31,
10,
5,
-27,
29,
-28,
43,
-16,
-16,
-20,
-7,
-23,
-3,
-7,
28,
-5,
31,
-9,
-10,
6,
-46,
-9,
-21,
9,
2,
16,
-16,
-10,
31,
47,
1,
45,
-19,
23,
7,
41,
-2,
-2,
-10,
-17,
-26,
-12,
-30,
-41,
65,
-14,
10,
22,
-16,
-3,
-12,
41,
20,
-32,
-35,
16,
12,
-31,
11,
-32,
1,
-27,
12,
22,
-24,
-38,
7,
23,
-41,
33,
4,
23,
-25,
43,
-64,
20,
23,
-35,
46,
-8,
-46,
43,
-43,
-12,
18,
15,
21,
-3,
-4,
13,
40,
-42,
25,
8,
24,
21,
-33,
0,
7,
-13,
-2,
-8,
15,
26,
40,
-2,
13,
-36,
35,
-20,
-16,
5,
58,
-4,
-29,
80,
-10,
20,
6,
-20,
59,
4,
-24,
-16,
0,
1,
25,
5,
-37,
-22,
-31,
-15,
-33,
0,
19,
0,
-40,
13,
-64,
-3,
-17,
13,
-3,
-12,
-30,
-16,
4,
-9,
23,
-22,
40,
-28,
6,
-13,
-16,
-22,
2,
22,
2,
-20,
-27,
-15,
33,
17,
-26,
25,
36,
13,
42,
2,
-8,
-3,
0,
-44,
-7,
21,
14,
-20,
19,
12,
13,
26,
-34,
-12,
-38,
-47,
43,
-42,
-22,
16,
-42,
32,
9,
46,
-8,
-17,
-49,
0,
-5,
-11,
5,
9,
-9,
30,
4,
5,
-6,
3,
-11,
-41,
3,
40,
27,
38,
-39,
4,
13,
-1,
5,
10,
37,
-38,
-6,
19,
-22,
13,
-31,
31,
-20,
12,
10,
-13,
-10,
-42,
-2,
-14,
61,
-25,
22,
-30,
-11,
9,
-30,
-51,
51,
28,
-32,
-10,
21,
30,
7,
37,
52,
5,
-8,
-8,
-40,
-1,
53,
6,
-39,
-8,
-22,
-39,
-5,
-7,
-27,
62,
-5,
-7,
26,
6,
29,
0,
-34,
21,
23,
22,
21,
18,
-52,
-28,
28,
6,
69,
-17,
19,
-7,
66,
22,
46,
19,
-18,
36,
-57,
12,
37,
-12,
18,
-55,
16,
1,
17,
-3,
75,
-8,
9,
-40,
19,
-24,
-14,
-36,
-18,
13,
-38,
-18,
-50,
24,
5,
24,
-2,
-29,
23,
34,
22,
31,
-15,
33,
-46,
-6,
34,
12,
-32,
21,
-7,
-10,
-2,
-34,
-30,
46,
-9,
18,
-5,
15,
27,
4,
25,
-12,
61,
0,
-12,
35,
-24,
7,
3,
-10,
-17,
39,
16,
-28,
49,
29,
-46,
2,
-1,
-21,
25,
34,
74,
17,
37,
-71,
22,
-44,
-1,
-19,
34,
22,
-51,
34,
-24,
31,
39,
-6,
2,
13,
-34,
-9,
-36,
2,
-2,
30,
-4,
7,
-16,
23,
-35,
8,
11,
0,
36,
27,
-4,
0,
26,
8,
-32,
35,
28,
3,
-36,
4,
-16,
7,
-2,
33,
4,
22,
-17,
34,
-29,
0,
23,
-12,
-18,
-38,
-24,
45,
-13,
-38,
2,
2,
20,
-1,
-5,
-8,
23,
-11,
42
] |
Per Curiam.
We are invited in this case to conclude that a trial court, which indicates nothing more than that it is applying a guideline sentence, has complied with the Supreme Court’s mandate that an explanation for the sentence imposed be given. People v Coles, 417 Mich 523, 549-550; 339 NW2d 440 (1983). We decline the invitation.
Defendant in this case pled guilty to second-degree murder, MCL 750.317; MSA 28.549, was sentenced to from 16 to 30 years imprisonment, and appeals as of right.
Defendant first argues that her conviction should be reversed because the trial judge failed to advise her of the maximum possible sentence for the offense to which she was pleading, as required by GCR 1963, 785.7(l)(b). The trial judge informed defendant that second-degree murder "is punishable by life imprisonment and is not a probationable offense”. MCL 750.317; MSA 28.549 sets the punishment for second-degree murder as "imprisonment in the state prison for life, or any term of years”. The language "any term of years” refers to the maximum sentence. People v Blythe, 417 Mich 430, 437; 339 NW2d 399 (1983); People v Earl Jones, 94 Mich App 232, 235; 288 NW2d 385 (1979). However, misstatement of the maximum possible sentence is not reversible error where no prejudice is shown. People v Shannon, 134 Mich App 35; 349 NW2d 813 (1984). Since the rule requiring the judge to inform defendant of the maximum possible sentence for the offense to which he is pleading was intended to inform defendant of the most serious consequence he faces if he pleads guilty, Shannon, supra, p 38, we find that the trial judge’s statement, that the maximum sentence was "life”, did not prejudice defendant.
We also find no merit in defendant’s argument that the trial judge should have informed her of the recommended minimum sentence range before accepting her plea. The guidelines do not come within the language of GCR 1963, 785.7(l)(d) (which was revoked effective April 25, 1984), and we see no reason to add the guideline range as mandated advice at a guilty plea hearing.
Finally, we deal with the invitation alluded to in the opening paragraph of this opinion. We conclude that we should once again remand this matter to the trial court for an explanation of the reasons for the sentence imposed. We interpret People v Coles, supra, as requiring more than a simple reference to the guidelines as a reason for a sentence imposed.
We previously remanded this matter by an order on August 23, 1984, so that the trial judge could explain the reasons for the sentence imposed. At the remand hearing he stated, "I followed the guidelines exactly. I told her at the time of sentencing I was following the guidelines. I think that was sufficient reason to explain her sentence to her and the attorney had an opportunity to review that before I passed sentence.” We do not feel that simply saying "I followed the guidelines” is an adequate statement of reasons for a sentence.
In Coles, the Supreme Court mandated that trial courts articulate, on the record, their reasons for imposing a given sentence. The purpose of this requirement is to aid appellate review. Simply relying on the guidelines without any explanation defeats the avowed purpose of the articulation requirement for several reasons. First, this Court is prevented from determining which, if any, of the Coles criteria for imposing a proper sentence were followed. Second, the guidelines give a range only for the recommended minimum sentence, with no guidance at all as to the maximum. In this case, for instance, the guideline range was 16 years to life. To say that the trial judge could pick any number from 16 to life seems to us to defy the policy of Coles.
Finally, the Sentencing Guidelines, Administrative Order No 1984-1, 418 Mich lxxx, have as one of their primary goals the evaluation of the guidelines themselves. Evaluation is certainly not aided, and in fact would be subverted, by a procedure in which these "temporary” guidelines are allowed as a substitute for an explication by the trial judge of the reasons why he or she is dealing with a particular defendant in a particular manner.
Defendant’s conviction is affirmed and this cause is remanded so that the trial court can explain the reasons for the sentence in terms other than a mere reference to the guidelines. | [
20,
2,
10,
-8,
-71,
-32,
14,
3,
-53,
38,
25,
-42,
-4,
-20,
42,
-12,
-9,
28,
-13,
3,
-10,
52,
-3,
32,
-12,
-14,
74,
28,
54,
18,
0,
11,
-29,
-46,
-12,
-15,
38,
-14,
-3,
41,
35,
-52,
1,
-27,
-43,
-14,
24,
9,
6,
-12,
-4,
27,
39,
-9,
-13,
84,
-16,
13,
2,
26,
-54,
10,
-45,
-27,
2,
-11,
21,
26,
-18,
0,
-15,
-5,
-13,
15,
14,
8,
39,
14,
3,
3,
-6,
14,
37,
-28,
-41,
15,
12,
-51,
19,
-3,
14,
45,
-34,
-44,
-8,
11,
31,
-29,
-16,
-21,
-18,
21,
50,
24,
-42,
19,
-24,
-25,
-2,
40,
23,
37,
-4,
-48,
-56,
-21,
5,
3,
-40,
0,
5,
-11,
37,
44,
67,
-14,
39,
-44,
-35,
-19,
-11,
27,
11,
3,
4,
43,
13,
11,
16,
-7,
2,
-7,
7,
12,
20,
-19,
3,
12,
-32,
14,
-8,
-11,
-32,
0,
45,
-13,
-5,
-46,
-42,
-9,
92,
28,
-46,
7,
-51,
-41,
-49,
-13,
-5,
-40,
14,
-14,
46,
39,
37,
-2,
-16,
-38,
13,
36,
-44,
45,
37,
-8,
-26,
19,
-4,
-4,
-49,
-8,
-50,
11,
29,
-49,
62,
30,
-7,
73,
21,
38,
-6,
0,
6,
50,
34,
-25,
-58,
-13,
-16,
-23,
-37,
-14,
-37,
18,
17,
-20,
-84,
18,
-9,
83,
-85,
-47,
-8,
-53,
-24,
-38,
7,
33,
-23,
7,
-2,
13,
-9,
18,
-7,
1,
38,
46,
35,
-9,
3,
-15,
24,
-1,
10,
45,
13,
-25,
-37,
13,
36,
40,
42,
-7,
-47,
15,
5,
-14,
-50,
-4,
21,
20,
-20,
6,
-47,
50,
-31,
4,
-22,
-79,
20,
-34,
9,
17,
3,
-1,
4,
7,
-3,
-15,
14,
50,
33,
-21,
-57,
1,
-69,
6,
25,
61,
61,
-7,
-26,
31,
83,
-22,
16,
-7,
-34,
-12,
47,
-15,
15,
-26,
14,
-4,
2,
5,
-49,
-37,
-5,
-28,
-1,
59,
13,
7,
-21,
-23,
98,
-19,
-35,
-16,
26,
-15,
11,
-4,
45,
-58,
2,
-7,
-43,
38,
16,
37,
35,
16,
18,
3,
-2,
22,
-9,
-2,
-21,
15,
-16,
2,
10,
32,
-38,
-15,
-1,
5,
29,
-3,
-42,
-41,
-23,
-61,
12,
-58,
20,
-24,
-19,
-8,
-18,
21,
15,
15,
46,
41,
58,
-25,
-17,
-42,
2,
28,
49,
16,
-3,
-4,
-12,
26,
22,
-15,
13,
36,
-37,
-18,
14,
10,
-64,
-35,
-25,
-50,
-33,
13,
-22,
35,
38,
-9,
-28,
-1,
-8,
-38,
-15,
54,
-36,
1,
-23,
10,
-31,
17,
43,
64,
0,
-77,
6,
-68,
37,
-65,
21,
-1,
51,
6,
-34,
40,
-8,
17,
-3,
-53,
9,
5,
-13,
-47,
-6,
28,
-37,
-9,
65,
5,
-45,
-10,
-10,
0,
35,
-18,
26,
-7,
-11,
-36,
57,
-11,
1,
-37,
-22,
17,
-38,
16,
-52,
-8,
28,
-20,
-51,
-13,
39,
-29,
-42,
-10,
41,
-52,
-20,
-1,
11,
44,
30,
-22,
9,
43,
4,
0,
56,
3,
-31,
-9,
23,
-12,
0,
-56,
18,
-32,
-26,
45,
5,
-11,
-8,
-5,
19,
-12,
-41,
3,
-18,
-17,
41,
-8,
18,
-34,
9,
-8,
32,
17,
-3,
18,
-9,
18,
2,
-21,
16,
-36,
12,
31,
19,
-17,
29,
-38,
5,
-24,
-34,
4,
-36,
36,
30,
52,
3,
-22,
46,
33,
-47,
-68,
16,
-17,
0,
43,
7,
38,
-16,
22,
-3,
8,
-2,
21,
1,
5,
-20,
-22,
13,
-54,
-37,
56,
35,
-52,
-19,
2,
26,
48,
46,
0,
-19,
-15,
80,
-46,
22,
21,
-99,
9,
-42,
11,
18,
37,
-34,
21,
51,
17,
-44,
-22,
6,
-27,
23,
18,
5,
0,
-64,
20,
39,
-2,
-34,
-58,
21,
-105,
1,
15,
-9,
34,
-6,
-3,
36,
-3,
-5,
16,
20,
-1,
25,
-20,
-73,
6,
6,
4,
5,
-46,
-54,
25,
6,
10,
-7,
-32,
-8,
-36,
-22,
0,
-7,
-15,
11,
26,
-25,
-45,
-21,
33,
-16,
11,
-22,
-23,
-14,
67,
0,
-26,
46,
38,
5,
85,
38,
-41,
-42,
36,
-17,
-45,
31,
22,
-19,
33,
19,
-3,
25,
34,
-33,
9,
-18,
33,
-50,
-10,
34,
-18,
12,
3,
18,
24,
-3,
32,
-30,
-32,
18,
-30,
-46,
0,
30,
-37,
50,
-16,
9,
10,
13,
26,
-35,
19,
6,
17,
20,
-16,
82,
55,
-40,
-7,
32,
1,
-18,
-34,
5,
-5,
9,
2,
3,
-5,
-34,
62,
-28,
-26,
-5,
-4,
-31,
-16,
-30,
44,
-16,
4,
0,
26,
24,
5,
-9,
-24,
18,
40,
19,
-23,
1,
20,
-6,
34,
-34,
-4,
-20,
-1,
-16,
12,
-59,
-46,
-4,
2,
15,
-30,
-16,
-21,
88,
25,
51,
-7,
-33,
35,
64,
-18,
-41,
-36,
-19,
4,
-27,
-10,
-28,
1,
14,
-36,
10,
8,
-14,
-23,
32,
36,
-40,
7,
-15,
7,
10,
-17,
-34,
9,
-50,
-13,
7,
-30,
-12,
-24,
-29,
-5,
5,
-8,
-19,
54,
64,
2,
-34,
25,
34,
-12,
80,
-32,
-3,
-35,
-34,
-1,
8,
-16,
3,
-7,
68,
37,
-5,
38,
-15,
5,
5,
13,
-10,
32,
0,
26,
-14,
13,
0,
-2,
-10,
-6,
-3,
11,
5,
25,
49,
10,
-5,
4,
8,
75,
-30,
-7,
53,
-7,
30,
29,
24,
47,
30,
-12,
46,
13,
31,
-30,
-1,
-14,
2,
7,
-38,
4,
5,
6,
4,
-2,
-32,
-14,
15,
27,
-10,
-1,
-10,
-66,
-72,
49,
10,
0,
-44,
31,
-47,
-12,
-58,
-2,
15,
-23,
53,
67,
-10,
-32,
-63,
-11,
16,
-5,
-7,
18,
15,
5,
-8,
-18,
-6,
7,
36,
-42,
17,
-37,
1,
13,
32,
-6,
-4,
4,
-29,
50,
-26,
29,
-8,
11,
39,
-2,
-61,
-14,
15,
-36,
-22,
30,
20,
19,
9,
2,
14,
-49,
-16,
-9,
-4,
2,
28,
-28,
-19,
17,
15,
-35,
-10,
-69,
-20,
32,
-10,
2,
-59,
20,
-20,
26,
-22,
-16,
-12,
-16,
-26,
31,
-8,
26,
-26,
32,
-32,
12,
-64,
29,
28,
7,
50,
-2,
-12,
-28,
13,
46,
5,
-100,
41,
-18,
7,
11,
7,
-20,
-10,
-51,
-7,
-48,
4,
-10,
-45,
-22,
6,
-14,
-6,
-31,
22,
-44,
28,
4,
5,
14,
-30,
38,
-26,
10,
-29,
52,
6,
5,
-62,
-15,
-1,
55,
-24,
-51,
17,
-3,
27,
12,
-19,
20,
15,
-29,
-57,
15,
-5,
46,
-29,
0
] |
Allen, J.
In this declaratory judgment action, plaintiffs sought reimbursement for Laetrile (amygdalin) and related nutritional therapy prescribed for James Shumake by his physician, Philip E. Binzel, M.D. Dr. Binzel determined that Shumake suffered from a metabolic disorder, a diagnosis he reached based primarily on the fact that Shumake had developed lung cancer. The Laetrile and nutritional supplements were prescribed as a treatment for the metabolic disorder. The trial court held that under the terms of the policy, plaintiffs were entitled to reimbursement in the amount of $17,478.20. Defendant appeals as of right.
Plaintiffs were insúred under a group health insurance policy issued by defendant Travelers Insurance Company to James Shumake’s former employer, Service Reproduction Company. On May 26, 1978, Shumake underwent surgery for removal of the right upper lobe of his right lung after a cancerous tumor was discovered. His prognosis was guarded, with doctors estimating his chances of survival over the ensuing five years as between 15 and 25 percent. Shumake consulted a general practitioner, Dr. Binzel, who prescribed a course of treatment involving a regimen of Laetrile, enzymes and vitamins, and certain nutritional guidelines. Defendant paid all expenses associated with this treatment from June, 1978, to January 31, 1981. Defendant then notified plaintiffs that expenses for Laetrile and Laetrile-related nutritional supplements were not covered under the subject insurance policy.
The policy at issue provides coverage for 80 percent of "covered medical expenses” which are "necessarily incurred]”. "Covered medical expense” is defined as:
"[T]he actual expense to the' Employee of the reasonable charges (as defined) [ ] not hereinafter excepted incurred by the Employee on account of himself or his Dependent upon the recommendation and approval of the attending physician for the services and supplies listed below and required in connection with the treatment of the Employee or his Dependent for any [accidental bodily injury or sickness].”
Included in the list of covered medical expenses are "medical supplies”, which are defined to include "[d]rugs and medicines covered by written prescription of a physician”.
The insurance policy does not contain any exclusion which would specifically preclude coverage for Laetrile and Laetrile-related nutritional supplements. Nonetheless, defendant maintains that coverage was properly denied, advancing three arguments: (1) the expenses were not occasioned by "accidental bodily injury or sickness”; (2) the expenses were not "necessarily incurred” or "required” in connection with treatment for a sickness; and (3) the nutritional supplements were not "covered by written prescription of a physician” since they could be purchased over-the-counter.
Defendant argues that Shumake was not sick within the meaning of the policy since all of the cancer had been surgically removed and there was no evidence that the cancer had spread. Regardless of these indicators, plaintiffs were informed after the surgery was completed that Shumake’s chances of survival were poor, that he had at least a 75 percent chance of cancer reappearing, and that he would most likely die from the cancer. Further, he was advised to consult an oncologist for further treatment, despite the fact that his doctors believed all of the cancer had been removed. Dr. Melvin L. Reed, a defense expert who examined Shumake four years after his surgery, testified that, as a post-operative treatment, radiation therapy to the middle chest would have been advisable. In light of these factors and testimony at trial indicating that cancer is not considered "cured” until five years have passed without incident, we do not believe that the trial court erred in finding that Shumake was suffering from a "sickness” at the time he received the Laetrile treatment.
Defendant argues in the alternative that cancer was not the "sickness” for which Shumake was receiving treatment. A treatment agreement entered into between Shumake and Dr. Binzel states that Binzel was treating Shumake for a metabolic disorder. Defendant maintains that since laboratory tests were not performed to verify the disorder, no "sickness” was established.
Dr. Binzel testified that he did not order laboratory tests because numerous tests would be required to isolate specific nutritional deficiencies and the tests would have been costly. Moreover, he believed that the presence of cancer was indicative of a metabolic disorder and that monitoring the patient’s response during the course of therapy was a preferred method for determining whether deficiencies were being adequately treated. It appears from the record before us that Laetrile practitioners generally operated on the central premise that cancer resulted from metabolic imbalances. Proponents believed that if the disorder could be cured, the body’s defense mechanisms would then operate to avert a recurrence of cancer.
This issue appears to pose two distinct concerns. First, defendant places substantial weight on the treatment agreement indicating that Shumake was being treated for a metabolic disorder and not for cancer. Yet, the metabolic disorder and the cancer were intricately related. The purpose of the treatment was to enhance the body’s defense mechanisms so that they would take over to ward off cancer. The treatment would never have been prescribed if Shumake had not contracted cancer. By way of affidavit, Binzel stated that he was treating Shumake "for lung cancer and its attendant side effects”. Moreover, the crux of defendant’s argument on the question of whether Laetrile therapy was "nécessarily incurred” is the assertion that the treatment was ineffective in the treatment of cancer — not that it was ineffective in the treatment of a metabolic disorder. Regardless of the efficacy of treatment and the disclaimers in the agreement, we believe that the inescapable result is that Shumake received this treatment because of the cancer. Since we have already determined that he was suffering from a "sickness” as a result of the cancer, coverage cannot be denied on this basis.
In addition, defendant’s argument relative to whether Shumake was sick goes to a basic tenet upon which Laetrile practitioners operated, i.e., that cancer was indicative of a metabolic disorder. Although defendant presented substantial evidence which challenges the logic of this reasoning, defendant failed to negate the fact that at the time Shumake’s treatment commenced there was a strong and viable minority in the medical community which adhered to these basic tenets and believed that Laetrile was an effective means of controlling cancer. We recognize that the weight of authority held a contrary view. However, we are not prepared to determine as a matter of law that a diagnosis subject to conflicting medical opinions is fallacious merely because a majority of the medical community would arrive at a distinct conclusion. Accordingly, we believe that the evidence presented was sufficient to establish a "sickness”.
The next issue presented for our consideration is whether Laetrile and related nutritional treatments were necessarily incurred covered medical expenses and required in connection with Shumake’s treatment. Defendant maintains that the treatments have been demonstrated to be ineffective and that, as a result, they cannot be regarded as necessary or required for the treatment of cancer.
The trial court found that "necessarily incurred” was an ambiguous term. It then relied on Van Vactor v Blue Cross Association, 50 Ill App 3d 709; 8 Ill Dec 400; 365 NE2d 638 (1977), to hold that the necessity of a medical treatment or expense should be determined by the attending physician. Defendant points out that such a construction of medical necessity could lead to absurd results. For example, such a construction of the policy would require coverage where a physician prescribed bizarre or archaic treatments, such as bloodletting, simply because the physician deemed it necessary. Defendant therefore urges us to follow the reasoning of Free v Travelers Ins Co, 551 F Supp 554 (D Md, 1982), which, in construing an identical provision of an insurance policy, found that the language was unambiguous. The Free court went on to hold that Laetrile could not be regarded as necessary for the treatment of cancer since the evidence presented at trial overwhelmingly indicated that Laetrile had no value in the treatment of cancer.
We cannot agree with the initial premise of the Free opinion, that the terms "necessarily incurred” and "required” for treatment are unambiguous. Three distinct definitions of the term "necessary” are cited at 551 F Supp 558: Abernathy v Prudential Ins Co of America, 274 SC 388; 264 SE2d 836 (1980) (equating "necessary” with "appropriate”); Victum v Martin, 367 Mass 404; 326 NE2d 12 (1975) (necessary means "wise in the light of facts known at the time rendered”); and Group Hospitalization, Inc v Levin, 305 A2d 248 (DC App, 1973) ("necessary” means "reasonably calculated to shorten and relieve an ordeal of agonizing pain and thereby effectuate the most rapid recovery possible”). Reference to McLaughlin v Connecticut General Life Ins Co, 565 F Supp 434 (ND Cal, 1983), illustrates that Free’s list of definitions was not exhaustive. McLaughlin cites, inter alia, Fassio v Montana Physician’s Service, 170 Mont 320; 553 P2d 998 (1976) (finding that the language "necessary services” requires only that services be prescribed and performed by a licensed physician), and Aetna Life Ins Co v Sanders, 127 Ga App 352; 193 SE2d 173 (1972) (holding that the language "necessary to the treatment” should be construed to accord great weight to a physician’s recommendation). Moreover, McLaughlin provides a new definition, stating that " '[n]ecessary care’ implies that the care is in some degree beneficial to the patient”. 565 F Supp 451. In Dallis v Aetna Life Ins Co, 574 F Supp 547, 551 (ND Ga, 1983), the court found that the term "necessary” was ambiguous, relying primarily on Black’s Law Dictionary (5th ed, 1979), which defines the term as follows:
"This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought. It is an adjective expressing degrees, and may express mere convenience or that which is indispensible or an absolute physical necessity. It may mean something which in the accomplishment of a given object cannot be dispensed with, or it may mean something reasonably useful and proper, and of greater or lesser benefit or convenience, and its force and meaning must be determined with relation to the particular object sought.” (Emphasis added.)
Since the terms "necessary” and "required” are capable of diverse connotations, we find that the provisions in the subject insurance policy are indeed ambiguous. It is a well-established principle that ambiguities in an insurance contract are to be construed against the insurer which drafts the policy and resolved in favor of the insured. Farm Bureau Mutual Ins Co of Michigan v Hoag, 136 Mich App 326; 356 NW2d 630 (1984). A policy should not be construed to defeat coverage unless the language so requires since the purpose of insurance is to insure. Arrigo’s Fleet Service, Inc v Aetna Life & Casualty Co, 54 Mich App 482; 221 NW2d 206 (1974), lv den 392 Mich 812 (1974).
The language "necessarily incurred” or "required” implies that some entity must exercise judgment in determining when a medical expense will be covered. When the insurer does not reserve the right to exercise that judgment itself by way of an exclusion, we believe that the approach of the trial judge and Van Vactor, supra, is reasonable. A physician is generally better equipped than lawyers and judges to discern what is medically necessary. Cognizant that a rubber stamp approach to a physician’s unfettered exercise of discretion could result in coverage for inane treatments, we decline to hold that any treatment or expense is necessary or required merely because it is deemed so by a physician.
However, we do hold that a physician’s judgment should be accorded deference. Moreover, since medicine is an evolving science in which treatments are at one time regarded as valid and later discredited, we hold that a decision as to necessity shall be reviewed in light of knowledge which existed at the time the decision was rendered.
Employing such a standard does not dispense with this issue since the gist of defendant’s argument is that Laetrile falls within the category of inane cancer treatments and was recognized as ineffective at all times during which Mr. Shumake received treatment. In support of these contentions, defendant relies on the decision of the Commissioner of Food and Drugs on Laetrile, dated July 29, 1977. See 42 Fed Reg 39768-39806 (1977) (hereinafter referred to as the Commissioner’s re port). Further, defendant points to a study on Laetrile which was commissioned by the National Cancer Institute. The results of this study were originally published on January 28, 1982. See Moertel, A Clinical Trial of Amygdalin (Laetrile) in the Treatment of Human Cancer, 306 New England Journal of Medicine, p 201 (1982) (hereinafter referred to as the Moertel study).
In 1977, the Food and Drug Administration issued the foregoing report after conducting extensive hearings on the issue of whether Laetrile constituted a "new drug” within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 USC 301 et seq. "New drugs” are excluded from distribution in interstate commerce unless a new drug application is approved by the FDA. A new drug will not be approved unless its safety and effectiveness is established. See 21 USC 355. However, these requirements need not be met if a drug comes under one of the act’s two grandfather clauses. See 21 USC 201, as amended by 21 USC 321.
The hearings convened by the FDA were attended by proponents and opponents of Laetrile. Based on these hearings, the FDA concluded that there was "no basis in law or in fact for the use of Laetrile or related substances in the treatment of cancer”. Commissioner’s report, supra. A review of the Commissioner’s report discloses that although the FDA acknowledged that Laetrile was generally regarded as ineffective by qualified experts, the FDA did not categorically conclude that Laetrile was ineffective. Rather, the FDA’s determination was based on a lack of scientific evidence which might have demonstrated that Laetrile was safe and effective. In other words, Laetrile proponents failed to meet the requisite burden of proof.
The FDA’s determination with respect to Lae trile was challenged by terminally ill cancer patients in Rutherford v United States, 438 F Supp 1287 (WD Okla, 1977), aff'd 542 F2d 1137 (CA 10, 1978), rev’d and remanded sub nom United States v Rutherford, 442 US 544; 99 S Ct 2470; 61 L Ed 2d 68 (1979), rev’d on remand, 616 F2d 455 (CA 10, 1980). Plaintiffs sought to prohibit the FDA from interfering with the interstate shipment and sale of Laetrile. The district court enjoined the FDA from interfering on two grounds. First, it held that Laetrile came within the act’s 1962 grandfather clause since it had "been commercially used and sold in the United States for the treatment of cancer for well in excess of 25 years [prior to 1962], during which time it [had] been 'generally recognized’ by qualified experts as safe for such use”. 438 F Supp 1295. The court also held that the FDA’s interference with Laetrile use violated the plaintiff’s constitutional right to privacy. On appeal to the Tenth Circuit, that court affirmed. It acknowledged that a drug would have to be regarded as effective prior to 1962, as well as safe, but held that the safety and effectiveness requirements of the statute had no application to terminally ill cancer patients, finding that the standard of "safety and effectiveness” had little meaning with respect to persons fatally stricken with a disease where "laetrile [was] as effective as anything else”. 582 F2d 1234, 1237. The United States Supreme Court reversed, holding that the act provided no exception from the safety and effectiveness requirements for drugs used by the terminally ill. Interestingly, the Supreme Court noted that, at the time it rendered its decision, an application for clinical testing of Laetrile by the National Cancer Institute was pending before the FDA Commissioner. See 442 US 558. On remand from the Supreme Court, the Tenth Circuit re versed the district court on the invasion of privacy issue, holding that the governmental interest in protecting public health outweighed the patient’s decision to have a particular treatment. The court noted that Laetrile use was being prevented by the FDA because of the proponent’s failure to meet the burden of proof, not because Laetrile had been demonstrated to be ineffective.
Our review of the Commissioner’s report and the Rutherford decisions reveals that there was no definitive determination in the scientific community or the courts with respect to Laetrile’s effectiveness throughout 1980. Effectiveness had not been proven or disproven. Indeed, these decisions indicate that the debate on Laetrile was still raging in 1980 and that notable institutions were still investigating its use. Moreover, a number of states enacted statutes which permitted intrastate distribution of Laetrile despite the FDA’s ban on interstate distribution. See e.g., West’s Ann Ind Code 16-8-8-1 et seq.; West’s Fla Stat Ann 499.137 et seq.; 63 Okla St Ann 2-313.1 et seq.; NJSA 24:6F-1 et seq.; Md Ann Code, art 43, § 133 et seq. Due to the diversity of opinion and Laetrile’s questionable status at that time, we believe that a physician could properly exercise discretion so as to determine that Laetrile was necessary and required for the treatment of cancer during this period.
Publication of the Moertel study, however, appears to have terminated the controversy over Laetrile’s effectiveness. After administering Laetrile to various control groups while following the regimens recommended by leading Laetrile practitioners, the researchers concluded that:
"[n]o substantive benefit was observed in terms of cure, improvement, or stabilization of cancer, improvement of symptoms related to cancer, or extension of life span. The hazards of amygdalin therapy were evidenced in several patients by symptoms of cyanide toxicity or by blood cyanide levels approaching the lethal range. * * * Amygdalin (laetrile) is a toxic drug that is not effective as a cancer treatment.” Moertel study, supra, p 201.
We have not been provided with any indication that the findings of the Moertel study have been challenged by subsequent studies. At oral argument, plaintiffs’ counsel conceded that Laetrile is now recognized as ineffective. In the absence of documentation to refute the Moertel study findings, we would not hold in the future that Laetrile is a necessarily incurred medical expense or required for treatment. However, based on the time frame when these treatments were administered to Shumake and the controversy which was transpiring, we hold that Dr. Binzel’s decision as to necessity should be accorded deference.
Finally, defendant argues that the nutritional supplements were not covered under the policy since they could be acquired without a prescription. The policy provides coverage for "drugs and medicines covered by the written prescription of a physician”. It is uncontroverted that the nutritional supplements at issue were covered by Binzel’s written prescriptions. The policy did not limit its definition of "medical supplies” to drugs which could only be secured with a physician’s prescrip tion. Moreover, defendant acknowledged that it provided coverage for nutritional supplements for patients receiving radiation treatments and chemotherapy since malnutrition is often associated with these treatments. Further, Binzel stated that one reason why he prescribed these nutritional supplements was so that he could closely control the dosages that Shumake would receive, a factor which presumably cannot be monitored with medicines that are sold over-the-counter. Since the policy language did not limit coverage to what are generally recognized as "prescription drugs”, and the language used must be construed against the insurer, we find that coverage for the nutritional supplements was provided under the terms of the policy.
Affirmed. Costs to plaintiffs.
Defendant does not argue that the charges for Laetrile and nutritional supplements were unreasonable within the meaning of this provision, presumably because the policy’s definition for reasonable charges states: "The extent that a particular charge is 'reasonable’ shall be measured and determined by comparing it with the charges customarily made for similar services and supplies to individuals of similar medical condition in the locality concerned.” There is no indication that the charges for Mr. Shumake’s treatments were inconsistent with local standards.
Defendant maintains that requiring exclusions for Laetrile and similar medicines which are generally regarded as ineffective would be impractical due to numerosity. Further, it argues that a general exclusion for drugs and treatments not approved by the Food and Drug Administration would be undesirable since it would preclude coverage for drugs and treatments in the experimental stage which are known to be effective. We do not believe that defendant would meet with resistance if, despite an exclusion for non-FDA approved drugs, it chose to afford coverage out of benevolence. In any event, we believe that defendant could fashion an exclusion which would allay such concerns. For example, it could limit coverage to drugs and medicines which have not been renounced by the American Medical Association or exclude drugs and treatments which are controversial.
We acknowledge that the trial court found that Mr. Shumake’s treatments were covered through June 8, 1983, while the Moertel study was published on January 28, 1982. However, it is reasonable to assume that there would be some time lag between publication of new research findings in professional journals and the time when such findings would become part of the informational base available to practicing physicians. Moreover, since this was the only published study which met established scientific standards, and Mr. Shumake had not had a recurrence of cancer and appeared to be responding positively to the Laetrile therapy, we believe that it was reasonable to continue his regimen for this period so as to afford an interval of time wherein the new findings might have been studied, evaluated, critiqued and challenged. | [
-5,
-28,
-36,
23,
40,
19,
6,
-45,
-7,
-1,
-31,
-1,
68,
3,
-18,
-16,
-25,
-29,
32,
-5,
18,
-4,
1,
33,
3,
-57,
24,
-8,
2,
25,
32,
16,
10,
-50,
-45,
19,
-10,
2,
-70,
23,
8,
-37,
29,
-31,
-6,
7,
-5,
7,
41,
15,
38,
19,
-10,
12,
-23,
12,
37,
-12,
-65,
7,
-71,
-11,
58,
36,
85,
20,
-32,
66,
-5,
24,
-2,
12,
14,
-40,
31,
-62,
20,
-12,
-20,
-26,
-12,
-27,
24,
-7,
8,
66,
-38,
-11,
13,
-7,
-28,
-29,
-21,
-62,
-42,
34,
-36,
38,
24,
0,
28,
-33,
2,
26,
-7,
4,
16,
-47,
6,
-1,
-2,
16,
-54,
-25,
51,
2,
-16,
33,
-4,
5,
-5,
-38,
54,
-12,
21,
56,
38,
-33,
-34,
-14,
-22,
61,
-25,
4,
-23,
-10,
-28,
-9,
-6,
-43,
26,
0,
-12,
51,
17,
58,
1,
-61,
-33,
-39,
-3,
-9,
-44,
40,
1,
27,
-15,
-22,
49,
-59,
24,
-16,
7,
22,
-17,
1,
-16,
5,
41,
5,
24,
-34,
-50,
-1,
-12,
91,
101,
-29,
-25,
-43,
-41,
1,
0,
30,
15,
-17,
-18,
-12,
-9,
-12,
14,
-78,
-59,
12,
-39,
38,
22,
33,
-25,
-41,
32,
-11,
-33,
0,
68,
35,
-25,
16,
-11,
71,
-3,
-1,
8,
-45,
-12,
29,
-13,
-12,
-47,
-37,
-44,
-38,
-33,
0,
-73,
-14,
-17,
-4,
-18,
-86,
-40,
-2,
0,
49,
-20,
10,
34,
-12,
78,
-28,
-13,
2,
-33,
-33,
22,
16,
-31,
-23,
-29,
-5,
-24,
19,
9,
28,
-48,
-72,
6,
-13,
13,
-36,
-32,
49,
-21,
17,
71,
2,
-20,
17,
78,
15,
-9,
-31,
6,
-79,
1,
-51,
13,
34,
0,
17,
28,
3,
-18,
-43,
-48,
5,
55,
-14,
10,
2,
40,
-9,
28,
-67,
59,
7,
18,
-6,
-16,
30,
14,
-6,
22,
36,
4,
0,
11,
15,
37,
-57,
-3,
-50,
-46,
-42,
-23,
-87,
-15,
-50,
-10,
-54,
-26,
27,
5,
21,
-7,
-14,
11,
-67,
4,
1,
-53,
2,
18,
3,
14,
-56,
-34,
15,
0,
-1,
4,
93,
-23,
-5,
12,
66,
-1,
40,
-18,
-22,
-16,
34,
10,
67,
19,
32,
43,
-14,
-9,
31,
-5,
-13,
-21,
-29,
-23,
0,
4,
20,
-19,
34,
26,
-16,
-2,
-69,
-11,
5,
21,
8,
-1,
5,
10,
5,
37,
-47,
-69,
32,
-58,
14,
12,
8,
-31,
-5,
67,
40,
-20,
11,
-25,
-11,
10,
22,
22,
21,
27,
-7,
57,
-39,
28,
-34,
-18,
10,
-50,
39,
9,
-20,
-23,
-11,
44,
10,
-28,
4,
29,
3,
-36,
-18,
-40,
-59,
-8,
9,
8,
-37,
-53,
-46,
-26,
-56,
18,
-24,
-72,
-24,
33,
41,
-46,
-43,
-40,
27,
36,
5,
33,
21,
43,
-33,
-14,
-43,
-22,
8,
-71,
12,
-24,
-23,
-42,
0,
-61,
1,
23,
-36,
85,
28,
-7,
28,
70,
-27,
16,
-17,
10,
34,
-8,
-4,
-38,
21,
4,
-14,
-21,
-39,
18,
-39,
-6,
2,
8,
10,
-48,
2,
42,
-50,
8,
7,
-20,
-18,
-12,
16,
-25,
-36,
0,
-60,
45,
-9,
37,
-60,
-41,
-38,
-2,
-11,
-4,
12,
-5,
-27,
51,
-10,
16,
4,
-9,
21,
-10,
23,
2,
-2,
-34,
-43,
-13,
16,
15,
-5,
54,
0,
-4,
-37,
-17,
-29,
39,
0,
-16,
-5,
-9,
31,
41,
-4,
14,
-29,
-4,
-12,
19,
-30,
40,
7,
2,
2,
-13,
0,
33,
19,
12,
-3,
-8,
53,
2,
28,
40,
14,
17,
12,
33,
-15,
-46,
-2,
13,
5,
26,
12,
-23,
16,
-31,
20,
-24,
22,
-2,
-31,
-64,
-24,
9,
-4,
0,
-84,
14,
-14,
13,
18,
-1,
-17,
60,
-25,
21,
-18,
-48,
6,
-41,
6,
-38,
0,
-17,
10,
72,
-17,
16,
2,
13,
-44,
7,
5,
-2,
7,
23,
2,
1,
41,
-12,
27,
0,
42,
-13,
-5,
16,
-53,
36,
-54,
27,
-94,
13,
3,
5,
16,
-48,
-14,
24,
-27,
-6,
44,
-11,
-15,
44,
-33,
-17,
-18,
11,
55,
9,
24,
-68,
33,
0,
0,
-48,
-5,
-37,
11,
54,
-13,
-5,
16,
45,
-15,
24,
13,
0,
16,
-23,
61,
61,
-90,
-10,
-44,
5,
60,
-34,
0,
100,
-13,
-41,
75,
-31,
-13,
61,
-19,
3,
28,
0,
-14,
26,
10,
-4,
44,
30,
6,
-6,
50,
-59,
13,
-15,
13,
-40,
27,
-13,
-9,
8,
-38,
14,
-40,
-9,
-17,
-40,
61,
-10,
-35,
27,
8,
1,
12,
21,
2,
55,
8,
-33,
-11,
-33,
-20,
-29,
-2,
43,
51,
75,
-1,
29,
-32,
44,
76,
39,
53,
-41,
20,
-53,
20,
13,
40,
-95,
10,
1,
5,
12,
-27,
34,
20,
8,
-37,
13,
-31,
-9,
-14,
-10,
-2,
-22,
-18,
0,
25,
29,
31,
-49,
-47,
-24,
-43,
0,
-71,
-91,
17,
25,
3,
-6,
17,
-57,
-11,
1,
7,
-1,
-10,
8,
22,
46,
-30,
51,
11,
15,
2,
-9,
-28,
32,
54,
14,
73,
-30,
17,
0,
-34,
-9,
-1,
-9,
-33,
64,
36,
-8,
60,
-51,
-56,
-24,
25,
-2,
50,
-47,
40,
41,
-5,
-67,
-7,
37,
-26,
-37,
-12,
-16,
2,
-2,
83,
25,
-10,
-88,
-39,
-18,
36,
-12,
67,
30,
-53,
-18,
3,
-21,
-18,
19,
-79,
35,
3,
25,
6,
-25,
-43,
11,
28,
-4,
0,
18,
30,
-8,
87,
-13,
46,
49,
-51,
4,
12,
0,
0,
11,
50,
-11,
-32,
33,
-59,
18,
-14,
-65,
30,
-38,
10,
8,
41,
17,
35,
22,
-20,
-13,
-26,
-6,
25,
-31,
32,
-13,
-33,
-32,
23,
3,
30,
-10,
31,
32,
24,
-27,
-3,
-10,
-49,
28,
6,
3,
30,
22,
57,
-6,
37,
-31,
-26,
9,
-7,
-28,
24,
30,
1,
30,
25,
74,
31,
12,
94,
29,
-6,
-15,
13,
-32,
13,
41,
39,
25,
3,
-24,
-18,
37,
-59,
51,
-44,
-35,
6,
-41,
58,
-37,
-15,
55,
9,
-3,
12,
-3,
26,
-6,
-3,
29,
-5,
-2,
6,
-33,
-93,
39,
-32,
-51,
-28,
2,
-1,
-12,
-21,
-2,
44,
15,
-31,
-50,
-30,
-63,
48,
-58,
44,
-22,
33,
33,
2,
6,
22,
78,
-21,
13,
-8,
24,
-5,
-7,
-34,
49,
33,
-24,
38,
56,
-11,
24,
32,
5,
49,
10,
-25,
-23,
10,
-8,
-53,
-14,
-17,
26,
9,
37,
-14
] |
Per Curiam.
Appellant, the proponent of the will of Nicholas Bilivskoy, appeals from an order denying probate of the will and an order denying rehearing of that order.
Factually, this case presents a rather unique issue for this Court. Nicholas Bilivskoy executed a will in April, 1981. The will was witnessed by two sisters, June Tasevich and Marian Sebastian, who signed the will in Bilivskoy’s presence after witnessing his signature to the will. However, although Marian Sebastian witnessed the will, she did not sign the will as a witness with her own name. Instead, according to her deposition and that of her friend, Betty Charles, Sebastian signed the will using the name, "Betty Charles”. Both women stated in their depositions that Sebastian did this because she believed that two members of the same family could not witness a legal document. Both women also stated that Betty Charles was not present when Bilivskoy executed the will but that Sebastian used Charles’s name with her permission.
When appellant sought to have the will admitted to probate, the State of Michigan moved to intervene and filed objections to admission of the will. Copies of the deposition transcripts were attached to the motion. Both sides submitted briefs and, instead of holding an evidentiary hearing, the court and attorneys retired to the court’s chambers to discuss the case. Subsequently, the court issued an order denying probate of the will. Seven months later, appellant moved for rehearing, arguing that she was entitled to an evidentiary hearing on the issue of Sebastian’s intent at the time she signed Charles’s name to the will. Significantly, appellant admitted that the issue of the validity of the will in light of the use of the wrong signature was "mainly a legal question”. In addition, she did not contend that Sebastian’s intent had been any different from that expressed by Sebastian and Charles in their respective depositions. The motion for rehearing was denied.
On appeal, appellant again argues that she was denied her right to an evidentiary hearing by the probate court’s decision based on the briefs, depositions, and oral arguments made during the conference in chambers. We cannot agree. The statements of the other attorneys who were present during the conference indicated that there had been an agreement to proceed on the basis of the briefs because the issue was a legal one. In addition, appellant did not express a desire for an evidentiary hearing until seven months after the probate court had issued its order. Finally, to this day appellant has not contested the validity of Sebastian’s statement that she signed Charles’s name because she believed that members of the same family could not witness a legal document.
Appellant next argues that, although Sebastian deliberately signed another person’s name to the will, the will nevertheless satisfies the requirements of MCL 700.122(1); MSA 27.5122(1). That statute provides in pertinent part:
"(1) A will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction and shall be signed by at least 2 persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will. If the witnesses are competent at the time of signing the will, their subsequent incompetency, from whatever cause, shall not prevent admission of the will to probate, if it is otherwise satisfactorily proved. If, after deligent search and effort and after the signature of the testator is identified, it appears that the whereabouts of the witnesses to a will cannot be ascertained and it appears on the face of the will that the requirements in this section for a valid will have been met, a presumption shall arise that the will was executed in all particulars as required by law.”
Again, we do not agree with appellant. In our opinion, the deliberate use of another person’s name as a witness to a will because the actual witness believes that use of her own name would invalidate the will violates the requirements of the statute. The law requires that a will be witnessed to assure that the will propounded is actually the will which was executed, to assure a means of verifying the testamentary capacity of the testator, to assure that there is no uncertainty as to the execution of the will, and to assure sufficient formality which impresses on the testator the importance of the disposition of the property which he makes by means of the will. 94 CJS, Wills, § 183, p 994. See also Lord v Lord, 58 NH 7, 10 (1876). Although, in this case, the true identity of the witness who signed as "Betty Charles” has been discovered, this will not always be the case. Where the "misnomer” is not discovered, many of the purposes behind the requirement of two witnesses to the signing of the will will be defeated. Contrary to appellant’s contention, this was not a situation in which Sebastian signed in the wrong capacity, In re Fowle’s Estate, 292 Mich 500; 290 NW 883 (1940), or in which she was unable to write her signature and, therefore, signed the will by making her "mark”, In re Canterbury’s Estate, 198 Mich 743; 165 NW 747 (1917). Instead, Sebastian deliberately used another person’s name because she believed her own would invalidate the will. She, therefore, did not intend to witness the will when she used Betty Charles’s name. See Lord v Lord, supra. Under these circumstances, we find that the probate court properly denied probate of the will.
Affirmed. | [
25,
-40,
-10,
2,
16,
-23,
12,
42,
-3,
20,
24,
-53,
55,
67,
-56,
-12,
2,
12,
-37,
-22,
-3,
-29,
-34,
44,
-21,
-9,
1,
-32,
24,
33,
-4,
-40,
-31,
-68,
23,
-10,
28,
-23,
47,
27,
20,
2,
19,
5,
-49,
-30,
30,
-25,
-18,
-11,
22,
1,
16,
26,
-28,
50,
43,
-30,
35,
9,
-4,
-4,
39,
41,
-28,
53,
44,
49,
-39,
-15,
-29,
25,
19,
17,
-8,
-34,
-58,
-5,
25,
39,
15,
16,
14,
43,
-2,
15,
-44,
-27,
34,
-16,
13,
-36,
-60,
1,
18,
43,
60,
0,
19,
39,
-21,
69,
20,
16,
8,
53,
6,
24,
-12,
6,
-1,
4,
7,
30,
1,
24,
-18,
-22,
-37,
-7,
-6,
15,
-2,
-40,
27,
-17,
29,
12,
53,
-20,
45,
71,
18,
-10,
3,
6,
1,
-19,
0,
-33,
27,
-4,
-9,
0,
12,
-37,
61,
-8,
32,
-1,
-2,
-1,
-10,
8,
7,
44,
10,
-22,
22,
12,
3,
21,
-14,
12,
14,
-20,
29,
-7,
42,
-15,
15,
-11,
0,
-35,
32,
-27,
46,
-21,
-55,
12,
-2,
79,
29,
-43,
-18,
-60,
-16,
-26,
-43,
-31,
-14,
-21,
62,
25,
17,
50,
1,
25,
-25,
2,
-3,
16,
23,
-7,
30,
-62,
30,
-15,
22,
40,
7,
-26,
-35,
0,
-42,
-58,
-25,
-44,
-49,
10,
55,
18,
-3,
-48,
-57,
-13,
39,
-20,
-5,
16,
-11,
-23,
-14,
20,
-3,
4,
5,
15,
-12,
-45,
-41,
-17,
38,
-32,
-26,
15,
-8,
47,
50,
-30,
17,
-4,
-35,
30,
2,
-50,
-22,
22,
11,
-14,
-12,
35,
-57,
33,
4,
20,
-9,
-35,
-19,
-1,
11,
-19,
33,
-22,
3,
-7,
-18,
2,
19,
-2,
-15,
41,
5,
1,
-33,
30,
-17,
24,
34,
61,
37,
-6,
-3,
2,
56,
-25,
0,
-59,
-48,
3,
33,
23,
44,
55,
-18,
-32,
7,
0,
1,
3,
-1,
-2,
12,
14,
28,
-30,
-75,
-62,
25,
-14,
27,
-28,
0,
3,
-44,
19,
1,
-8,
29,
16,
7,
35,
10,
26,
4,
7,
16,
27,
-42,
46,
29,
24,
-7,
3,
15,
17,
19,
-49,
-38,
22,
7,
28,
5,
5,
-63,
-30,
17,
-67,
6,
83,
-28,
-17,
23,
26,
-10,
7,
-2,
33,
40,
52,
0,
-21,
-76,
15,
0,
9,
-22,
18,
10,
20,
-33,
-44,
48,
17,
17,
24,
-37,
27,
21,
8,
-12,
-29,
16,
23,
-20,
22,
-2,
27,
-15,
-6,
24,
56,
0,
14,
-19,
5,
-20,
3,
-18,
20,
-11,
22,
9,
-12,
5,
4,
18,
-51,
-1,
1,
-60,
-13,
-6,
6,
-7,
-39,
-21,
13,
-4,
-4,
7,
41,
22,
-11,
8,
12,
-9,
-12,
-10,
-23,
4,
-19,
-14,
-22,
-13,
37,
13,
-66,
12,
-28,
9,
41,
22,
-8,
4,
11,
1,
26,
-26,
-1,
-14,
-1,
-16,
-38,
7,
-40,
-4,
38,
44,
3,
-1,
48,
-20,
58,
-19,
-28,
-23,
9,
-28,
21,
27,
44,
1,
6,
27,
-6,
-12,
-16,
-24,
-48,
-6,
15,
12,
55,
-8,
-40,
-32,
-43,
-14,
-6,
1,
43,
-7,
53,
26,
-66,
-11,
-30,
7,
-24,
0,
-56,
33,
24,
-4,
-23,
47,
-16,
-22,
34,
-2,
-19,
7,
1,
-25,
-29,
2,
4,
-7,
9,
20,
0,
32,
-41,
45,
-58,
-10,
23,
-7,
0,
-63,
-5,
-23,
11,
-5,
-28,
-7,
-3,
34,
-8,
-44,
-75,
-48,
16,
17,
-23,
38,
29,
-15,
-21,
-26,
7,
-8,
-15,
19,
-63,
-15,
-41,
57,
7,
-29,
-27,
35,
19,
-30,
-1,
29,
0,
-44,
-12,
6,
9,
-16,
-21,
-10,
10,
-9,
22,
-21,
-9,
-82,
1,
12,
-45,
17,
-11,
-19,
-74,
47,
12,
17,
26,
10,
-7,
-51,
-26,
-13,
13,
67,
-20,
-18,
-5,
-81,
-14,
-34,
26,
20,
10,
62,
-11,
7,
15,
8,
-3,
-10,
-64,
-4,
41,
27,
-4,
6,
-24,
4,
13,
16,
11,
-21,
-5,
-12,
-15,
-25,
-8,
-4,
-15,
1,
-47,
72,
-16,
-13,
37,
9,
38,
55,
-9,
0,
-68,
1,
-55,
15,
-11,
2,
-35,
-46,
-61,
-15,
31,
35,
28,
38,
45,
-11,
43,
22,
-37,
-59,
-10,
-23,
13,
21,
-24,
-22,
-14,
-31,
22,
-28,
-48,
-7,
17,
-8,
43,
-14,
13,
16,
33,
-31,
15,
4,
40,
2,
23,
0,
15,
-35,
32,
-72,
-17,
-12,
-26,
-12,
-14,
-19,
-1,
-2,
17,
-25,
32,
5,
-33,
41,
-19,
-33,
29,
-26,
21,
-12,
16,
21,
6,
70,
4,
19,
22,
10,
7,
-7,
-22,
-21,
-81,
16,
27,
-24,
44,
-33,
-65,
-12,
-17,
32,
37,
-23,
-29,
13,
13,
-4,
57,
0,
21,
-43,
-11,
-20,
-14,
-2,
-21,
-26,
-16,
0,
48,
23,
-14,
-7,
1,
-53,
-1,
-32,
3,
-76,
-13,
24,
65,
80,
-21,
-57,
2,
-23,
0,
72,
-15,
37,
-46,
-8,
47,
-24,
-4,
-20,
61,
4,
12,
10,
-37,
81,
3,
24,
-18,
30,
30,
-2,
15,
-69,
32,
12,
22,
37,
-1,
-18,
-31,
-34,
-54,
22,
-4,
8,
-21,
17,
7,
-8,
21,
-51,
-16,
29,
-31,
21,
39,
22,
-26,
-19,
2,
-10,
0,
41,
33,
18,
-30,
31,
-14,
-15,
66,
11,
19,
29,
-28,
27,
-37,
-1,
-20,
40,
54,
-12,
-17,
-47,
0,
-47,
34,
24,
-4,
22,
-36,
8,
14,
-17,
21,
48,
50,
-66,
-75,
-25,
18,
-14,
16,
39,
-1,
-38,
8,
-6,
18,
-16,
-9,
11,
15,
46,
8,
-8,
-12,
24,
22,
-34,
10,
-46,
-26,
36,
-30,
17,
17,
-31,
-42,
14,
3,
10,
-8,
-6,
52,
11,
14,
-6,
-18,
-17,
-2,
13,
-6,
-5,
14,
2,
25,
0,
12,
-1,
-32,
-33,
-21,
39,
-18,
-59,
-29,
50,
-10,
-53,
0,
28,
-76,
51,
-9,
-22,
-10,
-1,
-3,
-37,
18,
-25,
13,
-15,
-42,
-15,
14,
13,
-20,
-5,
46,
-8,
16,
21,
13,
-79,
6,
24,
59,
48,
41,
42,
-45,
-36,
-5,
56,
59,
-47,
15,
6,
-44,
-53,
-56,
34,
6,
-23,
2,
22,
-45,
-6,
-7,
27,
25,
-16,
-29,
-21,
-75,
-5,
20,
-44,
-34,
40,
15,
-15,
-24,
-56,
43,
-27,
9,
-30,
52,
-28,
-7,
3,
-1,
-41,
-23,
-33,
-20,
-4,
17,
42,
38,
32,
39,
-10,
3,
-35,
-13,
19,
-18
] |
J. H. Gillis, P.J.
Plaintiff appeals as of right from an order granting summary judgment for defendants. Plaintiff, a full-time antique dealer, alleged that defendants’ policy of accepting only antique exhibitors who agree not to exhibit at any other market in Michigan or northern Ohio is an illegal restraint of trade contrary to MCL 445.761; MSA 28.61 and MCL 445.701; MSA 28.31. The effect of defendants’ policy is to force plaintiff to choose between exhibiting his goods at defendants’ highly respected and profitable antique market or at all other Michigan and northern Ohio antique shows which are not similarly restricted.
In his complaint filed August 15, 1983, plaintiff alleged that he had contracted with defendants Frederick and Margaret Brusher, doing business as The Antiques Market, to exhibit at their July and August, 1983, shows. The Brushers conduct eight one-day markets per year. Plaintiff was barred from participating in the July and August shows after the Brushers notified him that he had been seen at competing markets.
The dispute in this case concerns the following paragraph, included in a letter which apparently accompanied the exhibitor’s lease agreement. The paragraph states:
"We remind you again of the policy we have always maintained and will continue. To protect you and the market we ask you to limit your participation in exhibits or shows in Michigan and nearby northern Ohio areas, during the market season. For those who choose other markets and shows, please do not sign a contract with us. We will keep the Ann Arbor Antiques Market completely different in dealers, merchandise and quality. In the past we have made an exception for those who had a long standing tradition of doing certain shows — a few use the excuse they can take poor quality merchandise to these other places not suitable for Ann Arbor, there are many months after the market closes in November and before our April opening to dispose of inventory excess. The Ann Arbor Antiques Market has an enviable reputation for quality, we cannot risk this for a limited few who take exception to our policy. These few exceptions we have made in the past, we hope we can eliminate, if not we request they not sign a market contract in the months they feel they will continue to do other shows. This is really a very minor problem involving less than twenty dealers. We will include in our advertising for 1983, no duplication of dealers in any other antique show in Michigan and northern Ohio during the market season. We appreciate your full cooperation.”
Plaintiffs complaint at the trial level and his argument on appeal is that this "policy statement” is illegal under the terms of the following statute:
"All agreements and contracts by which any person, co-partnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.” MCL 445.761; MSA 28.61.
We find no merit to the plaintiff’s argument, although for a different reason than that relied upon by the trial court in granting defendants’ motion for summary judgment. By its express terms, the statute applies only to "agreements and contracts”. The paragraph quoted above is neither an agreement nor a contract, nor does plaintiff refer to it as such in his pleadings or brief on appeal. Rather, this "policy statement” was contained in a letter which accompanied, but was entirely separate from, the exhibitor’s lease agreement. Furthermore, the policy statement does not purport to extract a promise from the plaintiff in exchange for defendants’ agreement to allow the exhibition of plaintiffs wares at the Antiques Market. Rather, the paragraph merely expresses the defendants’ desire to conduct a unique antique market and requests that, in the event plaintiff intends to display his antiques at other markets, "please do not sign a contract with us”. This paragraph does not even rise to the level of a future promise; in fact, nothing at all has been promised. We therefore conclude that MCL 445.761; MSA 28.61 has no application since that statute does not purport to void policy statements which, if voluntarily followed, might have the effect of restraining trade.
Plaintiff also argues that the defendants’ policy is in violation of MCL 445.701; MSA 28.31 (repealed by 1984 PA 274, § 17, effective March 29, 1985, new sections MCL 445.772, 445.773; MSA 28.70[2], MSA 28.70[3]), which, at the time of trial, provided in pertinent part:
"It shall hereafter be unlawful for two [2] or more persons, firms, partnerships, corporations or associations of persons, or of any two [2] or more of them, to make or enter into or execute or carry out any contracts, obligations or agreements of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of or transport any article or any commodity or any article of trade, use, merchandise, commerce or consumption below a common standard figure or fixed value, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity, or transportation between them or themselves and others, so as to directly or indirectly preclude a free and unrestricted competition among themselves, or any purchasers or consumers, in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine, or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected. Every such trust as is defined herein is declared to be unlawful, against public policy and void: * *
Again, we find that the cited statute has no application here because defendants have not contracted with any other parties to engage in any of the activities listed in the statute. Rather, defendants’ policy statement indicates merely that they will decline to contract with any antique dealers who choose to display their goods at other markets. We are aware of no law or public policy in this state which would require persons or businesses to contract and do business with other persons or businesses as long as their decision not to do business is not based upon discriminatory or otherwise illegal grounds. See Metro Club, Inc v Schostak Brothers & Co, Inc, 89 Mich App 417, 421; 280 NW2d 553 (1979). Defendants’ attempt to provide the public with a unique product does not unreasonably infringe upon the plaintiffs right to pursue his trade, but instead merely restricts plaintiffs access to one, albeit prestigious, outlet for his wares. We find no justification for reversing the order of the trial court.
Affirmed.
Since plaintiff did not allege in his complaint that the defendants breached the lease agreement by refusing to permit him to display his antiques, but rather sought only to have the policy statement declared illegal, we express no opinion as to whether the defendants’ actions were justified under these facts. | [
-38,
15,
29,
-4,
23,
-6,
-14,
64,
-10,
25,
-7,
-11,
-8,
9,
-45,
24,
57,
33,
3,
14,
30,
-13,
-31,
17,
-30,
-23,
16,
18,
12,
-11,
-44,
15,
4,
-15,
-38,
63,
-7,
-25,
41,
-34,
0,
-32,
-4,
13,
34,
7,
57,
-31,
59,
-49,
38,
-6,
-20,
8,
-23,
-17,
3,
12,
51,
18,
29,
-24,
56,
-19,
22,
-20,
-2,
28,
16,
-9,
-28,
-12,
38,
-15,
-5,
-9,
-11,
6,
-6,
-8,
45,
-22,
46,
5,
-38,
103,
-17,
9,
-20,
-48,
-40,
-15,
-17,
-22,
40,
21,
5,
8,
11,
-13,
-18,
12,
-67,
-9,
-6,
33,
-22,
16,
-25,
10,
17,
-62,
18,
-2,
18,
4,
-21,
-33,
-15,
-2,
14,
1,
1,
33,
26,
2,
45,
-51,
-19,
-23,
39,
26,
16,
40,
26,
68,
-16,
13,
1,
-35,
64,
40,
-22,
7,
15,
-34,
28,
38,
-57,
-8,
-65,
0,
-20,
25,
1,
-22,
12,
3,
27,
13,
-13,
33,
-31,
29,
-28,
-29,
-6,
-4,
3,
18,
-17,
0,
28,
-21,
17,
-16,
11,
6,
7,
14,
-21,
-8,
5,
-51,
21,
-71,
16,
-20,
-38,
14,
45,
-30,
50,
47,
-6,
38,
5,
28,
11,
35,
-1,
-25,
-19,
25,
70,
-61,
9,
-26,
-84,
-16,
-37,
-18,
-18,
-14,
5,
-18,
-39,
-11,
2,
-26,
44,
-19,
29,
63,
4,
-3,
48,
-70,
3,
4,
-51,
2,
58,
-21,
0,
-37,
-7,
-10,
43,
43,
-16,
-23,
-11,
-15,
-56,
-13,
4,
18,
29,
19,
14,
3,
3,
24,
-25,
-22,
-34,
-20,
-68,
53,
25,
7,
-24,
25,
-42,
25,
0,
-22,
-57,
0,
-77,
0,
41,
46,
2,
-53,
-46,
24,
63,
-64,
5,
-7,
-42,
-28,
6,
31,
-26,
5,
-51,
0,
0,
50,
-23,
-14,
26,
36,
-38,
-15,
12,
-15,
-23,
18,
11,
-14,
21,
-16,
-8,
-19,
19,
-27,
-15,
-78,
-16,
-34,
1,
-27,
3,
-18,
47,
12,
-15,
30,
-1,
72,
-33,
5,
37,
-23,
60,
-26,
39,
4,
4,
-66,
-11,
23,
65,
-51,
-19,
16,
26,
-16,
24,
-5,
-33,
-19,
18,
-26,
30,
-36,
-4,
12,
-28,
4,
42,
20,
22,
48,
-45,
81,
40,
16,
3,
-14,
3,
0,
23,
38,
38,
34,
-37,
17,
4,
23,
-11,
-43,
-31,
-62,
41,
28,
-20,
-40,
23,
40,
31,
-3,
15,
-20,
-23,
23,
-26,
-15,
40,
24,
-42,
39,
-30,
-39,
-27,
-33,
-27,
29,
-19,
-8,
-17,
41,
19,
31,
32,
-28,
11,
-5,
-32,
-10,
15,
6,
38,
-46,
0,
-10,
34,
5,
-20,
18,
71,
-48,
-4,
20,
4,
70,
36,
14,
35,
-9,
-7,
-28,
-6,
17,
-29,
54,
17,
-30,
-15,
-35,
9,
-4,
-6,
40,
23,
23,
40,
59,
-11,
-8,
32,
25,
31,
25,
51,
-31,
24,
-46,
-26,
-41,
-4,
-4,
69,
-22,
23,
14,
-17,
46,
57,
-29,
-22,
25,
-32,
1,
-30,
40,
3,
94,
33,
-7,
-29,
5,
-41,
10,
-18,
22,
-39,
-17,
11,
53,
-22,
6,
-21,
25,
51,
21,
-48,
-29,
-43,
13,
15,
13,
-19,
-29,
39,
-38,
0,
-60,
10,
18,
-5,
-11,
-12,
23,
-42,
18,
-18,
-58,
2,
-1,
-9,
59,
-11,
9,
38,
0,
-37,
35,
-18,
-36,
67,
-65,
21,
-19,
25,
22,
6,
-20,
4,
12,
-1,
-55,
-23,
-10,
54,
-17,
33,
-49,
1,
-38,
-17,
16,
-39,
78,
-10,
-17,
-14,
34,
-14,
29,
64,
-15,
28,
-27,
52,
69,
-33,
0,
53,
-33,
18,
0,
26,
-11,
-27,
27,
-52,
-13,
4,
-74,
4,
-21,
-19,
9,
2,
9,
15,
-30,
-17,
4,
-18,
0,
-24,
-25,
38,
3,
15,
-34,
-18,
-21,
-5,
-63,
-63,
24,
-4,
-18,
14,
4,
-37,
-43,
-73,
28,
12,
-47,
0,
36,
29,
-10,
-2,
12,
59,
37,
9,
31,
-13,
8,
-54,
-64,
23,
-3,
-14,
37,
4,
29,
-41,
-12,
-47,
22,
-18,
-11,
20,
4,
0,
14,
-4,
17,
3,
21,
22,
-30,
-12,
16,
-28,
-28,
-2,
-21,
26,
-9,
-12,
15,
12,
1,
-18,
28,
-11,
-4,
51,
64,
1,
-7,
9,
30,
-51,
30,
56,
38,
-25,
0,
29,
-33,
-30,
-12,
46,
25,
6,
-24,
-18,
31,
22,
-43,
10,
-34,
-24,
-6,
-31,
-15,
-2,
74,
-7,
12,
-33,
-11,
-10,
-24,
-28,
43,
-35,
-4,
29,
43,
38,
33,
-3,
9,
-53,
-28,
-9,
0,
27,
-61,
-5,
-19,
-20,
32,
5,
38,
0,
27,
17,
-47,
-50,
10,
-55,
-65,
-12,
-12,
29,
34,
24,
-23,
-34,
-5,
-5,
9,
-32,
-43,
-7,
49,
-21,
38,
-18,
-28,
-36,
-30,
-28,
-20,
2,
14,
0,
45,
-34,
37,
15,
-57,
6,
-27,
36,
-2,
12,
5,
-18,
-48,
-19,
-15,
49,
-12,
-23,
-27,
20,
6,
30,
10,
5,
16,
29,
-12,
19,
-19,
-32,
-11,
-2,
-2,
23,
-1,
35,
-51,
16,
5,
32,
58,
-36,
-11,
-32,
-3,
0,
-25,
-24,
-36,
-22,
-65,
-24,
-18,
-25,
-33,
13,
17,
-20,
22,
-76,
10,
-11,
-40,
-10,
-28,
37,
14,
36,
-35,
14,
10,
-4,
29,
16,
11,
25,
-57,
28,
19,
-22,
42,
24,
28,
-34,
-36,
-9,
-46,
-23,
-23,
-9,
-3,
33,
-1,
-15,
-28,
51,
14,
-42,
-14,
-40,
9,
8,
-50,
-33,
20,
34,
44,
31,
-12,
17,
11,
13,
-8,
-41,
51,
-39,
9,
26,
-53,
15,
0,
-5,
-29,
30,
-9,
-44,
-1,
46,
-34,
-26,
28,
-12,
-20,
-13,
-18,
69,
12,
-6,
-32,
22,
-13,
2,
-13,
9,
44,
-11,
-11,
1,
-8,
-32,
-10,
32,
30,
12,
28,
-31,
-2,
26,
-14,
-23,
10,
5,
-2,
15,
-25,
6,
23,
4,
31,
-14,
-27,
44,
-41,
-27,
-24,
9,
40,
-24,
15,
20,
-3,
-35,
-42,
-7,
62,
5,
21,
25,
28,
-34,
23,
-48,
65,
-24,
-66,
-29,
12,
66,
36,
25,
-4,
33,
13,
27,
42,
-11,
-27,
-54,
0,
21,
-18,
-26,
-13,
31,
-9,
23,
-16,
4,
-1,
-38,
24,
5,
-5,
-62,
58,
-41,
-11,
2,
-8,
15,
-20,
-34,
-5,
-40,
28,
-5,
-25,
9,
-1,
25,
-8,
2,
0,
8,
-36,
-23,
-31,
-34,
-42,
22,
6,
-4,
-52,
18,
37,
2,
-57,
11,
-3,
-20,
33
] |
M. J. Kelly, P.J.
We granted defendant’s application for leave to pursue this interlocutory appeal so that we could determine whether the Detroit House of Correction (DeHoCo) constitutes "a penal institution of this state” for the purposes of Michigan’s 180-day rule. MCL 780.131; MSA 28.969(1).* We hold that application of the 180-day rule to inmates confined at DeHoCo will depend on the circumstances of their assignment to that facility. Where an inmate is sentenced to a term of imprisonment for one year or less and is thus confined in DeHoCo in lieu of in a county jail under MCL 769.28; MSA 28.1097(1), he or she will be considered an inmate of a county jail or local prison facility and the 180-day rule will not apply. Where, however, an inmate is confined in DeHoCo pursuant to an agreement between the Department of Corrections and the City of Detroit, MCL 802.11; MSA 28.1821, he or she will be considered an inmate of a state penal institution and the 180-day rule will apply.
DeHoCo is an unusual penal facility in the State of Michigan. It is governed by the Detroit House of Correction statute, MCL 802.1 et seq.; MSA 28.1811 et seq., enacted by the Legislature to provide solely for that facility. As Justice (then Judge) Riley observed in People v Hooks, 89 Mich App 124, 131; 279 NW2d 598 (1979):
"DeHoCo plays a unique and dual role in the state’s corrections system. It operates as an equivalent to a state prison when, pursuant to MCL 802.51; MSA 28.1841, it receives women prisoners convicted of crimes or offenses punishable by imprisonment in a state prison. However, DeHoCo is classified as an equivalent to a county jail by MCL 769.28; MSA 28.1097(1). That section provides that persons convicted of crimes punishable by imprisonment for a maximum of one year of less shall be sentenced to a county jail or to DeHoCo and not to the state penal institution.” (Emphasis in original.)
We add that the DeHoCo statute authorizes not only the incarceration of state prisoners who are women, MCL 802.51; MSA 28.1841, but the incarceration of any state prisoners where there is an agreement to do so between the state prison inspectors and the City of Detroit. MCL 802.11; MSA 28.1821. The inmate population of DeHoCo is comprised of persons who have received sentences of incarceration for one year or less, as well as those who have received sentences of incarceration exceeding one year. We conclude that DeHoCo’s duality of function cannot be ignored in determining whether Michigan’s 180-day rule applies to inmates incarcerated there.
Defendant’s argument that DeHoCo is a state penal institution is premised on the theory that DeHoCo is operated and controlled by the state. In support of his "state control” theory, defendant relies upon MCL • 802.2; MSA 28.1812 and MCL 791.262; MSA 28.2322. While defendant’s argument is plausible, we are not convinced. MCL 802.2; MSA 28.1812 provides that the "management and direction” of DeHoCo "shall be under the control and authority of a board of inspectors, to be appointed for that purpose by the common council of the City of Detroit, upon the nomination of the mayor”. Clearly, the administrative or management body of DeHoCo is locally controlled and we are not persuaded that a board of inspectors accountable to the state transforms a local jail facility into a state penal institution.
MCL 791.262; MSA 28.2322, prior to its amendment by 1984 PA 102, provided that the Department of Corrections "shall supervise and inspect local jails and houses of correction”, "shall promulgate rules and standards” applicable to these local facilities, and shall enforce its powers over the local facilities by filing an action in circuit court for mandamus or injunctive relief. The question is best formulated as whether the authority of the Department of Corrections under this statute places DeHoCo under the control of that department, since in People v Sanders, 130 Mich App 246, 250-251; 343 NW2d 513 (1983), we opined that the term "penal institution of this state” as used in the 180-day statute should be broadly interpreted to include any " 'grounds under the control of any person authorized by the Department of Corrections to have a prison inmate under care, custody or supervision’ ”, quoting People v Lakin, 118 Mich App 471, 474; 325 NW2d 460 (1982). Even under this liberál interpretation of the term, however, DeHoCo simply fails to qualify as a state penal institution in every instance. Where an inmate is incarcerated in DeHoCo under MCL 769.28; MSA 28.1097(1) rather than under a contract between the department and the City of Detroit, that inmate is not being cared for on grounds controlled by a person authorized by the Department of Corrections. That authority of DeHoCo personnel to care for inmates incarcerated under MCL 769.28; MSA 28.1097(1) is derived by statute and does not emanate from the department.
We further note that in Mitchell v Dep’t of Corrections, 113 Mich App 739; 318 NW2d 507 (1982), this Court was called upon to decide whether MCL 791.262; MSA 28.2322 placed local jails and houses of correction under the control of the Department of Corrections officials for purposes of a nuisance action. In Mitchell, plaintiff was a former inmate of the City of Trenton jail who alleged that the department had created a nuisance in the jail by failing to adequately supervise and inspect. After observing that nuisance liability attaches only if the defendant is in control of the nuisance, the Court went on to hold:
"MCL 791.262; MSA 28.2322 imposes upon defendant the responsibility to supervise and inspect local jails to obtain facts pertaining to the usefulness and proper management of said jails. Defendant is directed by the statute to promulgate rules and standards for the administration of local jails and is allowed to enforce its reasonable orders concerning administration of local jails by mandamus or injunction in the circuit court of the county where the jail is located, through proceedings instituted by the attorney general. The power to make orders concerning the administration of local jails is insufficient to constitute control for the purposes of a nuisance action. A party does not control premises when its control may only be exercised through court action.” 113 Mich App 742-743.
For similar reasons, we believe that the department’s power to promulgate rules and inspect does not translate to the degree of control necessary to transform a local facility into a state penal institution for purposes of the 180-day rule.
Defendant in this case has been charged with three counts of resisting arrest, MCL 750.479; MSA 28.747. While these charges were pending in the trial court, defendant was convicted in Wayne County Circuit Court on another offense. As a result of that conviction, he was sentenced to a term of three years probation with the first year to be served in DeHoCo. Upon receiving credit for time served, defendant was released from DeHoCo seven months after his incarceration. One month later, defendant filed a motion to dismiss in this case for failure of the prosecution to comply with the 180-day rule. The trial court denied defendant’s motion on the ground that DeHoCo is a county jail and not a state penal institution.
Since defendant was sentenced to serve only one year in DeHoCo, the length of his sentence precluded incarceration in a state penal institution under MCL 769.28; MSA 28.1097(1). Defendant could only have been incarcerated in DeHoCo or in a county jail. MCL 769.28; MSA 28.1097(1). Because the 180-day rule does not apply to inmates incarcerated in county jails or local facilities, People v Walker, 142 Mich App 523, 527; 370 NW2d 394 (1985); People v Hastings, 136 Mich App 380, 382; 356 NW2d 645 (1984); People v Rose, 132 Mich App 656, 659; 347 NW2d 774 (1984), the trial court in this case properly denied defendant’s motion to dismiss.
Affirmed and remanded.
The Michigan Legislature has recently enacted 1985 PA 61 authorizing the state to purchase DeHoCo from the city and transform it into a prison facility. Our decision is thus limited to the status of DeHoCo prior to this development. | [
30,
49,
-46,
-18,
-48,
29,
-40,
1,
-50,
28,
19,
21,
12,
0,
40,
-12,
29,
59,
-85,
30,
14,
61,
-15,
56,
-75,
38,
73,
34,
21,
0,
-14,
-27,
11,
-36,
38,
-32,
46,
-26,
42,
-7,
-25,
-11,
-29,
3,
-51,
2,
14,
36,
28,
-19,
-35,
27,
-19,
23,
-21,
7,
-30,
-24,
-52,
84,
1,
57,
-22,
-10,
18,
0,
12,
15,
-8,
-54,
42,
10,
-28,
-5,
-7,
-6,
31,
-34,
24,
1,
-1,
51,
-3,
-15,
6,
24,
-32,
-58,
-39,
-18,
-15,
-7,
-41,
-35,
34,
18,
-16,
-41,
35,
-34,
-41,
13,
-17,
15,
-6,
-6,
8,
31,
-24,
9,
51,
-29,
-30,
-10,
-16,
5,
9,
-31,
9,
-34,
16,
35,
28,
52,
76,
-41,
36,
-47,
23,
-25,
26,
37,
93,
-26,
-41,
66,
41,
25,
49,
1,
-13,
-26,
55,
-5,
2,
10,
20,
-18,
20,
4,
7,
-78,
-14,
50,
-8,
39,
12,
59,
-60,
31,
27,
8,
-5,
-11,
5,
-22,
-22,
31,
36,
-4,
-2,
-5,
16,
17,
7,
1,
-19,
53,
4,
1,
-63,
20,
2,
-19,
0,
50,
12,
-17,
-32,
-31,
-14,
21,
17,
-17,
43,
40,
19,
49,
21,
15,
-43,
7,
14,
81,
32,
-45,
-38,
10,
-15,
-22,
-28,
-21,
0,
18,
-9,
-36,
10,
-3,
-12,
30,
24,
29,
35,
2,
8,
10,
15,
-19,
81,
-9,
31,
8,
56,
8,
-45,
-8,
-31,
24,
34,
17,
-19,
24,
-5,
-13,
-8,
-3,
-38,
-30,
5,
42,
51,
16,
21,
5,
-28,
-27,
-17,
-25,
-43,
31,
0,
-27,
-18,
-9,
-17,
5,
-28,
13,
-34,
10,
18,
-1,
-51,
-13,
-78,
-34,
32,
51,
5,
-58,
4,
19,
41,
1,
-14,
-12,
-39,
-17,
10,
22,
9,
0,
-19,
3,
54,
-27,
30,
-20,
-11,
24,
27,
11,
-23,
-3,
2,
-5,
-17,
27,
-6,
-48,
47,
-24,
-16,
6,
-8,
-17,
15,
6,
12,
5,
-55,
25,
4,
-25,
29,
-29,
55,
-39,
-33,
-38,
1,
-2,
15,
25,
10,
48,
-21,
20,
-30,
10,
5,
-45,
-11,
14,
-10,
17,
-22,
-22,
-2,
-27,
5,
1,
-19,
20,
-42,
-55,
-59,
-53,
-44,
-1,
7,
-40,
-14,
3,
-4,
-14,
6,
11,
53,
12,
53,
-22,
-26,
24,
-5,
-19,
36,
-3,
18,
3,
-3,
7,
-15,
-36,
59,
-86,
-46,
-48,
42,
6,
-31,
-39,
-22,
-42,
-39,
-28,
3,
31,
36,
-44,
-30,
19,
20,
41,
21,
47,
-19,
23,
9,
24,
-101,
1,
31,
50,
-16,
7,
-17,
-26,
8,
-34,
22,
34,
-1,
-77,
-17,
21,
-19,
-13,
-3,
16,
-10,
7,
16,
-23,
-17,
18,
-19,
-33,
-14,
-33,
-12,
7,
-2,
-5,
44,
29,
5,
-52,
-30,
-19,
19,
5,
-10,
-16,
-59,
51,
16,
23,
-35,
-45,
-10,
-48,
-15,
17,
-9,
5,
-36,
-28,
3,
-36,
-33,
30,
23,
33,
11,
-38,
-22,
60,
15,
30,
-14,
-22,
-48,
15,
13,
25,
-32,
-42,
-9,
0,
17,
-42,
6,
29,
9,
27,
-2,
23,
1,
22,
-14,
2,
-34,
-17,
12,
-28,
27,
5,
33,
-2,
19,
-1,
4,
40,
-59,
-34,
11,
-26,
75,
-3,
-33,
-55,
46,
-17,
7,
49,
-11,
-23,
-45,
0,
37,
-39,
-16,
-24,
28,
-38,
-41,
4,
-8,
-21,
15,
14,
12,
44,
20,
8,
-32,
-59,
3,
-16,
-28,
-18,
-57,
-29,
33,
-9,
-33,
16,
43,
-3,
-37,
-2,
25,
12,
9,
-14,
3,
28,
30,
38,
48,
13,
-31,
0,
-15,
-8,
26,
23,
-17,
-2,
20,
20,
-5,
34,
-31,
-19,
-35,
-13,
39,
-4,
-18,
-10,
-38,
12,
-8,
32,
-2,
-28,
22,
-11,
23,
29,
-4,
15,
37,
-16,
-13,
10,
-38,
23,
-14,
17,
-32,
-38,
-35,
36,
-6,
24,
-27,
47,
14,
-27,
32,
-38,
7,
-27,
-12,
-29,
-28,
19,
-26,
13,
24,
-1,
22,
4,
62,
-12,
-31,
-23,
-47,
60,
-4,
-5,
46,
25,
19,
-31,
-46,
-17,
-7,
32,
-31,
23,
60,
-12,
-14,
-42,
24,
-7,
-28,
32,
-12,
9,
8,
-42,
-35,
-19,
5,
-28,
11,
35,
16,
54,
19,
-12,
13,
-1,
42,
19,
-44,
-2,
-22,
-52,
-5,
4,
-20,
13,
4,
44,
-13,
53,
13,
-7,
43,
-23,
-7,
38,
18,
0,
-6,
6,
48,
-25,
-27,
21,
-1,
-54,
0,
-11,
-37,
37,
-6,
16,
-13,
12,
-47,
-23,
-32,
22,
-11,
-57,
-37,
-15,
34,
-3,
-48,
-19,
10,
-50,
12,
-6,
39,
-16,
20,
-3,
-78,
15,
-29,
37,
-11,
5,
-35,
-23,
7,
-30,
4,
0,
-21,
5,
46,
40,
12,
36,
-57,
10,
36,
-16,
-92,
-28,
-53,
-42,
-28,
9,
-20,
-13,
-30,
6,
58,
-14,
11,
11,
43,
41,
10,
-35,
-19,
52,
-3,
-49,
-12,
117,
-35,
-3,
-11,
-40,
-10,
-48,
0,
-1,
-36,
-20,
23,
15,
32,
19,
40,
-33,
-19,
0,
33,
22,
14,
-59,
23,
-1,
-17,
-21,
8,
5,
24,
59,
18,
58,
2,
24,
-44,
55,
2,
-18,
25,
-9,
-21,
-26,
46,
-22,
-6,
6,
39,
19,
-7,
34,
33,
33,
6,
-22,
6,
69,
47,
-29,
25,
-10,
34,
-24,
-44,
25,
-20,
-29,
-9,
76,
-2,
-14,
-58,
14,
49,
16,
8,
-26,
34,
-12,
3,
12,
-7,
-6,
-36,
41,
0,
-31,
-2,
27,
-41,
-31,
30,
52,
-77,
25,
-7,
16,
-29,
16,
41,
-40,
56,
27,
53,
-10,
-14,
-20,
-7,
-28,
14,
20,
-15,
-11,
-31,
0,
20,
-13,
-26,
-71,
22,
10,
-32,
23,
33,
17,
2,
-22,
-26,
-14,
-27,
27,
-22,
19,
13,
-29,
-93,
-7,
6,
-83,
-2,
8,
6,
-5,
-1,
-18,
17,
-15,
-10,
21,
-44,
-25,
-37,
-47,
-33,
-13,
73,
-40,
30,
-45,
-29,
42,
-46,
39,
-58,
95,
15,
-4,
27,
-8,
-12,
12,
25,
57,
11,
3,
-3,
-3,
-32,
10,
2,
29,
29,
7,
7,
19,
-15,
-37,
-19,
22,
-13,
1,
-23,
-14,
47,
3,
0,
9,
-2,
-28,
8,
-72,
-51,
7,
-24,
-34,
-45,
8,
-53,
-19,
15,
-1,
54,
19,
54,
18,
4,
-12,
-13,
29,
46,
37,
0,
67,
14,
-16,
-12,
1,
-33,
9,
0,
-31,
11,
-3,
-31,
31,
-6,
49,
-60,
64,
15,
-26,
-33,
-24
] |
Per Curiam.
Defendant, Rudolpho Martinez, was charged with murder, MCL 750.316; MSA 28.548, and, in a supplemental information, with having three prior felony convictions, MCL 769.12; MSA 28.1084. He later pled guilty to a reduced charge of voluntary manslaughter, MCL 750.321; MSA 28.553, and the original habitual offender charge. His plea was given in exchange for the prosecution’s dismissal of the original murder charge. Defendant was sentenced to a term of from 100 to 150 years in prison and now appeals as of right. We affirm.
In this Court, the defendant claims that the sentence of 100 to 150 years was an abuse of discretion because (1) it was designed to keep Mr. Martinez from ever being released, (2) it was longer than Mr. Martinez’s life expectancy, and (3) it was a violation of the constitutional separation of powers doctrine. We reject all of these arguments.
First, it was evident that the sentence imposed was fashioned to insure that Mr. Martinez would never be a free man again. The trial judge quite pointedly stated that he intended ”to design a sentence that will mean that Mr. Martinez will not be released from prison”. Under the statute, MCL 769.12; MSA 28.1084, the trial court had the authority to sentence Mr. Martinez for life or for any lesser term. The trial judge obviously selected the long term of years instead of life in hopes that the "lifer law”, MCL 791.234(4), MSA 28.2304(4), would not apply so as to make Mr. Martinez eligible for parole consideration after serving ten calender years. See People v Johnson, 421 Mich 494; 364 NW2d 654 (1984). We are persuaded that the trial court did not err in imposing a lengthy term of years where such a sentence is expressly authorized by statute and warranted by a dispassionate consideration of legitimate sentencing criteria and objectives.
The second aspect of Mr. Martinez’s argument is that, in effect, the trial court imposed a sentence which will exceed his life expectancy. Obviously, that was the trial court’s intent and there is no showing that such a sentence was not justified. In fact, there is no claim that this sentence should shock this Court’s conscience nor could there be. Mr. Martinez’s extensive prior record fully supported the imposition of the sentence in this case.
Thirdly, defendant argues that the sentence violates the separation of powers because it has the effect of precluding parole. There is no infringement by the judiciary upon a legislative function since the Legislature by statute expressly authorized a sentence within the range imposed here. Moreover, there is no infringement upon an executive function since the governor always retains the authority to grant reprieves, commutations and pardons. Const 1963, art 5, § 14.
Affirmed. | [
60,
33,
21,
5,
-40,
0,
-39,
4,
-44,
29,
50,
-35,
-3,
5,
48,
-15,
63,
24,
-43,
22,
9,
19,
8,
19,
-37,
-25,
37,
65,
22,
42,
24,
-22,
29,
-63,
-7,
10,
45,
-2,
34,
34,
11,
-70,
8,
9,
-47,
-10,
20,
1,
37,
-37,
18,
5,
13,
16,
4,
42,
18,
-33,
-17,
39,
-7,
-5,
-67,
-56,
2,
-5,
43,
39,
13,
-29,
19,
-1,
-22,
64,
44,
17,
53,
2,
26,
0,
-38,
30,
25,
-25,
6,
15,
-12,
-37,
0,
-21,
-13,
-16,
-13,
-47,
-21,
7,
16,
-29,
12,
-53,
-12,
25,
-7,
11,
-18,
-11,
-22,
12,
-6,
20,
44,
59,
-23,
-2,
-67,
-28,
-56,
8,
-39,
-40,
-23,
4,
29,
33,
10,
-38,
-22,
7,
9,
-27,
0,
58,
22,
-14,
-4,
60,
31,
12,
72,
0,
-58,
23,
6,
-33,
-3,
9,
3,
-27,
47,
18,
2,
18,
-7,
5,
24,
2,
-6,
-13,
-55,
-32,
33,
8,
-39,
10,
-4,
-2,
-30,
2,
-25,
11,
30,
-42,
40,
37,
35,
40,
-39,
12,
20,
3,
-69,
11,
2,
-8,
-22,
3,
-23,
14,
-73,
-41,
10,
33,
14,
-25,
57,
31,
34,
60,
27,
7,
-42,
-20,
23,
60,
-1,
-25,
-36,
5,
2,
32,
-5,
-27,
14,
-24,
-56,
-36,
-26,
-21,
-8,
58,
-44,
-7,
-11,
-74,
31,
-20,
25,
38,
-8,
-4,
26,
-16,
29,
11,
-6,
6,
27,
21,
27,
-15,
-41,
2,
-7,
6,
22,
30,
50,
15,
2,
-3,
12,
2,
38,
40,
-26,
-15,
22,
1,
-19,
-26,
-22,
40,
6,
-13,
4,
10,
-16,
-7,
-16,
0,
-2,
-72,
26,
-11,
7,
-17,
-33,
-8,
-1,
-48,
25,
37,
32,
-29,
-76,
22,
-60,
13,
30,
-10,
48,
-24,
-3,
16,
77,
2,
40,
3,
-7,
-11,
58,
-33,
1,
4,
22,
3,
17,
69,
-60,
-25,
-8,
26,
0,
39,
-5,
-23,
-68,
-49,
76,
-21,
-41,
4,
18,
0,
-5,
-41,
54,
-8,
-4,
-4,
-13,
17,
-29,
9,
2,
10,
-22,
-7,
-21,
27,
13,
-41,
-4,
27,
-27,
30,
-37,
9,
-47,
-2,
-1,
11,
16,
16,
-43,
-30,
-24,
-42,
18,
-15,
31,
-41,
-17,
-21,
-8,
13,
10,
-3,
35,
16,
32,
12,
-46,
4,
-21,
21,
44,
-15,
0,
17,
-5,
40,
41,
-35,
14,
-18,
-36,
5,
24,
-18,
-52,
-16,
-46,
-53,
-42,
13,
17,
48,
43,
-22,
-30,
-12,
22,
-22,
-3,
31,
-23,
21,
2,
18,
-40,
22,
67,
51,
-24,
-23,
38,
-35,
20,
-29,
15,
-6,
49,
5,
-4,
-21,
-81,
10,
-15,
-19,
31,
-4,
-18,
-70,
-25,
55,
-12,
-18,
28,
13,
-46,
-15,
24,
9,
47,
14,
0,
-17,
13,
-38,
-9,
-9,
-50,
-11,
-46,
17,
6,
-20,
2,
-23,
-32,
-3,
-12,
23,
25,
-10,
-73,
-2,
71,
-73,
9,
5,
9,
43,
13,
0,
-35,
55,
39,
43,
30,
-22,
-19,
7,
1,
55,
-41,
-43,
-29,
-44,
-18,
-22,
43,
-27,
-26,
-6,
24,
-1,
-30,
58,
-4,
19,
19,
-11,
21,
-44,
45,
6,
33,
33,
12,
-15,
8,
0,
-55,
-23,
0,
-17,
9,
-8,
15,
-58,
14,
0,
-35,
4,
-38,
-13,
-51,
-1,
25,
-23,
18,
-26,
28,
39,
-50,
-52,
5,
-55,
-34,
36,
0,
65,
4,
-10,
-7,
2,
8,
20,
-21,
4,
-35,
-39,
18,
-47,
2,
9,
61,
-14,
-3,
-21,
24,
53,
0,
6,
-6,
22,
13,
13,
22,
18,
-13,
21,
-20,
12,
55,
51,
-25,
-25,
26,
23,
-40,
0,
-26,
-8,
1,
0,
25,
-31,
-21,
3,
9,
-50,
-26,
-19,
-24,
-96,
21,
0,
-12,
33,
-33,
3,
38,
13,
0,
-1,
11,
5,
12,
30,
-17,
-35,
-18,
8,
38,
-54,
-35,
41,
2,
-11,
-2,
-41,
-32,
-4,
-46,
-28,
-12,
-4,
-9,
9,
28,
-28,
-16,
-6,
-5,
55,
-33,
-23,
-30,
55,
19,
8,
38,
22,
18,
20,
25,
-18,
-33,
7,
-26,
-17,
27,
-24,
-58,
-41,
3,
28,
-14,
44,
-13,
-11,
-16,
50,
-14,
-24,
-29,
-33,
-10,
0,
4,
1,
3,
11,
0,
24,
16,
-20,
-37,
-22,
34,
-48,
3,
20,
-17,
23,
33,
77,
5,
26,
21,
1,
11,
-9,
64,
23,
-2,
21,
20,
54,
-25,
-6,
-24,
1,
8,
-17,
3,
3,
-41,
24,
-14,
-18,
-1,
-2,
-45,
-41,
-41,
14,
14,
-17,
-11,
14,
42,
28,
-44,
-12,
-27,
19,
11,
-8,
4,
4,
13,
4,
-23,
-39,
-10,
12,
-26,
-15,
-17,
-17,
19,
-14,
1,
-54,
31,
24,
33,
39,
43,
3,
-64,
20,
35,
1,
-28,
-37,
-40,
39,
-54,
55,
-32,
-43,
-20,
-25,
26,
-30,
-10,
-8,
34,
48,
2,
-15,
-5,
23,
13,
-23,
-22,
46,
-43,
-7,
13,
-46,
-36,
-40,
-11,
31,
-10,
18,
23,
71,
43,
16,
-1,
23,
37,
-43,
75,
10,
-9,
-1,
-5,
13,
30,
-38,
18,
3,
38,
15,
-27,
54,
-32,
11,
-11,
-3,
15,
-9,
46,
6,
-27,
-10,
-2,
5,
24,
-21,
13,
4,
14,
5,
33,
65,
-15,
-12,
-36,
77,
-4,
-3,
43,
-51,
35,
6,
11,
8,
0,
-47,
4,
45,
52,
-51,
9,
-6,
-9,
2,
-48,
6,
8,
-22,
-14,
31,
37,
-10,
22,
39,
-1,
46,
15,
-2,
-30,
-9,
65,
19,
-46,
19,
-43,
-27,
-49,
-17,
8,
-61,
2,
0,
21,
-6,
-24,
-9,
-48,
-18,
-5,
22,
-31,
16,
0,
-2,
-2,
13,
52,
-29,
30,
38,
23,
17,
44,
53,
2,
-10,
-54,
36,
11,
2,
-3,
28,
6,
-24,
-35,
25,
28,
-82,
-37,
81,
29,
35,
17,
-34,
-6,
-51,
-12,
-18,
-4,
-6,
-30,
-27,
-40,
-24,
74,
-54,
18,
-35,
-44,
-27,
-36,
37,
-16,
73,
0,
-26,
8,
-14,
-29,
28,
-26,
-8,
-21,
-23,
-25,
2,
-64,
-7,
-61,
28,
-51,
-32,
50,
6,
16,
-22,
-25,
25,
47,
-69,
-22,
-26,
49,
-81,
18,
3,
-14,
13,
-23,
-42,
-16,
-31,
-13,
-11,
26,
-14,
-51,
-36,
34,
1,
32,
27,
23,
24,
-8,
13,
-28,
26,
-2,
42,
-5,
8,
-10,
-2,
11,
0,
-15,
-45,
-34,
-10,
57,
-50,
-5,
29,
-17,
20,
-21,
46,
-16,
37,
-28,
-11
] |
Per Curiam.
Defendant, Dan Nolan Jones, Jr., was sentenced to from three to ten years on his plea of guilty of breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305. He appeals as of right.
Defendant raises two issues: (1) whether he is entitled to be resentenced because the sentence information report (SIR) scored points for prior misdemeanor convictions where defendant was not represented by counsel; and (2) whether the judge abused his discretion in imposing a three- to ten-year sentence on a first-time felony offender. We find that defendant is not entitled to resentencing and that the judge did not abuse his discretion.
Defendant first contends that he should be re-sentenced because points were assessed in the SIR for certain misdemeanor convictions for which defendant was not represented by counsel. We do not agree that defendant should be resentenced.
When defendant appeared with counsel for sentencing in the present case, he was presented with a SIR prepared by the probation department. The report assigned two points for prior record varia ble (PRV) 6 (prior misdemeanor convictions). The scoring of two points for PRV 6 gave defendant a total of four points, for a PRV level of C. Since defendant’s offense variable (OV) level was I, the minimum sentence range for this conviction was zero to eighteen months. If the prior misdemeanor convictions were not scored, the PRV level would have been B and the sentence range would have been zero to twelve months.
Neither defendant nor defense counsel objected to the scoring of defendant’s misdemeanor convictions or to a minimum sentence range calculated in the SIR. We therefore find that defendant has waived the right to challenge the scoring contained in that report. We believe that when the SIR is available to the defendant and defense counsel prior to sentencing, defendant must challenge the accuracy of that report prior to imposition of the sentence or, at least, prior to appeal.
In People v Gaines, 129 Mich App 439, 449; 341 NW2d 519 (1983), this Court held:
"A defendant waives a claim that the court considered inaccurate information in sentencing by failing to object at the time of the sentencing or to move in the lower court for vacation of the sentence.”
See also People v Baldwin, 130 Mich App 653, 655; 344 NW2d 37 (1983), People v Czerwinski, 99 Mich App 304, 308; 298 NW2d 16 (1980), lv den 417 Mich 958 (1983), and Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975). Logically, this rule also applies to failure to challenge the sentencing guidelines. When the trial judge makes the SIR available, it becomes the responsibility of the defendant and defense counsel to scrutinize that report and object to any inaccuracies contained in it. See People v Love, 144 Mich App 374; 375 NW2d 752 (1985). This provides the opportunity to resolve guidelines calculations and conclusions before sentence is imposed.
Defendant also contends that the sentence of from three to ten years was an abuse of the judge’s discretion. We disagree. In order to find that the sentencing judge abused his discretion, the sentence imposed must be so excessive that it shocks our conscience. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983).
The record in the present case indicates that the judge substantially based the sentence on the need to rehabilitate the defendant. He specifically stated that he would not consider defendant’s prior misdemeanor convictions because defendant had not been represented by counsel. The judge noted, however, that previous attempts to reform the defendant, i.e., previous juvenile and district court probations, had failed. He also referred to defendant’s substance abuse problem and included in the sentence a recommendation that defendant receive substance abuse counseling while in prison. It is apparent from this recommendation that the judge believed that defendant needed enough time in prison to accomplish the goals of such counseling. The judge also considered defendant’s age (20 years) and the fact that another charge had been dismissed as part of the plea agreement in this case.
Rehabilitation is an appropriate sentencing goal. People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). We do not find that the sentence exceeded what reasonable persons would perceive as an appropriate sentence under the circumstances. People v Coles, supra, and People v Coles (On Remand), 136 Mich App 7, 8; 355 NW2d 686 (1984). Nor does it shock our conscience that the sentence imposed in this case is three times the guidelines recommendations.
Defendant’s sentence is therefore affirmed.
The manual indicates that two points should be scored for four or more prior misdemeanor convictions. The presentence investigation report indicated that defendant had four prior misdemeanor convictions, which the judge and both counsel agreed were without counsel.
The factors stated by the judge as the basis for his sentence and departure from the guidelines were not already covered or assigned points in the guidelines as alleged by the defendant. However, even if they were, the trial judge may depart from the guideline range based on such factors and still be in compliance with Supreme Court Administrative Order 1984-1, 418 Mich lxxx. People v Ridley, 142 Mich App 129, 134; 369 NW2d 274 (1985). | [
36,
16,
-25,
-6,
-103,
-22,
-45,
-17,
-51,
59,
0,
-39,
-23,
-6,
17,
-23,
-51,
20,
-13,
-13,
13,
23,
34,
81,
0,
-24,
-7,
76,
20,
30,
57,
-17,
3,
-2,
3,
-23,
22,
23,
14,
67,
13,
-1,
-9,
-18,
-75,
-41,
6,
41,
30,
-35,
18,
19,
29,
-5,
57,
7,
-19,
6,
23,
35,
-33,
63,
-46,
11,
5,
13,
-7,
-8,
-10,
-10,
18,
-55,
11,
28,
-29,
-11,
-28,
55,
27,
26,
-17,
-11,
26,
29,
27,
-9,
46,
-57,
9,
-2,
6,
-37,
-27,
-14,
4,
-52,
-2,
-58,
69,
-39,
-38,
38,
0,
-5,
31,
32,
31,
-62,
0,
36,
50,
58,
3,
-13,
-53,
-21,
-10,
-1,
25,
18,
3,
-19,
30,
18,
68,
-28,
38,
-41,
-9,
2,
-23,
9,
-29,
-23,
-22,
3,
19,
33,
29,
-17,
16,
-8,
69,
11,
27,
30,
-22,
7,
24,
31,
6,
31,
5,
29,
20,
3,
12,
-26,
-37,
-19,
7,
-4,
-65,
-32,
11,
-15,
0,
-12,
24,
6,
37,
18,
75,
26,
-1,
18,
-33,
49,
34,
-10,
-46,
32,
30,
-3,
-33,
31,
38,
-12,
-68,
28,
45,
20,
4,
-54,
50,
6,
15,
69,
36,
30,
-52,
-31,
53,
28,
20,
-53,
39,
-31,
-21,
7,
-43,
-38,
-19,
-32,
11,
-1,
11,
4,
31,
36,
-23,
-40,
19,
-28,
1,
29,
-41,
48,
28,
-1,
21,
8,
-8,
1,
-19,
4,
24,
30,
49,
-7,
-12,
14,
0,
-29,
8,
50,
-35,
-9,
-45,
2,
-14,
-1,
12,
-32,
-81,
-59,
7,
-29,
-22,
15,
-8,
3,
18,
3,
-40,
22,
17,
10,
-11,
27,
-47,
-7,
12,
-21,
7,
1,
-53,
-19,
2,
-20,
4,
-13,
54,
36,
-72,
0,
18,
32,
36,
19,
45,
-54,
-46,
-3,
31,
-37,
22,
-34,
-28,
-1,
14,
-35,
-22,
7,
-9,
-31,
10,
0,
-10,
-3,
8,
-1,
41,
21,
6,
-11,
-34,
-3,
37,
-45,
-21,
0,
4,
-68,
-16,
-35,
4,
-34,
11,
-42,
-21,
-30,
-28,
45,
59,
37,
1,
-65,
-18,
74,
-10,
-32,
-18,
-12,
7,
28,
-41,
17,
-6,
50,
18,
65,
15,
0,
-2,
-26,
-38,
-34,
6,
-16,
23,
27,
-30,
-58,
-7,
-22,
-5,
0,
6,
31,
26,
0,
-23,
9,
5,
21,
20,
-35,
-7,
-7,
-40,
29,
43,
11,
22,
-25,
-66,
16,
28,
11,
-54,
10,
-7,
-18,
7,
15,
32,
50,
11,
-27,
-12,
-37,
2,
-3,
-11,
-40,
19,
25,
4,
26,
6,
34,
40,
68,
0,
-11,
1,
-57,
29,
-58,
6,
27,
-21,
-46,
16,
18,
-40,
36,
3,
18,
-30,
5,
-13,
-33,
21,
36,
-38,
2,
6,
-19,
-62,
-32,
-66,
12,
43,
-44,
-44,
-9,
43,
10,
-16,
37,
-1,
-19,
-21,
23,
5,
-19,
-13,
-1,
22,
-29,
-62,
-17,
48,
-77,
-17,
-11,
1,
-19,
-17,
4,
-21,
47,
19,
6,
35,
-1,
39,
11,
8,
36,
-69,
-27,
-21,
11,
-32,
-63,
-40,
3,
-20,
-40,
59,
15,
5,
37,
-6,
-9,
-27,
44,
-19,
-19,
-26,
0,
56,
-21,
-22,
-23,
46,
-21,
-3,
31,
-24,
26,
-29,
-90,
24,
-36,
37,
13,
-39,
-37,
67,
-34,
-56,
59,
-29,
-47,
-43,
60,
44,
26,
6,
-39,
-3,
-33,
-8,
-15,
-16,
4,
4,
48,
-6,
44,
11,
51,
21,
40,
-10,
12,
9,
-3,
-4,
-7,
-23,
-49,
19,
2,
9,
-59,
18,
23,
22,
57,
-25,
-11,
-27,
-24,
60,
13,
33,
10,
-28,
-13,
2,
43,
9,
-16,
-7,
19,
51,
67,
-15,
-15,
0,
-13,
18,
-3,
34,
-29,
-65,
-19,
7,
-35,
10,
4,
-70,
-25,
-3,
-24,
4,
60,
9,
-52,
37,
21,
22,
47,
-21,
9,
21,
8,
-89,
4,
-17,
38,
9,
-45,
-36,
-7,
36,
-6,
4,
-26,
19,
-19,
-5,
-16,
-43,
-21,
11,
-13,
4,
-46,
18,
-52,
-51,
-7,
-29,
34,
8,
27,
8,
-4,
68,
45,
41,
10,
3,
-38,
-25,
36,
-11,
-29,
43,
-14,
-5,
-4,
15,
11,
-18,
5,
-41,
45,
-29,
55,
-20,
-39,
66,
-17,
-25,
0,
-5,
18,
6,
-9,
-36,
4,
5,
-3,
-30,
-30,
8,
-13,
30,
-15,
-4,
0,
30,
32,
-45,
46,
-11,
42,
45,
-11,
57,
23,
-68,
1,
-41,
-13,
26,
-19,
6,
14,
9,
6,
-20,
-2,
-13,
40,
-60,
9,
11,
-19,
-52,
-9,
-54,
34,
-10,
-42,
15,
18,
11,
23,
8,
7,
4,
-3,
-11,
-8,
19,
-8,
14,
-7,
-47,
-4,
25,
-22,
-32,
-16,
-22,
-63,
20,
9,
-22,
-20,
10,
47,
32,
46,
-4,
16,
-46,
26,
38,
-63,
-57,
-21,
-7,
-2,
-24,
42,
-33,
-18,
7,
-44,
74,
16,
-61,
-23,
43,
8,
-26,
20,
-12,
49,
17,
-20,
-68,
62,
-36,
-3,
10,
-20,
-47,
-80,
9,
-21,
-56,
11,
-41,
28,
46,
17,
4,
15,
-11,
-36,
23,
24,
10,
8,
24,
14,
28,
-10,
-4,
-26,
53,
-21,
10,
19,
27,
-46,
19,
-12,
22,
0,
-5,
46,
-23,
-23,
33,
2,
19,
-28,
4,
26,
5,
-6,
-1,
37,
33,
-35,
-13,
45,
-30,
39,
16,
-36,
-18,
-4,
16,
-24,
-12,
-13,
17,
-20,
60,
-8,
9,
0,
-11,
38,
-2,
5,
-10,
-23,
12,
37,
22,
-24,
-15,
17,
-12,
6,
11,
-31,
-1,
43,
-1,
33,
-51,
11,
-4,
24,
-56,
-23,
1,
-1,
22,
-21,
22,
-4,
-10,
-15,
-13,
-3,
8,
28,
-9,
-7,
-36,
-6,
35,
25,
-42,
-37,
50,
-3,
-10,
21,
26,
4,
-12,
-33,
-28,
15,
-8,
6,
-3,
29,
3,
-25,
-11,
-9,
53,
5,
-13,
63,
36,
41,
28,
-41,
22,
-15,
-40,
16,
24,
-11,
-24,
-28,
-18,
-4,
16,
-1,
-56,
-3,
-9,
-7,
-62,
22,
-92,
39,
-65,
-18,
-29,
-48,
-40,
-36,
-12,
-19,
-14,
12,
-3,
44,
10,
-15,
-50,
65,
-10,
-5,
24,
70,
-21,
-43,
-26,
18,
2,
-65,
0,
-27,
34,
33,
-11,
37,
-19,
3,
-40,
-9,
15,
-5,
0,
-46,
20,
14,
37,
-66,
21,
-49,
29,
38,
1,
-13,
-45,
3,
11,
49,
-11,
11,
31,
-5,
-4,
8,
6,
40,
-29,
36,
0,
11,
16,
-35,
11,
8,
12,
0,
-18,
22,
-22,
39,
-5,
23
] |
Per Curiam.
This case, now nine years old, comes to us for the third time. In March, 1976, defendant was convicted by jury of first-degree murder. In June, 1978, this Court affirmed the conviction, with Judge M. J. Kelly dissenting on the ground that the trial court erred reversibly in allowing the prosecution to impeach the credibility of its own witness by use of a rebuttal witness. People v Spalla, 83 Mich App 661; 269 NW2d 259 (1978). In March, 1978, the Supreme Court reversed and remanded for a retrial for the reasons stated in the dissent. People v Spalla, 408 Mich 876; 290 NW2d 729 (1980).
Defendant was retried in July, 1981, and again was convicted of first-degree murder. On March 3, 1983, in an unpublished opinion, this Court affirmed the conviction and sentence. Docket No. 60683. On April 27, 1984, the Supreme Court, with Justice Boyle dissenting, reversed and remanded to the circuit court for entry of conviction of second-degree murder on grounds of insufficient evidence of premeditation for conviction of first-degree murder. People v Spalla, 419 Mich 863; 346 NW2d 841 (1984).
Sentencing took place October 2, 1984, before the same judge who had sentenced defendant twice before. The prosecutor’s comments to the court encouraged the court to consider the two jury verdicts of first-degree murder. Defense counsel objected, arguing that it would be improper to consider the jury verdicts since the conviction had been changed by the Supreme Court. Defendant spoke in his own behalf, asserting his innocence but expressing regret for the death of his friend. The trial court then made the following comments before again imposing a sentence of life imprisonment:
"The Court: Well, the Court wants to say for the record it has received a veritable avalance [sic] of letters from people you work with in Jackson and friends, peers, other people all who say that you’re doing a good job up there, you’re helping other people. You’ve straightened your life out, you’ve been a good prisoner.
"But unfortunately you have to deal with the original charge. The Court sat here, we had two different juries, 24 different individuals who found you guilty of murder in the first degree. And this Court in spite of all the good works you’ve done up in Jackson while you’ve been there incarcerated, it’s not unique, with other prisoners doing the same thing. The Court must consider the original charge, the original disposition by the jury, the horrendous nature of the crime, a truly horrible crime. Also the fact that there’s been no remorse shown to the particular crime. This Court does not believe the jury verdict was in error. Accordingly, I am going to sentence you again to life in the State Prison of Southern Michigan.”
Defendant appeals as of right. We find merit in defendant’s claim and remand for resentencing.
This Court was given the authority to review sentences in People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Coles also stated that a trial judge is required to state his or her reasons for imposing sentence on the record. While the judge complied with this requirement, the reasons articulated were not altogether proper. By referring to "the original charge” and never once mentioning that defendant’s conviction had been changed to second-degree murder by the Supreme Court, the trial court appeared to be sentencing defendant for an offense of which he was not convicted. It is error to sentence a defendant on the assumption that he is guilty of another crime, especially where the defendant has been found not guilty. People v Carter, 128 Mich App 541, 551; 341 NW2d 128 (1983). We also question the trial court’s reference to lack of remorse. Webster’s Third New International Dictionary defines remorse as "a gnawing distress arising from a sense of guilt for past wrongs (as injuries done to others)”. It is impossible to have remorse if one does not have sense of guilt. Defendant has steadfastly maintained his innocence throughout the nine-year period of these proceedings. One can have compassion, sorrow, or regret for the death of a friend and this defendant did articulate that he had such feelings.
The trial court also did not respond to defense objections to inaccuracies in the presentence report. Because this was defendant’s third sentencing for the same crime, there was three presentence reports. While defendant admitted that the third report was accurate, it was a short, abbreviated form of the standard presentence report and served as a supplement to and not a replacement for the previous two reports containing the alleged inaccuracies. Our perusal of the sentencing tran script fails to reveal whether the sentencing judge considered the inaccuracies. This Court has previously found error where the trial judge relinquished his discretion by failing to respond in any way to a defendant’s contention that the presentence report contained inaccurate or improper information. People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975).
Defendant’s final contention of error concerns the use of the recently mandated minimum sentencing guidelines. Administrative Order No. 1984-1, 418 Mich lxxx. Strict compliance with the guideline factors for second-degree murder would result in a minimum sentence of from 7 to 16 years in prison. This is after taking into account defendant’s prior , record of three misdemeanor convictions and several variables related to the crime itself. However, departures from literal compliance with the guidelines are expected. When departures are made, section 27 of the Sentencing Guidelines Manual states that departure reasons must be placed on the record and on the Sentencing Information Report (SIR). Although one recent panel of this Court, in People v Good, 141 Mich App 351; 367 NW2d 863 (1985), held that placing the reasons for departure on the SIR (as was done in this case) has the effect of placing them on the record, we disagree. We choose to follow the reasoning of the panel in People v Fleming, 142 Mich App 119; 369 NW2d 499 (1985), which held that the departure reasons must be placed on the record in addition to the SIR, which has only the effect of placing them in the record.
Defendant is thus entitled to resentencing. Because the trial judge has twice before sentenced this defendant, we feel it would be fairer to both the defendant and the trial judge if resentencing were before a different judge. We decline, however, to assign the matter to a different circuit. We also decline to order, or even to infer, that the sentence not exceed the minimum found in the guidelines. There well may be legitimate reasons for departing from the guidelines. However, those reasons should be carefully spelled out by the sentencing judge.
Remanded for resentencing.
"I would like to take this opportunity to express to the Court that there is no one either in or outside this courtroom today save the immediate family of the deceased, Ron Furby, who can maintain that they have felt Ron’s loss more than I have. He was a valued, trusted and loyal friend and I will always cherish the friendship we shared that extended for a period of 20 years.” | [
31,
27,
19,
18,
-23,
-25,
-32,
-34,
-39,
-26,
-7,
-51,
27,
-62,
24,
-9,
34,
29,
5,
-23,
-60,
18,
13,
-9,
-19,
0,
39,
40,
2,
16,
68,
-14,
72,
-75,
15,
-15,
31,
28,
-25,
21,
-8,
-29,
-3,
-4,
-45,
-5,
26,
-38,
37,
0,
-14,
20,
24,
-14,
-2,
5,
-5,
6,
-9,
55,
-19,
37,
-12,
-39,
-9,
-42,
15,
19,
-7,
-19,
0,
0,
5,
13,
1,
-26,
-28,
29,
-11,
-49,
-28,
-31,
44,
33,
-37,
-33,
-6,
-28,
15,
34,
18,
-23,
-43,
-51,
-3,
8,
41,
-57,
32,
-5,
-48,
-54,
-27,
-14,
1,
-8,
-24,
2,
-47,
36,
0,
37,
43,
31,
2,
-14,
-23,
15,
-8,
21,
-21,
16,
-6,
-20,
25,
-2,
-5,
31,
4,
1,
1,
53,
61,
10,
-13,
33,
18,
-9,
38,
-15,
-79,
46,
5,
-28,
4,
-6,
-14,
-14,
10,
22,
-32,
26,
-48,
-6,
37,
-72,
25,
-39,
-27,
7,
-20,
4,
-19,
-29,
-5,
6,
-47,
-15,
-11,
24,
-6,
20,
29,
34,
41,
-23,
-7,
13,
-9,
1,
-29,
20,
23,
6,
-16,
-14,
-21,
-14,
-31,
-1,
-50,
16,
17,
-58,
48,
-36,
26,
2,
-33,
6,
-43,
-3,
31,
32,
6,
-40,
13,
-9,
3,
26,
-1,
-58,
-33,
-42,
18,
4,
4,
50,
-10,
19,
-55,
23,
4,
-81,
-25,
-24,
-13,
59,
-49,
-45,
37,
-16,
17,
-7,
9,
21,
12,
2,
50,
-15,
-21,
-23,
45,
25,
23,
53,
43,
25,
6,
16,
61,
-19,
6,
17,
-21,
-1,
6,
23,
-2,
-10,
13,
-6,
-12,
11,
-3,
49,
9,
8,
-42,
-8,
10,
-12,
41,
21,
-31,
1,
-2,
-16,
7,
12,
38,
56,
43,
-12,
0,
-27,
-16,
73,
16,
12,
37,
13,
-24,
17,
21,
-21,
5,
-26,
-38,
23,
-20,
-17,
-22,
-36,
45,
0,
22,
-33,
-19,
-1,
20,
43,
7,
33,
-31,
18,
-20,
8,
55,
-14,
-45,
-6,
15,
-53,
44,
-29,
36,
0,
4,
-28,
-17,
23,
27,
43,
31,
-1,
-1,
32,
19,
14,
-11,
-23,
-45,
15,
-69,
23,
12,
42,
11,
-8,
44,
-1,
29,
-41,
-34,
-32,
-11,
-16,
26,
-67,
23,
-41,
-17,
34,
-19,
-7,
-4,
-40,
-5,
20,
52,
-10,
-34,
13,
-27,
34,
37,
-17,
4,
17,
-3,
13,
27,
-24,
-7,
-4,
-34,
-15,
-42,
6,
-41,
-23,
-56,
-33,
-2,
-6,
0,
40,
33,
17,
-22,
42,
6,
-5,
-5,
35,
-3,
24,
16,
18,
-17,
5,
21,
39,
8,
-47,
-3,
-57,
40,
-32,
-16,
18,
4,
1,
-52,
43,
-10,
67,
18,
-69,
11,
29,
22,
-36,
24,
13,
-36,
20,
30,
6,
-26,
24,
-47,
-25,
7,
13,
-27,
-23,
-3,
-30,
-10,
-4,
-28,
-63,
-35,
6,
23,
-68,
-17,
15,
9,
-47,
-35,
1,
21,
-11,
-46,
-10,
32,
-40,
13,
15,
-13,
26,
-4,
-41,
7,
38,
33,
-7,
63,
-52,
-32,
-24,
22,
-12,
-1,
-22,
4,
-80,
-3,
0,
27,
-18,
15,
33,
23,
-14,
-10,
7,
18,
20,
31,
-73,
11,
18,
23,
-66,
14,
69,
18,
0,
-38,
47,
18,
-24,
-15,
-45,
7,
9,
-1,
-2,
-24,
-7,
-16,
-4,
-48,
-38,
-19,
-25,
-10,
15,
26,
-57,
43,
56,
-39,
0,
-16,
3,
19,
17,
26,
17,
0,
-11,
-5,
-3,
35,
39,
18,
19,
-5,
-38,
-43,
-40,
-45,
-20,
53,
-47,
-81,
-11,
82,
30,
24,
25,
-34,
20,
83,
-8,
10,
-12,
10,
78,
-15,
64,
12,
50,
-53,
37,
49,
29,
-12,
22,
3,
-8,
31,
7,
0,
28,
-64,
11,
64,
-14,
-45,
-25,
-47,
-55,
-25,
-46,
47,
-13,
8,
21,
74,
11,
1,
10,
-28,
-13,
50,
27,
-22,
-8,
3,
38,
6,
25,
-62,
9,
-28,
12,
-6,
-52,
1,
2,
-12,
-29,
-18,
0,
46,
-19,
-49,
24,
-46,
0,
-4,
-19,
-1,
4,
-53,
-8,
32,
-16,
46,
0,
8,
22,
-10,
-9,
-11,
10,
-18,
-10,
11,
-43,
15,
13,
5,
-29,
-8,
41,
-24,
-20,
-39,
25,
-46,
-35,
18,
25,
37,
-36,
21,
-36,
25,
-3,
-31,
-19,
22,
-39,
-11,
-27,
16,
41,
32,
39,
-40,
3,
4,
37,
-15,
21,
-26,
4,
9,
-9,
34,
-8,
-37,
-18,
-2,
-16,
-34,
-21,
13,
5,
26,
-38,
25,
-13,
-23,
27,
-24,
31,
-57,
5,
-65,
-57,
-29,
21,
19,
-22,
15,
24,
-9,
9,
2,
21,
-5,
3,
48,
-58,
11,
76,
2,
62,
-2,
27,
-7,
-10,
-2,
-5,
-50,
-11,
-35,
38,
-23,
-35,
4,
23,
16,
31,
7,
2,
-42,
67,
62,
7,
-35,
-9,
-2,
32,
-21,
-8,
-7,
-14,
24,
-16,
-4,
27,
-47,
-17,
8,
26,
-39,
5,
31,
39,
-24,
-22,
-14,
22,
-22,
-17,
79,
-62,
1,
1,
6,
-1,
13,
2,
-5,
61,
25,
-4,
26,
30,
-2,
8,
-11,
38,
53,
-43,
-7,
28,
-13,
-43,
1,
-8,
61,
27,
-56,
46,
41,
28,
-9,
-45,
14,
-21,
31,
-7,
-16,
-21,
41,
35,
-11,
-25,
-26,
1,
-46,
-4,
-10,
25,
12,
-18,
20,
26,
-20,
29,
4,
10,
11,
11,
7,
1,
65,
0,
5,
2,
9,
-8,
-17,
5,
-65,
34,
-81,
-30,
37,
15,
34,
24,
-11,
-24,
13,
16,
28,
-15,
27,
20,
-14,
22,
57,
7,
-29,
9,
-8,
26,
0,
-16,
3,
-50,
30,
45,
37,
-8,
1,
-19,
-19,
-29,
24,
35,
-29,
-40,
-15,
-22,
5,
6,
7,
-30,
4,
-16,
-9,
11,
57,
-51,
15,
46,
0,
17,
-1,
5,
15,
12,
-33,
-4,
-57,
25,
39,
-59,
11,
88,
41,
51,
28,
-22,
2,
-46,
-46,
22,
-7,
-21,
-39,
-45,
-35,
6,
65,
-49,
45,
-41,
-18,
-19,
-45,
27,
-64,
-6,
-7,
-55,
-16,
-41,
0,
-18,
-39,
40,
-40,
-29,
-32,
27,
15,
47,
-53,
24,
-34,
14,
11,
-20,
-22,
-38,
13,
19,
29,
-25,
8,
-84,
8,
-18,
-15,
-1,
-7,
-30,
-50,
6,
9,
2,
-25,
15,
77,
-8,
-25,
-22,
0,
48,
-4,
27,
36,
34,
6,
-5,
-19,
5,
-5,
36,
14,
4,
-68,
18,
3,
10,
-4,
-19,
-12,
-27,
25,
-26,
13,
32,
-34,
-8,
-50,
34,
-23,
39,
-12,
4
] |
Per Curiam.
Respondents, the legal parents of Jennifer Frasier, born in 1975, and Michelle Frasier, born in 1977, appeal from an order terminating their parental rights.
The Michigan Department of Social Services (DSS) became aware of a problem with the children based on an allegation of physical abuse as to Jennifer Frasier. On March 14, 1984, following the filing of an emergency petition, the children were removed from the custody of respondents and placed in foster care. After petitions were filed on March 21, 1984, hearings were held on March 26, 1984, and respondents pled no contest to the allegations. The court continued placement in foster care. On June 27, 1984, petitions for termination of respondents’ parental rights were filed. The petitions alleged that respondents had sexually abused their children and had failed to protect their children from sexual abuse by others. On July 16, 1984, at a plea hearing held on the petitions, respondents contested the allegations. A pretrial conference was set for August 8, 1984. At the pretrial conference, a hearing on respondents’ motion to withdraw their no contest pleas to the emergency petitions was set for August 28, 1984, and a non-jury trial was set for October 9-10, 1984. On August 28, 1984, the respondents’ motion to withdraw their pleas of no contest was denied; however, the court ruled that the pleas of no contest could not be mentioned or referred to in the petition to terminate parental rights. On October 9-10, 1984, a non-jury trial was held, and the trial court ordered termination of parental rights and set the dispositional hearing for October 29, 1984. Responents’ parental rights were terminated at the conclusion of the dispositional hearing.
Respondents submit two issues for appellate consideration, neither of which require reversal.
In the first issue respondents infer that the trial court found that the standard of proof in a termination action is by a preponderance of the evidence and not clear and convincing evidence. The record does not support this position.
The juvenile court rules divide child protection proceedings into two phases — adjudicative and dis-positional. JCR 1969, 8.1 (now MCR 5.908[A]) provided:
"(a) Adjudicative Phase. The adjudicative phase determines whether the child comes within the court’s jurisdiction under MCLA 712A.1 et seq.; MSA 27.3178(598.1) et seq., as alleged in the petition. There is a right to jury trial.
"(b) Dispositional Phase. The dispositional phase determines measures to be taken by the court with respect to the child and adults properly within its jurisdiction if the court has determined at the adjudicative phase that the child comes within the statute. There is no right to jury trial.”
The primary differences between the two phases is the type of evidence that may be introduced and the standard of proof.
"(a) Adjudicative Phase. Absent a valid plea in confession, only competent, relevant, and material evidence is admissible at the adjudicative phase. In a case involving an offense by a child, the rules of evidence for a criminal proceeding and the standard of proof beyond a reasonable doubt apply. In a case involving an offense against a child, the rules of evidence for a civil proceeding and the standard of proof by a preponderance of the evidence apply.
"(b) Dispositional Phase. In the dispositional phase only relevant and material evidence may be considered. Clear and convincing evidence is required to terminate parental rights.” JCR 1969, 8.3 (now MCR 5.908[C]).
On October 10, 1984, at the conclusion of the petitioner’s proofs, defense counsel exercised her right to make an opening statement which she had previously reserved. At the commencement of defense counsel’s statements, an exchange took place between defense counsel and the trial judge. A fair reading of the record at this point indicates some lack of communication. All the same, it is clear, the trial judge recognized that in cases involving termination of parental rights, the standard of proof is "by a preponderance of the evidence” in the adjudicative phase and, in the dispositional phase, the standard is "clear and convincing evidence”. The trial judge’s expressions indicate that he considered the October 9th and 10th hearings as adjudicative.
At the conclusion of the proofs and arguments, the trial judge noted the standard required was preponderance of the evidence, although the proofs were much stronger, being clear and convincing. The trial court felt that, because of the parents’ neglect, there was no alternative but to terminate and accordingly ordered the parental rights terminated. The trial court set a dispositional hearing for October 29th, on which date the parents were to be afforded an opportunity to present testimony. The trial court reserved a final ruling on the termination of parental rights pending the October 29th dispositional hearing, disposition to be based on clear and convincing evidence.
Since the trial court recognized the hearings on October 9th and 10th as adjudicative, we are forced to conclude that the court’s termination of parental rights was in error; however, such error is of no effect since termination correctly followed the October 29th dispositional hearing.
At the October 29th hearing, one witness, the social worker in charge of the case, was called in behalf of petitioner. She testified and recommended termination based on the testimony heard at the October 9-10th trial and the reports of Dr. Kathleen Faller, Dr. Elizabeth Knueven and Dr. Okey. Defense counsel offered no objection. No witnesses were called in behalf of the respondents. The trial court found by clear and convincing evidence that the children were neglected and suffered sexual abuse over a long period of time. We conclude that the record supports the trial court’s findings that the allegations which resulted in the termination of respondents’ parental rights had been proven by clear and convincing evidence.
The respondents contend that the out-of-court statements of the children, repeated by Dr. Faller, were offered to prove their truth and are, therefore, hearsay and inadmissible.
At the October 10, 1984, trial, Dr. Faller, a qualified expert in the field of child sexual abuse, indicated on direct examination that, while interviewing the children, he asked Michelle whether or not any sexual things had happened with either parent. She sort of spontaneously said that she and Jennifer took baths with their mother. At this point, the record reflects the following:
"Defense counsel: I’ll object, your Honor. I think this is hearsay.
"The Court: I’ll overrule that. Go ahead. This is an expert testifying. Go ahead.
Dr. Faller proceeded to testify about what Michelle and Jennifer told him. As a result of the interviews, a report was prepared and, after the DSS requested that the report be filed with the court, it was filed and is contained in the court file. This report was marked as an exhibit and was offered as evidence. Defense counsel was asked whether there was any objection to the admission of the report. There being no objection, the report was received into evidence.
As indicated in our discussion under the first issue herein, there was no objection to the petitioner’s proofs at the October 29th dispositional hearing.
While considering this question as presented, we note that no objection was made to Dr. Faller’s report which was received into evidence. Further, there was a timely objection to the testimony which was to follow concerning the statements made by the children to Dr. Faller. However, there is a question as to whether the objection wás timely made to include all the prior testimony of Dr. Faller concerning the children’s statements.
The juvenile court rules, JCR 1969, 8.3(b) (now MCR 5.908[C][2]), allow the use of hearsay testimony during the dispositional phase. In the Matter of Hinson, 135 Mich App 472; 354 NW2d 794 (1984); In re Kantola, 139 Mich App 23; 361 NW2d 20 (1984).
The objection to the children’s statements testified to by Dr. Faller was made during the adjudicative phase of this proceeding. In the adjudicative phase, only competent, relevant, and material evidence is admissible. JCR 1969, 8.3(a) (now MCR 5.908[C][1]). Therefore, Dr. Faller’s testimony concerning the children’s statements, following timely objection, was not admissible. However, we find this error during the adjudicative hearing to be harmless.
In this case, involving an offense against a child, the standard of proof is that of a preponderance of the evidence. The evidence presented to determine whether the child comes within the court’s jurisdiction, even if the properly objected-to testimony of Dr. Faller were excluded, overwhelmingly proved that Jennifer and Michelle Frasier were abused by their parents and others.
Affirmed. | [
-12,
-37,
0,
46,
50,
-62,
-54,
0,
-48,
-9,
-18,
-23,
16,
25,
-53,
-16,
9,
-19,
7,
-23,
-5,
21,
34,
58,
-8,
7,
35,
11,
-16,
-19,
-21,
-53,
-10,
-12,
-44,
-50,
25,
4,
52,
51,
13,
19,
28,
-86,
-3,
5,
21,
71,
-24,
16,
-30,
13,
35,
32,
-38,
0,
48,
42,
5,
45,
-17,
120,
-72,
0,
-19,
-45,
-3,
17,
-22,
32,
49,
4,
-54,
9,
24,
4,
12,
-15,
103,
54,
22,
15,
32,
56,
33,
21,
20,
-1,
4,
1,
-11,
14,
-77,
-33,
-12,
25,
8,
5,
64,
-54,
18,
10,
23,
-2,
2,
47,
25,
-3,
-6,
13,
-31,
4,
0,
-28,
-13,
-33,
5,
0,
-21,
-33,
-10,
48,
3,
6,
25,
-5,
-27,
-56,
16,
24,
-40,
33,
18,
-8,
23,
-8,
46,
-32,
9,
-65,
-41,
25,
35,
-42,
11,
-38,
-75,
-24,
17,
-27,
3,
-8,
-13,
6,
26,
-9,
1,
-29,
8,
0,
-4,
-3,
-72,
23,
-19,
-65,
0,
41,
53,
-10,
26,
-8,
8,
-3,
-11,
-28,
-25,
25,
-26,
14,
-18,
23,
9,
-22,
-12,
-33,
-46,
-51,
6,
-23,
-13,
8,
20,
1,
12,
26,
41,
45,
9,
27,
-40,
1,
54,
4,
-6,
-5,
-16,
-66,
-24,
-20,
32,
64,
-38,
-39,
-65,
-73,
17,
-6,
-25,
57,
7,
2,
36,
-21,
-63,
-9,
-7,
14,
-18,
-18,
50,
3,
12,
-13,
2,
0,
-16,
24,
14,
-2,
23,
1,
46,
-5,
-77,
47,
-44,
-1,
0,
14,
57,
27,
20,
34,
-24,
-52,
-21,
49,
-19,
-1,
-4,
-7,
14,
-4,
-34,
57,
18,
44,
-8,
-31,
18,
-8,
1,
-12,
-12,
1,
-29,
2,
5,
9,
-39,
59,
22,
1,
-28,
-47,
8,
-11,
11,
59,
-7,
37,
37,
-39,
46,
-43,
-52,
-3,
-11,
-6,
11,
-12,
-14,
-7,
-74,
-4,
4,
18,
10,
15,
68,
16,
13,
-35,
23,
-35,
-32,
-49,
64,
1,
0,
-42,
22,
0,
-45,
-23,
15,
-21,
4,
-16,
-22,
14,
2,
-20,
12,
52,
-12,
8,
-4,
4,
-1,
26,
-55,
-2,
-15,
0,
51,
-19,
26,
-32,
4,
50,
4,
-38,
-46,
-5,
-14,
-26,
-19,
-12,
-51,
-27,
-19,
-9,
-6,
56,
23,
-24,
5,
-5,
-25,
-41,
28,
11,
-17,
-8,
2,
-9,
25,
33,
-18,
-56,
-2,
24,
19,
-22,
-53,
25,
39,
-52,
2,
-71,
-29,
-18,
-21,
16,
-23,
12,
62,
-5,
27,
-13,
-2,
28,
15,
18,
1,
-11,
41,
24,
72,
-37,
64,
30,
38,
-51,
-33,
-65,
3,
-41,
-5,
45,
42,
-9,
1,
29,
27,
-23,
54,
26,
-40,
23,
-37,
-21,
65,
33,
-2,
-17,
-7,
-9,
-51,
35,
-23,
12,
17,
-20,
-37,
-6,
15,
-30,
-19,
48,
41,
-22,
-17,
-45,
-23,
16,
-28,
-49,
-43,
-4,
53,
-55,
9,
-12,
-35,
11,
-6,
-2,
14,
0,
-20,
24,
5,
58,
9,
2,
-25,
37,
-31,
-14,
-31,
4,
3,
28,
12,
-50,
20,
-12,
-6,
-51,
11,
47,
-52,
6,
-25,
-10,
-34,
-4,
7,
-38,
5,
33,
24,
-52,
-8,
9,
-28,
-25,
13,
-4,
9,
-9,
-31,
-21,
17,
-13,
24,
-19,
-7,
-5,
29,
-4,
-8,
-9,
42,
-42,
-66,
29,
78,
30,
0,
26,
49,
-7,
-37,
-20,
16,
5,
-3,
-1,
2,
-22,
58,
-56,
2,
3,
3,
-12,
41,
-43,
-6,
22,
-24,
32,
-22,
8,
-17,
-79,
-36,
26,
16,
23,
-19,
-39,
-13,
28,
9,
-1,
23,
45,
-5,
-21,
10,
58,
51,
14,
4,
-24,
35,
54,
14,
34,
-45,
-58,
17,
-30,
25,
-1,
-35,
-30,
-10,
-32,
1,
-1,
4,
-35,
-27,
-16,
-23,
47,
24,
-33,
-19,
16,
-4,
6,
-25,
-47,
30,
5,
-55,
-16,
-8,
13,
7,
-18,
12,
28,
-24,
-27,
-13,
-12,
-64,
-21,
13,
34,
44,
-11,
37,
-6,
3,
6,
42,
-36,
13,
8,
27,
-25,
3,
46,
-42,
26,
-28,
-22,
52,
-21,
35,
-3,
-18,
-21,
15,
6,
-31,
12,
-11,
0,
28,
-11,
-22,
-7,
4,
14,
-17,
21,
32,
-16,
-7,
24,
-42,
53,
-46,
49,
0,
-21,
59,
22,
-17,
34,
-51,
-35,
-24,
-9,
35,
8,
14,
11,
3,
22,
-22,
44,
13,
-31,
-8,
-47,
-22,
36,
19,
39,
-56,
63,
20,
-33,
-58,
16,
40,
14,
8,
3,
-63,
23,
42,
44,
-56,
-29,
-23,
-16,
-9,
6,
-63,
67,
51,
6,
26,
6,
40,
-22,
8,
-14,
2,
-23,
12,
14,
-21,
50,
1,
-6,
42,
29,
24,
-14,
-18,
-45,
4,
12,
31,
-6,
16,
5,
10,
-66,
-37,
28,
-20,
-17,
31,
-53,
-1,
32,
-8,
13,
-14,
-6,
-40,
-6,
-22,
17,
38,
-33,
-50,
-8,
-12,
13,
11,
12,
-37,
-1,
26,
-64,
-37,
40,
9,
32,
-18,
-16,
44,
-37,
5,
-14,
31,
9,
-36,
22,
50,
85,
-25,
-36,
-31,
-22,
-8,
39,
-11,
-8,
-38,
-2,
-64,
12,
5,
29,
-8,
-1,
-52,
14,
-63,
-10,
6,
16,
-26,
-17,
94,
5,
-13,
13,
13,
4,
25,
-26,
95,
-43,
64,
25,
41,
37,
-45,
-53,
1,
10,
44,
25,
14,
26,
8,
-65,
39,
22,
8,
11,
63,
26,
42,
-22,
-16,
75,
0,
-9,
-46,
9,
-19,
-18,
14,
64,
14,
-52,
26,
56,
4,
-55,
37,
-34,
-3,
-77,
-13,
0,
-13,
-91,
-18,
-12,
-68,
27,
71,
-1,
-20,
-18,
98,
33,
46,
-31,
-35,
-20,
-26,
-36,
3,
-11,
7,
37,
49,
15,
-70,
-25,
-35,
33,
-23,
-52,
-41,
-16,
-17,
26,
-1,
-19,
-5,
13,
42,
4,
69,
-32,
4,
3,
-18,
-49,
15,
-28,
3,
-34,
-17,
-23,
11,
-10,
-6,
28,
29,
1,
-14,
-50,
18,
-16,
-18,
-22,
21,
46,
22,
-12,
-19,
-2,
8,
-7,
-55,
-23,
2,
12,
16,
-4,
16,
-15,
21,
31,
-13,
7,
-41,
6,
-22,
60,
0,
57,
-8,
-6,
54,
17,
-11,
26,
-3,
40,
-21,
-8,
-25,
-49,
10,
-19,
-22,
14,
-5,
-18,
-39,
0,
-11,
-16,
-59,
1,
-20,
-41,
56,
1,
71,
2,
46,
-20,
-1,
-8,
-5,
20,
-32,
37,
-45,
8,
-26,
45,
-44,
-27,
-44,
27,
15,
1,
22,
53,
61,
-13,
-34,
59,
9,
-21,
13,
-50,
49,
-11
] |
W. A. Porter, J.
On April 20, 1983, defendant pled nolo contendere to attempted unarmed robbery, MCL 750.530; MSA 28.798 and MCL 750.92; MSA 28.287. He was sentenced on May 23, 1983, to from three years and four months to five years imprisonment. He appeals as of right, claiming that his conviction should be vacated because his transfer from Illinois to Michigan was improperly achieved under Article IV(a) of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1). In particular, defendant argues that he was denied his right to a pretransfer hearing under the Uniform Criminal Extradition Act when Illinois transferred defendant to Michigan pursuant to Article IV(a) of the Interstate Agreement on Detainers without first informing him of his right to counsel and his right to apply for a writ of habeas corpus to challenge the Michigan prosecutor’s temporary custody request.
On March 3, 1983, while defendant was in custody in Illinois, the Calhoun County prosecutor signed a request for temporary custody of defendant pursuant to Article IV(a) of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1). This request notified Illinois correctional officials that defendant was wanted for trial in Michigan in connection with an armed robbery charge. This request was received by the Illinois officials on or about March 10, 1983.
On March 17, 1983, defendant was informed by the Illinois officials that he was wanted in Michigan on the armed robbery charge. Defendant was given two forms which explained that he could either (1) request final disposition of the charge, (2) ask the Governor of Illinois to disapprove of the Calhoun County prosecutor’s request for temporary custody, or (3) challenge the prosecutor’s request for temporary custody under the Uniform Criminal Extradition Act. Defendant refused to sign the forms on the advice of Michigan counsel.
On March 29, 1983, the Governor of Illinois signed a document which approved the temporary release of defendant from Illinois custody to the custody of the Calhoun County prosecuting attorney.
On April 11, 1983, defendant appeared before an Illinois circuit court judge whereupon the following discussion took place:
"By the Court: You are Mr. Randall Duck, is that right, sir?
"Mr. Duck: How do you spell it?
"By the Court: Which name? First or the last?
"Mr. Duck: First.
"By the Court: R-a-n-d-a-1-1.
"Mr. Duck: No.
"By the Court: You are Mr. Duck?
"Mr. Duck: Yes.
"By the Court: What is your first name?
"Mr. Duck: Randal.
"By the Court: Mr. Randall [sic] Duck are you aware why you are in court this morning?
"Mr. Duck: Uh.
"By the Court: You understand that apparently, which state is this here?
"Mr. Duck: Michigan.
"By the Court: They want you back and I believe they are claiming that you have a charge up there on armed robbery.
"Mr. Duck: I guess.
"By the Court: Is that your understanding of why you are in court this morning?
"Mr. Duck: Somewhat. Something like that.
"By the Court: I have gone over the papers here, Mr. Duck, and it appears that everything is in order here. They have a right under the Interstate Act to take you back to Michigan even though you are presently an inmate of our penitentiary system here. There is apparently a case from our Appellate Courts that says you have a right to be brought into court prior to being taken to Michigan. That case did not say exactly what we are supposed to do when you come into court. They have never given us that information. Is there anything that you want to say?
"Mr. Duck: Don’t I get a lawyer?
'By the Court: Sir, there’s nothing that says you have a right to a lawyer at this stage. You most certainly will when you return to Michigan. The request has been made through the Governor’s Office. Governor Thompson has approved yo.ur release to the State of Michigan on the prosecution of armed robbery. For the life of me I am not aware of any matter to bring up here. If there’s something you are aware of I’ll be happy to listen.
"Mr. Duck: That’s fine, sir.
"By the Court: You understand you will be taken to Michigan and there is [sic] arrangements with the Interstate Act when that trial is over with for you to be returned to the State of Illinois.
"Mr. Duck: How long do they have to come get me?
"By the Court: I imagine they are probably making arrangements right now because I am sure they are aware you are being brought to court this morning. I am sure you don’t have to worry about waiting too long.”
The next day, on April 12, 1983, defendant was transferred to Michigan for trial on the armed robbery charge. On April 20, 1983, during his trial, defendant pled nolo contendere to attempted unarmed robbery. Following his sentencing, defendant appealed. Defendant then requested this Court to remand the matter to the trial court for an evidentiary hearing. This Court granted this request and the hearing was conducted on October 1, 1984.
At the hearing on remand, defendant argued that his conviction for attempted unarmed robbery should be vacated because of the violation of Article IV(a) of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1) or, in the alternative, because of ineffective assistance of trial counsel in failing to raise the Interstate Agreement on Detainers issue before defendant’s trial. The trial court denied defendant’s request and the matter is now before us for review.
In Cuyler v Adams, 449 US 433; 101 S Ct 703; 66 L Ed 2d 641 (1981), the United States Supreme Court discussed the relationship between the IAD and the Uniform Criminal Extradition Act. The Court held that:
"a prisoner incarcerated in a jurisdiction that has adopted the Extradition Act is entitled to the procedural protections of that Act — particularly the right to a pretransfer hearing — before being transferred to another jurisdiction pursuant to Art IV of the Detainer Agreement.” 449 US 433, 435.
The Court concluded as a matter of federal law that a prisoner being transferred against his will under Article IV of the Agreement on Detainers is entitled to whatever safeguards of the extradition process he might otherwise have enjoyed:
"Those safeguards include the procedural protections of the Extradition Act (in those States that have adopted it), as well as any other procedural protections the sending State guarantees persons being extradited from within its borders.” 449 US 433, 448.
Illinois, as well as Michigan, has adopted the Uniform Criminal Extradition Act. See 111 Stat Ann, ch 60, §§ 27, 28. Therefore the safeguards contained therein apply to proceedings to transfer a prisoner against his will under Article IV of the Interstate Agreement on Detainers.
In the instant case, defendant Duck was deprived of his right to a pretransfer hearing before being taken into custody by the Michigan authorities. Defendant asks this Court to set aside his conviction and to dismiss the charges against him with prejudice because of such violation.
Articles 111(d) and IV(e) of the I AD provide for dismissal with prejudice of any charges not tried prior to the prisoner’s return to the original state of imprisonment. There are no similar penalty provisions in the IAD for failure to provide a pretransfer hearing. The enforcement mechanism for the right to a pretransfer hearing is found in the Uniform Criminal Extradition Act, § 11, MCL 780.10; MSA 28.1285(10), which provides for criminal sanctions for noncompliance with the pretransfer hearing rights detailed in § 10, MCL 780.9; MSA 28.1285(9).
In People v Browning (On Reh), 108 Mich App 281, 294; 310 NW2d 365 (1981), the defendant was tried and convicted on a charge which did not form the basis of the detainer and did not arise out of the same transaction, contrary to Article V(d). This Court held that the violation of the Article did not divest the trial court of jurisdiction over the subject matter of the case and that such deficiency was waived if not raised prior to or during the trial.
Challenges to extradition proceedings must be made in the asylum state. Opposition to such extradition comes too late upon submission to the jurisdiction of the charging state. People v Sterbins, 32 Mich App 508, 511-512; 189 NW2d 154 (1971); People v Berryman, 43 Mich App 366, 369; 204 NW2d 238 (1972), lv den 390 Mich 801 (1973); Pettibone v Nichols, 203 US 192; 27 S Ct 111; 51 L Ed 148 (1906).
In the instant case, since the Calhoun County Circuit Court had jurisdiction over the case, it properly accepted defendant’s plea.
In light of the above, defendant’s contention that he was denied the effective assistance of counsel is without merit. Had his attorney raised the issue of being deprived of a pretransfer hearing in Illinois it would not have affected the outcome of the proceedings and therefore defendant was not prejudiced by counsel’s failure to raise the issue. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977); Strickland v Washington, — US —; 104 S Ct 2052, 2064; 80 L Ed 2d 674 (1984).
The trial court judgment is affirmed._
MCL 780.9; MSA 28.1285(9) and MCL 780.10; MSA 28.1285(10). 11 ULA (Master Ed), Uniform Criminal Extradition Act, §§ 10,11.
See also: Gardels v Brewer, 190 NW2d 803 (Iowa, 1971); 31 Am Jur 2d, Extradition, §§ 64, 74; 39 Am Jur 2d, Habeas Corpus, § 76; 25 ALR4th 157, § 2[b], p 161. | [
83,
-14,
-55,
13,
-42,
-41,
-6,
11,
-40,
56,
47,
-49,
-9,
-60,
-7,
40,
15,
39,
73,
-20,
-49,
-16,
29,
57,
-5,
-40,
35,
23,
14,
19,
3,
35,
0,
-25,
1,
-44,
56,
-26,
51,
25,
-18,
-47,
-6,
3,
-12,
-1,
-43,
-7,
36,
-88,
-8,
22,
15,
27,
-3,
25,
-15,
-80,
1,
15,
6,
13,
26,
34,
10,
-38,
-7,
18,
3,
-46,
13,
-28,
-29,
24,
11,
28,
28,
0,
12,
55,
67,
10,
6,
-7,
23,
-9,
1,
-55,
1,
-11,
-14,
62,
-28,
-50,
24,
-11,
-27,
6,
34,
-41,
-50,
-21,
8,
-98,
48,
-28,
-38,
-2,
-15,
24,
-9,
-19,
23,
-61,
-2,
-73,
-33,
0,
-11,
14,
-16,
-3,
47,
35,
21,
-78,
-29,
-22,
63,
18,
28,
36,
10,
28,
49,
58,
42,
43,
40,
14,
-41,
38,
22,
-50,
34,
13,
-33,
-3,
3,
-6,
-59,
20,
-7,
-7,
36,
94,
13,
13,
-47,
29,
2,
22,
-13,
-39,
-14,
-40,
-44,
12,
-8,
21,
-12,
-21,
46,
-14,
1,
-16,
-5,
92,
14,
12,
12,
19,
32,
-47,
-1,
-8,
24,
-23,
-8,
-28,
-3,
3,
32,
0,
39,
37,
7,
-36,
-19,
38,
-6,
-1,
31,
40,
-3,
-59,
39,
-57,
16,
8,
-7,
13,
-4,
-57,
-6,
-8,
27,
-32,
-16,
33,
29,
20,
63,
26,
11,
1,
2,
-8,
-31,
-23,
62,
4,
3,
29,
17,
-37,
6,
7,
63,
0,
28,
-29,
-23,
-23,
63,
-42,
-78,
43,
22,
14,
2,
6,
-39,
-10,
9,
4,
13,
2,
-42,
-21,
-39,
17,
-21,
13,
-24,
72,
-73,
-37,
-25,
-13,
-3,
-51,
1,
-10,
15,
-32,
-46,
34,
19,
-11,
43,
3,
7,
4,
-4,
-76,
-5,
-5,
-5,
-1,
31,
-9,
-21,
-14,
31,
38,
-30,
-4,
0,
65,
-1,
-9,
16,
-20,
32,
-29,
42,
-22,
-19,
-41,
65,
39,
31,
-5,
2,
0,
32,
3,
6,
2,
-44,
13,
-7,
-22,
96,
1,
-1,
13,
31,
-9,
-2,
-52,
-52,
-15,
-17,
46,
-17,
20,
11,
20,
16,
-10,
27,
-12,
-20,
16,
-18,
-53,
-1,
-17,
42,
-29,
-20,
-37,
16,
-12,
-39,
3,
-1,
-27,
36,
-19,
-65,
-26,
69,
-11,
3,
2,
53,
-9,
9,
4,
-8,
-28,
9,
20,
-14,
5,
-19,
-15,
-2,
-33,
-2,
-14,
45,
-51,
-63,
8,
46,
-28,
-53,
-8,
-8,
-23,
-7,
13,
10,
7,
44,
-71,
-5,
-1,
25,
-15,
3,
-45,
-11,
45,
-46,
7,
-14,
-16,
57,
74,
0,
9,
-34,
-23,
11,
-9,
15,
-6,
11,
15,
18,
-10,
-12,
6,
-11,
-35,
48,
27,
9,
5,
21,
21,
-24,
-52,
24,
-3,
-8,
-39,
-3,
-41,
-3,
-23,
-81,
-27,
-40,
-22,
47,
42,
4,
-40,
-37,
24,
-54,
55,
-3,
-8,
-58,
-30,
-15,
-2,
7,
-95,
-73,
36,
46,
7,
31,
37,
-9,
-20,
-50,
-15,
28,
40,
-17,
61,
-46,
2,
9,
17,
2,
-50,
18,
12,
19,
16,
4,
4,
28,
30,
-2,
14,
-1,
5,
40,
9,
-23,
0,
-20,
40,
44,
28,
11,
-15,
55,
33,
40,
-10,
-18,
19,
-26,
-35,
-24,
-11,
-28,
66,
-2,
-51,
-8,
-30,
23,
39,
20,
-47,
-36,
63,
6,
-45,
14,
-18,
57,
4,
-16,
41,
-6,
-38,
38,
1,
18,
-11,
16,
-25,
10,
-63,
4,
-48,
36,
-52,
-14,
-49,
-41,
-20,
-42,
66,
-47,
-53,
11,
30,
12,
3,
-55,
-3,
-36,
22,
38,
-9,
-2,
51,
30,
2,
-11,
29,
22,
-9,
39,
49,
26,
57,
-55,
-41,
-8,
-1,
-42,
-5,
-1,
20,
-35,
-9,
-12,
-33,
-12,
17,
-41,
-17,
-7,
30,
40,
-7,
-41,
-13,
30,
-16,
7,
29,
14,
10,
10,
25,
-17,
6,
-74,
-12,
-6,
30,
-86,
53,
-7,
-3,
14,
-8,
-62,
-34,
-26,
-31,
61,
7,
-7,
-10,
-17,
19,
-11,
4,
-40,
-5,
-18,
40,
-32,
49,
-26,
-6,
-4,
-18,
7,
-4,
-7,
15,
-23,
4,
6,
29,
-3,
-48,
-41,
-5,
36,
24,
-31,
5,
-51,
24,
12,
11,
3,
-49,
54,
0,
56,
-2,
9,
-4,
11,
-20,
-7,
45,
26,
52,
2,
-28,
-11,
-34,
47,
-10,
18,
16,
10,
42,
-12,
3,
59,
7,
-20,
-56,
4,
4,
-31,
-8,
26,
-2,
-18,
-9,
-26,
22,
-13,
-62,
-11,
14,
-48,
45,
7,
15,
43,
1,
6,
-20,
-4,
14,
-46,
23,
22,
24,
13,
43,
-51,
-10,
26,
-66,
23,
-29,
36,
-26,
19,
18,
-18,
11,
0,
5,
6,
13,
6,
-24,
-49,
-9,
22,
-11,
1,
-36,
61,
-24,
-10,
23,
-74,
37,
7,
-2,
-45,
-11,
-45,
-5,
3,
-37,
-7,
29,
15,
-32,
47,
21,
-20,
-36,
-18,
27,
-7,
17,
0,
22,
-8,
-38,
-6,
39,
-34,
2,
44,
23,
-27,
-13,
-60,
-25,
-14,
6,
-31,
15,
-21,
41,
84,
40,
22,
-37,
22,
-5,
12,
14,
2,
-18,
34,
15,
14,
4,
11,
14,
-20,
0,
-21,
45,
34,
-16,
-2,
-56,
17,
37,
-58,
-6,
-22,
37,
-13,
-32,
-28,
-16,
-15,
-20,
31,
-9,
-5,
-21,
38,
-8,
6,
55,
59,
-44,
-34,
-24,
6,
20,
3,
-14,
15,
-65,
35,
-15,
-53,
-9,
-6,
29,
-15,
12,
-39,
-56,
7,
38,
-25,
-53,
-18,
-13,
21,
-58,
-20,
22,
-38,
-28,
-1,
26,
-10,
11,
-25,
51,
-1,
-58,
-3,
2,
29,
20,
31,
0,
-45,
-24,
14,
-10,
-42,
83,
-33,
45,
22,
-2,
18,
0,
53,
16,
21,
-1,
-14,
-48,
24,
-28,
7,
1,
25,
27,
-1,
-13,
0,
3,
-8,
-62,
-43,
-14,
3,
-36,
40,
38,
0,
31,
23,
-4,
27,
34,
-13,
24,
18,
-20,
7,
-10,
8,
-19,
11,
-34,
23,
3,
-77,
-8,
-36,
-21,
28,
23,
-1,
-52,
8,
48,
-9,
-30,
8,
0,
9,
42,
25,
41,
-23,
-2,
-10,
0,
-21,
13,
36,
22,
46,
0,
0,
28,
-38,
1,
-45,
-40,
11,
4,
0,
-10,
-10,
-50,
-4,
-16,
-59,
18,
13,
38,
-28,
0,
-25,
35,
14,
10,
8,
18,
72,
29,
-11,
-23,
-41,
7,
11,
-5,
16,
35,
21,
3,
-14,
7,
-23,
-6,
19,
0,
34,
-40,
5,
25,
4,
33,
-8,
26,
-46,
9,
-24,
29
] |
Per Curiam.
Plaintiffs appeal as of right from a directed verdict in favor of defendant. The trial court held that plaintiffs had failed to introduce evidence sufficient to meet the statutory threshold of serious impairment of body function in this no-fault case. MCL 500.3135; MSA 24.13135. We affirm.
Plaintiff Dawn Mills suffers from soft tissue injuries as a result of an automobile accident that occurred on February 5, 1981, when her vehicle was struck in the rear by defendant’s vehicle with such force that she was shoved across two lanes of highway, over the shoulder of the road and into a utility pole. The sole issue on appeal is whether Mills’s injuries are sufficient to meet the statutory threshold requirement of serious impairment of body function to allow plaintiffs to recover on a theory of tort liability. Contrary to plaintiffs’ arguments on appeal, this is a question of law rather than a question for the trier of fact. Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982).
Mills was diagnosed as suffering from whiplash at a hospital emergency room immediately after the accident. One week later, she began treatment with Dr. Lawrence Weisman, three times a week for about two months. Her treatment consisted of ultrasound, moist heat and a cervical collar. Dr. Weisman testified that Mills had a slight dulling of the membrane of her right ear which resulted in an auditory deficiency. The range of motion in both her shoulders was "slightly decreased” and there was a 30% to 40% limitation in the range of motion of her cervical (neck) area. Mills also suffered from muscle spasms and tenderness in her trapezi and dorsal paravertebral muscles.
Over the next year and a half, Dr. Weisman saw Mills on several occasions and testified that, by January of 1982, her cervical range of motion had improved and the limitation reduced to between 5% to 10% and that the hearing in her right ear had returned to normal. By October 1, 1982, however, Dr. Weisman observed increased limitation in the range of motion of her neck, spasms in the neck and pain radiating to the left upper extremities. On March 21, 1984, Dr. Weisman again examined Mills and discovered a swelling or a buildup of tissue in Mills’s neck which he opined was a permanent condition attributable to her injuries in the accident and would likely continue to limit the motion of her neck by about 10% to 15%. The pressure of the tissue buildup on Mills’s neck decreases the blood flow to her arms when they are raised above shoulder level.
Mills had also treated for a short time with physical therapist Stuart Young who, on August 31, 1982, diagnosed a 25% limitation in range of motion in her cervical area, which he testified improved markedly with treatment. When he last saw Mills, he concluded that there was no motor dysfunction and that all her muscles were neurologically sound and operating as they should.
At trial, Mills testified that her injuries and the resulting pain and limitation in range of motion had significantly interferred with her daily activities, particularly with her abilities to care for her young daughter, to perform household tasks, to continue her employment and to engage in recreational physical activities. Her testimony was supported by the testimony of her husband and her sister-in-law.
Following the close of plaintiffs’ proofs, defendant moved for a directed verdict, which the trial court granted. The court stated:
"The Court: Well, the court has heard all the testimony and listened to the doctors with their definitions and medical terminology. In the court’s opinion, the plaintiff certainly has had pain and spasms in the neck and back and limitations on the movement of her neck and arms to a certain degree. Initially her range of motion was limited to one half in her neck but this has improved considerably; at this time the plaintiff is working eight hours a day on a production line at GM. Taking everything into consideration in the context of the statute and the recent decisions of our appellate courts, this court finds that there is just not a serious impairment of a bodily function at this time. I’m granting the motion.”
We agree that plaintiffs have failed to meet the threshold requirement of serious impairment of body function. The limitation in Mills’s range of cervical movement, while initially 30% to 40%, was reduced to 5% to 10%, according to the testimony of her own doctor. Plaintiffs’ evidence also showed that Mills suffers from no motor dysfunction and that her muscles are neurologically sound and in order. Even assuming, without deciding, that the range of motion tests are an objective manifestation of Mills’s injury, see Salim v Shepler, 142 Mich App 145, 149; 369 NW2d 282 (1985), we are not persuaded that a 10% limitation in range of neck motion constitutes serious impairment of a body function under the no-fault act.
Mills also suffers from a numbness in her hands and arms when she raises them above shoulder level. This condition, called a bilaterally positive Adson’s sign, was diagnosed by taking her pulse as the arm was raised, thus determining blood flow, which decreases and eventually stops the higher she raises' her arms. The cause of this condition is the buildup of tissue in Mills’s neck and the resultant pressure on the subclavian artery. However,, while we believe that her use of her shoulders and arms constitutes an important body function, Burk v Warren (After Remand), 137 Mich App 715, 725; 359 NW2d 541 (1984), and that this body function is impaired as the result of the accident, we are not convinced that Mills’s impairment rises to the level of that required under the no-fault act so as to compare with death or permanent disfigurement. Cassidy v McGovern, supra, pp 503, 505.
Affirmed. | [
-9,
30,
-9,
60,
-18,
-8,
-6,
-29,
-33,
24,
-44,
-17,
36,
-25,
25,
-2,
-4,
-23,
-45,
22,
-22,
8,
-19,
70,
-15,
-54,
27,
-43,
-5,
27,
15,
-17,
15,
-32,
-32,
-43,
-7,
35,
-2,
18,
21,
-6,
-6,
-18,
-11,
-18,
47,
13,
1,
6,
14,
-16,
-53,
7,
-9,
3,
71,
9,
-14,
-5,
2,
39,
0,
2,
8,
30,
7,
29,
-3,
4,
-20,
5,
-27,
-24,
-57,
-10,
7,
24,
41,
4,
-27,
15,
41,
43,
-22,
59,
-31,
-4,
0,
-42,
30,
-74,
-35,
3,
-51,
65,
-19,
-42,
14,
-15,
-65,
35,
38,
34,
-24,
-3,
-25,
-18,
62,
-28,
-31,
17,
-46,
18,
13,
-29,
56,
42,
4,
62,
-10,
1,
22,
-20,
30,
-10,
18,
-26,
-24,
27,
18,
-12,
-9,
28,
12,
2,
-48,
-30,
3,
-14,
-30,
25,
2,
16,
26,
22,
5,
-52,
36,
-42,
27,
45,
-13,
2,
14,
-37,
-50,
23,
12,
35,
63,
2,
-24,
25,
-5,
-28,
-10,
0,
45,
-25,
49,
61,
49,
-38,
-34,
13,
39,
-37,
-50,
0,
-50,
19,
48,
0,
-10,
-51,
-50,
-26,
1,
11,
-29,
-33,
6,
-22,
-25,
-8,
24,
0,
12,
8,
37,
-1,
-49,
-3,
25,
33,
2,
-13,
15,
-15,
1,
-23,
-4,
-29,
47,
-46,
21,
5,
-52,
16,
-19,
-9,
25,
-33,
-34,
-19,
-40,
-46,
11,
-9,
9,
18,
-6,
31,
-9,
-60,
8,
9,
56,
-52,
21,
3,
14,
-32,
-57,
23,
-19,
-6,
-6,
-51,
42,
43,
38,
25,
-45,
15,
5,
43,
-13,
-13,
45,
56,
20,
71,
12,
2,
-29,
25,
9,
-49,
-14,
-22,
15,
-17,
-8,
-75,
-28,
-5,
55,
-5,
1,
-1,
-35,
-51,
-50,
23,
-17,
8,
-23,
33,
29,
-65,
-28,
23,
14,
-10,
24,
2,
-37,
42,
62,
-1,
28,
22,
3,
14,
-45,
24,
1,
22,
-35,
23,
44,
-17,
43,
9,
11,
-53,
-12,
-26,
-3,
32,
-15,
-50,
28,
-38,
-26,
-78,
-42,
-30,
-62,
52,
-28,
41,
60,
-9,
38,
0,
-9,
24,
36,
19,
12,
25,
-17,
32,
19,
-18,
41,
52,
-27,
41,
79,
-29,
-29,
-32,
4,
-41,
-8,
39,
9,
-1,
15,
13,
-15,
-23,
34,
20,
-43,
84,
-15,
-6,
62,
-54,
13,
-19,
51,
11,
46,
21,
77,
2,
54,
-50,
-18,
43,
-67,
-59,
9,
8,
-38,
-12,
28,
30,
-6,
-27,
-22,
2,
-5,
-34,
-36,
-20,
18,
20,
-19,
-47,
-6,
-28,
-1,
39,
-37,
24,
56,
-27,
15,
-1,
55,
-17,
-52,
-29,
7,
4,
18,
-40,
9,
-40,
14,
-26,
-22,
-32,
-15,
-9,
-28,
-22,
-2,
-40,
10,
39,
65,
-21,
-3,
-24,
-53,
-6,
-36,
37,
21,
-2,
57,
-36,
42,
8,
58,
-5,
-26,
-9,
-21,
41,
-24,
0,
-3,
-53,
35,
18,
45,
-40,
-34,
-28,
35,
-49,
40,
-4,
11,
9,
31,
9,
-27,
2,
-45,
-16,
8,
18,
19,
-18,
2,
28,
-10,
7,
3,
45,
22,
-22,
13,
-17,
-41,
-15,
-36,
6,
-22,
-33,
-1,
-66,
-24,
28,
29,
-40,
-1,
2,
-13,
9,
-66,
0,
-3,
61,
-15,
-14,
1,
-28,
-3,
2,
-23,
2,
-11,
23,
7,
-40,
-29,
-13,
29,
21,
8,
-28,
-3,
-24,
19,
-8,
-42,
-43,
-65,
1,
-25,
37,
-30,
-29,
44,
-50,
19,
20,
65,
15,
-12,
-42,
-7,
-27,
20,
-5,
-5,
-6,
37,
-6,
-35,
18,
11,
50,
34,
-5,
11,
-55,
44,
-16,
-29,
36,
7,
-22,
-16,
1,
23,
-4,
-45,
-25,
5,
12,
-26,
8,
-44,
-56,
15,
-9,
-6,
-29,
22,
-8,
47,
53,
32,
-15,
26,
-44,
-18,
-12,
-15,
-7,
-20,
-8,
-3,
36,
26,
9,
38,
-37,
14,
2,
-25,
-58,
-37,
-96,
-15,
77,
22,
18,
7,
1,
-10,
3,
-42,
-6,
-49,
3,
-41,
-14,
7,
-7,
-38,
2,
-25,
62,
-15,
30,
-50,
15,
-27,
60,
-19,
30,
27,
-22,
-1,
25,
-11,
-19,
-49,
32,
-53,
-22,
18,
26,
14,
8,
-21,
16,
-15,
10,
-11,
-59,
17,
46,
-28,
21,
-38,
3,
33,
51,
46,
-29,
64,
-12,
-23,
60,
-7,
-2,
-19,
-46,
38,
9,
-24,
30,
-34,
13,
42,
8,
-28,
-5,
35,
-52,
-28,
8,
18,
20,
-15,
47,
7,
18,
-79,
35,
21,
28,
-18,
-7,
4,
2,
5,
15,
-18,
-47,
42,
0,
12,
-24,
-24,
-13,
-6,
-40,
-19,
-68,
-8,
32,
21,
17,
50,
-9,
-37,
22,
7,
21,
-7,
31,
23,
48,
17,
-2,
44,
26,
16,
8,
9,
-57,
-11,
-31,
23,
-17,
1,
-4,
-52,
-35,
-6,
-63,
24,
-6,
8,
3,
26,
-43,
-26,
0,
-2,
-35,
-31,
3,
-8,
8,
-16,
-4,
48,
-30,
-37,
-6,
-32,
-29,
-27,
6,
-40,
-11,
17,
3,
-55,
-26,
-34,
-39,
0,
-16,
10,
-6,
-27,
-32,
47,
0,
-6,
-8,
11,
-4,
40,
31,
-32,
10,
1,
0,
4,
1,
19,
-1,
22,
-49,
2,
22,
-26,
-12,
46,
3,
-51,
0,
34,
20,
-42,
11,
70,
-31,
15,
-35,
55,
-11,
-15,
8,
7,
33,
-24,
37,
47,
-7,
-31,
-17,
14,
23,
-39,
24,
55,
-19,
-13,
17,
4,
32,
8,
-23,
12,
24,
-13,
-24,
-12,
10,
9,
42,
33,
19,
-67,
-27,
-48,
32,
-16,
14,
29,
18,
-17,
10,
-40,
27,
-31,
31,
-55,
-7,
3,
0,
22,
-34,
-46,
52,
-14,
-6,
-2,
28,
-2,
-35,
44,
51,
0,
2,
-18,
20,
5,
67,
70,
-12,
-51,
36,
33,
83,
14,
-17,
23,
-3,
-47,
-65,
-7,
12,
38,
1,
16,
30,
7,
15,
-15,
4,
27,
16,
8,
-5,
-20,
26,
-10,
-11,
-36,
30,
-15,
-40,
-8,
-18,
19,
-39,
13,
-59,
59,
-56,
42,
31,
1,
69,
-25,
-37,
-20,
18,
7,
13,
36,
-24,
30,
0,
-32,
2,
25,
-14,
-18,
76,
2,
46,
-24,
52,
6,
67,
21,
-28,
-22,
51,
-33,
6,
0,
-13,
21,
27,
-16,
-22,
-11,
-3,
24,
-60,
5,
-4,
-26,
-43,
-22,
20,
-53,
-34,
-16,
-35,
-37,
18,
3,
0,
0,
8,
41,
3,
-21,
-21,
33,
26,
21,
-2,
19,
-16,
14,
29,
12,
41,
29,
-23,
33,
-1,
-4,
-38,
-9,
-1,
26,
26,
58,
-11
] |
Per Curiam.
Plaintiff, Larry T. Sepanske, was awarded $75,206 in damages following a district court jury trial of his breach of employment contract claim against the defendant. Defendant Bendix Corporation appeals by leave granted from the circuit court’s affirmance of the 43rd District Court’s refusal to grant defendant a judgment notwithstanding the veridct. We reverse the jury’s award of damages.
Plaintiff was employed by defendant in 1969. In March, 1973, he began working in defendant’s pension and payroll department. Later that year, he decided to participate in defendant’s social service leave program, in which an employee may volunteer to work for a charitable organization while collecting his salary from defendant. Before plaintiff went on leave, he carefully examined defendant’s policy manual, which provided in section G:
"G. REINSTATEMENT FROM A SOCIAL SERVICE LEAVE OF ABSENCE.
"1. Upon completion of the assignment, the employee will be reinstated to his former position or to a position of equivalent or greater responsibility at the same location from which leave was granted.”
Section D(3)(e) of the manual required defendant, prior to authorizing leave, to identify the specific position which the employee could return to:
"D. SELECTION OF APPLICANTS
"3. Upon reaching a preliminary decision as to the appropriateness of the Social Service Leave, the local Personnel representative will forward the request to Corporate Personnel and Organization Development for review and consideration. The following information on the candidate should be forwarded to Corporate Personnel and Organization Development.
"e. Identification of a specific position(s) or assignments) that the employee could assume upon return from leave of absence.”
Plaintiffs contention on appeal that defendant promised to return him to his former position in the pension and payroll department following his social service leave is based on a letter written in June, 1974, by George Giza, a personnel manager for defendant:
"We are pleased to advise you that your request for social leave of absence has been approved for the period August 1, 1974 through July 31, 1975. Please report to the Personnel Department at 2:00 p.m. on July 31, for your leave processing. Upon completion of your assignment you are scheduled to return to your former position with the Corporate Pension and Payroll Department. Also, you are requested to provide written and/or verbal reports concerning your social service leave assignment to Mr. K. Pearce and me. If you have any further questions, please let me know.” (Emphasis added.)
Plaintiff began his social service leave in August, 1974, and returned in May, 1975. Prior to his return, Giza told him that his job with the pension and payroll department was no longer available. Kenneth Pearce, plaintiff’s supervisor in pension and payroll, informed plaintiff that they were searching for other jobs for plaintiff. Plaintiff indicated he was most interested in a marketing or sales position. Contrary to plaintiff’s preference, Giza instructed plaintiff to work in the tax department. Giza’s supervisor, Anthony Procassini, told plaintiff to accept the tax department position or be terminated. Both Procassini and Giza testifed that they understood plaintiff wanted a management level position when he returned from leave, and that every effort was made to find him one. Giza indicated the tax department job, which had the same job title and salary as plaintiff’s former position with pension and payroll, was the best opportunity he could locate.
Following denial of defendant’s motion for a directed verdict, the jury was given a special verdict form, which it answered as follows:
"1. Did Bendix promise Mr. Sepanske before he went on social service leave of absence that at the end of his leave of absence he would be returned to his old job in the Pension and Payroll Department?
"Answer: Yes.
"2. Did Bendix reserve the right either to return Mr. Sepanski [sic] to his old position in the Pension and Payroll Department, or to a new position of equal or greater responsibility at the same location elsewhere within the Bendix organization?
"Answer: No.
”3. Was the position given to Mr. Sepanski [sic] in the Bendix Tax Department a position of significantly lower rank and status than his previous job in the Bendix Pension and Payroll Department?
"Answer: Yes.
"4. Did Mr. Sepanske settle his claim by accepting the position in the Bendix Tax Department as a substitute for his old position in the Pension and Payroll Department?
"Answer: No.
"5. Did Mr. Sepanske settle his claim by resigning his position in the Bendix Tax Department in exchange for two months’ salary without having to report for work?
"Answer: No.
"6. Did Mr. Sepanske sustain any damages as a result of a wrongful failure by Bendix to return him to his old job in the Bendix Pension and Payroll Department?
"Answer: Yes.
"7. If your verdict on the previous question is 'yes’, what was the amount of damages?
"Answer: $75,206.
"8. Did Mr. Sepanske sustain any damages as the result of a wrongful failure by The Bendix Corporation to return him to a position equivalent to his old job in the Bendix Pension and Payroll Department.
"Answer: Yes.
"9. If your verdict on the previous question is 'yes’, what was the amount of the damages?
"Answer: $75,206.”
Defendant’s motion for judgment notwithstanding the verdict, which spawned this appeal, followed. It was denied by the district court. The circuit court affirmed.
I
On appeal, defendant first argues that plaintiff failed to produce sufficient evidence to establish a breach of employment contract. We review the denial of a motion for judgment notwithstanding the verdict by considering the evidence in a light most favorable to the nonmoving party and determine whether evidence was offered upon which reasonable minds could differ. Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 792; 369 NW2d 223 (1985); Goins v Ford Motor Co, 131 Mich App 185, 191-192; 347 NW2d 184 (1983), lv gtd 422 Mich 857 (1985). Where reasonable minds could differ, the question should go to the jury. 131 Mich App 192.
We recognize that either party to an at-will employment contract for an indefinite term may terminate it at any time and for any reason, unless the employer has violated a specific public policy in discharging the employee. Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583, 588; 349 NW2d 529 (1984); Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982); Trombetta v Detroit, T & I R Co, 81 Mich App 489, 495; 265 NW2d 385 (1978), lv den 403 Mich 855 (1978); Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981). However, the employment relationship is enhanced where, as here, the employer establishes specific personnel policies and practices. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). Such statements of company policy and procedure create enforceable contract rights. Toussaint, supra, pp 598, 609-610. While defendant was not duty bound to establish a policy for employees returning from social service leave, having done so, the policy became a contractual obligation. Defendant’s employees could expect that the policies would be followed. Toussaint, supra, pp 613-615, 619.
It is undisputed that the policy manual provided that, upon plaintiff’s return from social service leave, defendant had to reinstate him to his for mer position or to a position of equal or greater responsibility. The evidence does not support the jury’s finding that defendant promised plaintiff that he would be returned to his position in the pension and payroll department. Nor does the evidence support the jury’s finding that defendant did not reserve the right to place plaintiff in his old position or a new one of equal or greater responsibility. We do not believe that Giza’s letter to plaintiff stating that plaintiff was "scheduled to return” to pension and payroll foreclosed the defendant’s right, reserved in its policy manual, to return plaintiff to another job of equal or greater responsibility. Moreover, plaintiff’s subjective expectation does not create an enforceable contract right. Schwartz v Michigan Sugar Co, 106 Mich App 471, 478; 308 NW2d 459 (1981), lv den 414 Mich 870 (1982).
Our finding on that issue is not, however, dispositive. The nature of plaintiff’s job in the tax department was the subject of conflicting evidence upon which reasonable minds could differ. In the pension and payroll department, plaintiff was the second-ranking employee. He supervised other employees. In the tax department, plaintiff assisted in preparation of tax returns. He did not supervise other employees, and he reported to the fourth-ranking person in the department. Plaintiff told the jury he felt ill-equipped to handle the tax job, and that he had to take a class to acquire basic skills in tax and accounting. Plaintiff also testified that he believed the position was low-level, and that, because of his inexperience, it would take a long time for him to advance. Several of defen dant’s witnesses testifed that the tax job was a position of equal or greater responsibility. It carried the same salary and job title as plaintiffs position in the pension and payroll department.
We believe that, based on the evidence presented, reasonable minds could differ about whether the tax department job was a position in which the responsibility was equal to or greater than the responsibility in the position plaintiff held in pension and payroll. The question was one for the jury, which answered it in the negative. There was evidence presented which supported the jury’s finding that the two jobs were not equivalent, and there was evidence that the two did not carry the same promotional opportunities, responsibilities, working conditions or status. See Jenkins v American Red Cross, supra, p 797; Rasimas v Michigan Dep’t of Mental Health, 714 F2d 614, 624 (CA 6, 1983), cert den 466 US —; 104 S Ct 2151; 80 L Ed 2d 537 (1984). As plaintiffs breach of contract claim was premised on the breach of this promise, we find that the lower court’s denial of judgment notwithstanding the verdict was proper as to the defendant’s claim that no breach of contract was established by the evidence.
II
Next we consider defendant’s contentions regarding damages. Both defendant and amicus curiae, Michigan Chamber of Commerce, claim that plaintiff should not have been compensated for future lost earnings. Defendant additionally argues that plaintiff failed to mitigate damages when he resigned from the tax department job and resigned from a subsequent job at Tuff-Kote Dinol. Defendant also protests the jury’s inclusion of plaintiffs probable salary increases in the damage calculation.
We take an entirely different approach on the issue of damages. We think that plaintiff was entitled to nominal damages only for defendant’s breach of the employment contract. This is not a case of wrongful discharge. Plaintiff’s expectation under the contract was to be restored to his old job or to an at-will position which was equivalent to or better than his position in pension and payroll, but he had no actionable expectation that any such restoration would be permanent. The position was still at will — one which the employer was free to alter or terminate without consequence. The fact that defendant historically had not arbitrarily reclassified positions or terminated employees does not change its right to do so. Plaintiff terminated the relationship without consequence when he resigned from the tax job. The jury’s damage assessment in such a situation amounts to pure speculation. There is no tangible basis upon which damages may be assessed where plaintiff’s expectation was for an at-will position which could have been changed or from which he could have been terminated without consequence. See Sax v Detroit, G H & M R Co, 129 Mich 502, 506; 89 NW 368 (1902). We therefore vacate the jury’s award of damages. We remand to the district court for entry of judgment in favor of plaintiff for nominal damages only. 3 Restatement Contracts, 2d, § 346(2), p 110.
Ill
Defendant next argues that plaintiff’s action is barred by the exclusive remedy provision and preemption provisions of the Employee Retirement Income Security Act (ERISA), 29 USC 1001 et seq. ERISA authorizes any pension plan participant to bring a civil action to enforce compliance with the act. Section 1132(a) provides:
"A civil action may be brought—
"(1) by a participant or beneficiary—
"(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”
Section 1144(a) contains a preemption clause:
"Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.”
State law superseded by ERISA includes case law. See 29 USC 1144(c)(1).
Not all actions which affect or mention pension benefit plans are preempted or superseded by ER-ISA. Some state actions are not preempted because they affect employee benefit plans only in a tenuous or remote fashion. Shaw v Delta Air Lines Inc, 463 US 85, 100, fn 21; 103 S Ct 2890; 77 L Ed 2d 490 (1983). ERISA has been found to preempt state law where a claim of wrongful discharge was based on a claim of retaliation for an employee’s seeking disability benefits. See, e.g., Witkowski v St Anne’s Hospital of Chicago, 113 Ill App 3d 745; 447 NE2d 1016 (1983); Cf. Johnson v Transworld Airlines, Inc, 149 Cal App 3d 518; 196 Cal Rptr 896 (1983).
We believe that ERISA’s far-reaching scope does not preempt plaintiff’s breach of employment contract action. Plaintiff was not wrongfully discharged because he attempted to collect pension benefits; plaintiff merely claimed the loss of ability to earn pension benefits as an element of special damages. Plaintiff has made no claim for pension benefits; the trustees of the pension fund are not parties to this or any other proceeding. The only way in which this action significantly "relates to” the pension fund is the possible adverse effect a substantial judgment against defendant might have on its ability to make contributions to the fund. That possibility is obviously too tenuous and remote to warrant ERISA preemption, even if we had not decided the damages issue as we did.
IV
Defendant finally contends that plaintiff, by accepting the tax department job, made an election which barred him from claiming a breach of contract. The doctrine of election is an equitable principle applied where a person has the choice of one or two alternates or inconsistent rights or remedies, and elects one over the other. 5 Williston on Contracts (3d ed), § 683, pp 269-270. We find the doctrine to be inapplicable in the instant case. Plaintiff’s acceptance of the tax job was consistent with his duty to mitigate damages and was not inconsistent with his subsequent determination that it was not equal to his former position.
Remanded.
Pearce explained that the pension and payroll department was reorganized while plaintiff was on social service leave. Plaintiffs job as a staff assistant was eliminated at that time. Pearce declined to place plaintiff in pension and payroll because that would have involved a job change for the woman who assumed many of plaintiff’s duties in his absence.
This result is unaffected by evidence presented by plaintiff that he had long-term career goals in pension and payroll, that he received excellent performance reviews, and that management had planned for his future promotion. | [
-12,
-2,
-37,
69,
-5,
9,
-38,
-40,
-11,
26,
-7,
29,
41,
15,
-22,
-38,
-22,
0,
-29,
31,
-19,
-17,
25,
4,
-9,
-14,
-53,
16,
-22,
-45,
-29,
-7,
6,
-95,
-50,
-26,
33,
-38,
-10,
11,
-25,
-34,
16,
-24,
-28,
4,
22,
-11,
15,
-6,
68,
74,
-61,
-2,
-1,
-8,
-6,
-27,
-13,
39,
-65,
18,
6,
-20,
8,
-18,
11,
63,
14,
-10,
-14,
24,
-20,
25,
7,
-33,
20,
48,
11,
-21,
17,
-73,
3,
-49,
-40,
18,
31,
34,
56,
14,
8,
-9,
-4,
-21,
-54,
18,
18,
-9,
55,
41,
-15,
-15,
16,
32,
9,
-10,
23,
-32,
49,
11,
21,
-5,
11,
1,
-15,
48,
41,
-24,
7,
-8,
14,
19,
30,
-3,
23,
-2,
30,
-28,
-23,
65,
8,
7,
-33,
26,
7,
19,
7,
-53,
1,
-24,
14,
27,
19,
-10,
-2,
10,
-44,
7,
21,
-2,
-22,
-24,
47,
28,
-19,
4,
18,
-9,
25,
-41,
0,
-23,
-19,
17,
20,
-35,
-7,
42,
2,
-1,
-10,
0,
31,
-9,
-28,
48,
8,
2,
-20,
15,
-68,
27,
-9,
-12,
73,
-17,
-19,
-2,
24,
3,
33,
5,
64,
26,
24,
-7,
14,
47,
-13,
-16,
-16,
-40,
0,
51,
13,
4,
7,
23,
-20,
-9,
-18,
21,
0,
-71,
-7,
10,
-30,
10,
-12,
-12,
-16,
11,
-66,
-10,
-83,
-9,
-13,
8,
65,
15,
9,
-7,
47,
35,
-51,
-9,
24,
1,
29,
-12,
-30,
12,
7,
-1,
-24,
-19,
-19,
3,
9,
33,
-48,
-30,
14,
32,
-12,
-32,
-42,
15,
-19,
21,
-4,
-1,
6,
67,
-32,
-24,
-1,
37,
0,
-29,
10,
18,
44,
-73,
1,
-18,
-6,
-12,
31,
-62,
-14,
-3,
-11,
-11,
-40,
17,
64,
-39,
-41,
38,
19,
13,
31,
10,
28,
-27,
-31,
20,
-19,
8,
-38,
-32,
3,
-5,
-21,
24,
-38,
17,
9,
-6,
-2,
-57,
-10,
-82,
63,
10,
-38,
20,
-15,
-66,
-4,
42,
49,
5,
-12,
-44,
-24,
-58,
28,
-15,
-38,
36,
-31,
48,
21,
-8,
-8,
-8,
-20,
-13,
28,
35,
19,
-19,
-26,
25,
44,
39,
-15,
21,
-6,
5,
18,
0,
38,
58,
-12,
-31,
-29,
53,
-15,
-16,
-4,
-27,
9,
23,
9,
-21,
4,
14,
-37,
-16,
8,
-57,
-33,
-1,
-33,
-32,
19,
60,
-22,
-43,
6,
-40,
-48,
-17,
-5,
20,
-16,
-28,
-29,
-40,
30,
35,
25,
5,
-3,
-12,
-7,
36,
-32,
-1,
17,
15,
-9,
-27,
-35,
-30,
0,
54,
-24,
11,
44,
16,
-14,
-60,
48,
-40,
36,
23,
53,
-16,
-18,
-7,
16,
8,
-3,
26,
-36,
-21,
-35,
-18,
6,
-71,
-10,
17,
-22,
-27,
-16,
11,
6,
-6,
-38,
-22,
22,
-5,
-16,
-11,
31,
-34,
-1,
52,
48,
24,
0,
-18,
13,
23,
-7,
-24,
0,
-23,
12,
-27,
44,
-6,
-32,
40,
-17,
9,
-25,
0,
16,
43,
-61,
-34,
-66,
-10,
17,
-35,
19,
-29,
10,
4,
-23,
46,
16,
-24,
-27,
15,
11,
-17,
15,
17,
-2,
10,
-52,
12,
-12,
16,
-21,
-23,
10,
-11,
-13,
-51,
-5,
-64,
-6,
-10,
-28,
8,
-8,
43,
69,
-3,
6,
16,
27,
23,
-32,
-20,
-23,
-20,
-38,
15,
0,
64,
-8,
-20,
37,
-27,
36,
-14,
-24,
8,
-19,
-36,
-61,
-58,
-7,
31,
-14,
37,
-5,
-36,
-2,
51,
17,
51,
22,
-15,
0,
0,
6,
-8,
42,
30,
58,
10,
-26,
43,
28,
16,
5,
9,
-25,
26,
-18,
-6,
8,
-16,
8,
19,
42,
61,
29,
-11,
-48,
-42,
-2,
2,
55,
-20,
3,
-27,
45,
-8,
65,
10,
-32,
-28,
4,
-6,
13,
-31,
20,
-46,
-28,
42,
1,
2,
-45,
-3,
12,
-4,
-17,
35,
39,
-34,
25,
-19,
14,
-32,
-32,
-25,
16,
9,
-17,
59,
20,
18,
4,
-5,
-35,
20,
34,
-11,
-50,
-13,
84,
-51,
19,
-15,
-5,
-5,
8,
2,
-17,
10,
11,
0,
7,
-4,
-57,
-70,
33,
3,
13,
-9,
23,
73,
25,
22,
-4,
8,
-24,
-6,
1,
-36,
-46,
12,
-14,
-2,
37,
48,
-14,
-24,
-8,
-14,
11,
10,
2,
31,
33,
13,
0,
10,
-36,
-40,
-54,
-16,
9,
22,
-18,
15,
70,
-55,
25,
-46,
7,
47,
-4,
-2,
-30,
-12,
22,
4,
14,
-33,
-39,
35,
-13,
13,
-13,
23,
-19,
39,
-11,
53,
25,
-4,
-2,
-3,
-4,
23,
-12,
0,
-28,
-10,
-26,
16,
-18,
-5,
-12,
47,
49,
-20,
-27,
-24,
10,
67,
4,
7,
-18,
1,
-5,
5,
-47,
16,
59,
22,
8,
62,
23,
84,
-2,
4,
-22,
0,
-48,
-9,
0,
-4,
-5,
18,
-10,
17,
-42,
26,
-38,
-37,
9,
38,
-19,
14,
-28,
7,
25,
-18,
-52,
44,
42,
-49,
0,
36,
11,
0,
-60,
-20,
-7,
34,
6,
-2,
-6,
-69,
-35,
-39,
-14,
7,
-36,
-59,
24,
-66,
25,
9,
80,
68,
53,
-13,
-13,
73,
-30,
65,
-1,
19,
7,
-47,
30,
-50,
-9,
8,
10,
43,
-22,
-37,
-7,
11,
-32,
-3,
-5,
13,
-9,
23,
62,
-12,
-30,
-4,
22,
27,
-35,
-6,
-24,
53,
-32,
-15,
22,
-3,
34,
-30,
5,
-49,
10,
-10,
-1,
21,
-5,
-1,
7,
-28,
-2,
-22,
-29,
5,
33,
13,
-5,
-28,
48,
-19,
-35,
19,
-29,
36,
13,
2,
-57,
-27,
47,
-38,
19,
29,
25,
46,
-27,
22,
-35,
-15,
30,
-46,
10,
7,
0,
-30,
44,
8,
33,
28,
1,
52,
16,
10,
-6,
-34,
2,
5,
-12,
24,
-9,
7,
47,
54,
21,
-15,
-23,
-6,
8,
-48,
-68,
15,
8,
-20,
24,
13,
56,
-21,
-26,
58,
54,
5,
-21,
-34,
-30,
-40,
16,
-20,
48,
-8,
-9,
25,
16,
-6,
28,
-8,
34,
1,
-19,
-28,
-38,
-8,
3,
-51,
-26,
-36,
-51,
-36,
-38,
34,
7,
-4,
15,
-12,
35,
8,
13,
-28,
-26,
-4,
19,
7,
3,
-5,
10,
77,
15,
0,
6,
-60,
-51,
-47,
85,
-31,
-21,
-52,
12,
0,
13,
34,
-9,
24,
-4,
-53,
-3,
4,
0,
11,
-26,
-11,
-36,
-48,
51,
46,
60,
11,
22,
-20,
-34,
-33,
56,
9,
-15,
-21,
-20,
-35,
-50,
23,
9,
9,
2,
15,
59,
-20,
32,
-42,
9,
31,
-56,
-9,
-90,
-10,
42,
0,
-14,
51
] |
Brennan, J.:
Statement oe Pacts.
On December 7, 1963, Esther Kingsley was injured in an auto collision at about 8:25 a. m. on the Dixie Highway in Saginaw County. She died the same morning at 9:30 at St. Mary’s Hospital in Saginaw. On May 25, 1964, the plaintiff, administrator of the estate of Esther Kingsley, filed a wrongful death complaint seeking damage,'? against James Roby and "William Burditt. He claimed that Esther Kingsley was a nonguest passenger in her own Chevrolet, being driven by Roby, who collided with a pick-up truck driven by Burditt, due to the negligence of both drivers. On June 2, 1964, Roby filed an answer in the cause in which he denied that he was driving the Chevrolet automobile in which the plaintiff’s decedent was an occupant. He alleged affirmatively that the plaintiff’s decedent was the driver of the car. And he further alleged that the vehicle was being operated by plaintiff’s decedent in a reckless and negligent manner and at a high rate of speed. On June 19, 1964, the defendant Burditt filed his answer. He denied negligence on his part and affirmatively alleged that the sole cause of the collision was the negligence of the driver of the decedent’s automobile. In paragraph 2 of his answer, Burditt admitted that James Roby was operating the death car.
On December 7th, the day of the accident, at about 2:30 in the afternoon, defendant Burditt had given a statement to one G-erald Hough, a state trooper. In this statement, the following question and answer appears:
“Q. William, you said earlier that the woman was on your side when you hit. So would you say that the man in the car was driving?
“A. He had to been, there was a man driving.”
Two days later, on December 9, 1963, the defendant Burditt gave another statement to a man named Donald Cook. This statement was also reduced to writing in question and answer form, It contains the following;
“Q. I see, do you know who was driving the other car?
“A. Well, I’ll tell yon the same as I told the State police and his wife, the woman was not driving the car.”
On September 15, 1964, before the case came up for trial, the deposition of Burditt was taken for the purpose of discovery. On the deposition, Burditt testified that there was a woman behind the wheel, whereupon the examiner asked Burditt a number of questions concerning the two prior statements he had given to Hough and Cook. Burditt conceded making the prior statements, but was never asked whether his prior statements were true.
The trial of the cause commenced on March 17, 1965. William Burditt was present in the courtroom during the trial. During the presentation of the plaintiff’s case in chief, plaintiff moved to admit into evidence the discovery deposition of the defendant Burditt. Thereupon a conference was had with the court in chambers. The court excluded the portions of the deposition having to do with the examination of Burditt on his two prior extrajudicial statements. It should be noted also that in offering Burditt’s deposition into evidence the plaintiff did not indicate the purpose for which the offer was made, nor the court rule under which the deposition was claimed to be admissible. Burditt at that point had not been called as a witness in the trial.
Since the conference on the admissibility of the specific questions and answers in the deposition was had in chambers, and since no stenographic record was made of the discussion in chambers between the court and counsel, the reason for the exclusions that were made does not immediately appear in the record. Later, however, the trial judge indicated on the record that the reason for the exclusion of those portions of the deposition had to do with his feeling that no foundation had been laid. More on that later. Plaintiff proceeded to read the deposition into evidence, omitting the portions which the court had ruled to be inadmissible.
On the following day of trial, March 18, 1965, plaintiff called the defendant Burditt as an adverse party for cross-examination. Objection was made and the court ruled that the plaintiff could not call defendant Burditt under the statute for cross-examination, after having introduced his deposition. The court ruled that by the use of the deposition, plaintiff had made Burditt his own witness. A separate record out of the presence of the jury was made, in which the plaintiff was permitted to cross-examine Burditt fully as an adverse party. After the separate record was made, the plaintiff, pursuant to the court’s ruling, called defendant Burditt as his own witness. At the conclusion of the plaintiff’s case, defendant Burditt made a motion for directed verdict, which was granted on the ground that there was no evidence of any negligence on the part of Burditt which could go to the jury. A judgment in favor of Burditt was entered upon this directed verdict and no appeal has been taken therefrom. In due course, plaintiff’s case against defendant Roby went to the jury and the jury found no cause of action. An appeal was taken after a motion for a new trial was denied.
The Court of Appeals affirmed the trial judge, saying, among other things, that under the circumstances of this case the deposition of Burditt could be used for impeachment purposes only and that none of the depositions should have been received in evidence. The Court of Appeals further held that in the light of the procedure followed in this case, the plaintiff had made Burditt his own witness and the trial court did not err in denying plaintiff’s request to call defendant Burditt for cross-examination under the statute.
I. The Use oe the Deposition.
The first question which must be answered in this case is: Was the plaintiff entitled to read the deposition of William Burditt into evidence? This question must be answered because the Court of Appeals has stated flatly that in its opinion none of the depositions should have been received in evidence. Although this discussion is actually a blind alley so far as the decision in this case is concerned, the matter is an important one' to the bench and bar, and merits our interpretation of the applicable court rules. It is important to note at the outset that there are two entirely different kinds of depositions contemplated by the rules. On the one hand, there are depositions of mere witnesses who are not parties to the lawsuit. On the other hand, there are depositions of parties, their officers, directors, agents and employees. The practice governing the use and effect of these two distinct and different types of depositions is clearly outlined in the court rules. The difficulty in this case lies in the fact that under our trial practice it is possible for a party to call his adversary in one of two ways: either for cross-examination under the statute, or as his. own witness. If the former result is desired, counsel is required to announce the purpose for calling the witness.
Tbe Court Rules permit parallel options in the use at trial of depositions. If the deposition of a party or his agent is offered under GCR 1963, 302.4(2), there is a use of the deposition which parallels the calling of an opposite party for cross-examination under the statute. If the deposition of an adverse party, however, is offered under General Court Rule 1963, 302.4(3), it parallels the calling’ of an adverse party as a witness without announcing the purpose therefor and makes the deponent the witness of the party calling him. If, as we have seen, the use of depositions parallels the calling of witnesses at trial, it would be good practice for counsel to announce his purpose in offering the deposition, and better practice for counsel to indicate the court rule pursuant to which he offers the deposition. It is possible to conceive of situations in which such a failure would have the effect of making the deponent the witness of the party offering the deposition. Nevertheless, the making of such announcement will not be strictly required when under all of the facts and circumstances the intended use of the deposition is apparent. In the instant case, Burditt was present in the courtroom at the time his deposition was offered and he had not yet testified in the case. Therefore, it was obvious that his deposition was not being offered because of his unavailability under Rule 302.4(3), nor was it being offered to impeach him under Rule 302.4(1). To have permitted the use of the deposition under Rule 302.4(1) or 302.4 (3) would have been error under the circumstances, and error will not be presumed. Thus, it is obvious that the deposition of William Burditt was offered, though no announcement was made, pursuant to Rule 302.4(2), paralleling cross-examination of an adverse party.
By such use of the defendant’s deposition plaintiff did not make Burditt his own witness. GCR 1963, 302.6 clearly indicates this:
“.6 Effect of Taking or Using Depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of impeaching the deponent makes the deponent the Avitness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in subrule 302.4(2).” (Emphasis supplied.)
It is thus concluded that there was no error in permitting the Burditt deposition to be read in evidence. And under the circumstances of this case the introduction in evidence of Burditt’s deposition did not make Burditt plaintiff’s witness.
II. The Excluded Portion oe the Deposition.
This brings us to the second question in the laAvsuit, and that is whether there was error in excluding those portions of the Burditt deposition which the trial court did not permit the plaintiff to read to the jury. As has been noted, this exclusionary ruling was made in chambers with no stenographic record. This is most unfortunate and it is not a desirable trial practice. The specific ground of objection to evidence tendered is often a controlling factor on appeal. The court rule contemplates that depositions will be read question by question, so that objections to specific questions can be made and ruled upon. And where the arguments of counsel and reasons of the court do not appear on the record, the appellate court- can only speculate on the basis' for the ruling and the correctness thereof. In this case, however, we are assisted in part by the opinion of the trial court as rendered on the record at the time the motion for a new trial was made. The pertinent portion of that .opinion- is as follows:-
'“Now..those portions of the deposition which were excluded were those having to do with an alleged prior statement made by the defendant Burditt wherein he at least indicated in one portion,. as I recall, that a man was driving the car; that, was his first impression, or something of the sort. . That portion was excluded because of the failure of the person who took the deposition to lay a proper foundation. In other words, no question was asked, 'Who do you say, Mr. Burditt, was driving the car when you first saw it?’ No answer was elicited to such a question, so there is nothing in the deposition to shoW that any statement being-made by the witness at the time of the taking of tlie deposition was inconsistent with' the statement which is alleged he had given sometime prior thereto. The court excluded that portion of the deposition having to do with this claimed prior inconsistent statement because of the lack of foundation. As attempted in the deposition, it amounted to no more than offering the prior statement as an exhibit and not for the purpose of impeaching a statement being made in the deposition because no such questions were asked of him.”
This ruling does not jibe with the record in the case. Immediately prior to the excluded portion of the deposition the following questions and answers appear:
“Q. Could you tell me the sex of the passengers in the car?
“A. Pardon?
“Q. The sex of the passengers in the car?
“A. It looked to me like a man and a woman.
“Q. And which side was the woman sitting on?
“A. I have a picture in my mind that when that car first started to come around, like that, that this woman was behind the wheel, that is just the impression I got, and I still have that picture in my mind. It seems when we hit, she was over to my side of the car, what I mean, not my side, I mean the side that I hit on the car.
“Q. Then you saw the woman in the car just before you hit?
“A. I don’t know what I saw then, I can’t tell you.” (Emphasis supplied.)
Surely the substance of Burditt’s testimony at that point was that a woman was behind the wheel, and it certainly represented a proper foundation to permit the plaintiff to present prior inconsistent statements for impeachment purposes. If the right of the plaintiff to impeach Burditt on this point were the controlling issue in the lawsuit, our appellate result would be ' clear at this juncture. But the mere impeachment of Burditt is not the ultimate question to be decided.
Plaintiff has not appealed the judgment entered in Burditt’s favor against him. Plaintiff has appealed only the judgment rendered in Roby’s favor against him. The erroneous ruling excluding Burditt’s prior inconsistent statements is not reversible in this appeal from the verdict and judgment in favor of Roby unless the excluded portions of the deposition constituted substantive evidence which the jury should have been permitted to consider in determining whether Roby was or was not the driver of the car in which Mrs. Kingsley was injured. A complete discussion of the substantive value, if any, of the excluded portions of Burditt’s deposition will be had in a later section of this opinion in connection with the substantive effect, if any, of the testimony of William Burditt on separate record.
III. The Right to Cross-Examine.
The next issue which must be considered is the matter of the court’s ruling on the right of the plaintiff to cross-examine Burditt as an adverse party. As already noted, the use of Burditt’s deposition, under the circumstances as they existed in this case, did not make Burditt the witness of the plaintiff. This being so, we need not decide in this appeal whether use of an adverse party’s deposition under Rule 302.4(3), making the deponent the witness of the party offering the deposition, would or would not affect the right of such party to call his adversary for cross-examination under the statute late in the trial.
In the instant case, the court was in error in ruling that the plaintiff was.precluded from cross- examining Burditt under the statute. Even the existence of this second error, however, does not require reversal. It must again be determined whether the error was reversibly prejudicial. A separate record, not in the presence of the jury; was made, in which the plaintiff was permitted to pursue the cross-examination of Burditt as fully as he wished. We must look to the separate record then, to determine whether the exclusion of anything elicited therein constituted reversible error. If not, then the trial court’s denial of. plaintiff’s right to cross-examine Burditt was of no moment’ A detailed discussion of this follows.
IV. The Substantive Value of Impeachment Testimony.
Was it reversible error for the trial judge to exclude from the jury’s consideration as substantive evidence the two prior inconsistent statements made by defendant Burditt as those statements were'incorporated in the excluded portions of Burditt’s deposition and in the excluded separate record of Burditt’s testimony on the stand?
For the purpose of this discussion the excluded portion of the deposition and the excluded separate record of Burditt’s testimony from the witness stand can be considered together. The questions asked and the answers given in both excluded portions are substantially the same. The net effect of both" excluded materials is the same. On both occasions Burditt was interrogated regarding these prior inconsistent statements. On both occasions Burditt admitted having made the prior inconsistent statements, but on neither occasion did he adopt the prior inconsistent statements as true.
The status of the law regarding the admissibility of prior inconsistent statements is relatively settled. Such statements are generally admissible for impeachment purposes and are also admissible when they constitute an admission by a party opponent. The effect of such prior inconsistent statements when admitted in evidence is not so clear in the law, and in many cases it becomes important to determine whether the prior inconsistent statement is in fact substantive evidence or whether it is admissible merely to impeach. In his handbook on the law of evidence, Professor Charles T. McCormick states the problem as follows:
“When a witness has changed sides and altered his story or forgets or claims to forget some fact, and his previous statement is received for impeachment purposes, what effect shall be given to the statement as evidence? Under the generally accepted doctrine the statement is not usable as substantive evidence of the facts stated. The adversary if he so requests is entitled to an instruction to that effect, and, more important, if the only evidence of some essential fact is such a previous statement, the party’s case fails.
“Only two escapes from the lethal effect of this doctrine, where the sole witness to a vital fact has turned co'at, are revealed by the cases. The first is the rule that when the hostile witness is an adverse party to the present action, his former inconsistent statement has two faces. As an impeaching statement it would not be substantive evidence, but as the admission of a party opponent it comes in under an exception to the rule excluding hearsay and as such is evidence of its truth.” McCormick, Evidence, Ch 5, § 39, pp 73, 74.
The second escape from the doctrine as described by Professor McCormick is the case wherein the witness adopts his prior statement as true, making his prior statement and his present testimony one and the same.
Before we can consider the effect of the two prior inconsistent statements when offered for the purpose of impeaching Bnrditt, we must first grapple with the problem of whether the two prior inconsistent statements represented admissions of a party opponent, within the rule holding such admissions to be substantive evidence which can be considered by the jury. The problem here is that the admissions of one defendant are not admissible in evidence against a codefendant. Thus, even if Burditt’s prior inconsistent statements were admissions, a matter we need not decide, and thus admissible as substantive evidence against Bnrditt, they were totally inadmissible as to Roby, and where the appeal is taken only against Roby, the plaintiff cannot be said to have been harmed because the extrajudicial statements of Burditt were not received in evidence against Roby.
In passing, it should be noted that there has been some confusion in earlier cases in this Court on this question. The following statement appears in the case of Rosenberg v. Mageda, 251 Mich 696, at page 699:
“The court charged the jury they might consider the statements made by plaintiff in her signed statement as bearing upon the claim she made at the trial. The statements made by a witness out of court, in conflict with her testimony, could be considered as bearing upon her credibility, but not as substantive evidence in the case. Eno v. Allen, 113 Mich 399; Hutchins v. Murphy, 146 Mich 621. To instruct the jury they could so consider such testimony was error.” (Emphasis supplied.)
The quoted statement from the Rosenberg Case clearly indicates the confusion which has beset our Court in the past. The Court was talking about a statement made by the plaintiff, and the rule applied by the Court is the general rule only when the witness is not a party to the suit.
The recent case of Schratt v. Fila, 371 Mich 238, involved a situation very similar to the present ease. There, the Court was dealing with the effect of a prior inconsistent statement by one of the defendants where the appeal was taken by another defendant. In the Schratt Case, this Court concluded that Fila in his interrogation had finally admitted the truth of his prior inconsistent statement. And our Court then said, quoting from Perry v. F. Byrd, Inc. (1937), 280 Mich 580, 582, that,
“Notwithstanding the fact that a written statement is offered solely for impeachment purposes, so much thereof as a witness at the time adopts by admission of the truth thereof becomes substantive evidence.”
In its opinion in the Schratt Case the Court goes to some length to show that Fila adopted the prior inconsistent statements as true, thus bringing the case within the rule of Perry v. F. Byrd, Inc., the second escape route described by McCormick. The Court apparently regarded this fact as controlling. The Court recognized that if Fila adopted the prior inconsistent statements as true, they would constitute substantive evidence against the defendant Ziegler. But if Fila had not adopted the prior inconsistent statements as true, the Court apparently believed that they would not amount to substantive evidence against the defendant Ziegler, the only appellant. The Court either did not consider the question of whether the prior inconsistent statements were admissible as substantive evidence because they were admissions of a party, or else the Court assumed that because these were Fila’s admissions, they were inadmissible as to the eodefendant Ziegler; and in order to determine whether they had substantive evidentiary value as against Ziegler they would have to be tested by the rules governing prior inconsistent statements by persons who are not parties to the record. It is believed that the approach taken in the Schratt Case was the proper one, and that the substantive effect of the prior inconsistent statements of a codefendant who is not a party to the appeal should be governed by the rules having to do with the prior inconsistent statements of a witness who is not a party to the case.
If the extrajudicial statements of Burditt were inadmissible against Roby as admissions of Burditt, what was their evidentiary effect when offered for impeachment purposes'? As has already been indicated, the general rule followed in this State for many years is that evidence of prior inconsistent statements when offered for impeachment purposes does not constitute substantive evidence unless the truth of the prior inconsistent statements is admitted when the witness is confronted with them on the stand. This rule has been called the orthodox view and is founded on the reason that such statements are hearsay, that their value rests on the credibility of the declarant who was not under oath and not subject to cross-examination when the statement was made. The rule is one of general acceptance. Nevertheless, there has been some criticism of the rule. Judge Learned Hand in his opinion in Di Carlo v. United States (CA 2, 1925), 6 F2d 364, 368, says:
“ ‘The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are nonetheless deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.’ ”
Mr. Justice Otis Smith, writing for the Court in the Schratt Case, states at page 245, as follows:
“We agree with the view stated in McCormick on Evidence, § 39, p 75:
“ ‘If the prior statement of the witness is contradictory of his present story on the stand, the opportunity for testing the veracity of the 2 stories by the 2 parties through cross-examination and reexamination is ideal. Too often the cross-examiner of a dubious witness is faced by a smooth, blank wall. The witness has been able throughout to present a narrative which may be false, yet is consistent with itself and offers no foothold for the climber who would'look beyond. But the witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common-law practice of cross-examination and re-examination was invented to explore. It will go hard, but the 2 questioners will lay bare the sources of the change of face, in forgetfulness, carelessness, pity, terror or greed, and thus reveal which is the true story and which the false. It is hard to escape the view that evidence of a previous inconsistent statement, when the declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony.’ ”
This quotation from Professor McCormick represents an excerpt from a lengthy and most interesting discussion. The substance of the balance of Professor McCormick’s remarks is that he believes that the rule which prohibits the use of impeachment testimony as substantive evidence is not a reasonable one. He is not talking about prior inconsistent statements which are adopted by the witness as he concedes that these are already generally held to be substantive evidence. He points out that the prior inconsistent statement because made closer in time to the fact is based upon a fresher memory and for that reason may even he more reliable than the testimony of the witness in court. He finds support in the English Evidence Act of 1938, and also in the Uniform Rules of Evidence; “Rule 63, subd 1, admits as an exception to the hearsay rule ‘a statement previously made-by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.’ ”
In view of such attacks, some re-examination of the settled rule in Michigan is in order. Prior inconsistent statements used for impeachment purposes are not, strictly speaking, exceptions to the hearsay rule. The hearsay rule excludes from evidence extrajudicial statements which are offered for the purpose of proving the truth of the thing said. Prior inconsistent statements offered for impeachment purposes are not offered for the purpose of proving the truth of the thing said. They are offered merely to show that the statement was made. The mere fact of the making of a prior inconsistent statement has value as hearing on the credibility of the witness.
Those who argue for the use of such statements as substantive evidence, that is, as tending to prove the truth of the thing said, reason in this fashion: since the principal reason for the hearsay rule lies in the absence of an opportunity to cross-examine the declarant on his statement, the reason for the rule falls whenever the declarant is available for cross-examination. Under this line of reasoning, prior consistent statements, as well as prior inconsistent statements, would be admissible substantive evidence whenever the declarant was on the witness stand.
The difficulty with this argument is that it does not recognize the real nature of cross-examination. Cross-examination presupposes a witness who affirms a thing being examined by a lawyer who would have him deny it, or a witness who denies a thing being examined by a lawyer who would have him affirm it. Cross-examination is in its essence an adversary proceeding. The extent to which the cross-examiner is able to shake the witness, or induce him to equivocate is the very measure of the cross-examiner’s success.
Bearing in mind that when the witness adopts the prior statement his prior statement becomes his present testimony, and becomes admissible substantive evidence by settled law, it is readily apparent that the present discussion only relates to those cases where the witness does not adopt his prior statement as true. If he refuses to adopt his prior statement as true, there can be no adversary cross-examination upon it. If he refuses to affirm, no question can be put to him which would shake his own confidence in his affirmation.
It is interesting to note that Uniform Rule 63, subd 1, silently concedes its own frailty when it makes reference to the witness being available for cross-examination “with respect to” the prior statement and its subject matter, rather than cross-examination “upon” the prior statement. If a prior inconsistent statement is received as substantive evidence though not adopted as true, it is thereby given a special indestructible status far superior to direct sworn testimony from the witness stand. One who would cross-examine upon such a statement is denied even the basic technique of asking the witness to repeat the statement.
The would-be cross-examiner is not only denied the right to be the declarant’s adversary, he is left with no choice but to become the witness’ friend, protector and savior. Though he may be permitted to ask questions in the form of cross-examination, the substance of his effort will be re-direct examination and rehabilitation. The reason is simple. The witness cannot recant! Every cross-examiner tries to bring the witness to the point where he changes his story — literally eats his words — in the presence of the jury.
A statement made from the witness stand is not beyond total recall by the witness. Stale friendly cross-examination “with respect to” a prior extrajudicial statement is no substitute for timely, adversary cross-examination “upon” a statement. The importance of this distinction is clearly seen when we analyze the ease before us. The statement Burditt gave to the police officer, and which plaintiff would have the jury consider as substantive evidence, was as follows:
“Q. William you said earlier that a woman was on your side when you hit, so would you say tha1 the man in the car was driving?
“A. He had to have been, there was a man driving.”
Trial lawyers are keenly aware of the vulnerability of “hadda” witnesses and “musta” witnesses. When a witness says that the driver had to have teen speeding, or must have swerved this way or that way, his very choice of verbs betrays that he is stating his conclusions rather than his observations. For the purpose of demonstrating the difference between timely and stale cross-examination, let us suppose that a cross-examiner had been present at the time Burditt made his statement to the police officer. And let us suppose, for the sake of discussion, that the following had taken place:
Q. William, you say that the man had to have been driving, is that right?
A. Yes.
Q. Did you see the man behind the wheel before the accident?
A. No.
Q. Did you see the man behind the wheel after the accident?
A. No.
Q. Did you ever see the man in the car?
A. No.
Q. Why then, do you say that the man had to have been driving?
A. Because when I first looked over there after the accident, the woman was lying out of the door on the passenger’s side, and if she was on the passenger’s side, she must have been the passenger and the man had to have been the driver.
Q. Isn’t it possible that the man was thrown out of the car from the passenger’s side and the woman was thrown across the front seat from the driver’s seat?
A. Yes, that’s possible.
Q. Do you still say that the man had to have teen drivingf
A, No, I guess not.
Now let us see whether the stale cross-examination of Burditt “with respect to” his statement, as envisioned by the Uniform Bule and advocated by Professor McCormick, would have the same effect:
Q. William, you say that the man had to have been driving, is that right?
A. No, I’m not saying that.
Q. Well that’s what you told the police officer,, isn’t it?
A. Yes.
Q. Did you see the man behind the wheel before the accident ?
A. No.
Q. Did you see the man behind the wheel after the accident?
A. No.
Q. Did you ever see the man in the car?
A. No.
Q. Why then did you tell the police officer that the man had to have been driving?
A. Because when I first looked over there after the accident, the woman was lying out of the door on the passenger’s side, and if she was on the passenger’s side, she must have been the passenger and the man had to have been the driver.
Q. Isn’t it possible that the man was thrown out of the car from the passenger’s side and the woman was thrown across the front seat from the driver’s side?
A. Yes, that’s possible.
At this point, the cross-examiner is stymied. The crucial question which would give the witness a chance to change his story, “Do you still say that the man had to have been driving?” is meaningless. The witness has already testified that he is not still saying that the man had to have been driving. Instead of a plunge to the jugular, the examiner will have to be satisfied with applying a bandage. It would sound something like this:
Q. And isn’t this the reason why the story you are telling us today is different from the story you told the police officer?
or,
Q. And isn’t it true that if you had thought of that possibility at the time, you never would have told the police officer that the man had to have been driving the car?
By these hypothetical examples we have tried to show the windmill-fighting nature of stale cross-examination with respect to the prior statement. No matter how deadly the. thrust of the cross-examiner, the ghost of the prior statement stands. His questions will always sound like attempts to permit the witness to explain why he changed his story before coming to court, with the jury being left to infer that he might have been induced to change his story in the intervening months or years, for some unrevealed and sinister reason.
When a cross-examiner on timely cross-examination succeeds in getting the witness to change his story, the integrity of the recantation is apparent, and his original, recanted version no longer stands as substantive evidence. If the only evidence of an essential fact in a lawsuit were a statement made from the witness stand which the witness himself completely recanted and repudiated before he left the witness stand, no one would seriously urge that a jury question had been made out.
Scholarly legal writings are useful and necessary. When they challenge the established rules, the courts have an obligation to re-examine those rules and measure the theoretical criticism against the hard facts of a living system of justice. This opinion has been longer than we would have liked, but there seemed to be a need.
To summarize then:
1. The deposition of Burditt was admissible in evidence even though Burditt was present in the courtroom.
2. The use of Burditt’s deposition did not make him the plaintiff’s witness.
3. The exclusion of that portion of the deposition containing the prior inconsistent statements of Burditt offered for impeachment purposes was error, as to Burditt.
4. The refusal to permit plaintiff to cross-examine Burditt upon his prior inconsistent statements was error, as to Burditt.
5. The prior inconsistent statements of Burditt, offered for impeachment purposes, did not constitute admissible substantive evidence as to the co-defendant Boby.
6. Where no appeal has been taken against Burditt, the errors as to him did not constitute reversible, prejudicial error in this appeal taken against Boby only.
The judgments of the trial court and the Court of Appeals are affirmed, with costs to the appellee.
Dethmers, C. J., and Souris, and O’Hara, JJ., concurred with Brennan, J.
Kelly, J., concurred in result.
2 Mich App at 563. — Reporter.
GCR 1963, 302.4, 302.6.
CLS 1961, § 600.2161 (Stat Ann 1962 Rev § 27A.2161).
Mally v. Excelsior Wrapper Co. (1914), 181 Mich 568.
“(2) The deposition of a party or anyone who at the time of the transaction or occurrence out of whieh the action arose or at the time of taking the deposition was an officer, director, employee, or agent of any party may be used by an adverse party for any purpose.”
Gilmore, 1 Michigan Civil Procedure Before Trial (ICLE), pp 635, 636, 637.
“(3) The deposition of a witness, whether or not a party, when properly filed in accordance with subrule 306.6(1) or subrule 307.2, may be used by any party for any purpose if the court finds: [I] that the deponent is an expert witness; or [2] that the witness is dead; or [3] that the witness is at a greater distance than 50 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or [4] that the witness is unable to attend or testify because of age, sickness, insanity, infirmity, or imprisonment; or [5] that the witness is not subject to process or that the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or [6] upon motion and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”
GCR 1963, 302.5
“.5 Objections to Admissibility. Subject to the provisions of sub-rule 308.3, objection may bo made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if t-he witness were then present and testifying.”
Gibbard v. Cursan (1923), 225 Mich 311.
See Tisman v. School-District, 90 Mich 510, an 1892 case; McClellan v. Fort Wayne & B. I. R. Co., (1895), 105 Mich 101; and Perry v. F. Byrd, Inc. (1937), 280 Mich 580.
Perry v. F. Byrd, Inc., supra.
Pulitzer v. Chapman (1935), 337 Mo 298 (85 SW2d 400); State v. Jolly (1941), 112 Mont 352 (116 P2d 686).
9A Uniform Laws Annotated, p 635. — Reporter. | [
1,
-34,
-35,
6,
-10,
-23,
8,
2,
25,
-12,
-40,
-26,
23,
-27,
12,
18,
11,
-16,
-44,
-54,
-27,
-55,
-12,
25,
-6,
-3,
18,
-47,
3,
16,
13,
38,
1,
-49,
52,
9,
58,
23,
-29,
53,
-11,
-42,
5,
-7,
-58,
-43,
10,
-56,
-2,
-28,
-35,
-24,
6,
3,
22,
18,
57,
38,
-51,
-7,
-8,
-39,
5,
-12,
-72,
15,
14,
53,
-18,
28,
26,
35,
31,
16,
-48,
-1,
-23,
-17,
0,
13,
-29,
34,
50,
-11,
-2,
-37,
-33,
-50,
-22,
-37,
26,
-27,
10,
16,
12,
30,
-41,
-55,
39,
13,
-15,
17,
2,
18,
-14,
16,
-45,
-80,
35,
-7,
-37,
52,
53,
48,
14,
0,
6,
-23,
-24,
16,
-23,
-23,
29,
-21,
-40,
28,
9,
-29,
50,
0,
56,
38,
-16,
14,
11,
-9,
-11,
-40,
-14,
-3,
10,
2,
-16,
-13,
24,
57,
-41,
24,
-30,
8,
-33,
3,
0,
-8,
-30,
-34,
21,
-33,
28,
-20,
-5,
-35,
59,
35,
-87,
-12,
-18,
55,
-6,
17,
14,
-10,
-17,
14,
51,
25,
-27,
-1,
-66,
28,
-30,
-9,
-29,
-24,
-48,
-92,
23,
10,
-26,
21,
33,
3,
-14,
18,
9,
51,
0,
-22,
16,
9,
69,
-43,
26,
-47,
-17,
-45,
-43,
7,
15,
27,
12,
-53,
-4,
-5,
-39,
-11,
58,
9,
17,
-1,
9,
-14,
42,
-6,
-29,
-25,
-34,
-23,
-44,
-6,
81,
-27,
-12,
73,
-69,
1,
-3,
-37,
21,
-15,
17,
-4,
-4,
-28,
45,
4,
15,
-10,
-2,
-17,
36,
28,
32,
11,
-24,
-14,
38,
37,
0,
-39,
-19,
23,
-7,
45,
7,
20,
-2,
-5,
6,
-64,
19,
-33,
-7,
27,
-1,
4,
11,
19,
40,
60,
35,
6,
-72,
-7,
6,
-2,
-34,
40,
0,
-47,
43,
-52,
18,
-18,
22,
50,
21,
2,
-23,
-3,
45,
24,
49,
29,
-3,
17,
32,
-13,
8,
35,
-40,
-21,
24,
5,
52,
0,
48,
-36,
61,
31,
8,
63,
-14,
32,
-9,
5,
-3,
0,
6,
33,
2,
58,
-19,
1,
25,
-76,
2,
20,
-16,
-3,
24,
36,
56,
11,
-37,
-28,
69,
70,
-73,
-41,
-84,
-26,
11,
-15,
-40,
28,
63,
-7,
18,
39,
2,
-22,
-11,
111,
-23,
-70,
49,
9,
-24,
52,
37,
-41,
-28,
-3,
-2,
-78,
17,
10,
-8,
75,
0,
50,
-24,
-8,
-38,
20,
-41,
-51,
-38,
18,
-34,
11,
34,
-42,
-10,
-5,
18,
21,
-50,
-31,
-25,
32,
19,
-15,
-41,
35,
-42,
45,
-13,
-39,
-33,
-35,
-2,
-4,
-19,
6,
10,
0,
-57,
24,
-20,
26,
30,
-48,
-27,
-40,
-40,
-7,
7,
-9,
26,
13,
19,
-10,
26,
-42,
-49,
-20,
52,
-18,
23,
20,
37,
-4,
7,
56,
-10,
27,
19,
4,
58,
0,
18,
21,
-24,
16,
37,
19,
25,
15,
-45,
-41,
67,
4,
9,
25,
-1,
-12,
-13,
18,
-9,
31,
-33,
23,
9,
-48,
1,
-21,
14,
-29,
-53,
1,
16,
-21,
-48,
-27,
47,
-14,
57,
1,
51,
-1,
-64,
-7,
-26,
7,
1,
29,
-24,
-12,
-19,
60,
-70,
-3,
20,
-38,
-44,
-18,
-33,
-29,
19,
11,
14,
17,
5,
-6,
52,
-16,
6,
12,
-31,
59,
-2,
3,
-4,
-18,
8,
-12,
-29,
-42,
36,
-10,
10,
24,
12,
-25,
-16,
24,
10,
-30,
43,
22,
-34,
0,
-60,
-34,
29,
-13,
9,
16,
8,
-16,
-7,
-60,
45,
-10,
72,
-34,
-58,
9,
-30,
7,
-11,
16,
35,
0,
10,
-15,
48,
-15,
-39,
29,
5,
-2,
-40,
5,
5,
40,
-55,
-14,
-9,
12,
-23,
63,
-51,
4,
-3,
37,
-22,
-37,
2,
18,
-20,
27,
53,
5,
6,
-39,
-32,
-33,
24,
-5,
-35,
38,
29,
24,
-6,
-29,
24,
-52,
24,
-21,
-52,
-3,
-28,
14,
-15,
-57,
8,
-3,
41,
57,
-15,
13,
-10,
68,
49,
-6,
-28,
-29,
-27,
-6,
-26,
27,
-62,
-44,
5,
64,
-3,
-15,
18,
21,
29,
-33,
13,
-4,
-36,
22,
-13,
-4,
-68,
11,
-24,
-9,
-33,
-11,
2,
13,
-71,
-2,
17,
16,
-47,
-66,
-17,
-34,
-18,
22,
-17,
13,
34,
-31,
-6,
-34,
3,
109,
0,
57,
0,
11,
7,
1,
21,
-28,
-7,
21,
-11,
11,
7,
-39,
-24,
27,
22,
16,
-24,
3,
58,
18,
0,
21,
-7,
-4,
-7,
53,
-63,
-23,
8,
-47,
0,
14,
-23,
31,
54,
-38,
0,
51,
-6,
15,
-13,
-33,
-27,
-6,
-16,
-43,
-6,
-10,
30,
-44,
-3,
-43,
56,
-6,
0,
-19,
-2,
-26,
67,
-7,
14,
7,
-34,
23,
-15,
-13,
-33,
-40,
-11,
34,
32,
19,
11,
34,
51,
17,
23,
-15,
58,
-4,
-14,
-28,
-8,
11,
46,
6,
-7,
31,
-25,
50,
8,
-17,
-32,
-9,
3,
-2,
-39,
43,
-26,
-34,
-15,
-25,
42,
-16,
-7,
1,
-3,
0,
0,
12,
29,
28,
-10,
95,
64,
-12,
-15,
68,
20,
1,
4,
20,
53,
31,
5,
82,
29,
-29,
32,
83,
23,
36,
16,
48,
-34,
-87,
-28,
-42,
6,
0,
-14,
5,
-3,
-1,
-36,
-34,
-33,
0,
8,
-29,
0,
-43,
13,
-50,
-16,
26,
-20,
51,
7,
8,
-46,
-40,
43,
93,
-35,
1,
7,
-10,
34,
15,
6,
22,
-6,
-35,
28,
8,
-50,
-31,
-26,
-13,
-46,
13,
-49,
-72,
-65,
-20,
12,
17,
23,
49,
5,
5,
9,
7,
-16,
13,
13,
0,
51,
-70,
1,
-48,
-42,
-47,
-8,
76,
-7,
-10,
18,
-29,
-55,
31,
-12,
-1,
11,
-8,
-99,
-16,
-25,
44,
33,
-15,
-55,
67,
-62,
18,
-11,
-14,
9,
9,
-56,
21,
64,
-13,
-24,
-1,
1,
32,
-38,
-17,
-6,
20,
20,
10,
25,
-36,
30,
40,
-21,
-1,
-48,
20,
40,
-25,
-15,
-38,
23,
39,
-7,
37,
-82,
-31,
55,
27,
-39,
-3,
5,
-14,
11,
-26,
-51,
13,
54,
34,
20,
39,
-11,
44,
0,
-28,
-3,
65,
-2,
18,
75,
1,
72,
-9,
1,
0,
31,
-1,
3,
7,
-3,
-27,
9,
-55,
63,
-20,
-46,
-45,
-29,
-12,
-27,
70,
-13,
-21,
-19,
-64,
-77,
73,
-40,
-23,
-25,
15,
-38,
8,
35,
24,
22,
-50,
-9,
0,
59,
30,
-28,
-19,
27,
11,
74,
35,
-25,
50,
-19,
-26,
38,
39,
-38,
-8,
-10,
-30,
-44,
-34,
1,
-38
] |
Adams, J.
Plaintiffs brought an action under CLS 1961, § 436.22, CL 1948, §§ 436.29, 436.44 (Stat Ann 1965 Cum Supp § 18.993, Stat Ann 1957 Rev §§ 18.1000, 18.1015), to recover damages arising out of the death of Jo Ann "Wills. At the conclusion of three days of proofs, the court directed a verdict for the defendants because of failure of proof that defendants had illegally sold or served intoxicating liquor to one Sutton while he was intoxicated, or that the liquor sold or furnished by defendants caused or contributed to the death of plaintiffs’ decedent.
In denying a motion for new trial, the trial judge found as follows:
“In reviewing the testimony the court found and now finds that there was evidence that deceased Sutton was served three drinks in defendants’ bar before midnight on the night in question having entered the bar between 9-10 o’clock in the evening (see testimony of Agnes Hendrix). There is no evidence that he was served or sold a drink after that. As to Jacqueline Shepard’s testimony, she could not say exactly what she had heard the waitress say as to intoxication the next morning. In any event, her testimony was not as positive as plaintiffs contend.
“Witness John Brooks, who eventually did state that he thought deceased Sutton was ‘snokered,’ placed him, not at defendants’ bar, but at the Office Lounge. He could not be certain of the date or time. He plays in dance bands and had seen deceased Sutton at many bars previously. Martha Watkins testified definitely that this incident occurred on the night previous to the night of the fatal accident. Should the court allow the jury to speculate as to witness Brooks’ assertions, when he admittedly has no memory for dates and times ?
“Witnesses Sheppard, Yarner and Hendricks did not testify that deceased Sutton was intoxicated the evening in question.
“After leaving defendants’ bar there is testimony that deceased Sutton was at the Rose Bowl restaurant where he had coffee and food. He did not appear intoxicated there. Then sometime after that he had driven his car approximately 10 miles on a busy highway running through the city of Flint to the scene of the accident. The accident occurred about 3 a.m., some three hours after he was last served at defendants’ bar. * * *
“As to the source of any drinks shown to have been on the table in front of Sutton after 12 o’clock at defendants’ bar, the jury can not be left to speculate. See Nyland v. Gemo (1940), 295 Mich 75, 78.
“There is no evidence that deceased Sutton when he was intoxicated was sold alcoholic beverages at defendants’ bar.
“Under these facts where deceased Sutton was away from defendants’ bar an undetermined period of time, the inference is that he could have consumed alcoholic beverages from some other source. Such inference cannot be held as evidence against the defendants, even in a view most favorable to plaintiffs.
“The hiatus in proof here occurs after 12 o’clock. In Bryant v. Athans (1960), 362 Mich 17, 18, it was after 10 o’clock. The Court there concluded the proofs of causal connection between the statutory violation and decedents mortal injuries were conjectural.
“The court concludes in this ease that the statutory violation as well as the causal connection as to decedent’s mortal injuries were conjectural, and therefore plaintiffs’ proofs should not go to the jury, even when reviewed in the most favorable light.”
The case was appealed to the Court of Appeals. The decision of that Court, reported in 4 Mich App 651, 652, reads in part as follows:
“Appellants established that Thomas Sutton entered Contos Bar between 9 and 10 p.m., April 13, 1961. He was served 3 drinks from the time he entered and 12 o’clock midnight. There is testimony that sometime between 10:30 p.m. and 1 a.m. of the following morning he left Contos Bar and went across the street to the Office Lounge, returning to Contos Bar later in the evening. John W. Brooks, a musician at the Office Lounge, testified that Sutton was loud and boisterous at the Office Lounge in contrast to his usual personality, which was quiet and reserved. Brooks would not say that Sutton was drunk, but he did state that he was ‘schnockered.’ Brooks also testified that Sutton was accompanied by a red-haired woman. Jo Ann Wills did not have red hair. There is no doubt that Sutton sat at Contos Bar with Jo Ann Wills until it closed. She was a barmaid at Contos Bar and had worked until 12 midnight.
“After Contos closed, Sutton and the deceased went to the Rose Bowl restaurant to have coffee, and while they were en route to her home, approximately 10 miles north of the restaurant, Sutton’s car left the road on a sharp curve.
“The strongest testimony offered by the appellant was that of Jacqueline Shepard, a waitress at the Contos Bar, who testified, after her memory was refreshed from a deposition taken a year before, as follows:
“ ‘Q. I will ask you again: Did you recall Aggie, Mrs. Hendrix, [Mrs. Hendrix was the barmaid on duty at Contos Bar the night of the accident] say anything about the condition of Mr. Sutton the night before the accident?
“ ‘A. Yes. It was what she was worried about, because she considered the fact that he was drunk, and that she served him.
“ ‘Q. Did she say she thought that he was?
“‘A. Yes.’
“However, when cross-examined by appellees’ counsel at the deposition, the witness stated she could not remember exactly what Mrs. Hendrix had said the next day.
“The only persons present in the defendants’ establishment on the tragic night who testified, were Jacqueline Shepard, Juanita Varner, and Agnes Hendrix. They all testified they only knew of 3 drinks being served to Sutton, and that he was not served any drinks after 12 midnight. There is absolutely nothing in the record to establish that the defendants sold, gave, or delivered any drinks to Sutton while he was intoxicated.
“Liability in this case must be predicated upon proof of a sale to Sutton while he was in an intoxicated condition. Nylund v. Gemo (1940), 295 Mich 75; Juckniess v. Supinger (1949), 323 Mich 566.
“The trial judge found as a matter of fact:
“ ‘There is no evidence that deceased Sutton when he was intoxicated was sold alcoholic beverages at defendants’ bar.’
“We have carefully reviewed the record and concur in the trial court’s conclusion. There being no positive or circumstantial evidence of such a sale, the action must fail as a matter of law.”
This case presents two questions:
1. Was there sufficient evidence to present to the jury as to whether there was illegal service of intoxicants by defendants to Thomas Sutton?
2. Was the evidence sufficient to go to the jury as to whether the intoxication of Sutton was causally connected to the accident in which Jo Ann Wills was killed?
Both of the above questions turn upon the evidence presented for plaintiffs at the trial. While ordinarily this Court does not review questions of fact after determination of the same by the trier of the facts and review by the Court of Appeals, inasmuch as the jury, the trier of the facts in this case, was not allowed to determine the facts, we set forth in this opinion in considerable detail the testimony we believe was sufficient upon favorable view to support plaintiffs’ ease.
Thomas Sutton entered the Contos Cocktail Lounge, defendants’ bar, between 9 and 10 o’clock on the evening of April 13, 1961. Agnes Hendrix was employed as a waitress, barmaid and manager, at the Lounge. The following questions and answers appear in her deposition which was taken and read into evidence:
“Q. Do you recall how many drinks you personally served to Mr. Sutton?
“A. Two or three.
“Q. Do you recall over what period of time you served these drinks?
“A. It was between 9 and 12.”
Sometime during the evening, Sutton left the Contos Cocktail Lounge and went to another bar nearby, the Office Lounge. John Winstead Brooks, a part-time bass fiddle player at that lounge, testified:
“Q. What was the first thing that attracted your attention to the fact that Mr. Sutton had come into the lounge, Office?
“A. You want me to throw profanity in here?
“Q. We want the truth. If it’s profanity then let go.
“A. ‘Hello, you fat bastard.’
“Q. Is that what he said?
“A. Yes, sir. So help me God.
“Q. How far away were you from him?
“A. Well, at the time the Lounge was packed. If you have ever been in a packed bar it’s awful hard to be heard above screaming females and men. And I heard it.
“Q. Did everybody else in the bar hear too?
“A. Yes. They all went like that (indicating), because — well, by here — wait a minute. Let me say something. Everybody knew Tom. He was very well liked.
“Q. I see.
“A. And it was so surprised to see him when— they call it schnockered. That’s what I call it. That’s slang part.
“Q. Was he on this night?
“A. He was a weaving back and forth. I mean, I didn’t get close enough to smell his breath, put it like that.
“Q. Did he have difficulty walking?
“A. Yes.”
Upon cross-examination, as noted by the trial judge in his opinion, it was developed that Brooks had no memory for dates and time. It was for this reason the trial judge refused to allow the jury to consider Brooks’ testimony.
Upon redirect-examination, the following was elicited from Brooks:
“Q. Mr. Milliken said something about being certain about the date that this all happened on, when there was—
“A. It was the night of the accident.
“Q. Would you tell the jury what you did when you got off work that night, and when you first found out about the accident?
“A. I went downtown and had a hot dog. I don’t know whether this — I went home eventually. It was no four, five hours, or anything like that. I walked in the door. My wife, she said — my wife said ‘honey, Tom Sutton has been killed’. I said: ‘Okay. Okay. Whose pulling my leg?’ She said: ‘No. He got killed out here on Dort Highway.’ I said: ‘Oh, my God. I told him to take it easy.’ He said that he’s — I don’t — I don’t know whether that’s the exact what I said in my deposition or not. I just talked to the guy a few hours earlier and it was just such a shock.
“Q. In other words, you are testifying about these things that happened just before his death?
“A. Eight.”
The mere fact that Brooks was somewhat vague under cross-examination with regard to all of the facts and circumstances of Sutton’s visit to the Office Lounge did not warrant the trial judge’s withholding the clear and positive testimony this witness gave with regard to Sutton’s condition upon the night which the witness precisely identified as being the one when the accident occurred.
Plaintiffs developed proof from the testimony of Jacqueline Ann Shepard, who worked as a waitress in the Contos Lounge, that Sutton was drinking when he returned later in the evening to that bar. The testimony is as follows:
“Q. Now, when Mr. Sutton came back to the bar on the second occasion; you said it was later in the evening, did you see anything in front of him, or did you see whether he was drinking?
“A. I think — I think he was, yes.
“Q. This was after he had come back into the bar from wherever he had gone? Is that correct?
“A. Yes.”
Sutton left defendants’ bar about 2:30 a.m. and drove Jo Ann Wills to a restaurant a mile south of the bar. The accident occurred some 30 to 35 minutes after they left defendants’ lounge and 9 to 10 miles north of the restaurant. The Sutton car left the road at over 100 miles per hour as it entered a curve. It traveled 658 feet from the highway to point of last impact at a tree. There was testimony the car struck a culvert and traveled approximately 200 feet in mid-air, shearing off branches from the tops of trees as high as 15 feet from the ground. Jo Ann Wills was catapulted 67 feet through the windshield and killed instantly. Sutton was found under the burning car. His blood hemolyzed. Consequently, a blood test, although attempted, was not possible.
Jacqueline Shepard testified that after the accident she had a conversation with Agnes Hendrix, the waitress, barmaid, and manager of the Contos Cocktail Lounge, a portion of whose deposition has previously been quoted. The testimony of Mrs. Shepard is as follows:
“Q. (By Mr. Beltz): I will ask you again: Did you recall Aggie, Mrs. Hendricks, say anything about the condition of Mr. Sutton the night before the accident?
“A. Yes. It is what she was worried about, because she considered the fact that he was drunk, and that she served him.
“Q. Did she say that she thought that he was ?
“A. Yes.”
Plaintiff Hattie Eisenzimmer, the mother of Jo Ann 'Wills, testified to a conversation with Martha Watkins, .a waitress at the Contos Lounge, which took place 3 or 4 days after Jo Ann Wills’ funeral, when Martha Watkins brought a purse of money to Mrs. Eisenzimmer. Mrs. Eisenzimmer’s testimony is as follows:
“Q. Now, did she [Martha Watkins] tell you anything about Thomas Sutton’s condition on the night of your daughter’s death?
“A. She said he was drunk.
“Q. Did she say anything else about him?
“A. Well, she said that they had had an argument in the Contos’ Rose Bowl, and not to blame Jo Ann. But he was drunk.”
There was testimony of Brooks that Sutton was in an intoxicated condition; testimony of Jacqueline Shepard, an employee of the defendants, that Sntton had at least one drink after returning to the Contos’ Bar; her further testimony to a conversation, after the accident, with Aggie Hendrix, bartender at defendants’ establishment the night and early morning prior to the accident, in which Mrs. Hendrix stated Sutton was drunk; and the admission against interest of Martha Watkins to the same effect in a conversation testified to by Mrs. Eisenzimmer.
From this testimony, which we view most favorably to the plaintiffs, a jury could conclude that Sutton was served drinks by the defendants while he was in an intoxicated condition, and that such condition impaired his judgment and his faculties so as to be causally related to the ensuing accident. The conflicting accounts of Sutton’s intoxication during the night and early morning and of the intervals when liquor was served to him by defendants’ employees prior to the accident presented issues of fact to be resolved by the jury. See Shandor v. Lischer (1957), 349 Mich 556; Grinstead v. Anscer (1958), 353 Mich 542; Davis v. Terrien (1961), 364 Mich 82; Fletcher v. Flynn (1962), 368 Mich 328; and Schratt v. Fila (1963), 371 Mich 238.
The decision of the Court of Appeals is reversed and the case is remanded to the trial court for a new trial. Costs to appellants.
Dethmers, C. J.,.and Kelly, Black, T. M. Kavanagh, Souris, O’Hara, and Brennan, JJ., concurred.
The name Hendrix is sometimes spelled Hendricks, The same, person is involved. — Reporter. | [
-1,
31,
-13,
0,
7,
-36,
39,
28,
-10,
49,
22,
-53,
35,
-24,
38,
-11,
13,
27,
0,
-69,
-14,
-12,
-32,
-14,
-5,
-12,
12,
-10,
-37,
25,
22,
-22,
9,
-18,
33,
27,
73,
0,
-10,
49,
-33,
3,
0,
31,
-10,
-44,
-16,
-37,
33,
3,
2,
-24,
4,
-11,
15,
-28,
9,
25,
-23,
32,
7,
2,
-12,
-40,
-27,
-9,
8,
20,
8,
-9,
-18,
5,
-28,
26,
-22,
-41,
-10,
51,
-35,
-4,
-12,
3,
72,
50,
-1,
0,
-39,
-26,
-8,
-8,
12,
14,
-24,
-65,
-12,
0,
6,
-24,
19,
-15,
-2,
-15,
-40,
0,
19,
30,
-43,
-7,
-45,
-25,
-47,
-12,
64,
40,
-21,
-45,
6,
-7,
-71,
8,
24,
-21,
58,
-12,
0,
-30,
21,
-7,
-16,
11,
33,
18,
47,
-3,
-22,
-16,
-20,
8,
-70,
-36,
53,
4,
18,
0,
36,
17,
7,
54,
4,
28,
-63,
11,
11,
10,
15,
-35,
35,
-30,
13,
-8,
18,
19,
4,
-28,
-1,
-11,
-6,
6,
13,
-69,
-10,
0,
11,
15,
56,
50,
23,
-39,
-90,
-17,
-30,
17,
10,
20,
49,
-31,
-6,
-10,
26,
3,
7,
6,
-10,
45,
-17,
26,
19,
12,
55,
-18,
1,
-30,
24,
-26,
8,
29,
1,
11,
36,
26,
4,
-14,
20,
-41,
-26,
-92,
-6,
-43,
3,
-55,
-20,
-15,
15,
-28,
-50,
13,
-20,
-27,
-54,
10,
15,
-30,
10,
40,
-23,
-29,
1,
-36,
49,
-12,
-6,
4,
-31,
-18,
-25,
18,
-23,
-6,
-11,
16,
23,
40,
-22,
-1,
-29,
-47,
1,
0,
1,
-9,
41,
79,
-45,
37,
-32,
9,
15,
8,
-36,
-12,
-17,
-56,
21,
31,
0,
-31,
1,
20,
1,
33,
20,
23,
-1,
18,
-32,
23,
-50,
59,
10,
-11,
46,
7,
-65,
-15,
14,
24,
9,
63,
2,
43,
30,
21,
6,
73,
-78,
-15,
-20,
15,
-42,
-43,
-16,
9,
10,
9,
46,
17,
16,
-9,
69,
-9,
-10,
-3,
-24,
-14,
-16,
-45,
0,
4,
8,
4,
-15,
63,
11,
1,
-26,
-52,
-7,
-41,
-14,
61,
-7,
-14,
-16,
26,
3,
33,
12,
17,
-27,
-64,
-32,
-1,
42,
5,
-1,
7,
33,
-64,
21,
11,
-1,
-54,
-13,
82,
-4,
-25,
25,
-15,
25,
53,
22,
1,
-42,
1,
-45,
-24,
26,
-2,
16,
40,
20,
-18,
20,
-43,
-17,
16,
-4,
-51,
10,
74,
-9,
9,
8,
-21,
12,
19,
-42,
22,
4,
11,
-38,
0,
41,
-42,
-31,
2,
-22,
-22,
52,
4,
-70,
22,
39,
6,
-21,
13,
-5,
-3,
-43,
4,
21,
26,
15,
-55,
37,
-22,
-9,
46,
15,
-27,
-22,
10,
20,
-2,
-19,
-9,
8,
-36,
32,
1,
-40,
-21,
-13,
6,
16,
57,
-6,
-11,
5,
53,
26,
35,
23,
15,
-53,
37,
44,
6,
0,
-37,
48,
-24,
-37,
-9,
74,
-4,
-53,
-1,
-21,
-23,
31,
8,
9,
-18,
-45,
10,
16,
43,
40,
6,
20,
34,
-3,
-5,
-18,
-4,
-24,
-60,
30,
-7,
79,
0,
-15,
16,
-66,
-36,
13,
21,
-91,
0,
-6,
-19,
-45,
-18,
39,
6,
12,
-15,
-9,
-2,
11,
15,
-2,
-37,
-13,
-35,
2,
2,
-37,
18,
32,
-10,
-26,
-20,
-70,
-31,
20,
-15,
-4,
-59,
31,
-5,
-13,
-49,
17,
0,
-2,
-4,
-33,
-6,
33,
34,
9,
17,
-19,
3,
-18,
-34,
16,
51,
0,
-22,
-36,
-32,
-19,
-4,
35,
-11,
-66,
-20,
3,
-2,
-9,
48,
64,
-6,
-27,
13,
72,
-19,
-33,
29,
25,
-54,
-25,
26,
12,
-6,
-56,
-6,
24,
44,
-8,
25,
-35,
4,
40,
6,
-49,
-33,
-22,
12,
-1,
-13,
75,
-13,
15,
-55,
0,
-4,
90,
0,
0,
19,
34,
7,
-47,
-13,
-10,
-36,
63,
-14,
-25,
-39,
-35,
4,
2,
-5,
-28,
33,
19,
22,
-2,
12,
26,
26,
-16,
-8,
-12,
-34,
-34,
-33,
-14,
-5,
-39,
5,
-20,
1,
-29,
-49,
25,
27,
21,
9,
17,
-4,
-38,
38,
-30,
-8,
-48,
9,
13,
1,
-19,
-60,
10,
-50,
-54,
-11,
-6,
32,
-24,
13,
-2,
2,
36,
-37,
-17,
24,
33,
24,
12,
11,
40,
8,
-61,
3,
0,
36,
-30,
-35,
35,
-54,
11,
8,
-22,
-5,
35,
2,
-40,
26,
-7,
12,
-28,
46,
19,
0,
-29,
-55,
16,
-53,
9,
-5,
-43,
-5,
50,
-38,
-16,
42,
-31,
58,
1,
-14,
11,
-5,
23,
41,
-29,
31,
-43,
8,
46,
-79,
-20,
-16,
32,
9,
4,
-79,
53,
0,
-8,
33,
8,
4,
-2,
-31,
-18,
8,
-3,
7,
5,
-38,
-12,
-25,
2,
16,
22,
62,
14,
23,
50,
36,
9,
56,
70,
0,
-36,
-41,
14,
-2,
-8,
-35,
-28,
2,
-30,
49,
16,
32,
-51,
-1,
-10,
-29,
-59,
47,
-19,
-19,
22,
-26,
8,
0,
-34,
17,
8,
-10,
0,
-13,
-5,
35,
-33,
1,
34,
13,
-4,
10,
36,
35,
-10,
-2,
39,
25,
77,
11,
64,
-29,
-11,
-24,
24,
-6,
55,
8,
42,
-31,
-37,
-3,
-20,
-37,
-40,
-2,
58,
12,
-1,
-29,
-10,
-37,
-28,
-20,
-27,
-28,
-13,
-45,
0,
17,
56,
34,
37,
-25,
-14,
0,
38,
57,
17,
54,
-20,
-14,
58,
-6,
-45,
35,
-15,
16,
4,
-26,
-21,
19,
-52,
-11,
-10,
50,
-25,
8,
-35,
-31,
3,
-1,
20,
18,
4,
44,
-16,
9,
17,
50,
-40,
14,
10,
-39,
-27,
-27,
39,
-7,
17,
39,
27,
-14,
20,
-21,
-30,
44,
26,
33,
13,
-12,
-47,
-8,
4,
6,
5,
-39,
-62,
-29,
-16,
21,
56,
-67,
-1,
0,
-13,
27,
-10,
-5,
11,
-8,
27,
4,
-52,
8,
41,
9,
27,
20,
28,
18,
17,
12,
-29,
-11,
-44,
-10,
-37,
-10,
-20,
0,
-19,
29,
19,
-19,
-12,
-8,
5,
14,
-12,
45,
-5,
2,
-29,
-5,
-27,
25,
15,
15,
5,
58,
-10,
3,
-28,
19,
-7,
34,
-15,
43,
26,
54,
58,
8,
-16,
2,
-2,
57,
32,
-20,
12,
9,
-12,
-1,
32,
31,
-29,
-20,
-8,
-44,
-5,
-11,
18,
28,
-8,
-16,
-33,
32,
-71,
-18,
20,
22,
-51,
21,
-33,
3,
28,
5,
4,
-7,
-10,
31,
38,
-58,
-1,
50,
-6,
-11,
-41,
-26,
-1,
-19,
-52,
53,
-5,
-39,
-68,
22,
-19,
47,
-16,
13
] |
Kelly, J.
Plaintiff filed its complaint on August 13, 1964, in the Wayne circuit court, seeking an injunction restraining the city of Detroit and its Department of Street Railways from transporting-passengers for hire from the Detroit city limits to the city of Livonia. The trial court granted Michigan Motor Bus Association’s motion for leave to intervene.
Defendant moved for the entry of an accelerated judgment as a matter of law. In passing on this motion, the trial court denied plaintiffs’ request for injunctive relief on two grounds: First, that the home rule act authorized the city of Detroit so to operate, and second, that such operations were exempt from the provisions of the motor carrier act.
In a split decision the Court of Appeals (2 Mich App 591) disagreed with the trial court’s interpretation of the home rule act and held that the act limited the DSR operations to suburbs which are contiguous and bordering on the city of Detroit. Defendant appeals from that ruling. The Court of Appeals agreed with defendant that the DSE need not comply with the motor carrier act and plaintiffs cross-appeal.
Question No. 1.
“Are the motor carrier operations of Detroit’s municipally owned transportation system beyond the city limits confined to municipalities and areas having common boundaries with the city of Detroit?”
This question involving interpretation of the home rule act calls for judicial determination of legislative intent as expressed in section 4f, subdivisions (2) and (3) of that act, which provide:
“Each city may in its charter provide * * * for * * * operating transportation facilities within * * * its adjacent and adjoining suburbs within a distance of 10 miles from any portion of its city limits.”
“Each city may in its charter provide * * * for the operation of transportation lines without the municipality and within 10 miles from its corporate limits.”
The opinions found in 2 Mich App 591-598 explain how two members of the Court of Appeals interpreted the act differently than the trial judge and one member of the Court of Appeals.
After carefully considering these judicial interpretations and the able briefs and oral arguments of opposing parties, we conclude that the home rule act permits and authorizes the DSE to extend its transportation system 10 miles beyond the Detroit city limits.
Question No. 2.
“Are the operations by the DSR as a common motor carrier of passengers for hire outside the corporate limits of the city of Detroit subject to the provisions of the Michigan motor carrier act?”
This Court’s determination of legislative intent as expressed in the following two sections of the act will provide the answer to this question.
CL 1948, §476.1 (Stat Ann §22.534) provides:
“No common motor carrier of passengers * * * shall operate any motor vehicle for the transportation of * * * persons * * * for hire on any public highway in this State except in accordance with the provisions of this act. It shall be unlawful for any common motor carrier of passengers * * * to operate upon any public highway without first having obtained from the commission a certificate of public convenience and necessity.”
CLS 1961, § 479.2 (Stat Ann 1965 Cum Supp § 22.567) [the pertinent exemption section] is as follows:
“This act shall not apply to: * * *
“(c) Vehicles owned or operated by any incorporated city, village or school district, or by any county or township in the State or by any corporation, agency or instrumentality of the same, for governmental purposes(Emphasis ours.)
Referring to the exemption words “for governmental purposes,” plaintiffs state:
“It is appellants’ position that in operating its motor coaches as a common carrier of passengers for hire beyond the limits of the city of Detroit, the DSR is engaged in a proprietary function, not a governmental function. * * * No cqse decided by this Court holds that operation of a bus line in communities outside its corporate limits constitutes the performance by a municipality of a municipal operation ‘for governmental purposes.’ ”
and claim that exempting the DSN from the provision of the act “would introduce chaos into what has been an orderly area of business activity fairly responsive to any public need. The DSN would be permitted to institute and discontinue service at will whenever its fancy suited, charge whatever rates it decided to fix, operate any kind of equipment, and as few schedules as it desired. The only test would be its own self interest.”
Defendant explains its interpretation of the exemption provision by stating:
“Exempting municipally owned and operated transportation systems from the jurisdiction of the Michigan public service commission and from the operation of the ‘motor carrier act’ and thus permitting expansions of their operations as new neighborhoods and areas develop in the surrounding communities, has been and is a legislative device of encouraging and authorizing municipally owned public utilities furnishing motor coach passenger services to become an integral part of the entire metropolitan area.”
Michigan Motor Bus Association’s motion for leave to intervene emphasized the far-reafehing effect of this decision by stating:
“Members of the petitioning association operate over and between various routes both .within and without municipal boundaries through the State of Michigan. A determination in the instant proceeding will be applicable both insofar as the operations of petitioner’s members throughout the State of Michigan operations are concerned, as well as to the operations of motor vehicles in the transporta tion of passengers for hire by all municipalities throughout the State similarly situated to defendant.”
In Frederick v. City of Detroit, 370 Mich 425, we stated that defendant in operating its buses is a common motor carrier of passengers and subject to the rules of law applicable to such carriers.
We considered the motor carrier act in Lafayette Transfer & Storage Co. v. Michigan Public Utilities Commission, 287 Mich 488 (28 PUR NS 455), and there said (p 491):
“PA 1933, No 254, is the only act now in force governing the issuance of permits to motor vehicle carriers for hire. This statute was a consolidation of previous acts, it covered the entire field, it was an original and independent act. It conferred new powers upon the Michigan public utilities • commission, defined those powers, and provided for new regulations for motor vehicle carriers for hire upon the public highways, whether such carriers tuere public or private carriers.” (Emphasis ours.)
In Borski v. City of Wakefield, 239 Mich 656, we decided whether a city was liable in a tort action, and held that, when a city operates a common carrier of passengers for hire, it is engaged in a proprietary function.
The trial court disagreed with plaintiffs’ contention that Borski should be considered as the controlling precedent. The trial judge stated that, although he was aware of the “oft-quoted distinction between the governmental and proprietary functions and operations of a municipality,” yet he disagreed with plaintiffs because “the words ‘governmental purposes’ in the exemption clause of the motor carrier act have a much more general application and meaning.”
We agree -with the trial court’s conclusion in regard to the limited meaning of Borshi. This case only discloses that the facts and circumstances of each case determine whether a city is engaged in a proprietary or governmental function.
In Grand Rapids Motor Coach Company v. Public Service Commission, 323 Mich 624, we construed the words used in the exemption provisions of subdivision (a), which precedes the exemption provisions of subdivision (c) which is at issue in this appeal.
Subdivision (a) provides:
“This act shall not apply to:
“(a) Vehicles operated entirely within any city or village of this State; nor to motor carriers of passengers whose local operations may extend a distance of not to exceed 2 miles beyond the boundary of such city or village in which such local operations are wholly carried on, provided such extension shall not be to or into another city or village.” CLS 1961, § 479.2 (Stat Ann 1965 Cum Supp § 22.567).
The words “wholly carried on” were in dispute in Grand Rapids Motor Coach, whereas the dispute in the present appeal concerns the words “for governmental purposes.”
In construing subdivision (a) in the Grand Rapids case, we held:
(a) That the Court is required to discover the legislative intent and that, if the language is of doubtful meaning, a reasonable construction must be given, looking to the purpose to be served thereby;
(b) That the general rule, that exemptions are carefully scrutinized and not extended beyond theiy plain meaning, should be applied;
(c) That the purpose shall prevail over the strict letter;
(d) That the act as a whole must he considered and especially the. intent of a section listing exemptions from the application of the act.
We have stated that the motor carrier act was enacted to grant the public service commission, and not the common motor carrier of passengers for hire, the right to decide what public service was adequate and proper.
The question in this appeal resolves itself to a determination of whether the legislature intended to grant to cities the right to extend their transportation systems 10 miles beyond the city boundaries, irrespective of whether that extension disrupted or helped the mass transportation plan as it existed in that 10-mile area.
In answering this question we use the rules • of construction of legislative intent that we used to determine législative intent in re the exemption provisions of subdivision (a). And we conclude that the operations by the DSN as a common motor carrier of passengers for hire outside the corporate limits of the city of Detroit are subject to the provisions of the Michigan motor carrier act.
Question No. 3.
Does PA 1939, No 3, § 6, as amended by PA 1960,..No 44, which provides:
■ “The Michigan public service commission is hereby vested with complete power and jurisdiction to regulate all public utilities in the- State except any municipally owned utility and • except as otherwise restricted by law,”
exempt the DSR. from the provisions of the motor-carrier act!
In deciding that it did exempt the DSR from the provisions of the motor carrier act,, the trial, court confined its opinion to construing the words, “and except as otherwise restricted by law,” to be words that “refer to the regulatory power of the commission, not to the exemption of municipally, owned utilities.”
Plaintiffs, disagreeing with the trial court’s, interpretation, state:
“Moreover, a contrary holding [to plaintiffs’ position] would ignore the ‘unquestioned rule of grammar, which has been crystallized into a legal-maxim’ that qualifying and relating words ‘must ordinarily be referred to the next .antecedent.,, * * * The last antecedent is the last word whict can be made an antecedent, without impairing the’ meaning of a sentence.’ City of Traverse City v. Blair Township, 190 Mich 313, 323, 324 (Ann Cas 1918E, 81). Clearly the last antecedent in section 6 to which the clause ‘except as otherwise restricted, by law’ can refer is ‘municipally owned utilities.’ Indeed ‘it is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent.’ Kales v. City of Oak Park, 315 Mich 266, 271.”
We agree with plaintiffs’ contention in this regard and, also, with their statement that “had it-been the intent of the legislature by Act 3, PA 1939, .to repeal the provisions of the motor carrier act, such intent ‘would have been made manifest in clear and unmistakable language.’ Rather than so providing, however, the legislature expressly conditioned exemptions with respect to municipally, owned utilities ‘except as otherwise restricted -bylaw.’ ” A clear intention to repeal must be show$v The law does not favor repeals by implication. Yarger v. City of Hastings, 375 Mich 413.
Defendant’s brief does not answer plaintiffs’ contention, nor does defendant comment in its brief on the many reasons plaintiffs set forth in their brief under the chapter heading, “The exemption in section 6 is qualified and is not applicable to the DSR.”
The Court of Appeals gave no reason why it concluded that this section exempts the DSR.
As we concluded above under question 2, the legislature’s intent was to include municipally owned carriers under the regulatory provisions of the motor carrier act.
No legislative intention was manifested to exempt such carriers and repeal any part of the motor carrier act by the enactment of the public service commission act.
In the 1939 public service commission act the legislature abolished the Michigan public utilities commission which had been brought into existence by PA 1919, No 419. The 1919 act that created the public utilities commission gave the commission the right to regulate utilities furnishing steam, power or gas, and provided cities with an exemption by the words: “The power and authority granted by this act shall not extend to, or include, any power of regulation or control of any municipally owned utility.” CL 1948, § 460.54 (Stat Ann §22.4).
In abolishing the Michigan public utilities commission, and creating the commission now in power, the title of the act (PA 1939, No 3) discloses that the act was designed “to abolish the Michigan public utilities commission, and to confer the powers a,nd duties flow vested by law therein, • cm the public service commission hereby created;” and section 4 of the act adds that: “All the rights, powers, and duties vested by law in said Michigan public utilities commission * * . * shall be deemed to be transferred to and vested in the Michigan public service commission hereby created.”
Thus, the title and section 4 of the public service commission act made it clear that the legislature did not by this act intend to repeal any of the pre-existing jurisdiction exercised by the public utilities commission, which included jurisdiction and authority to regulate common motor carriers. (Title, PA 1933, No 254.)
We concur with plaintiffs’ conclusion that:
“PA 1939, No 3, has been before our Court several times, and in each instance has been held to be a mere outline of jurisdiction vesting the commission with no specific powers, Huron Portland Cement Company v. Public Service Commission, 351 Mich 255. If it grants no powers it certainly cannot take away any existing powers.”
“ ‘An act will not be construed to repeal or modify earlier legislation, if, giving such effect to the act, an apparent purpose would appear to disturb an established system of written law, covering a vital field in our system of government.’ 25 RCL p 919.” Attorney General, ex rel. Owen, v. Joyce, 233 Mich 619, 623.
Therefore, we conclude that the operations of the DSR as a common motor carrier of passengers are not exempted from the motor carrier act by provisions of the public service commission act.
The judgment of the Court of Appeals is affirmed but not for the reasons given therein^ and this case is remanded to the Wayne circuit court for-further action in accordance with this opinion. No costs, a public question being involved.
; Dethmers, C. J., and Adams, J., concurred with Kelly, J.
PA 1909, No 279 as amended (CL 1948 and CLS 1961, § 117.1 et seq., as amended [Stat Ann 1949 Rev and Stat Ann 1963 Cum Supp § 5.2071 et seq.]).
PA 1933, No 254 (CL 1948 and CLS 1961, §475.1 et seq., as amended [Stat Ann and Stat Ann 1965 Cum Supp § 22.531 et seq.] ).
CLS 1961, § 117.4f (Stat Ann 1963 Cum Supp § 5.2079).
Associated Truck Lines, Inc., v. Public Service Commission, 377 Mich 259.
Grand Rapids Motor Coach Co. v. Public Service Commission, supra,
CLS 1961, § 460.6 (Stat Ann 1965 Cum Supp § 22.13[6]).
We presume that the Court of Appeals did not intend to deprive defendant of a hearing in the circuit court on the merits and that, therefore, by its order of remand for entry of an order granting injunctive relief, it meant an injunction pendente lite. | [
14,
46,
39,
-11,
31,
27,
-2,
1,
-43,
56,
-50,
32,
0,
1,
-3,
-19,
6,
14,
-28,
4,
-4,
7,
12,
4,
-44,
-27,
47,
16,
-40,
-6,
41,
-50,
34,
-3,
-29,
12,
35,
0,
36,
-21,
4,
48,
-8,
-4,
4,
-19,
31,
7,
3,
8,
-32,
38,
-40,
8,
-28,
-27,
0,
23,
-12,
24,
-9,
19,
-19,
40,
-1,
-29,
-9,
48,
-33,
-4,
-4,
29,
13,
-33,
22,
54,
47,
-5,
-8,
22,
-21,
23,
29,
-85,
-23,
13,
-3,
5,
-24,
1,
-14,
2,
-58,
44,
47,
55,
18,
-55,
4,
-29,
-15,
12,
26,
3,
-24,
8,
-17,
-21,
65,
36,
-3,
2,
0,
-36,
0,
-16,
-1,
19,
56,
25,
-14,
-39,
5,
14,
-2,
-30,
-15,
-44,
-15,
-34,
35,
-3,
83,
53,
26,
20,
-5,
7,
57,
45,
42,
24,
35,
-18,
4,
-33,
32,
41,
-6,
-44,
19,
10,
-28,
26,
-34,
-24,
5,
39,
58,
38,
0,
-27,
26,
51,
-45,
-24,
-48,
34,
8,
53,
-54,
-46,
15,
-34,
23,
25,
-40,
48,
-55,
-10,
-46,
41,
-27,
-39,
25,
-33,
31,
-14,
-24,
-98,
80,
-36,
11,
-23,
-40,
82,
30,
10,
-20,
15,
21,
-2,
-34,
32,
11,
-11,
3,
48,
-8,
31,
-33,
-17,
-28,
-39,
8,
-23,
11,
-25,
42,
-29,
49,
-10,
-4,
19,
-32,
-22,
-43,
-30,
25,
9,
58,
-10,
0,
0,
-60,
19,
-20,
0,
35,
29,
5,
40,
9,
-39,
-8,
22,
-10,
-33,
19,
5,
-18,
-36,
47,
-45,
-13,
-7,
-38,
-15,
4,
5,
56,
47,
-17,
6,
19,
9,
-8,
-8,
-17,
-7,
-39,
27,
-32,
34,
-36,
-69,
42,
-24,
30,
-44,
-1,
-9,
-46,
14,
3,
58,
2,
-15,
-5,
10,
-20,
-30,
-7,
44,
-11,
-36,
64,
11,
-25,
31,
-1,
11,
-6,
93,
18,
-42,
-44,
1,
-3,
9,
29,
-6,
-11,
0,
19,
-53,
56,
-35,
22,
-44,
-22,
19,
24,
27,
7,
-26,
27,
-8,
-19,
-29,
60,
20,
8,
53,
-27,
12,
7,
-54,
-37,
-5,
9,
46,
27,
7,
30,
-14,
-11,
1,
-1,
-6,
-25,
-18,
10,
-18,
19,
-1,
44,
-32,
-41,
23,
20,
-17,
-9,
28,
-5,
-34,
16,
11,
23,
35,
-9,
-16,
-42,
40,
-18,
-18,
10,
0,
-6,
38,
-23,
-51,
-5,
-29,
55,
-16,
-10,
-49,
-12,
0,
-14,
-16,
-17,
0,
3,
-40,
0,
43,
-17,
-12,
14,
24,
0,
31,
-16,
-9,
25,
43,
13,
30,
-75,
-50,
72,
2,
-11,
30,
26,
-27,
-33,
-15,
-2,
26,
7,
-82,
37,
-14,
11,
-7,
23,
16,
-28,
-39,
9,
14,
-4,
-19,
16,
-74,
-21,
-2,
-30,
-15,
-15,
33,
-64,
-43,
-43,
-13,
-25,
-58,
42,
48,
-5,
16,
-50,
33,
-28,
29,
23,
0,
-1,
-13,
-14,
24,
-55,
31,
-24,
17,
44,
-35,
-29,
7,
-39,
7,
-21,
-40,
-57,
24,
-12,
-12,
-44,
-2,
-25,
-12,
2,
-31,
9,
29,
9,
45,
12,
66,
-26,
4,
-24,
23,
27,
29,
20,
22,
8,
31,
1,
24,
-1,
10,
-3,
-3,
39,
24,
30,
1,
13,
64,
-11,
10,
-38,
36,
49,
-38,
32,
4,
6,
-49,
-4,
-7,
17,
-15,
35,
-23,
41,
-12,
-3,
-29,
-29,
-25,
1,
53,
7,
-38,
21,
19,
-62,
-20,
-30,
-28,
-33,
-15,
32,
6,
-4,
-14,
-34,
-86,
37,
-37,
-49,
-23,
-13,
14,
0,
-22,
45,
-14,
11,
-3,
-1,
-3,
10,
-25,
-14,
39,
-1,
-29,
29,
2,
52,
-15,
-55,
-47,
-54,
11,
26,
-41,
-14,
-18,
2,
-5,
7,
7,
12,
-1,
-51,
-20,
39,
28,
1,
23,
35,
5,
26,
-16,
-17,
26,
7,
21,
-71,
-40,
7,
-17,
11,
-8,
-33,
-1,
-37,
22,
-36,
18,
46,
14,
-32,
-32,
8,
-5,
3,
-10,
23,
-1,
17,
-16,
-4,
38,
-12,
-3,
18,
0,
63,
36,
8,
11,
7,
25,
29,
-32,
-21,
-25,
-43,
52,
-56,
25,
-42,
66,
22,
-51,
-4,
38,
4,
-23,
-2,
-35,
21,
-7,
24,
34,
-19,
-48,
-26,
-33,
7,
11,
27,
-30,
44,
62,
44,
-21,
-22,
10,
45,
44,
-28,
8,
-18,
-57,
12,
-1,
-16,
15,
12,
-25,
7,
-7,
-7,
-8,
26,
-18,
-5,
52,
-18,
-55,
0,
17,
-14,
-2,
-57,
22,
-1,
11,
37,
16,
21,
-4,
33,
-42,
10,
10,
23,
16,
-7,
11,
9,
0,
-67,
-49,
-22,
-21,
-16,
-55,
-12,
13,
-6,
38,
25,
-43,
-16,
-10,
-52,
-2,
-15,
-52,
-14,
30,
59,
0,
-41,
-32,
-4,
-7,
-10,
32,
20,
-9,
48,
31,
17,
-16,
-16,
54,
-20,
-74,
-6,
-52,
47,
15,
-10,
-17,
-11,
30,
40,
-6,
1,
5,
-44,
-19,
-7,
-2,
-22,
4,
7,
-41,
6,
21,
9,
-45,
-6,
-10,
-24,
4,
24,
10,
12,
-2,
30,
-41,
-16,
36,
40,
-13,
46,
18,
8,
38,
-42,
12,
-21,
-5,
-37,
-16,
46,
0,
21,
18,
-37,
-10,
45,
42,
14,
45,
-23,
6,
23,
12,
-48,
4,
-28,
14,
9,
37,
20,
44,
38,
-4,
-2,
19,
-52,
1,
43,
-17,
11,
-33,
17,
31,
-70,
28,
0,
0,
-21,
14,
-8,
-5,
-95,
19,
-27,
-19,
78,
-2,
18,
35,
-5,
30,
-8,
53,
-45,
4,
-3,
-37,
-63,
-89,
47,
55,
21,
13,
53,
17,
51,
-28,
16,
4,
7,
0,
-8,
-36,
27,
2,
-11,
27,
-22,
3,
2,
18,
32,
14,
-31,
-37,
-16,
-16,
-29,
-4,
66,
-44,
-42,
-14,
-19,
-1,
-44,
20,
-4,
-20,
-96,
-45,
-8,
25,
36,
-34,
8,
-5,
-85,
9,
42,
13,
37,
0,
-21,
-52,
-13,
13,
-33,
13,
19,
38,
-9,
-18,
-33,
-29,
17,
-62,
33,
-5,
13,
1,
-11,
14,
-32,
-14,
-30,
-15,
-22,
11,
8,
23,
-15,
-11,
-10,
32,
1,
32,
-44,
21,
-20,
-34,
8,
34,
74,
-17,
-20,
-68,
-43,
-66,
-3,
19,
-66,
33,
-10,
-28,
4,
-9,
6,
11,
6,
-40,
5,
1,
-9,
44,
27,
-20,
-9,
17,
-83,
39,
6,
-6,
-9,
-15,
-4,
-2,
-24,
32,
32,
19,
32,
-16,
0,
36,
10,
5,
0,
-28,
12,
27,
-1,
21,
-3,
27,
22,
-1,
5,
18,
-57,
-7,
41,
10,
-28,
-11
] |
Per Curiam.
Dominant reasons for summary disposition of this appeal appear in the concurring opinion Justice Talbot Smith wrote for Churukian v. LaGest, 357 Mich. 173, 182-184. There the charge laid was actionable negligence of another driver proceeding on another favored trunkline highway toward an intersecting way. Having-opened discussion of the questions of duty, breach, and causation, Justice Talbot Smith proceeded (Churukian at 182-184):
“The driver, as we know, was under a duty to exercise due care. He must make reasonable allowance for traffic conditions, for fog, snow, or other adverse weather conditions, and for curves and road conditions. But due care for such a driver does not demand that he slacken his speed or prepare to stop at successive street intersections in the anticipation that side-street drivers will contest his right-of-way. Not only would such action impede the flow of arterial traffic but it would be hazardous to both the driver and those following him. Due care, then, for the arterial driver includes his right to assume that he will be accorded the right-of-way. This assumption may be relied upon by him until he is aware, or as a reasonably prudent driver should be aware, that his right-of-way is being challenged. # * *
“When did such duty arise? When must he (in the exercise of due care) take steps to avoid collision with a subordinate driver who ventures into his path? Only, as we have noted, when it becomes obvious, or should become obvious to the reasonably prudent arterial driver, that his right-of-way is, in truth, being contested. ‘It is at this time that his duty of care with respect to the subordinate driver arises, and his postobservation negligence, or lack thereof, is measured by his actions after this point.’ McGuire v. Rabaut (1958), 354 Mich 230, 236. If he, at this point, does not act with reasonable care he may be forced to respond in damages, bnt reasonable care at this point is the care of one confronted with an emergency not of his creation, in the light of which his actions will be judged. The doctrine of proximate cause, also, must be examined. It may well be that there has been negligence on the part of the arterial driver but that his permissible speed, and the traffic conditions, were then such that, even liad he been alert, looked, discovered the danger, and responded instantaneously and properly, no action on his part could have averted collision once the subordinate driver came into his path. If this were the case his negligence in not properly observing or acting could not be a proximate cause of the accident.”
The essential facts adduced below are related comprehensively in Judge McGregor’s opinion, written for the Court of Appeals. No present rehash thereof is required. See DePriest v. Kooiman, 2 Mich App 431.
The plaintiff in this case was beset from the beginning by the fact and result of a dilemmatic difficulty. Bearing the burden of proving that the defendant motorist was guilty of the actionable negligence she had charged, plaintiff was compelled to choose between calling her manifestly negligent husband to the witness stand or confessing that he was guilty of causal negligence. She chose the latter course. Thus the trial court had before it no definitive proof that the defendant motorist was concurrently negligent, plaintiff herself having testified that she did not see the defendant’s car until after the collision occurred. She testified that she had “leaned back to the car to relax just about the time we stopped.”
If there is proof here sufficient to make a submissible case of negligence and causation against the defendant, it must be found either in his testimony or in the testimony of a disinterested motorist. The latter was proceeding south on the nonfavored way. Having just been overtaken and passed by the car in which plaintiff was riding, the witness was given a clear view of the manner of approach to the intersection of the two involved cars and of the ensuing collision in the intersection. He corroborated the defendant’s testimony in controlling regard:
“Q. All right, and did you see that vehicle [Kooiman] do anything in that two or three hundred yards before the collision occurred?
“A. Yes, sir. I would say it slowed down from that—
“Q. And would you have an estimate as to what the speed of it was after it slowed down?
“A. Well, no, I couldn’t be sure because I am no judge of speed or anything like that but I’d say probably anywhere from 35 to 45.
“Q. And it had been going faster than that before it slowed down?
“A. I would say so, yes, you could notice it slowing down.
“Q. It was noticeable to you and it was crossing your path directly in front of you. Now, were there any obstructions to your view of that car as you approached the intersection?
“A. No. * * *
“Q. Will you tell us what you saw that other [DePriest] car do?
“A. Well, after he passed me, like I say, he didn’t get too far ahead of me, I don’t think he was over 100 or 200 yards ahead when we was both coming to the intersection there, and I can’t say whether the Buiek come to a complete stop or not because I was behind it, but it slowed down or possibly did stop or maybe it was one of these rolling stops, I don’t know, but it pulled up there and either stopped or slowed up and turned into the path of the other car.”
No proof justified submission to the jury of the question of defendant’s liability. So far as the record shows, his approach to this statutorily controlled intersection was exemplary. He was not driving in excess of the posted speed limit and duly slackened his speed to a rate well below that limit. He saw the DePriest car come to a stop in apparent obedience to the stop sign and rightfully assumed, as would any reasonably minded motorist in like circumstances, that the driver of that car would accord him. the first right of passage through the intersection. Not until the DePriest car, having started slowly forward and then having continued on into the intersection, was he alerted to Mr. DePriest’s causatively foolhardy violation of law. Then a collision was unavoidable, by defendant at least. He simply wasn’t warned until too late of Mr. DePriest’s intention to enter the intersection first. The quoted reasoning (Ghurukian, supra) clearly applies.
It is not the law of this State that a motorist proceeding on a favored trunkline, toward an intersection controlled by flashing lights under said CLS 1961, § 257.614, must slow down to an insurer’s rate of speed when he sees another motor vehicle approach on the nonfavored way, and then stop according to law, only to start out into the intersection on a then inevitable collision course.
Decision here is controlled by Haney v. Frederick V. Gentsch, Inc. (1962), 368 Mich 354. There, on a comparatively stronger yet legally insufficient record made by another plaintiff, shown as having proceeded toward and into a trunkline intersection controlled by a corresponding signal flashing red in his direction, the Court ruled that he had failed to make out a submissible case of causal negligence against the favored driver.
To summarise: No actionable negligence of defendant was shown. Nor was there proof from which either the trial judge (testing defendant’s motion for directed verdict on due favorable view) or the jury might lawfully infer that he was negligent. There indeed are automotive negligence cases where a directed verdict for the defendant is in order. This is such a case, plaintiff having failed legally to sustain her burden.
The most favorable view one may take of the record made by plaintiff is that she made out a prima facie case of causal negligence, ordinary or gross, against her driver-husband. Whether the case thus made was or now is actionable will have to be determined if at all in some separate action; an action where his testimony probably would be controlling.
The above eliminates as moot need for discussion of the jury instructions below. Accordingly, we express neither approval nor disapproval of the instructions quoted in the opinion of the Court of Appeals, supra, at pages 433-436.
The judgment of the Court of Appeals is affirmed on ground written above. See GCR 1963, 865.1(7). Defendant will have costs.
Dethmers, C. J., and Kelly, Black, Souris, O’Hara, and Adams, JJ., concurred.
T. M. Kavanagh, J., did not sit.
Brennan, J., took no part in the decision of this case.
Churukian, and eases following Churukian, were quoted with approval in Haney v. Frederick V. Gentsch, Inc., 368 Mich 354. See reference to Haney, post.
Plaintiff’s counsel formally conceded “that the fault of her- driver was a proximate cause of the collision.”'
See CLS 1961, § 257.614 (Stat Ann 1960 Rev § 9.2314) and reference to the Haney Case, post.
Even though erring technically when he denied defendant’s motion for a directed verdict, Judge Huff adhered to what is accepted generally as the better practice, that is, he permitted the jury to decide in the first instance whether plaintiff had made out a case of actionable negligence, | [
-12,
36,
-4,
18,
-43,
-4,
48,
17,
3,
66,
-31,
10,
25,
-14,
10,
-20,
-24,
-32,
-6,
19,
-34,
-29,
13,
-39,
-3,
-21,
23,
-5,
15,
79,
20,
14,
-27,
7,
-24,
36,
35,
11,
35,
41,
46,
2,
-29,
-62,
0,
-39,
-2,
2,
43,
-41,
-27,
56,
-18,
-51,
1,
52,
30,
31,
-43,
1,
-12,
-28,
-12,
33,
-14,
22,
-7,
46,
-31,
8,
-86,
46,
1,
-4,
42,
28,
-3,
-7,
11,
6,
-11,
7,
11,
-12,
30,
43,
-37,
4,
-41,
-25,
22,
-59,
-14,
-70,
-35,
65,
16,
-43,
23,
-5,
0,
69,
47,
0,
-38,
-11,
-9,
-60,
-45,
8,
-15,
52,
-23,
-43,
8,
-14,
-14,
17,
61,
10,
-7,
13,
44,
-3,
-50,
-32,
28,
-23,
-63,
-13,
21,
6,
29,
4,
32,
13,
-7,
-51,
31,
47,
-77,
0,
31,
22,
26,
35,
1,
-17,
-3,
-26,
30,
53,
-21,
-65,
-53,
-19,
-20,
-44,
40,
31,
28,
7,
41,
0,
-29,
42,
-11,
33,
-20,
80,
18,
-20,
25,
-32,
19,
-8,
-18,
29,
-58,
32,
-6,
51,
34,
6,
-43,
-43,
-35,
16,
-25,
-13,
-9,
-24,
-8,
0,
19,
33,
2,
8,
12,
-24,
28,
0,
-42,
-30,
-72,
0,
-30,
-17,
28,
-17,
3,
-16,
-52,
-37,
60,
35,
37,
-40,
12,
-41,
30,
23,
9,
-47,
-35,
-42,
-92,
-50,
-1,
-15,
41,
-9,
-58,
55,
7,
19,
37,
-24,
31,
21,
51,
10,
-19,
-54,
48,
5,
11,
4,
-23,
16,
14,
-66,
-5,
-62,
-19,
-36,
28,
15,
8,
-26,
45,
67,
9,
20,
11,
40,
32,
36,
15,
-22,
-63,
46,
7,
-17,
-50,
-31,
48,
19,
24,
68,
2,
2,
-23,
18,
-33,
16,
-13,
-7,
27,
0,
44,
-68,
-42,
31,
10,
50,
19,
-33,
-109,
-28,
72,
-51,
24,
25,
52,
0,
-12,
32,
-4,
26,
-36,
-46,
-38,
1,
20,
33,
-7,
-43,
37,
-26,
-2,
14,
10,
-29,
-22,
9,
33,
-8,
17,
10,
-2,
43,
4,
24,
6,
-4,
7,
26,
18,
24,
-4,
32,
-43,
-61,
11,
1,
63,
4,
-27,
-24,
-47,
54,
-13,
-8,
2,
-13,
24,
-28,
-13,
11,
8,
-26,
18,
-2,
5,
32,
20,
-19,
-86,
55,
-25,
-74,
13,
-50,
-20,
-23,
28,
14,
-33,
28,
-2,
-66,
36,
-28,
-27,
-33,
-87,
48,
-58,
-24,
-46,
-38,
25,
21,
-73,
17,
17,
47,
-22,
-19,
17,
18,
-36,
13,
24,
-31,
41,
-26,
2,
-2,
-59,
45,
40,
46,
8,
-1,
16,
13,
-27,
-39,
13,
40,
25,
-19,
-17,
-37,
-21,
29,
-19,
0,
16,
-63,
44,
-23,
-23,
-5,
0,
-68,
24,
-35,
-27,
-11,
9,
12,
-17,
17,
-16,
-16,
-2,
-49,
46,
-1,
65,
-1,
-51,
5,
30,
26,
4,
15,
-29,
-28,
-8,
-10,
27,
-32,
-6,
44,
50,
-43,
0,
22,
-16,
63,
0,
-8,
-22,
10,
-15,
-38,
-60,
-11,
18,
-13,
-14,
-2,
29,
41,
5,
53,
70,
10,
-54,
-31,
-3,
-49,
-6,
31,
-37,
38,
31,
12,
-44,
2,
-1,
-72,
3,
3,
34,
-29,
-7,
-34,
53,
37,
-58,
24,
-28,
-7,
47,
-12,
-54,
-39,
7,
-48,
15,
11,
-40,
-16,
-9,
-23,
64,
16,
32,
12,
21,
31,
-22,
7,
-4,
-15,
-13,
52,
-29,
-36,
3,
-11,
67,
23,
33,
8,
-48,
46,
23,
12,
22,
-24,
21,
-13,
12,
1,
-15,
44,
32,
7,
-2,
32,
10,
11,
67,
-10,
-23,
-30,
8,
-11,
-49,
31,
2,
35,
-36,
-19,
21,
1,
-68,
-22,
-24,
19,
0,
-54,
16,
-58,
-43,
40,
21,
33,
3,
8,
60,
12,
-34,
30,
16,
6,
-55,
49,
64,
25,
-6,
-21,
19,
-18,
21,
-14,
-66,
3,
-36,
-26,
3,
5,
68,
-25,
-37,
-18,
-6,
42,
-7,
-10,
25,
76,
-32,
-8,
-29,
76,
-13,
-18,
-1,
-11,
2,
12,
-20,
-10,
-39,
0,
37,
-18,
14,
39,
10,
34,
-50,
-26,
-9,
58,
-18,
-2,
15,
23,
0,
40,
-45,
-2,
8,
-20,
-6,
-53,
-52,
6,
-45,
4,
-20,
-52,
-12,
9,
18,
51,
86,
-31,
40,
44,
23,
51,
-67,
-84,
13,
-25,
-9,
5,
-55,
27,
90,
16,
-22,
5,
-1,
-22,
-46,
-3,
-1,
21,
14,
26,
-22,
7,
1,
3,
-62,
-34,
-12,
-11,
14,
12,
-19,
23,
-17,
-29,
14,
55,
-40,
1,
0,
-28,
16,
0,
12,
-18,
26,
35,
-6,
-44,
-20,
18,
23,
11,
-7,
-19,
24,
-68,
69,
-12,
16,
-33,
-39,
66,
37,
26,
-17,
-37,
-45,
40,
5,
-4,
-20,
-16,
61,
-14,
-9,
-37,
31,
11,
7,
-20,
20,
-30,
12,
22,
44,
0,
8,
-13,
-50,
0,
-32,
-6,
39,
-18,
-63,
36,
-44,
-31,
31,
7,
-52,
-39,
-18,
-15,
-10,
-36,
-5,
-24,
-8,
13,
38,
-1,
-3,
-2,
18,
-6,
-48,
-63,
19,
0,
34,
3,
16,
44,
23,
14,
-8,
27,
71,
-30,
41,
-13,
-4,
-14,
0,
6,
32,
22,
5,
-22,
10,
21,
-23,
7,
27,
5,
39,
-29,
74,
-30,
43,
-46,
-41,
44,
-64,
22,
12,
-3,
-2,
-15,
36,
6,
-9,
52,
0,
-2,
2,
41,
38,
49,
-41,
42,
-6,
2,
63,
-29,
-45,
-15,
38,
20,
18,
-63,
-54,
13,
10,
61,
-10,
37,
14,
-9,
-40,
37,
35,
-2,
-42,
17,
9,
-52,
-15,
9,
28,
-12,
1,
75,
-13,
-18,
-42,
-31,
-55,
1,
42,
12,
-20,
-4,
-64,
6,
-75,
44,
-33,
-27,
-70,
16,
-5,
-18,
7,
36,
-8,
45,
-24,
31,
-2,
-22,
12,
29,
39,
-10,
-48,
11,
25,
5,
12,
48,
-11,
-10,
-30,
35,
-19,
-27,
0,
35,
-19,
4,
-1,
4,
64,
-40,
19,
5,
-86,
-51,
15,
16,
-42,
48,
14,
-38,
2,
-42,
-31,
-7,
-3,
-10,
-48,
16,
-3,
-11,
-21,
1,
-4,
-1,
-37,
-13,
17,
6,
3,
-28,
50,
-15,
-22,
32,
-25,
-18,
34,
23,
18,
-6,
-23,
-25,
-18,
-7,
-29,
-28,
33,
23,
-43,
29,
-9,
-30,
-47,
-54,
-43,
51,
5,
30,
-23,
-17,
-50,
29,
33,
-13,
-6,
-3,
-2,
-14,
22,
6,
46,
46,
7,
6,
4,
47,
19,
-12,
51,
5,
-54,
-19,
-74,
-25,
14,
0,
25,
-12
] |
T. M. Kavanagh, J.
Leave to appeal was granted the defendants on November 19, 1965. They seek reversal of an order of the workmen’s compensation appeal board dated August 20, 1965, granting an award of compensation to the personal representative of Pliram Cram’s estate at the rate of $57 per week from April 7, 1962, to December 27, 1963, plus medical expenses in the amount of $1,081.75. Said compensation and medical expenses accrued to claim'ant during his lifetime and remained unpaid at the time of his death.
On June 9, 1962, Hiram Cram filed a claim for workmen’s compensation benefits for a personal injury sustained on January 10, 1961, arising out of and in the course of his employment with defendant Lumber Company.
The hearing referee denied the claim finding that claimant did not receive a personal injury arising out of and in the course of his employment.
An appeal from this finding was duly filed.
On December 27,1963, while the case was pending on appeal and subsequent to the filing of briefs, claimant died of causes wholly unrelated to his injury.
Plaintiff, administratrix of the estate of Hiram' Cram, requested that she be substituted as party plaintiff. Defendants moved to dismiss for the reason the death of the claimant abated the proceedings inasmuch as the employee died prior', to the appeal board’s rendering a final order or decision.
On August 21, 1964, an order was entered by the appeal board substituting the administratrix as party plaintiff.
On August 20,1965, the appeal board reversed the finding of the referee and ordered an award for weekly benefits and medical expenses incident, to claimant’s injuries to the date of his death.
On appeal, defendants raise three questions:
(1) May the personal representative of a deceased employee prosecute an appeal to the workmen’s compensation appeal board from a decision of a hearing réferee adverse to the deceased employee?
(2) Did any claim which Hiram Cram might have had against his employer abate upon his death?
(3) Does the workmen’s compensation appeal board have the judicial authority to reverse existing decisions or legislative enactments?
Section 12 of part 2 of the workmen’s compensation act, being CL 1948, § 412.12, was amended by PA 1965, No 230 (Stat Ann 1965 Cum Supp § 17.162). This amendment was in effect at the time of the decision of the appeal board and reads as follows:
“If a claim for benefits has been filed bnt has not been decided by a referee or on appeal, and the claimant dies from a canse unrelated to his injury, the proceedings shall not abate but may be continued in the name of his personal representative. In such case, the benefits payable up to time of death shall be paid to the same beneficiaries and in the same amounts as would have been payable if the employee had suffered a compensable injury resulting in death.” (Emphasis supplied.)
The first sentence of the amendment answers defendants-appellants’ first two questions on appeal. A claim for benefits having been filed and not decided on appeal, and claimant having died from a cause unrelated to his injury, we find (1) the personal representative of the deceased claimant may be substituted to appeal to the workmen’s compensation appeal board from a decision of the hearing referee, and (2) the claim which the deceased claimant had against his employer did not abate upon his death.
As to the third question, defendants-appellants rely upon prior decisions of this Court stating that death abates the claim. In view of the applicable amended statute, those decisions are not controlling in this case.
The order of the appeal board reversing the award of the referee and awarding compensation is affirmed. Plaintiff shall have interest and costs.
Dethmers, C. J. and Kelly, Black, Souris, O’Hara, Adams, and Brennan, JJ., concurred. | [
20,
-10,
-32,
6,
25,
40,
0,
-47,
-6,
-24,
0,
-9,
33,
-25,
-3,
-20,
19,
-17,
-19,
63,
18,
18,
39,
48,
-1,
-62,
-21,
-13,
-55,
2,
-19,
4,
25,
15,
-27,
-18,
30,
-45,
11,
16,
13,
29,
-9,
-24,
-20,
-25,
1,
19,
30,
32,
0,
26,
19,
6,
63,
19,
24,
-11,
-57,
29,
-81,
-9,
-26,
-17,
62,
31,
31,
-38,
3,
17,
-28,
9,
10,
15,
7,
-3,
9,
60,
6,
-6,
18,
3,
16,
-36,
-55,
20,
36,
7,
37,
52,
-14,
-18,
-11,
6,
-47,
-4,
19,
70,
3,
14,
20,
-24,
43,
-24,
0,
-20,
-8,
31,
-33,
18,
-4,
33,
28,
17,
9,
-15,
-7,
-18,
-16,
26,
34,
8,
25,
-15,
30,
9,
7,
0,
-30,
41,
-12,
35,
-30,
-17,
10,
15,
14,
-21,
-26,
-22,
-4,
14,
-28,
-84,
-7,
0,
9,
-13,
-8,
-35,
19,
41,
24,
-14,
29,
1,
58,
-29,
60,
4,
1,
16,
28,
-10,
-14,
-20,
-26,
-8,
4,
-10,
-17,
11,
20,
18,
-3,
68,
77,
-11,
-58,
59,
-48,
0,
33,
6,
-17,
-25,
-17,
-2,
60,
-36,
32,
21,
-8,
16,
21,
-36,
29,
-25,
47,
29,
5,
-36,
22,
25,
6,
16,
-11,
-9,
-1,
-40,
-30,
-14,
-28,
-12,
-18,
53,
-7,
-53,
20,
26,
-54,
31,
-17,
-78,
-37,
5,
-24,
-20,
22,
-19,
-58,
-5,
0,
34,
35,
41,
-10,
-24,
44,
-75,
-4,
-23,
-21,
-14,
-4,
29,
42,
-16,
0,
34,
35,
33,
23,
11,
0,
-11,
-14,
23,
-7,
-74,
4,
29,
24,
24,
34,
-25,
-16,
12,
-28,
13,
-12,
-42,
79,
-27,
12,
-39,
-9,
-50,
54,
-14,
-9,
7,
-20,
-88,
-91,
14,
-18,
-50,
2,
56,
61,
0,
-2,
36,
52,
23,
44,
1,
7,
-12,
-34,
-1,
7,
-61,
43,
12,
-15,
-35,
6,
-27,
-22,
-79,
29,
9,
33,
8,
-39,
4,
-17,
-32,
-20,
-22,
-2,
20,
25,
-15,
18,
9,
11,
2,
-20,
-36,
-2,
5,
-24,
-29,
44,
91,
-1,
18,
11,
80,
-39,
-27,
-31,
-38,
47,
24,
47,
34,
18,
-2,
31,
3,
3,
45,
63,
-58,
-54,
40,
31,
-7,
-34,
10,
22,
49,
-31,
24,
1,
-4,
59,
54,
60,
-64,
-17,
-8,
16,
6,
4,
-18,
68,
45,
13,
-94,
-23,
13,
8,
25,
41,
45,
-62,
-46,
-10,
4,
-53,
65,
18,
-11,
3,
0,
-27,
-60,
-11,
10,
18,
-68,
-12,
-60,
-52,
12,
-33,
12,
21,
8,
43,
-58,
10,
-20,
-8,
-15,
67,
-7,
38,
-38,
-4,
0,
35,
30,
7,
-20,
-20,
-22,
-2,
-78,
-30,
13,
-11,
-37,
4,
-5,
-38,
-25,
8,
-24,
-23,
1,
-3,
-32,
23,
-17,
-6,
19,
9,
0,
-3,
-45,
-7,
20,
27,
-7,
38,
-9,
3,
-7,
66,
-19,
-29,
23,
68,
11,
-36,
-18,
-30,
-29,
-8,
-29,
29,
-17,
61,
-49,
58,
1,
-45,
13,
-21,
-5,
-7,
-11,
-17,
-45,
3,
7,
6,
-50,
3,
14,
-50,
-31,
-17,
-40,
-62,
-39,
39,
29,
12,
-43,
-19,
-60,
15,
18,
-38,
-25,
-45,
24,
38,
20,
13,
29,
22,
25,
11,
-24,
-1,
10,
40,
-56,
-24,
18,
18,
-15,
30,
-33,
2,
-29,
18,
-14,
-37,
-2,
-62,
-4,
-42,
19,
-5,
20,
-39,
-23,
13,
70,
52,
54,
-18,
-53,
-20,
-1,
-8,
-17,
16,
-3,
26,
-14,
25,
-2,
15,
22,
-36,
4,
-35,
20,
14,
18,
-20,
61,
12,
17,
21,
74,
-7,
-5,
10,
37,
15,
3,
-14,
-12,
12,
-96,
13,
16,
28,
-53,
-30,
-13,
-7,
-10,
5,
-41,
2,
-21,
4,
-7,
-16,
12,
-63,
-24,
-1,
20,
-20,
29,
23,
-54,
-12,
36,
12,
-49,
-83,
-47,
-12,
4,
37,
7,
-7,
47,
-1,
-20,
-57,
-9,
8,
14,
0,
35,
25,
-19,
-28,
-34,
-17,
7,
-8,
33,
-15,
11,
-19,
-9,
49,
0,
-48,
-51,
33,
-31,
-18,
-20,
-22,
35,
-18,
-16,
-45,
-11,
58,
54,
-52,
-6,
16,
1,
-5,
0,
-1,
6,
-19,
-5,
17,
-8,
-9,
28,
31,
6,
4,
-21,
-46,
-6,
3,
-23,
-5,
-41,
16,
33,
-19,
0,
12,
0,
-13,
-15,
-23,
26,
-51,
12,
-32,
12,
54,
21,
8,
-46,
-13,
28,
-12,
47,
-32,
5,
12,
20,
44,
-14,
-43,
-23,
-13,
0,
29,
50,
31,
-32,
-15,
-20,
-37,
-16,
-29,
0,
29,
40,
55,
-12,
-12,
-14,
23,
22,
-24,
15,
-32,
-43,
19,
40,
-42,
19,
-8,
-13,
-8,
7,
-2,
18,
-7,
-6,
-7,
36,
-18,
-18,
1,
-8,
13,
-21,
23,
-23,
-31,
4,
2,
-29,
-1,
64,
-26,
-5,
-9,
-3,
38,
-7,
-19,
38,
22,
-35,
-4,
-10,
13,
15,
1,
46,
-14,
-9,
-1,
32,
-16,
-36,
-72,
-63,
-29,
10,
-16,
-21,
-8,
-36,
0,
-4,
26,
-15,
18,
-9,
-24,
13,
-5,
-5,
37,
-18,
36,
25,
-18,
14,
36,
4,
9,
43,
-33,
-28,
21,
44,
-16,
35,
26,
26,
-3,
-32,
24,
1,
31,
0,
23,
17,
-41,
-20,
-49,
31,
10,
-20,
32,
-6,
-23,
-50,
-3,
-17,
-16,
-5,
4,
27,
-25,
61,
-37,
4,
17,
-85,
-31,
36,
-15,
-13,
-18,
-71,
8,
-21,
26,
-4,
-10,
21,
-11,
11,
-25,
35,
0,
-41,
21,
-16,
-19,
4,
-58,
4,
-6,
-36,
1,
4,
-41,
-40,
41,
14,
-3,
16,
4,
-6,
-13,
0,
28,
79,
23,
-8,
-19,
-24,
-15,
11,
2,
-9,
16,
37,
35,
-15,
-51,
16,
0,
-47,
-5,
35,
-11,
-20,
-24,
-68,
71,
7,
-3,
47,
41,
26,
-57,
-27,
-18,
1,
20,
-6,
47,
-59,
-10,
9,
-3,
-47,
87,
-13,
71,
6,
-18,
-45,
-16,
-15,
27,
4,
-22,
9,
-35,
-6,
53,
50,
-18,
18,
37,
-8,
21,
17,
56,
-23,
16,
3,
-8,
32,
1,
5,
20,
82,
64,
-19,
-6,
-20,
-22,
17,
29,
-57,
60,
-6,
0,
19,
48,
-21,
23,
-1,
32,
-57,
7,
11,
-67,
-1,
0,
-32,
-33,
0,
25,
0,
43,
29,
-15,
33,
-47,
-1,
30,
32,
31,
-17,
40,
1,
18,
52,
-18,
5,
-11,
38,
2,
14,
26,
-38,
15,
-7,
6,
-55,
-59,
-13,
-9,
-43,
-9,
-12
] |
Souris, J.
{dissenting). Invoking the jurisdiction of this Court pursuant to the provisions of Const 1963, art 3, § 8, the governor has requested our opinion whether PA 1966, No 261 violates Const 1963, art 7, § 7.
Article 7, § 7, reads as follows:
“A hoard of supervisors shall he established' in each organized county consisting of one member from each organized township and such representation from cities as provided by law.”
The effective date of PA 1966, No 261, if valid, was March 10, 1967, upon the expiration of 90 days following adjournment of the 1966 session of the legislature. Const 1963, art 4, § 27. The act provides for the apportionment of county boards of supervisors on the basis of supervisorial districts to be established as equal in population as is possible. It makes no provision for the automatic allocation of one supervisor to each organized township as is provided by article 7, § 7 of the Constitution.
In Brouwer v. Kent County Clerk (1966), 377 Mich 616, Chief Justice Kavanagh and Justices Adams and Smith joined with me in concluding that article 7, § 7 is invalid when tested by the requirements of the equality clause of the Fourteenth Amendment of the United States Constitution and the counterpart equality clauses of our State’s Constitution, art 1, §§ 1 and 2, because it would require every township to be represented on its board of supervisors by one member, and only one, regardless of the population of the township. See parts IV, V, and VI of my opinion in Brouwer, supra, 377 Mich 616, 648-661.
Having concluded for the reasons stated in Brouwer, supra, that article 7, § 7 is invalid, it is my opinion, therefore, that that section is no constitutional obstacle to the validity of PA 1966, No 261.
T. M. Kavanagh, J., concurred with Souris, J.
Kelly, J.
Justice Souris, as the Justice to whom this case was assigned, has written the first opinion in response to Governor Romney’s request, stating that for the reasons he set forth in his previous opinion in Brouwer v. Kent County Clerk (1966), 377 Mich 616, Const 1963, art 7, § 7, is invalid and, therefore, PA 1966, No 261, is valid.
Developments since our April, 1966, Brouwer decision cause me to enlarge my brief disagreement expressed to Justice Souris’ opinion in that case.
On August 29, 1966, when we granted the governor’s request, we invited the filing of amici curiae briefs, supplementing those previously submitted in Brouwer v. Kent County Clerk, supra, and Muskegon Prosecuting Attorney, ex rel. Shaub, v. Klevering (1966), 377 Mich 666.
Pursuant to our invitation, amici curiae briefs were filed by tbe attorney general, by the Michigan State AFL-CIO, by Tom Downs, attorney for amicus curiae State representative Marvin R. Stempien, by Kent county, and by the Michigan State Association of Supervisors.
Quoting from the attorney general’s brief:
“Since the United States Supreme Court’s decision in Reynolds v. Sims (1964), 377 US 533 (84 S Ct 1362,12 L Ed 2d 506), and companion cases, a number of courts have passed upon the effect of those decisions on legislative bodies other than State legislatures and the majority have ruled that the principle of equal representation reaches to local subordinate instrumentalities of the State. * * *
“PA 1966, No 261, is, in the view of the attorney general, clearly consistent with the majority of the decisions which have been rendered on the matter of the apportionment of local legislative bodies.
“If, in the application of the principle of equal representation to county boards as provided by Act No 261, there be any conflict with article 7, § 7 of Michigan’s Constitution, then the attorney general is compelled by virtue of the authorities herein cited and by others previously cited in briefs filed with this Court, to conclude and suggest the necessity of finding article 7, § 7 to be violative of the equal protection clauses of the Federal and State Constitutions.”
Quoting from the brief of Michigan State AFL-CIO:
“This Court, in Brouwer v. Kent County Clerk (1966), 377 Mich 616, and Muskegon Prosecuting Attorney v. Klevering (1966), 377 Mich 666, essayed the issues herein at length, and we do not propose to repeat those arguments.
“Suffice it to say that if the ‘one man, one vote’ principles of Reynolds v. Sims (1964), 377 US 533, are applicable to local legislative bodies, as we submit they are, then Michigan Constitution 1963, art 7, § 7, necessarily falls, and PA 1966, No 261, clearly stands.”
Quoting from the brief of the attorney for Amicus Curiae Stempien:
“Amicus curiae is chairman of the apportionment committee of the Michigan house of representatives. PA 1966, No 261, originated in this committee. In preparing the bill, amicus curiae, an attorney, made every effort to follow the spirit, the letter, and the historical thrust of the recent apportionment decisions of the United States Supreme Court. He believes that as chairman of the committee that originated PA 1966, No 261, he is in a unique position to provide the court information for its assistance. * # #
“Admittedly, the United States Supreme Court has not spoken on the specific question of population equality standards for election of boards of supervisors. But can there be any doubt that the court would strike down an attempt to do indirectly what may not be done directly? Amicus curiae contends that even though there is no United States Supreme Court decision directly in point on the makeup of boards of supervisors, the principle is well established that a legislature may not do indirectly what it is forbidden to do directly, and this by itself determines that boards of supervisors may not exercise legislative powers derived from the State legislature, unless such boards are based on the same constitutional requirement of equality of population as is required for the State legislature.”
Quoting from the brief of the Michigan State Association of Supervisors:
“In the Brouwer v. Kent County Clerk and Muskegon Prosecuting Attorney, ex rel. Shaub, v. Klevering cases, the court wisely maintained the status quo until such time as the United States Supreme Court decides whether or not the Reynolds v. Sims decision extends to county boards of supervisors.
“Citing the language of Justice Adams In re Apportionment of State Legislature — 1964, 372 Mich 418, 473, speaking of Justice Souris’s interpretation, said: ‘It may well reflect the decision the United States Supreme Court will hand down any day now. When that day comes, I will be pleased to join with him. I do not conceive it to be the proper function of this Court to attempt to outrun the Supreme Court of the United States.’ ”
Kent county summarizes its position under the, heading “Conclusion” as follows:
“For our conclusion, we cite what we consider to be the wise counsel of Mr. Justice Black in the Muslcegon Case, supra:
“ ‘For once there is no need of haste. What is and what has been in Michigan for a century and a half will harm Michigan not at all should we retain jurisdiction and mark time pending such Federal disposition.’ * * *
“PA 1966, No 261, and section 7 of article 7 of the Michigan Constitution cannot stand together. They are mutually antagonistic. The county of Kent does not take the position that the composition of boards of supervisors as spelled out in the Constitution is equitable, in a moral sense, or political wise. The county of Kent does, however, insist and submit that until the Constitution is amended by the people of this State or until the United States Supreme Court holds that the doctrine of Reynolds v. Sims applies to governmental bodies below that of the State capitol, it is the duty of this Court to unhold the constitutionality of our Constitution adopted only a short time ago by the people of this State. We do not argue for the status quo; we do not pretend to judge what the Supreme Court of the United States will do in the Sailors Case [Sailors v. Board of Education of Kent County, 254 F Supp 17 (May 2, 1966)], which has now been submitted to it on jurisdictional statement; but we do reiterate that whatever changes may be desirable and necessary in the composition of our board of supervisors must be accomplished either by an amendment to our Constitution or by a definitive ruling from the Supreme Court of the United States.”
Summarizing, we find that the attorney general approved the legislative action because the majority of courts have decided to apply the one man-one vote, Reynolds v. Sims principle to local units of government, and that the UAW-CIO and Tom Downs (attorney for amicus curiae Stempien) interpret Reynolds v. Sims as controlling our decision here.
Justice Souris in his Brouwer opinion, supra, does not hold that Reynolds v. Sims controls our decision, as is evidenced by the following therefrom (pp 638-640, 642):
“As helpful to our task as the Supreme Court’s Reynolds opinion is in its statement of general principles, there are claimed to be differences between Reynolds and this case of Brouwer in the nature of the rights asserted, and not just in degree, which it is claimed preclude our applying the principles of Reynolds v. Sims. Thus, while the Supreme Court found a ‘constitutionally protected right to vote’ for State legislators in section 2 of the Fourteenth Amendment and planted its decision in Reynolds, at least in part, upon that protected right, that section’s language does not recognize an equivalent Federal right to vote for the legislative officers of a county, or city, or township. Furthermore, Reynolds clearly involved a citizen’s right at a level of government no one could dispute was required to be representative in character whereas here we are concerned'with a subordinate political subdivision of a State the representative character of which is not beyond dispute. In due course we shall examine these asserted differences in determining whether the principles of Reynolds properly can be applied to the claims made in this appeal.
“One other preliminary consideration should be stated. Whether the Federal judiciary, concerned as it must be with its delicate relationships to the States, should entertain such claims which relate to the internal operations of State government, we need not decide, for decision of that question does not measure our duty. The claim is made to this State Court and is planted squarely upon the equal protection clause which we are sworn to uphold and apply whenever and however equality is denied by the State.
“Like my Brother O’Hara, infra, I do not believe the problem before us is so simple that a judicially valid answer can be given by direct analogy to Reynolds v. Sims. As I have tried to make clear immediately above, there are many differences between the apportionment of a State’s legislative power in accordance with equality clause requirements, with which Reynolds v. Sims was concerned exclusively, and our task of determining whether the equality clause has any bearing whatever, and if so what, upon the apportionment of a county’s legislative power.
“While I agree that the differences are too great to permit reliance upon simple and direct analogy to Reynolds, as other courts in the country confronted with this problem have done and as I have attempted to avoid doing, I do not regard it an adequate exercise of the judicial function we were elected to perform simply to sweep the learned circuit judge’s opinion aside on the apparent ground that until the United States Supreme Court rules on the issue no State court should consider and decide a legitimate assertion by citizens that their Federal, as well as State, constitutional right to equality has been denied them. * * *
“We have noted in Part II, above, that Reynolds v. Sims and the other State legislative apportion ment cases contemporaneously decided do not- con-1 trol decision herein.”
Attorney Downs in his amicus curiae brief states:
“The Michigan Supreme Court, both the individuals thereof and as an entity, has spent more time and research on the question of apportionment than has any other State Supreme Court. It may very well be that the Michigan court has expended more effort on this single issue than all. other State courts combined.” •
This Court’s efforts of the past have established that: (1) Those -who have tried to have the constitutional issue now being considered declared invalid have failed to obtain a majority vote of this Court; and (2) This Court has agreed with Justice Souris’ finding “that Reynolds v. Sims and the other State legislative apportionment cases contemporaneously decided do not control decision herein.”
Without relying on Reynolds, my Brother makes a brillant effort to convince us that we should hold invalid article 7, § 7, of our Constitution, but he does not convince me, especially in view of the presumption of validity and the fact that the provision we are now considering has stood the test of time.
Justice Souris in Brouwer calls attention to the history of county governments, as follows (pp 640, 641):
“Counties have existed in Michigan since territorial days and have been recognized in all of our Constitutions as a unit of government important ito the people in the exercise of their right of local self-government. Beginning with our first Constitution in 1835 and repeated in our Constitutions of 1850, 1908, and 1963, tlie people of this State guaranteed themselves this right of local self-government by reserving for each county’s citizens the right to elect certain of the officials of the county. Since our 1850 Constitution at least, and probably earlier as a matter of immemorial usage, the power to legislate regarding the local affairs of each county has been reposed in a county hoard of supervisors. The membership of the hoards of supervisors, again since at least 1850, has consisted of one supervisor elected from each organized township and such representation from cities as may he provided by law.”
My final observation of occurrences since our Brouwer opinion is directed toward the difference between the record of events preceding Brouwer and the record before us today. Our Brouwer Case came to us through regular legal channels where registered voters in the city of Grand Rapids, by complaint, requested the Kent county circuit court to declare void the same constitutional provision. The complainants convinced the trial judge, but failed to convince the majority of this Court. We are now, at the Governor’s request, passing judgment on an enactment that is clearly inconsistent with an unambiguous provision of the Constitution.
Justice Souris is the only member of this Court who has answered the Governor’s request for an opinion, previous to my writing, and I do not presume to forecast the answer of the remaining members of our Court. I do contend, however, that unless a majority of our Court decide to approve this unusual legislative action, then our Court order should clearly declare that the Constitution prevails until further order of this Court.
My answer to the Governor: The constitutional provision is valid and, therefore, PA 1966, No 261, is not.
Dethmers, C. J., and Black, O’Hara, and Brennan, JJ., concurred with Kelly, J.
“Either house of the legislature or the governor may request' the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.”
See CL 1948, §§ 46.401-46.415 (Stat Ann 1968 Cum Supp § 5.359 [1] et seq.) — Reporter.
See footnote 1 at the bottom of p. 68. — Reporter.
“A board of supervisors shall be established in each organized Bounty consisting of one member from each organized township and such representation from cities as provided by law.” | [
33,
2,
17,
-3,
12,
53,
10,
6,
-23,
65,
-15,
-44,
36,
56,
38,
-64,
-7,
88,
-68,
55,
-27,
-5,
-28,
38,
-9,
30,
38,
25,
-19,
7,
-54,
-10,
11,
-1,
-4,
-24,
32,
-19,
11,
-26,
18,
-1,
-34,
-38,
-16,
-20,
33,
19,
5,
-20,
25,
33,
-19,
4,
17,
26,
4,
-42,
-37,
1,
-41,
16,
-61,
14,
29,
26,
27,
27,
37,
-74,
-25,
-12,
-59,
-49,
33,
45,
7,
-8,
-9,
3,
-8,
-16,
-5,
-1,
-40,
41,
-7,
24,
-12,
21,
-10,
-2,
-42,
-31,
38,
18,
31,
10,
13,
-55,
10,
28,
4,
27,
18,
-22,
-12,
38,
47,
-29,
65,
17,
-51,
25,
24,
11,
-27,
1,
11,
-4,
5,
23,
41,
60,
-26,
-40,
-6,
13,
-37,
19,
24,
37,
-38,
-19,
36,
17,
-34,
-35,
45,
-26,
47,
-48,
19,
-41,
-10,
-33,
-16,
-48,
45,
-41,
1,
-5,
50,
46,
-17,
19,
50,
-58,
30,
-4,
-11,
19,
15,
-23,
-53,
24,
-15,
16,
-74,
-36,
37,
28,
24,
4,
39,
-35,
-5,
34,
-2,
58,
-7,
-5,
11,
-6,
-42,
19,
-23,
-48,
34,
-70,
-4,
-30,
30,
-32,
40,
30,
14,
12,
-14,
-18,
25,
-4,
39,
16,
-26,
-23,
-6,
-23,
-71,
8,
-47,
33,
-26,
-5,
-20,
0,
29,
14,
14,
-26,
20,
22,
26,
-10,
-60,
-5,
-15,
7,
-13,
-17,
43,
-6,
50,
47,
-3,
5,
-27,
-9,
13,
25,
-30,
10,
6,
4,
2,
16,
17,
-16,
13,
67,
44,
17,
42,
-19,
-13,
-42,
-43,
41,
-26,
-35,
-13,
29,
-25,
-13,
-46,
11,
24,
11,
-14,
-6,
-5,
47,
26,
20,
-64,
-12,
27,
-17,
4,
7,
-30,
5,
-1,
-13,
-11,
21,
32,
-26,
16,
-6,
-21,
-6,
-7,
75,
16,
18,
65,
16,
76,
-32,
-22,
38,
-11,
-6,
18,
4,
-80,
-16,
24,
-32,
41,
-4,
-7,
-22,
-6,
-21,
-24,
63,
11,
8,
-27,
-27,
16,
12,
-37,
-42,
50,
-17,
10,
-1,
19,
0,
34,
8,
24,
-53,
10,
-28,
-22,
-3,
59,
-8,
51,
23,
29,
-21,
-60,
23,
4,
-13,
27,
69,
9,
57,
4,
-16,
-9,
-28,
-3,
-31,
6,
20,
-1,
-9,
-29,
-7,
-21,
-22,
5,
13,
62,
36,
8,
25,
-10,
33,
33,
74,
-11,
50,
-13,
9,
-23,
-24,
10,
30,
4,
10,
15,
-32,
13,
-34,
-9,
30,
-24,
8,
21,
13,
17,
31,
0,
-3,
0,
17,
27,
40,
-3,
28,
23,
11,
-27,
33,
14,
-35,
7,
14,
-19,
-5,
23,
3,
18,
-25,
26,
-39,
7,
-55,
-37,
27,
6,
53,
-50,
-24,
-19,
-26,
-16,
-18,
17,
-48,
11,
-49,
-44,
0,
18,
13,
-35,
-17,
-59,
15,
8,
-23,
22,
7,
-33,
-16,
12,
4,
-7,
-16,
35,
-5,
-51,
0,
-45,
4,
20,
-2,
-54,
24,
65,
-17,
-63,
12,
-23,
38,
18,
8,
-22,
32,
49,
-13,
22,
-37,
-74,
-35,
-41,
-20,
9,
-24,
-4,
-49,
36,
21,
15,
-18,
45,
-15,
7,
17,
-15,
37,
7,
60,
15,
-39,
-22,
43,
-27,
-21,
-31,
18,
-16,
-10,
50,
39,
-32,
-4,
-24,
-6,
0,
37,
2,
-26,
1,
-53,
45,
29,
-15,
-39,
41,
-15,
14,
48,
37,
56,
21,
35,
-18,
3,
-17,
-11,
13,
-8,
-7,
18,
20,
45,
-14,
-15,
-7,
-22,
22,
-48,
-20,
-25,
56,
-34,
-46,
14,
-11,
-15,
-17,
-4,
27,
14,
10,
23,
-38,
31,
-22,
7,
7,
-34,
7,
40,
29,
-2,
39,
-10,
0,
-24,
50,
2,
-19,
-42,
2,
-30,
7,
-53,
43,
25,
2,
-55,
-46,
18,
29,
-11,
-9,
41,
62,
-57,
-21,
40,
-1,
14,
16,
6,
10,
26,
12,
-31,
6,
-50,
18,
-44,
-37,
-5,
-11,
34,
41,
-20,
-2,
39,
4,
-67,
13,
-27,
10,
31,
17,
15,
13,
-62,
-27,
-34,
26,
26,
-6,
-25,
29,
31,
31,
-49,
0,
-8,
1,
-17,
-23,
19,
-24,
9,
-24,
15,
-10,
-48,
-47,
11,
31,
-23,
-3,
-28,
36,
-19,
31,
47,
-59,
18,
-10,
-3,
7,
-8,
26,
0,
8,
0,
13,
-50,
24,
12,
-16,
36,
-26,
-31,
-56,
-7,
8,
32,
17,
27,
-34,
-45,
25,
7,
-26,
21,
25,
-64,
0,
7,
-63,
14,
11,
17,
-32,
-5,
-48,
14,
19,
-9,
56,
-13,
-35,
-69,
-23,
-6,
21,
32,
25,
-36,
25,
26,
-26,
-32,
-1,
-6,
-12,
9,
-1,
-104,
-10,
9,
-11,
14,
-21,
2,
37,
9,
8,
32,
24,
-20,
16,
-1,
-2,
-20,
23,
15,
5,
0,
-41,
48,
-32,
-31,
-7,
-21,
-87,
26,
-34,
28,
-30,
33,
-3,
2,
-33,
37,
44,
-57,
-53,
-23,
-6,
-19,
17,
0,
-44,
6,
-3,
-41,
-27,
-57,
-58,
-43,
10,
10,
-3,
-39,
15,
-21,
20,
-32,
-45,
5,
-13,
6,
4,
-48,
1,
35,
67,
-20,
21,
-32,
-18,
23,
-48,
19,
24,
26,
-29,
-15,
18,
57,
43,
17,
6,
-11,
-8,
0,
-6,
54,
-41,
-49,
64,
-40,
28,
-8,
8,
-37,
51,
-17,
-18,
1,
29,
24,
-67,
13,
-3,
-52,
-27,
-27,
29,
23,
35,
-22,
-17,
-45,
-40,
20,
2,
26,
-51,
22,
-53,
18,
-59,
-9,
87,
14,
30,
-12,
0,
48,
20,
44,
-18,
17,
-23,
-21,
-1,
-4,
33,
17,
-29,
7,
31,
-15,
-37,
-8,
-17,
-26,
-58,
-8,
-56,
-9,
31,
7,
27,
12,
16,
-46,
2,
23,
47,
16,
-14,
55,
-2,
3,
13,
30,
-20,
-11,
11,
35,
28,
-36,
-3,
28,
72,
42,
5,
12,
-16,
-12,
-14,
-62,
-13,
-20,
-30,
-45,
28,
26,
0,
-6,
-4,
-25,
-22,
-49,
-32,
6,
19,
8,
-22,
-22,
44,
-53,
36,
15,
4,
8,
17,
-75,
-18,
-34,
-32,
-4,
-6,
74,
-19,
59,
-38,
-17,
-34,
-1,
61,
43,
22,
28,
-29,
-37,
-24,
3,
-11,
61,
37,
2,
-19,
-87,
1,
-42,
-37,
27,
-17,
-11,
-10,
27,
-5,
23,
16,
29,
-3,
-23,
-13,
-14,
14,
30,
-9,
4,
14,
39,
-70,
-32,
-6,
33,
26,
-23,
-81,
27,
-76,
-41,
71,
20,
44,
4,
-23,
-3,
35,
-38,
36,
-28,
-36,
39,
15,
27,
31,
36,
19,
-7,
18,
23,
-45,
-8,
33,
-29,
-56,
-18
] |
Dethmers, C. J.
Plaintiff, a realtor, brought this suit for a sale of real estate commission against defendants who were the property owners. From circuit court judgment of no cause for action in favor of defendants, plaintiff appealed to the Court of Appeals and, from its affirmance, he sought and was granted appeal here.
The question presented is whether defendants had the right, with respect to their written authorization of plaintiff to sell the property, for a period of one day, to terminate it before that day had expired and to sell the property themselves without liability to plaintiff for the commission agreed upon in the au tliorization agreement. The latter recited that in consideration (1) of plaintiff’s assistance to defendants in its preparation and (2) of plaintiff’s presentation of defendants’ offer to sell for acceptance by certain intended prospective buyers named in the agreement, defendants agreed that it was irrevocable for one day.
Within the specified one-day period plaintiff secured from the said intended buyers a counter-offer and presented it to defendants. They turned it down and advised plaintiff that they already had sold to another buyer who was unknown to plaintiff. Plaintiff then went again to the said intended buyers and promptly, within said one-day period, returned to defendants with a written acceptance by said intended buyers of defendant’s offer to sell at the price and on the terms provided by defendants in their written authorization agreement and offer to sell.
The Court of Appeals relied on Schostak v. First Liquidating Corporation, 320 Mich 406, and defendants, in addition, cite Pastras v. Oberlin, 350 Mich 183, and McOmber v. Campion, 219 Mich 604, for the proposition that the owner of real estate may, during the life of a listing agreement, but before the realtor has produced a purchaser ready, willing, and able to buy on the owner’s terms, rescind it, sell the property himself and not become obligated to the realtor for the specified commission. If these can be said to hold that only if the realtor has actually produced a buyer on the owner’s terms has he acquired irrevocable rights under the contract, then it must be concluded that they are, to that extent, superseded by the more recent case of Ladd v. Teichman, 359 Mich 587, in which this Court said:
“Thus it appears that where a contract to sell real estate contains a provision for exclusive sale rights and a reasonable time limit, and the broker is able to show substantial performance of the duties imposed upon him by the contract (even though he does not produce a buyer), when the owner makes the sale within the contract dates, the contract is held to be enforceable and the broker entitled to his commission.”
Mr. Justice Edwards in Ladd wrote:
“But in 2 cases where the language of the agreement granted what we construe to be exclusive sale rights for a specified period and there was specific language which purported to assure a commission to the broker even if the owner made an unassisted sale, the broker was allowed to recover after the owner sold. Axe v. Tolbert, 179 Mich 556; DeBoer v. Geib, 255 Mich 542. Even as to these last 2 cases, however, there was either claim or recital of consideration on the part of the broker.
“None of these cases is squarely in point as to our present situation, hut they help to illustrate the preoccupation of the Michigan Court with the question of consideration as it relates to a claim for commission under a contract to sell real estate.”
In 2 Restatement, Second, Agency, § 453, comment c, appears the following:
“c. When a promise not to terminate authority. If there is merely an offer to pay compensation without a corresponding agreement to perform service, ordinarily the offer can properly be revoked at any time. This is true in the usual agreement with real estate brokers and, unless he acts in bad faith (see § 454), the principal commits no breach of contract and hence has to pay no commission if, on the eve of success by a broker, he withdraws the property from the broker’s control for any reason. However, there are many variants. Thus, if the broker promises to make specific efforts or otherwise gives considera tion therefor, the principal may he found to have promised that he will not terminate the employment until the broker has had a reasonable time in which to find a customer.” (Emphasis supplied.)
The variant from the general rule in this case is the existence of two specific items of consideration furnished by plaintiff broker, to which reference was made in the authorization agreement’s recital of consideration, namely, plaintiff’s assistance to de: fendants in preparation of that agreement and offer to sell and plaintiff’s presentation thereof to the intended purchaser. With “the preoccupation of the Michigan Court with the question of consideration as it relates to a claim for commission under a contract to sell real estate,” as stated in Ladd, it seems that the recital and acts of consideration present in this case require a holding for plaintiff under the, meaning of the decision in Ladd. There are distinguishing factual features between the two cases but, on the fundamental principle that a consideration flowing from the realtor to the owner supports a binding obligation on the part of the latter, they are the same.
“To the general rule of law that a principal may revoke the power of his agent or attorney at his mere pleasure or caprice, there is a well-defined exception to the effect that where an authority - or power is coupled with an interest, or where it is given for a valuable consideration, or where it is part of a security, unless there is an express stipulation that it shall be revocable, it is, from its very nature and character, in contemplation of the law, irrevocable, whether it is expressed to be so on the face of the instrument conferring the power or not.” 7 ALR 947, annotation. (Emphasis supplied.)
Discussion of other points considered in the briefs is unnecessary to decision here.
’ Reversed'and remanded for entry of judgment for plaintiff as prayed. Costs to plaintiff.
Kelly, Black, Souris, O’Hara, and Adams, JJ., concurred with Dethmers, C. J.
T. M. Kavanagh, J., concurred in result.
Brennan, J., took no part in the decision of this case.
2 Mich App 177. — Reporter. | [
-21,
1,
1,
-24,
-2,
-28,
-19,
19,
-36,
47,
-28,
35,
-18,
-2,
47,
-26,
45,
49,
-24,
-9,
-17,
15,
0,
41,
1,
-68,
28,
-21,
16,
-5,
-25,
0,
-9,
1,
-13,
30,
28,
-28,
38,
28,
34,
38,
23,
-4,
1,
-45,
3,
-34,
22,
16,
17,
60,
12,
27,
-55,
-36,
-59,
15,
9,
10,
-30,
-62,
-21,
26,
-41,
-8,
23,
-1,
4,
-38,
-27,
-39,
11,
63,
36,
6,
-7,
6,
12,
18,
69,
-1,
38,
-37,
27,
76,
71,
-35,
36,
5,
-28,
-49,
33,
-28,
-5,
23,
64,
6,
-35,
-40,
-10,
-12,
-39,
21,
-41,
25,
-24,
-27,
-23,
20,
8,
-27,
4,
-6,
-23,
7,
-58,
-51,
18,
-2,
11,
-48,
-9,
-13,
32,
9,
-6,
-20,
-39,
13,
19,
22,
-47,
53,
-39,
4,
-33,
-25,
25,
-44,
-11,
30,
-44,
-53,
11,
-32,
5,
14,
-46,
-11,
-39,
0,
-17,
30,
-50,
-53,
13,
-14,
-19,
-55,
39,
-53,
-23,
-8,
-3,
5,
-41,
-24,
-51,
7,
58,
-3,
17,
-45,
-10,
-32,
56,
16,
0,
-15,
-2,
11,
2,
-37,
-43,
-34,
-23,
2,
27,
25,
33,
-32,
-28,
30,
-14,
0,
-54,
117,
10,
8,
-22,
-60,
5,
4,
-48,
-13,
-52,
7,
39,
-33,
-42,
33,
-16,
-44,
3,
-21,
16,
-11,
29,
-32,
7,
-57,
37,
63,
-15,
-8,
23,
-12,
5,
9,
0,
-15,
-28,
36,
-24,
-58,
12,
0,
34,
-2,
12,
-2,
-24,
28,
-24,
34,
9,
34,
15,
11,
-22,
-10,
-5,
7,
30,
7,
-11,
-10,
-60,
8,
12,
13,
-61,
22,
42,
-3,
51,
-10,
-29,
-6,
-14,
34,
12,
73,
-34,
-13,
-45,
-18,
-7,
-19,
30,
10,
-24,
33,
-35,
53,
0,
36,
-16,
25,
13,
22,
4,
5,
-2,
9,
15,
-8,
-1,
0,
-20,
-7,
35,
17,
22,
-11,
-16,
29,
27,
-28,
9,
15,
30,
-39,
-14,
37,
2,
-76,
51,
-10,
61,
-7,
-2,
29,
9,
-50,
-5,
-25,
-30,
-21,
11,
-17,
-25,
-9,
14,
23,
25,
-69,
-92,
23,
-36,
-20,
-6,
-2,
53,
21,
5,
-29,
4,
9,
-35,
-26,
-47,
39,
1,
-26,
-10,
-4,
-10,
35,
5,
17,
-42,
-20,
-7,
44,
18,
6,
37,
27,
-7,
63,
-34,
-21,
-25,
-8,
-30,
-22,
-86,
59,
-32,
-10,
34,
23,
52,
-35,
-55,
-32,
13,
-4,
-67,
-33,
0,
-1,
-8,
-23,
-37,
-56,
14,
-31,
17,
14,
5,
-7,
-31,
15,
25,
-28,
-24,
37,
28,
-32,
-12,
-22,
1,
-1,
53,
1,
29,
8,
42,
-49,
-31,
-25,
-12,
7,
-18,
31,
-17,
51,
-5,
49,
51,
-41,
29,
3,
-9,
-21,
-78,
44,
-37,
-9,
-31,
-14,
35,
-36,
-37,
17,
-2,
-18,
-26,
29,
50,
14,
-1,
30,
20,
-10,
2,
-7,
82,
-29,
32,
-61,
25,
-14,
29,
-44,
-24,
25,
-14,
4,
-14,
76,
-53,
9,
-65,
-5,
-19,
35,
-19,
42,
3,
-20,
0,
40,
-17,
-32,
7,
-18,
-15,
1,
25,
26,
-68,
-29,
2,
38,
-23,
41,
-7,
-46,
13,
53,
-8,
-19,
9,
-22,
51,
-10,
-21,
-1,
-11,
33,
-32,
32,
25,
-32,
28,
-1,
29,
-60,
-14,
-22,
12,
24,
32,
4,
19,
4,
33,
-2,
38,
-8,
32,
-21,
-18,
18,
55,
14,
-23,
9,
-35,
60,
45,
66,
11,
25,
16,
-26,
17,
-26,
-9,
22,
-22,
65,
-29,
-18,
18,
-3,
-23,
70,
25,
-23,
71,
-7,
-11,
-10,
-49,
98,
-31,
-30,
-8,
-24,
-21,
-32,
-18,
13,
7,
13,
-13,
27,
44,
-26,
-30,
18,
0,
28,
59,
7,
-3,
-13,
53,
-41,
-10,
17,
37,
6,
15,
46,
-26,
-1,
-69,
-50,
-6,
-22,
-57,
32,
58,
23,
-34,
-34,
-55,
25,
-8,
3,
48,
-30,
-11,
30,
8,
45,
12,
13,
-17,
56,
21,
23,
-11,
30,
21,
-27,
-10,
-59,
10,
1,
13,
-15,
-29,
-22,
-65,
30,
-47,
-15,
29,
-4,
-2,
-2,
71,
-14,
-44,
9,
2,
-35,
26,
10,
21,
-13,
8,
-35,
1,
-39,
-59,
-16,
37,
-33,
8,
-15,
13,
-27,
21,
45,
10,
-13,
59,
59,
22,
1,
27,
32,
23,
-36,
10,
-13,
-24,
16,
69,
-46,
16,
50,
-16,
5,
-21,
-64,
-11,
-5,
0,
51,
41,
32,
-16,
0,
-42,
49,
-28,
24,
-31,
0,
-1,
-21,
50,
4,
-7,
-21,
2,
47,
-1,
-8,
-27,
0,
-14,
-23,
28,
-78,
49,
-20,
6,
15,
7,
10,
14,
-26,
-32,
-3,
17,
43,
-12,
-22,
-7,
2,
-30,
0,
13,
-4,
-34,
-11,
29,
61,
7,
-66,
33,
4,
34,
37,
44,
-1,
-45,
0,
-60,
0,
1,
40,
-45,
27,
29,
-16,
17,
-44,
32,
-39,
-62,
-33,
8,
51,
-26,
-37,
51,
41,
39,
-26,
-2,
-42,
-45,
14,
35,
18,
26,
-7,
12,
35,
-2,
-32,
-33,
-5,
-21,
0,
34,
-3,
59,
-68,
29,
32,
-34,
10,
32,
-8,
-6,
32,
21,
-43,
-5,
-21,
-24,
-7,
20,
53,
22,
35,
26,
19,
1,
-34,
-55,
35,
-40,
15,
29,
-23,
-13,
15,
52,
-60,
13,
51,
10,
-13,
-40,
-13,
25,
-49,
1,
-7,
-6,
38,
41,
-21,
23,
23,
-7,
-28,
-27,
5,
-13,
-22,
-7,
9,
-56,
35,
52,
-36,
42,
-15,
-46,
6,
40,
-77,
-11,
20,
22,
59,
43,
-11,
-14,
0,
6,
23,
-32,
-28,
-10,
15,
0,
47,
-51,
30,
-29,
13,
47,
-54,
-28,
0,
19,
14,
-75,
42,
-2,
-24,
15,
-24,
11,
-4,
-13,
11,
50,
8,
8,
39,
-15,
35,
-8,
40,
32,
19,
-5,
-27,
-32,
0,
10,
-13,
56,
17,
-9,
15,
-45,
-48,
6,
-32,
33,
18,
12,
13,
-34,
9,
-26,
15,
16,
-41,
22,
0,
-70,
29,
-14,
-2,
6,
45,
-36,
37,
14,
-15,
29,
16,
-40,
25,
64,
-6,
-26,
34,
17,
-22,
-59,
-62,
-16,
36,
50,
12,
57,
2,
51,
0,
5,
-24,
-16,
-21,
-29,
13,
-39,
-15,
-34,
6,
-54,
10,
-9,
-32,
6,
35,
4,
8,
-9,
31,
-25,
-77,
-1,
7,
56,
-1,
-15,
9,
-26,
45,
30,
-10,
-30,
-13,
-46,
10,
-9,
12,
50,
30,
8,
-28,
-32,
7,
62,
40,
-45,
-13,
11,
16,
-54,
-37,
17,
31,
-44,
23
] |
Brennan, J.
(for affirmance). The defendant was tried and convicted of selling narcotic drugs without a license. He was also convicted upon a second count of possession of narcotics without a license, contrary to the statute. Defendant was sentenced to terms of 20 to 30 years and 8 to 10 years on these counts. Defendant challenges his conviction thereunder on the ground that the statutes under which he was convicted are unconstitutional in that they deny him equal protection of the laws. Defendant’s claim is that if he were a physician, dentist, or pharmacist licensed to sell and dispense narcotics, he would have been charged under a different statute, conviction under which would have carried a maximum sentence of 10 years and a maximum fine of $10,000.
Pointing up the argument which defendant makes, the following hypothetical situation is described in defendant’s brief:
“To carry this point a step further, let us assume that there are two brothers who reside in Flint, Michigan; one is ‘duly licensed’ to lawfully sell, manufacture, dispense, administer, et cetera, narcot ic drugs by virtue of being a registered pharmacist.' However, he does not own or operate a business. The other brother (appellant), is a ‘person not having a license’ to lawfully use, possess, sell, dispense, administer, et cetera, narcotic drugs.
“Now, these two brothers decide to pool their resources and make an unlawful purchase of a kilogram (2.3 [2.2?] pounds) of heroin. After making their purchase, each takes his share and begins ‘dealing’. After a short time, both are arrested and charged with having made an unlawful sale of heroin. The ‘duly licensed’ brother sold two ounces of heroin to a young college student while the brother ‘not having a license’ sold two small capsules of heroin to an addict who has been addicted for many years. Thus, both made an unlawful, illegitimate, illegal, or illicit sale of heroin. At this point, however, the similarity ends. The ‘duly licensed’ brother was charged with, convicted of, and sentenced for one offense, viz., unlawful sale of a narcotic drug, whereas the brother ‘not having a license’ is charged with, convicted of, and sentenced for two offenses, viz., unlawful sale of a narcotic drug and unlawful possession of a narcotic drug, the latter being ‘deemed to be included in every offense’ of unlawful sale by ‘any person not having a license.’ Obviously, since there can be no ‘license’ to sell heroin (or unlawfully do any act for that matter), both have committed the same offense or offenses. But, based solely upon the possession or lack of a ‘license’ to lawfully sell other narcotic drugs, they are statutorily treated differently. The ‘duly licensed’ brother cannot possibly receive more than 10 years imprisonment for his offense whereas the brother ‘not having a license’ mandatorily receives a term of not less than 20 years imprisonment for the unlawful sale as well as a concurrent sentence of not more than 10 years imprisonment for the unlawful possession offense ‘deemed to be included in every offense’ of unlawful sale, et cetera, by ‘any person not having a license under the provisions of Act No 343 of the Public Acts of 1937, as amended.’
“Therefore, the basic question arises: Does this statutorily prescribed difference in provisions and penalties deny appellant, a ‘person not having a license under the provisions of Act No 343 of the Public Acts of 1937, as amended,’ equal protection of the laws in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States'?”
The argument is ingenious, but, it is based upon a false assumption. It erroneously assumes that a registered pharmacist could not be charged with unlawful sale and possession of heroin under PA 1952, No 266. The fact is otherwise. A registered pharmacist who sells heroin could be charged under PA 1952, No 266, with unlawful sale and possession of a narcotic drug. The statute in question reads as follows:
“Sec. 2. Any person not having a license under the provisions of Act No. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the State prison for a term of not less than 20 years nor more than life.”
The defendant would have us read the word license as used in the foregoing statute to mean the piece of paper signed by the State director of drugs and drugstores. The defendant would have us believe that the statute intends to exempt from its operation all those persons to whom such a piece of paper has been issued. Taking such a view, the statute might well be regarded as unconstitutional since the mere possession of a piece of paper can hardly he regarded as a kind of classification upon which equal protection of the laws can he predicated.'
It is the function of an appellate court, however, so to construe statutory language as to uphold the' constitutionality of acts of the legislature, if possible. And certainly we should not engage in1 strained or myopic interpretations of statutory language, in order to find legislative enactments' to be unconstitutional.
A license is not a piece of paper. It may be evi-, denced by a piece of paper, but the piece of paper is not the license. A license is a permission granted' by proper authority to do an act. There must be power in the licensing authority to permit the act to be done. There must be an act or acts with reference to which the license is given. PA 1952’, No 266, exempts from its terms those persons and only' those persons who are licensed to do what the act otherwise proscribes. This is the only logical meaning or interpretation of the act. Thus understood, and applied to the hypothetical case suggested by the defendant, the statute means “any person not having a license to sell heroin, who shall sell heroin, shall be deemed guilty of a felony, et cetera.” Thus understood, both heroin-selling brothers in the defendant’s hypothetical case would be guilty of and charged with the same crime.
It should be borne in mind that since the amendment by PA 1952, No 132, section 20 of PA 1937, No 343, does not prescribe any penalty for a person who sells narcotics without a license. Section\3- of the licensing act says that no person shall sell narcotics without first obtaining a license so to. do from the State director of drugs and drugstores.Section 20 of the act now limits its application to persons duly licensed under the preceding provi-, sions of the act. The act no longer contains within its four corners any penalty provision for persons’ wbo sell narcotics without a license. Section 20 of the licensing act can only apply to those violations of the licensing act which, by definition, can be committed by a licensed person. Section 20 can never be read to punish a person for doing something which he is not licensed to do. It can only be read as the penalty mandated for a licensed person failing to do what a licensed person is required to do, or doing what a licensed person is prohibited from doing. The penalties of section 20 of the licensing act are in addition to and separate from the penalties of section 2 of PA 1952, No 266. It is possible that the same act may constitute a violation of both statutes. To put a parallel ease, if a druggist prescribes and administers a drug for one of his customers, he may be guilty not only of practicing medicine without a license but also of selling a drug without a prescription. In the hypothetical case suggested by the defendant, the drug sold is heroin. A license to sell heroin cannot be obtained from the State of Michigan because Federal laws have pre-empted the field under the commerce clause of the United States Constitution taking away State authority to do so. The point is made well in the memorandum brief filed by the people in this cause. A druggist who sells heroin would be guilty of violating both of the statutes involved in this case. He would have sold a narcotic drug without a license since the State of Michigan had given him no permission to sell heroin. In addition to that, he would have dispensed a narcotic drug without a prescription, which as a licensed person he is prohibited from doing. But even if a druggist were to sell heroin, on prescription of a physician, he would be guilty of violation of PA 1952, No 266, since his license to sell narcotic drugs cannot be broader than the power of the licensing authority to grant permission. And since the State of Michigan has no authority to grant him permission to sell heroin, every such sale must be the act of an unlicensed person. Defendant’s constitutional argument is without merit and his conviction should be sustained.
Dethmers, C. J. and Black, J., concurred with Brennan, J.
PA 1952, No 266, §§ 2, 3 (CLS 1961, §§ 335.152, 335.153 [Stat Ann 1957 Rev §§ 18.1122, 18.1123]).
PA 1937, No 343, as amended (CL 1948, § 335.51 et seq., as amended [Stat Ann 1957 Rev and 1965 Cum Supp § 18.1071 et seq.]).
US Const, art 1, § 8. — Reporter.
“Appellee submits, however, that the first premise of appellant does not necessarily follow, and further submits that there is no classification. There is no legitimate traffic in heroin, the substance herein involved. Under 18 USC § 1402, all heroin must be surrendered to the secretary of the treasury:
“ ‘Any heroin lawfully possessed prior to the effective date of this act shall be surrendered to the secretary of the treasury, or his designated representative, within 120 days after the effective date of the act, and each person making such surrender shall be fairly and justly compensated therefor. The secretary of the treasury, or his designated representative, shall formulate regulations for such procedure. All quantities of heroin not surrendered in accordance with this section and the regulations promulgated thereunder by the secretary of the treasury, or his designated representative, shall by him be declared contraband, seized, and forfeited to the United States without compensation.’ * * *
“Under 21 USC § 173, no opium may be brought into the United States for the purpose of manufacturing heroin:
“ ‘It is unlawful to import or bring any nareotie drug into the United States or any territory under its control or jurisdiction; except that such amounts of crude opium and coca leaves as the commissioner of nareoties finds to be neeessary to provide for medical and legitimate uses only may be imported and brought into the United States or such territory under such regulations as the commissioner of nareoties shall prescribe, but no crude opium may be imported or brought in for the purpose of manufacturing heroin.’
* * *
“It is from a reading of the above Federal citations that it can clearly be seen that heroin is withdrawn from general use and that there is no legitimate traffic in heroin.
“Since the enactment of the foregoing Federal laws, Michigan cannot thereafter legitimatize the sale of heroin. Federal laws have pre-empted the field, taking away State authority so to do, under the commerce elause of the United States Constitution. Any State law allowing the general sale of heroin would conflict with the Federal laws and therefore would be invalid. Leisy v. Hardin (1890), 135 US 100 (10 S Ct 681, 34 L ed 128).
“A license to sell heroin cannot be obtained from the State of Michigan. In effect then, the sale of heroin is prohibited and not just regulated.
“It is upon the foregoing prohibition that appellee submits that any person selling heroin in Michigan would be an unlicensed person. Going back one step further, PA 1952, No 266 (CLS 1961, § 335.151 et seq. [Stat Ann 1957 Rev § 18.1121 et seq.]) is in part entitled, ‘An act to suppress the illegitimate use, * * * sale * * * in narcotic drugs.’
“Section 2 of Aet No 266 (CLS 1961, § 335.152 [Stat Ann 1957 Rev § 18.1122]) might be read as follows:
“ ‘Any person not having a license * * * .(so to do) * * * who shall sell * * * any narcotic drug shall be deemed guilty of a felony.’
“If one refers baek to PA 1937, No 343, as amended (CL 1948, § 335.51 et seq., as amended [Stat Ann 1957 Rev and Stat Ann 1965 Cum Supp § 18.1071 et seq.]), which provides for licensing, it is clear that provision is made only for the legitimate use of nareoties: sections 6, 7 (CLS 1961, §§ 335.56, 335.57 [Stat Ann 1957 Rev §§ 18.1076, 18.1077]). Section 3 explicitly requires authorization to sell narcotics (CLS 1961, § 335.53 [Stat Ann 1957 Rev § 18.1073]). Section 3 provides that specific licensing must be granted:
“ ‘No person shall * * * sell * * * any narcotic drugs without having first obtained a license so to do. * * *’
“In summarizing, since there can be no license to sell heroin, and Michigan has not issued a license to sell heroin, any person selling heroin in Michigan is an unlicensed person. Conversely, no one can legitimately be licensed to sell heroin so as to fall within the exclusion of PA 1952, No 266 and avoid prosecution thereunder.” | [
49,
6,
-8,
4,
-19,
-25,
-13,
32,
-56,
51,
2,
-5,
17,
38,
56,
43,
0,
-2,
28,
12,
55,
18,
29,
31,
9,
-26,
23,
49,
-5,
45,
-13,
-20,
82,
-45,
8,
72,
28,
-38,
30,
33,
24,
8,
14,
2,
-5,
3,
6,
2,
49,
10,
-9,
-40,
15,
19,
-8,
46,
16,
6,
25,
25,
-24,
-4,
18,
-40,
38,
-20,
-33,
45,
19,
-9,
-6,
26,
-46,
32,
5,
-42,
3,
7,
48,
34,
16,
-2,
37,
-82,
-44,
77,
-29,
-33,
20,
-28,
15,
-104,
-1,
-8,
-22,
13,
-11,
-19,
11,
-64,
62,
42,
3,
9,
-17,
-9,
-5,
-30,
-16,
4,
-19,
9,
20,
-46,
57,
-78,
-67,
14,
-45,
49,
-30,
41,
39,
46,
-12,
-41,
10,
-10,
-43,
-54,
34,
12,
-43,
-14,
-46,
50,
-16,
49,
30,
31,
6,
33,
9,
24,
-7,
3,
19,
-8,
9,
-9,
-46,
-28,
-52,
5,
-56,
-2,
11,
24,
0,
18,
9,
-47,
12,
36,
20,
-2,
-39,
2,
-8,
41,
10,
-8,
-21,
21,
54,
6,
13,
-2,
31,
-33,
-24,
3,
9,
-4,
2,
-34,
6,
-50,
-20,
-80,
-11,
23,
-77,
4,
-11,
-35,
24,
26,
39,
-18,
-9,
-3,
7,
47,
19,
49,
-28,
50,
25,
12,
-12,
-13,
19,
-37,
-8,
-15,
-35,
7,
-41,
-36,
-48,
-1,
4,
-18,
6,
-38,
59,
10,
-60,
-29,
-12,
-11,
-4,
26,
-16,
-70,
33,
-12,
29,
18,
-33,
-18,
-45,
-50,
54,
-19,
-4,
-12,
-10,
14,
16,
32,
16,
12,
-68,
8,
32,
-52,
-24,
1,
-48,
37,
-59,
30,
-8,
-24,
3,
41,
-52,
75,
-63,
-8,
-19,
-27,
21,
0,
7,
72,
33,
22,
70,
22,
29,
-15,
-44,
8,
-44,
76,
-4,
15,
18,
-26,
-44,
-9,
11,
20,
48,
9,
-40,
49,
8,
-26,
23,
28,
47,
16,
41,
22,
-7,
-27,
13,
-69,
-29,
45,
-50,
-17,
-23,
-21,
23,
-9,
-5,
30,
40,
6,
17,
-47,
53,
-23,
33,
-14,
37,
-10,
-4,
-58,
-42,
-11,
7,
-61,
-29,
0,
-63,
-15,
-20,
-41,
24,
19,
-7,
-2,
-13,
-20,
56,
13,
39,
20,
19,
-38,
-15,
-11,
-29,
-44,
4,
-37,
-23,
0,
-7,
1,
4,
46,
-12,
54,
16,
-26,
-14,
20,
-22,
-27,
22,
-9,
-58,
4,
-40,
-49,
51,
-7,
22,
29,
-49,
-36,
11,
19,
-4,
28,
-7,
-48,
-11,
7,
-23,
0,
57,
-54,
-31,
30,
24,
14,
9,
-2,
14,
57,
-6,
-25,
-98,
-1,
-20,
65,
-23,
27,
47,
-29,
-52,
-79,
31,
-2,
-17,
-32,
17,
-35,
-51,
15,
8,
3,
-14,
-7,
45,
0,
-45,
-4,
-55,
3,
12,
-9,
-53,
-15,
-46,
1,
25,
46,
-24,
-28,
36,
-10,
-14,
-41,
-57,
-5,
-15,
49,
-17,
36,
17,
4,
-18,
-22,
-15,
-9,
23,
-38,
-20,
-72,
35,
-57,
-18,
27,
21,
20,
-4,
52,
15,
39,
-29,
20,
-1,
4,
13,
-20,
41,
-73,
-41,
-1,
-53,
-20,
20,
-9,
12,
39,
-22,
7,
34,
-12,
12,
64,
-5,
6,
-27,
15,
-13,
-20,
17,
24,
34,
-3,
-7,
59,
11,
-7,
-54,
0,
-35,
-1,
-8,
28,
57,
-20,
-5,
24,
-49,
28,
-42,
-25,
-11,
-53,
22,
-2,
33,
8,
12,
-13,
24,
-20,
2,
17,
4,
16,
21,
33,
34,
-7,
26,
18,
71,
-25,
-53,
62,
-7,
-33,
6,
25,
-1,
64,
-34,
-5,
-56,
13,
50,
7,
49,
8,
45,
18,
55,
53,
-31,
-11,
9,
38,
-23,
15,
32,
49,
-31,
-15,
44,
18,
-8,
-8,
-13,
-2,
-33,
-9,
-12,
-56,
48,
-7,
14,
-12,
-43,
-13,
-24,
-45,
41,
42,
32,
19,
-25,
-16,
-11,
-40,
13,
13,
-28,
27,
20,
15,
-6,
-49,
-3,
32,
-4,
-4,
-18,
23,
15,
25,
-19,
9,
-8,
33,
-18,
-48,
-47,
11,
-25,
-23,
19,
-27,
-7,
9,
-22,
32,
-71,
-27,
11,
-10,
-25,
22,
23,
46,
6,
22,
-14,
17,
-33,
26,
-25,
16,
22,
-12,
-46,
19,
23,
-46,
-7,
-1,
-26,
31,
14,
18,
22,
-52,
-30,
38,
8,
-42,
-15,
2,
45,
4,
5,
19,
36,
23,
-20,
-65,
64,
-30,
-11,
15,
-37,
-27,
60,
-17,
-23,
60,
-1,
-49,
-36,
30,
-31,
71,
31,
-6,
-1,
25,
-15,
25,
-16,
-8,
54,
-4,
-4,
19,
14,
-13,
35,
30,
0,
-13,
-30,
-12,
-22,
-30,
0,
-83,
30,
20,
48,
-11,
-9,
10,
17,
-38,
9,
-81,
11,
1,
54,
19,
-15,
5,
-19,
36,
6,
-2,
-41,
-23,
-13,
-30,
-45,
-15,
11,
-12,
3,
44,
34,
-7,
-39,
-18,
14,
-33,
-52,
-15,
-51,
59,
-27,
28,
13,
5,
5,
-34,
39,
27,
-46,
-42,
-39,
2,
-11,
2,
-51,
-20,
-18,
-19,
33,
-10,
-45,
6,
-25,
-18,
0,
14,
27,
-6,
-8,
30,
12,
31,
-2,
25,
-23,
17,
1,
-39,
95,
-22,
13,
-19,
14,
21,
-12,
-15,
5,
8,
9,
29,
11,
-7,
16,
-7,
-56,
-59,
-16,
6,
25,
-19,
-49,
-30,
18,
30,
40,
2,
-13,
-16,
40,
10,
2,
-3,
-18,
38,
23,
-43,
8,
14,
2,
-23,
-10,
66,
29,
35,
6,
-34,
-20,
-10,
-28,
-68,
-23,
9,
1,
-26,
-32,
-15,
27,
59,
98,
-6,
-4,
11,
-15,
19,
23,
31,
-20,
4,
-33,
-10,
0,
-36,
-6,
25,
-28,
-20,
-37,
36,
29,
-48,
11,
22,
30,
-35,
-6,
-22,
-38,
0,
0,
-40,
-33,
-24,
-13,
-15,
42,
0,
-8,
-35,
35,
-42,
-33,
27,
14,
-6,
11,
-7,
-16,
-4,
13,
26,
29,
21,
-47,
-26,
-9,
-8,
29,
-22,
-11,
29,
-1,
40,
-21,
19,
-14,
-11,
-4,
-8,
-27,
12,
27,
12,
-5,
-39,
26,
-10,
12,
-42,
-40,
24,
-16,
20,
-27,
18,
-7,
18,
35,
-43,
-24,
11,
-46,
32,
-48,
3,
11,
17,
8,
8,
-14,
72,
-59,
20,
-3,
16,
19,
25,
16,
4,
10,
-13,
-16,
1,
-5,
-44,
-2,
-17,
3,
-1,
-90,
-75,
-15,
8,
49,
-5,
33,
41,
-46,
20,
-17,
39,
20,
47,
4,
-5,
15,
10,
-3,
-82,
23,
6,
-30,
-24,
39,
32,
33,
-7,
21,
-38,
-3,
7,
91,
-31,
-58,
18,
-15,
22,
-71,
59,
-37,
89,
13,
25
] |
Adams, J.
Plaintiff was injured in an accident that occurred on June 20, 1964. Defendant Grinther, a volunteer fireman for the city of Croswell, while responding in his own car to a fire alarm, collided with a car being. driven by plaintiff’s husband. Plaintiff brought suit against Grinther and the city of Croswell. The circuit judge denied a motion by the city for summary judgment, holding that this case falls squarely within Williams v. City of Detroit, 364 Mich 231; Sherbutte v. City of Marine City, 374 Mich 48; and Myers v. Genesee County Auditor, 375 Mich 1. The Court of Appeals denied application for leave to appeal, holding the case is controlled by Sherbutte. Appeal was taken to this Court upon leave granted.
Defendant city contends that Sherbutte, decided four and one-half months after the present cause of action arose, should not be given retrospective effect, that it has the right to rely on statutory governmental immunity granted by PA 1951, No 59, as amended by PA 1963, No 83 (Stat Ann 1963 Cum Supp § 5.3376[1] et seq.), and that the decision in Sherbutte, if controlling, should be overruled.
PA 1951, No 59, was considered by Justice O’Hara in Sherbutte. He reasoned that the act was adopted to improve the lot of plaintiffs, that it did not deal with governmental immunity because at the time of enactment cities had governmental immunity, and that when cities lost governmental immunity by virtue of Williams they might then be named as defendants. Since Williams is the foundation case for decision both in Sherbutte and here, no question of retroactivity is involved.
The title of PA 1951, No 59, was changed by the addition of the underlined words in the title of PA 1963, No 83:
“An act to authorize political subdivisions of the State to indemnify a policeman or fireman for any judgment recovered against him for torts, wrongful acts or omissions while such policeman or fireman is acting within the scope of his authority or in the course of his employment; and to authorize political subdivisions to furnish legal counsel.”
No mention of governmental immunity or governmental function is made in either act. No right to sue policemen or firemen is conferred by either act. The statute as amended is permissive insofar as it pertains to political subdivisions. It permits political subdivisions under the conditions it imposes to indemnify a policeman or fireman for a judgment or to pay same. No liability is created. None is taken away.
Had the legislature intended to deal with governmental liability it had only so to state as was done in PA 1964, No 170 (MCLA § 691.1401 et seq., Stat Ann 1965 Cum Supp § 3.996[101] et seq.), the title of which commences as follows:
“An act to make uniform the liability of municipal corporations,” et cetera.
Since it must be concluded that PA 1951, No 59, and PA 1963, No 83, do not provide governmental immunity for cities and since governmental immunity as to cities was abolished prospectively by Williams, decided September 22, 1961, plaintiff has stated a cause of action against the city arising out of the accident which occurred June 20, 1964.
•'The decision of the trial judge is affirmed. The case is remanded to him for further proceedings. Costs to appellees.
T. M. Kavanagh, Souris, and O’Hara, JJ., concurred with Adams, J.
CLS 1961, §124.101 et seq. (Stat Ann 1958 Rev § 5.3376[1] et seq.), repealed by PA 1964, No 170, § 14, — Reporter. | [
-14,
2,
-6,
10,
13,
35,
-34,
-88,
-10,
22,
-56,
-27,
59,
-43,
-10,
-15,
-19,
33,
-20,
21,
-2,
-36,
-6,
13,
-17,
-42,
30,
-23,
-61,
14,
52,
-58,
12,
15,
-37,
-3,
6,
43,
5,
6,
31,
31,
32,
-32,
-5,
12,
-5,
9,
22,
-7,
-19,
24,
-12,
14,
0,
-33,
6,
-13,
-20,
-36,
-61,
-7,
-10,
29,
7,
-17,
-13,
45,
7,
-17,
27,
9,
-39,
-71,
16,
9,
3,
52,
17,
-1,
-31,
19,
22,
-79,
0,
-4,
0,
16,
-23,
54,
21,
14,
-18,
17,
-8,
0,
-17,
0,
53,
-24,
-42,
8,
28,
21,
31,
5,
-25,
1,
41,
-13,
-56,
32,
16,
-26,
36,
-38,
-33,
56,
67,
87,
-14,
-33,
46,
3,
27,
10,
-49,
14,
-62,
32,
-25,
40,
71,
-5,
21,
15,
19,
-19,
35,
27,
-5,
-18,
14,
-66,
-7,
-11,
12,
3,
25,
0,
-23,
47,
83,
-15,
-68,
18,
27,
-7,
22,
29,
-13,
-13,
17,
2,
-28,
-9,
-26,
39,
-54,
1,
3,
26,
25,
-4,
37,
-22,
-24,
14,
-62,
2,
-38,
-12,
29,
-5,
25,
-58,
19,
-15,
-7,
-28,
62,
-47,
-8,
-47,
44,
11,
13,
24,
-7,
-47,
25,
-13,
26,
-25,
12,
-24,
25,
-5,
13,
-11,
-63,
-43,
23,
23,
30,
22,
4,
-31,
-3,
-28,
2,
6,
21,
-2,
-46,
29,
-51,
8,
57,
8,
17,
-54,
-15,
9,
-63,
21,
0,
-24,
52,
-40,
-30,
18,
51,
1,
-45,
-30,
48,
-47,
-20,
19,
-5,
-44,
36,
-22,
-21,
-20,
-7,
5,
-9,
38,
42,
8,
12,
10,
19,
32,
14,
43,
-1,
-23,
2,
7,
29,
12,
-24,
-32,
-1,
-27,
55,
-7,
-12,
5,
-54,
-46,
4,
7,
-15,
-18,
-18,
-36,
23,
-39,
-60,
42,
5,
15,
47,
-37,
26,
10,
4,
23,
0,
-13,
16,
-47,
-24,
-23,
8,
-1,
-9,
-21,
-3,
-19,
54,
-1,
37,
38,
-14,
-10,
-26,
42,
-7,
-40,
-64,
19,
-14,
27,
-37,
-34,
-31,
18,
7,
18,
-1,
-12,
14,
60,
-3,
-32,
-30,
30,
36,
13,
-2,
55,
4,
37,
14,
-37,
-23,
9,
-14,
-24,
27,
43,
1,
1,
-2,
24,
23,
21,
-71,
38,
4,
-20,
34,
11,
-28,
2,
-1,
28,
15,
-24,
22,
-21,
3,
10,
-27,
58,
19,
-16,
5,
-86,
9,
-43,
37,
16,
-47,
-32,
-12,
-24,
-14,
-25,
-47,
31,
3,
8,
-6,
12,
39,
-1,
-27,
27,
-42,
-48,
-41,
30,
-6,
16,
-35,
23,
35,
8,
-5,
-30,
-13,
-26,
13,
-14,
32,
12,
-40,
-61,
-5,
-24,
5,
21,
-1,
-7,
35,
-51,
17,
-69,
-9,
-24,
-56,
-39,
-47,
-34,
-7,
-30,
1,
5,
-26,
-15,
-12,
30,
-21,
-12,
23,
16,
68,
27,
11,
7,
15,
-52,
8,
-13,
-12,
-50,
-24,
-18,
-6,
30,
-40,
12,
19,
-38,
32,
-11,
-44,
12,
-31,
-9,
15,
4,
-1,
25,
-1,
28,
-30,
-30,
-52,
-6,
32,
6,
24,
-12,
7,
32,
39,
-20,
37,
49,
-9,
77,
-33,
-58,
7,
39,
-34,
-1,
65,
43,
3,
-16,
-31,
69,
-15,
21,
12,
60,
10,
39,
28,
16,
22,
-59,
-2,
-41,
-1,
11,
-45,
20,
-36,
-11,
16,
-4,
59,
-62,
-1,
-23,
-7,
31,
17,
20,
-18,
-33,
42,
-23,
6,
-11,
-12,
-26,
-42,
-2,
-13,
22,
-6,
-7,
-38,
-44,
18,
-50,
-42,
-29,
16,
37,
6,
13,
20,
24,
-12,
2,
20,
-25,
23,
8,
-17,
24,
-2,
-20,
39,
8,
-21,
-7,
-19,
11,
-16,
7,
16,
3,
21,
-45,
9,
-35,
34,
-14,
8,
23,
-32,
26,
6,
28,
-40,
0,
-18,
-17,
11,
-24,
-51,
33,
49,
36,
6,
8,
40,
-8,
32,
3,
-19,
-23,
0,
8,
-25,
16,
53,
-35,
-4,
18,
-16,
-18,
35,
-36,
20,
0,
-2,
-19,
0,
-56,
-82,
-18,
12,
14,
14,
22,
30,
35,
-44,
3,
26,
-46,
44,
14,
-11,
16,
-22,
-60,
-37,
5,
-54,
-46,
-28,
11,
-17,
-21,
-49,
-28,
-10,
0,
-10,
-27,
-48,
-5,
19,
-40,
1,
0,
19,
-35,
39,
8,
41,
-27,
-10,
22,
-29,
-2,
34,
-40,
6,
-18,
20,
18,
26,
33,
31,
-48,
6,
10,
19,
-9,
23,
13,
21,
-20,
-26,
-2,
-29,
14,
-10,
10,
-81,
27,
10,
-65,
1,
-28,
-3,
-9,
8,
2,
42,
7,
33,
-14,
15,
-13,
-18,
-12,
-75,
-26,
3,
1,
14,
0,
-9,
0,
-3,
-17,
5,
-19,
-10,
-2,
-11,
27,
34,
-27,
15,
-11,
28,
18,
-32,
-22,
40,
-14,
-19,
27,
-41,
32,
2,
23,
29,
10,
-8,
58,
-48,
-18,
46,
0,
11,
-12,
-18,
-13,
15,
27,
71,
-29,
42,
24,
-15,
-82,
23,
13,
11,
-52,
-22,
11,
24,
-6,
-6,
-32,
3,
-11,
5,
27,
-27,
-32,
5,
23,
43,
-40,
-22,
51,
34,
27,
41,
16,
23,
35,
-29,
-1,
-7,
27,
2,
54,
24,
25,
28,
22,
-3,
13,
20,
-24,
18,
59,
-74,
-11,
18,
4,
-20,
25,
4,
24,
22,
-11,
18,
1,
-70,
3,
-38,
8,
1,
-8,
-8,
0,
-28,
-15,
13,
23,
24,
-6,
-7,
8,
18,
-3,
-10,
44,
-49,
12,
-3,
-5,
0,
33,
-15,
-27,
-57,
-5,
3,
-3,
-15,
-32,
4,
-22,
34,
-27,
13,
33,
0,
0,
-18,
31,
15,
0,
-3,
7,
24,
-17,
35,
-49,
3,
12,
-16,
58,
4,
6,
0,
29,
8,
28,
-15,
-9,
-62,
16,
-53,
25,
30,
-41,
-76,
11,
20,
-17,
-32,
0,
4,
-41,
-10,
29,
-13,
-39,
52,
-42,
49,
21,
-111,
2,
58,
49,
-15,
13,
-25,
15,
-103,
-2,
14,
-48,
-8,
66,
-3,
-32,
-8,
22,
13,
-37,
30,
-2,
-46,
-21,
0,
-8,
-51,
14,
-16,
11,
42,
-2,
-35,
44,
-4,
24,
26,
7,
-33,
2,
-14,
6,
0,
-13,
-17,
10,
-7,
26,
-14,
-57,
20,
-52,
2,
28,
24,
27,
-3,
16,
37,
-37,
-23,
-16,
32,
28,
-23,
24,
5,
79,
-11,
-16,
-28,
14,
-70,
33,
10,
27,
-7,
32,
-23,
34,
-49,
38,
19,
20,
7,
36,
11,
28,
1,
6,
61,
10,
41,
52,
28,
11,
0,
-25,
-16,
-7,
0,
28,
-64,
-7,
28,
-8,
-20,
24
] |
Souris, J.
(for reversal and remand for new trial).
In March of 1963, defendant was convicted, on his plea of guilty, of armed robbery and was sentenced to imprisonment for 12-1/2 to 25 years. Two years later we granted defendant’s application for leave to appeal his conviction and ordered that the appeal be presented directly to this Court.
The record of defendant’s arraignment on the information discloses that the trial judge advised defendant of his right to a jury trial and of his right to be represented by an attorney of his own choice or, upon request, by an attorney appointed by the court if defendant had no money to employ one. Unfortunately, the trial judge did not ask the defendant whether he wanted an opportunity to retain his own attorney or, if indigent, that an attorney be appointed for him. Instead, the trial judge asked defendant to plead, interrogated him briefly on his plea of guilty, accepted the plea and pronounced judgment of guilt thereon.
Absent record proof of offer and waiver of counsel, we must reverse and remand for new trial, defendant having been denied his right to the assistance of counsel in Ms defense. Sixth and Fourteenth Amendments to the United States Constitution and article 2, § 19, Constitution of 1908 (currently article 1, § 20, Constitution of 1963).
On the very day this defendant stood before the bar of justice in the Grand Rapids superior court, March 18, 1963, the United States Supreme Court decided Gideon v. Wainwright, 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733). In Gideon the Supreme Court held that the Sixth Amendment’s guarantee of the assistance of counsel in all criminal prosecutions is a right so fundamental and essential to a fair trial, and so, to due process of law, that it is applicable to the States by virtue of the due process clause of the Fourteenth Amendment and, further, that counsel must be provided a defendant, at least one charged with a felony, who wants such assistance but who is unable to employ counsel. While it is our belief that defendant Parshay would be entitled to invoke Gideon on this appeal even if Gideon were to be given only prospective effect, defendant’s conviction having occurred on the same day as the decision in Gideon, the effective date of the right declared in Gideon is no longer an issue, Gideon having been held to apply retroactively. Pickelsimer v. Wainwright (1963), 375 US 2 (84 S Ct 80, 11 L ed 2d 41); Doughty v. Maxwell (1964), 376 US 202 (84 S Ct 702, 11 L ed 2d 650); Arthur v. Colorado (1965), 380 US 250 (85 S Ct 943, 13 L ed 2d 818); and Linkletter v. Walker (1965), 381 US 618, at 628 (85 S Ct 1731, 14 L ed 2d 601). Thus, whether defendant Parshay was denied the assistance of counsel upon his felony conviction is an issue of Federal constitutional magnitude which he is entitled to assert in this appeal.
However, even before Gideon, this Court required, by rule adopted in 1947, that in every felony prose cntion tbe accused be advised of Ms right to have the assistance of counsel and, if financially unable to employ counsel, that counsel be appointed for him upon his request. See Court Rules (1945), No 35a and, currently, GCR 1963, 785.3. Whatever the nature of the right, constitutional or rule, defendant Parshay, accused of a felony, was entitled to be represented at his arraignment by an attorney, either one employed by. him or, if he was unable financially to employ an attorney of his own choosing, by an attorney appointed by the court. This right the trial judge clearly recognized and advised defendant he possessed.
The entire record of defendant’s arraignment on the information is set forth in the margin. It clearly appears from that record that the t,rial judge advised Parshay of Ms rights to a jury trial and to the assistance of counsel. But, the record also discloses unequivocally that defendant was not given an opportunity to assert those rights. The pertinent part of the record follows:
“The Court. I want to advise you that you are entitled to a jury trial to have it determined whether you are guilty or not guilty, do you understand that?
“(Respondent nods head up and down.)
“The Court. You understand?
“The Respondent. Yeah, yeah.
“The Court. And also that you are entitled to he represented by an attorney in this matter, that is, an attorney of your own choice. If you have no money to employ an attorney, if you so request, I will appoint an attorney to represent you. Do you understand that?
“(Respondent nods head up and down.)
“The Court. Your answer is yes?
“The Respondent. Yes.
“The Court. Knowing what the charge is in the first count in the information, knowing what your rights are as I explained them to you, are you prepared to enter a plea of guilty or not guilty?
“The Respondent. Guilty.”
Whatever may have been defendant’s actual comprehension of the rights stated by the trial judge to be his, he was required to plead to the charge against him without having been given an opportunity to demand a jury trial, to consult with an attorney of his own choosing, or to request that one be appointed for him, before being called upon by the judge to enter his plea.
In March of 1963, when defendant was arraigned, GCR 1963, 785.3(1) read as follows:
“(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states ho will procure counsel or requests, that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.”
The rule did not in express language direct the judge to ask the accused whether he wanted a jury trial and whether he wanted to hire his own attorney or, if indigent, to have counsel appointed for him. However, it is implicit in the language of the first sentence of the rule quoted above that the accused, before he is required to plead, be given an opportunity to invoke the rights which the judge is required to advise him he possesses. See People v. Hilko (1966), 5 Mich App 166; People v. Winegar (1966), 4 Mich App 547; People v. Curtis Lee Williams (1966), 2 Mich App 232; and People v. Atkins (1966), 2 Mich App 199. If there be any doubt about that, the second sentence of the quoted rule surely removes it, at least as to the right to counsel’s assistance. By its express language it requires that a reasonable time be allowed, after the accused states he will procure counsel or requests that counsel be appointed, and before a plea is taken, for such counsel to consult with the accused. It is clear beyond dispute that the quoted rule means something more than that certain advice be given regarding some rather fundamental rights of an accused, but’that he need not be given an opportunity to invoke those rights.
As I understand my Brother O’Hara’s opinion, he believes that defendant Parshay was accorded such opportunity.' I do not. Had the judge, after advising defendant of his rights and before taking his plea, asked him whether he wanted an opportunity to hire counsel and to consult with counsel or, if indigent, to have counsel appointed for him, then I .would agree that defendant had been given the .'opportunity to invoke his stated rights which I read ■the-rule, to require. That was not done here, as the arraignment record set forth in thé margin and partially quoted above clearly discloses, and for that reason alone, we are required in my judgment to reverse and remand for further proceedings. ■
But there is another dimension to the facts disclosed by this record. As noted above, the right to counsel defendant claims was denied him, since Gideon v. Wainwright, supra, is a right guaranteed by the Sixth Amendment of the Federal Constitution that is made applicable to the States by the Fourteenth Amendment. How that federally guaranteed light to counsel may be waived has been determined by the United States Supreme Court, .our judicial superior in matters affecting Federal constitutional' rights. It is no longer open to this Court to say, as I read Justice O’Hara’s opinion to mean, that an accused’s failure to request the assistance of counsel may be regarded as a waiver of his constitutional right thereto. The Supreme Court has said, instead, precisely the contrary, that waiver of counsel may not be presumed from failure to request such assistance; that something more than mere silence is necessary to constitute waiver.
Thus, in Carnley v. Cochran (1962), 369 US 506 (82 S Ct 884, 8 L ed 2d 70), a criminal case arising out of the State courts of Florida, the Supreme Court said (p 516):
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”
Even as early as 1938, in Johnson v. Zerbst, 304 US 458 (58 S Ct 1019, 82 L ed 1461, 146 ALR 357), the Supreme Court considered the duty imposed upon the trial judge, and the manner of its exercise, in determining whether an adequate waiver of counsel was made, in circumstances which, even then before Gideon, gave rise to a federally guaranteed right to counsel (p 465):
“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”
For recent summary application by the Supreme Court of Carnley’s rule in a State criminal case, see Doughty v. Maxwell (1964), 376 US 202 (84 S Ct 702,11 L ed 2d 650), reversing, per curiam, Doughty v. Sacks (1963), 175 Ohio St 46 (191 NE2d 727). See, also, Rice v. Olson (1945), 324 US 786 (65 S Ct 989, 89 L ed 1367), and, on the subject of waiver of constitutional rights, generally, Fay v. Noia (1963), 372 US 391 (83 S Ct 822, 9 L ed 2d 837).
This Court had occasion in People v. Whitsitt (1960), 359 Mich 656, to examine the record of proceedings the people claimed constituted the intelligent and understanding waiver of counsel by an accused. That record, which this Court unanimously found did not constitute waiver, factually or legally, merits requotation from our opinion in Whitsitt, supra, p 663, for comparison with the record of arraignment proceedings in this case of Parshay:
“ ‘Q. [By the Court.] You are here without an attorney. Do you desire to have an attorney to represent you in this matter, or are you willing wc should go ahead with the case without one?
“ ‘A, I think that we may, Your Honor.
“‘Q. You say that “we may”?
“‘A. Yes, sir.
“ ‘Q. Do you want an attorney now?
“‘A. I would rather leave it up to the other 3 boys, if they wish it.
“ ‘Q. The other 3, I understand, do not desire an attorney, and they have not had an attorney.
“ ‘A. All right.
" ‘Q. Is it all right with you?
“ ‘A. Yes, sir.
“ ‘Q. To go ahead, is that what you mean?
“ ‘A. Yes, sir.
“ ‘The Court. The plea is accepted.’ ”
In Whitsitt the accused was asked, directly, whether he wanted an attorney, and he replied he did not; yet, this Court unanimously held such inquiry and response was inadequate, factually and legally, to pass muster as an intelligent and understanding waiver of the accused’s federally assured right to counsel. See, also, Moore v. Michigan (1957), 355 US 155 (78 S Ct 191, 2 L ed 2d 167), relied upon in Whitsitt; and In re Palmer (1963), 371 Mich 656. In Parshay, on the other hand, the record discloses that while defendant was advised of his right to the assistance of counsel, he was never asked whether he wanted to retain counsel or to have the court appoint counsel for him. Prom such a record, a “silent record,” in the words of Carnley, supra, a waiver of counsel cannot be found. See People v. Winegar (1966), 4 Mich App 547, and People v. Hobdy (1966), 5 Mich App 275.
Defendant was not represented by counsel; he was not accorded an opportunity to request the assistance of counsel, retained or appointed; nor did he waive snch assistance. In consequence, his conviction must be vacated and a new trial ordered.
Dethmers, C. J., and T. M. Kavanagh, J., concurred with Souris, J.
CLS 1961, § 750.529 (Stat Am 1965 Cum Supp § 28.797)^. Reporter.
• 2
“Cleric of the Court. In file No. 21166, Your Honor,- Fred., Parshay gives his address as 1748 Ferry Park street, that is in Detroit, Michigan. He gives his age as 29. He is in custody. Mr. Parshay, Your Honor, is presently on parole. His parole officer is Mr. Gagh in Detroit. He was sentenced in Recorder’s court, Detroit, Michigan, in 1953 on a conviction of robbery while armed. He was paroled in 1958.
“The Court. Your name is Fred Parshay?
“The Respondent [defendant] . Fred Parshay.
“The Court. At this time, the first eount in the information which has been filed against you will be read to-you.
“The Respondent. I understand what the information contained and that I have read it about three times. I know what it contains and I waive the reading and plead guilty. -
“The Court. The information has just been filed, -I think you have seen a copy of the complaint and warrant, so that there will be no question^ about it, we will have the first cpunt in the information which is a different document, read to you.
“The Respondent. Yes.
“The Court. So you will know just what it is.
“(Mr. Miller thereupon read the first eount of the information to the respondent * * *.)
“The Court. Do you understand that charge placed against you?
“The Respondent. Yes.
“The Court. And you understand this is a' serious charge and if you plead gu.ilty to this or if. you are found guilty that it is mandatory that you be sentenced to prison for this offense. Do you understand that?
“(The Respondent nods''head up. and down.)
“The Court. Your answer is yes?
“The Respondent. Yes.
“The Court. I want to advise you that you are entitled to a jury trial to have it determined whether you are guilty or not guilty, do you understand that?
“(Respondent nods head up and down.)
“The Court. You understand'?
“The Respondent. Yeah, yeah.
“The Court. And also that you are entitled to be represented by an attorney in this matter, that is, an attorney of your own choice. If you- have no money to employ an attorney, if you so request, I will appoint an attorney to represent you. Do you understand that?
“(Respondent nods head up and down.)
“The Court. Your answer is yes?
“The Respondent. Yes.
“The Court. Knowing what , the charge is in the first count in the information, knowing what your rights are as I explained them to you, are you prepared to enter a plea of guilty or not guilty?
“The Respondent. Guilty.
“The Court. Has any one made you any promises?
“The Respondent. No.
“The Court. Has any one threatened you?
“(The Respondent shakes head from side to side.)
“The Court. Has any one abused you to get you to plead guilty?
“The Respondent. No.
“The Court. You do come from Detroit, is that correct?
“The Respondent. Yes.
“The Court. Did you know this person by the name of Earl Hatten?
“The Respondent. No, I didn’t.
“The Court. Where did you meet him?
“The Respondent. I didn’t know him.
“The Court. Well, where was it that you did commit this act?
“The Respondent. This took place at the Y.M.C.A.
“The Court. Oh, I see.
“The Respondent. I was attempting to rob the cashier department. ■
“The Court. Oh, I think — is this where the employee of the Y.M.C.A. — -,
“The Respondent. Yes, he works there.
, “The Court;, Was put in a eloset or something such as that and beat up?
“The Respondent. Yeah.
“The, Court. Did you have a gun with you at that time?
“The Respondent. Yes, I did.
“The Court. Did you strike this Earl Hatten?
“The Respondent. Yes, I did.
“The Court. Did you strike him with the gun?
“The Respondent. Yeah, I plead guilty to the charge.
“The Court. I mean, you did do that, is that correct?
“The Respondent. Yeah.
“The Court. Did you take the $2 from him?
“The Respondent. Yeah, yeah.
“The -Court. Did you later take other merchandise from the Y.M.C.A.?
“The Respondent. Yeah. Yeah.
“The Court. Were you staying at the Y.M.C.A.?
“The Respondent. Ño, I was not. I was supposed to be living in Detroit.
' “The Court. Was there any one else involved with you in this matter ?
“The Respondent. Not on this job, no.
“The Court. On some other charge?
“The Respondent. One of them.
“The Court. What was that?
“The Respondent. Armed robbery.
“The’Court. ' What place did you hold up?
“The Respondent. Some place out on Hall. I don’t know what the name of it was. Some market.
“The Court. And who was with you at that time?
“The Respondent. I don’t believe that is an issue here, is it?
“The Court. No, if you don’t desire to talk about it at this time. I think I know who it' was. We both know who it was, is that correct? Alright, I won’t go into that other matter with you. Now, no one has made any threats or promises or abused you, is that correct?
“The Respondent. No.
“The Court. Plea of guilty will be accepted. Same will be recorded. The respondent is remanded to the Kent county jail for- sentence. The court asks for a presentenee report.
“The Respondent. May I make one request?
“The Court. Sure.
“The Respondent. They have a law under which if a man is confined for a number of years and sexual abbreviations [aberrations, sic?] seem to be connected with the crime, he can request a hearing as a sexual psychopath, and X would like to request a hearing at this time.
, “The Court. I will get a presentence report, and I don’t know at all what you are talking about at this time concerning any sexual matters.
“The Respondent. Well, this is to determine whether a man goes to prison or to the insame [sic] asylum.
“The Court. Your request is on the record and the court is asking for a presentence report.
“The Respondent. Thank you very kindly.
“Cleric of the Court. Mr. Parshay, step over and see one of the gentlemen on my left.”
CL 1948, §612.1 (Stat Ann § 27.653), and GCR 1963, 201.1, have specifically provided for upwards of 50 years that the.party who commences an action shall be designated as plaintiff and the adverse party as defendant. Such designation is now made applicable to erimipal actions by GCR 1963 785,1. — Reporter. | [
64,
-31,
-15,
-18,
-31,
20,
-59,
-10,
-73,
41,
-5,
-28,
-9,
-38,
60,
-13,
-32,
37,
-4,
-41,
-33,
-7,
48,
19,
59,
-51,
-12,
41,
-2,
4,
47,
48,
-1,
-13,
-41,
-26,
-4,
-12,
-11,
51,
2,
13,
19,
-6,
-60,
19,
-10,
-1,
17,
16,
46,
5,
12,
24,
-26,
7,
35,
28,
-48,
33,
19,
44,
-69,
-12,
1,
-20,
-16,
10,
-12,
-92,
-26,
-54,
18,
28,
42,
-9,
12,
-38,
-8,
-5,
24,
-6,
13,
-52,
-2,
10,
12,
-42,
18,
18,
-1,
57,
-23,
-3,
13,
-18,
57,
-33,
64,
-3,
-9,
-35,
41,
-33,
43,
-14,
-67,
-18,
59,
33,
30,
0,
52,
24,
18,
-36,
-57,
2,
-13,
21,
1,
23,
9,
17,
34,
-17,
-11,
-24,
-9,
-8,
0,
30,
-6,
-62,
6,
4,
-19,
9,
-41,
-36,
1,
-41,
52,
9,
45,
-35,
-22,
46,
-11,
82,
9,
29,
-39,
51,
-2,
0,
0,
-33,
15,
57,
-11,
-5,
-19,
-29,
52,
22,
0,
-2,
-14,
-29,
6,
-10,
67,
75,
-2,
18,
-2,
28,
8,
70,
-21,
42,
-8,
6,
-29,
-22,
-28,
13,
-21,
2,
-27,
8,
42,
-64,
47,
-2,
-32,
-11,
20,
-6,
-17,
21,
23,
38,
62,
-30,
46,
-41,
11,
-20,
-67,
24,
-7,
-75,
-12,
-5,
-29,
5,
26,
11,
-45,
-22,
13,
13,
-63,
18,
29,
30,
-7,
-18,
7,
-12,
-17,
31,
0,
29,
-12,
-29,
9,
-8,
-6,
-18,
50,
-44,
11,
-7,
7,
33,
-19,
-2,
14,
-5,
1,
24,
-55,
-17,
10,
-20,
-2,
-51,
-10,
39,
-27,
-52,
-20,
54,
-31,
25,
-3,
17,
0,
-15,
16,
51,
10,
-7,
-15,
12,
32,
-48,
28,
3,
-32,
7,
-17,
-90,
-21,
19,
32,
2,
13,
19,
18,
28,
9,
14,
-7,
7,
-14,
-20,
37,
18,
-11,
34,
0,
2,
28,
40,
4,
-60,
25,
35,
-11,
4,
-18,
-27,
-43,
15,
15,
-12,
20,
-34,
10,
-19,
30,
-2,
71,
-7,
16,
19,
-6,
-3,
-27,
-19,
-6,
13,
39,
21,
74,
37,
36,
-12,
2,
-60,
13,
-2,
-1,
32,
-42,
5,
0,
22,
7,
5,
23,
-20,
-5,
-41,
-4,
-15,
52,
-25,
30,
-13,
23,
2,
-6,
42,
60,
-8,
5,
-18,
-8,
-81,
-60,
42,
3,
-19,
-30,
-11,
-23,
-7,
61,
-64,
-5,
-5,
-44,
14,
-23,
27,
-37,
-26,
3,
-88,
-25,
28,
-12,
17,
77,
-34,
-13,
-40,
20,
36,
-2,
-9,
-82,
25,
6,
-6,
-25,
57,
18,
66,
-12,
-56,
-31,
-17,
-5,
11,
-8,
-42,
-10,
11,
12,
25,
-44,
0,
44,
20,
2,
30,
-7,
-44,
74,
33,
-46,
-12,
38,
-13,
-19,
-16,
-44,
-33,
-4,
-47,
-52,
-55,
8,
-19,
0,
28,
-8,
-14,
-24,
-3,
-11,
23,
-12,
17,
24,
3,
-56,
-8,
56,
-29,
-71,
11,
-2,
16,
56,
1,
-10,
-17,
-75,
22,
-17,
48,
-22,
-3,
56,
28,
-13,
3,
-19,
-7,
48,
-9,
-4,
-92,
-36,
18,
6,
4,
4,
-9,
-28,
23,
-31,
44,
-24,
26,
-3,
-22,
21,
51,
3,
-29,
45,
45,
27,
28,
-36,
24,
9,
-43,
11,
-18,
-36,
35,
30,
-35,
24,
-13,
9,
-3,
-40,
2,
-41,
30,
60,
-18,
-23,
38,
25,
55,
0,
-7,
-7,
8,
0,
-3,
-14,
-16,
-10,
-3,
29,
0,
36,
2,
25,
10,
-8,
5,
4,
-68,
-54,
1,
39,
-35,
38,
-11,
37,
41,
-11,
8,
-20,
-3,
-20,
3,
26,
37,
-41,
100,
-19,
38,
9,
30,
-9,
-32,
25,
40,
-63,
-53,
-4,
-19,
-8,
-21,
14,
-5,
-94,
-16,
6,
2,
-45,
-46,
3,
-30,
-4,
15,
-33,
47,
-42,
-15,
-6,
-10,
60,
19,
33,
22,
57,
-41,
-20,
-8,
-72,
-2,
-13,
-6,
-33,
20,
11,
11,
-46,
7,
-16,
-54,
-38,
3,
0,
-37,
27,
-14,
-23,
-17,
-37,
9,
-40,
8,
-4,
6,
-61,
6,
14,
-76,
-33,
-26,
27,
-20,
19,
-15,
10,
63,
50,
5,
-20,
-12,
-7,
48,
22,
-12,
3,
-17,
-60,
32,
13,
54,
0,
-53,
7,
-48,
39,
-16,
15,
37,
18,
-8,
29,
28,
-52,
21,
-81,
-17,
2,
10,
-9,
32,
45,
-10,
14,
7,
9,
-14,
13,
-16,
26,
12,
54,
46,
-33,
23,
4,
-23,
4,
-11,
-22,
-28,
-31,
-13,
31,
3,
-44,
-1,
-8,
-2,
31,
-32,
-62,
-24,
45,
53,
-6,
11,
-14,
11,
11,
-11,
1,
-8,
0,
-13,
-10,
13,
-11,
-8,
16,
9,
-29,
5,
-19,
-6,
-4,
7,
8,
-13,
-66,
19,
-11,
-13,
-18,
13,
55,
35,
-20,
-6,
-28,
21,
27,
-19,
-72,
7,
-8,
17,
19,
-26,
-39,
20,
6,
-27,
5,
51,
-68,
-9,
10,
-28,
-18,
39,
-7,
-8,
9,
-10,
34,
13,
-46,
-39,
50,
-2,
33,
15,
-44,
11,
21,
16,
-57,
39,
17,
6,
56,
31,
58,
0,
-25,
28,
12,
-10,
79,
-20,
45,
92,
13,
-2,
-14,
12,
-10,
40,
-40,
-14,
-5,
-9,
59,
-13,
-7,
-20,
-34,
15,
11,
48,
18,
-45,
-14,
4,
-17,
-13,
0,
30,
-13,
-43,
4,
20,
15,
-19,
-4,
25,
-22,
30,
3,
1,
12,
-1,
-48,
3,
33,
35,
-41,
20,
-30,
1,
-4,
3,
5,
16,
12,
25,
43,
-19,
26,
-6,
-27,
-38,
22,
-40,
-6,
-9,
34,
26,
-23,
31,
9,
19,
2,
-16,
-54,
8,
-42,
17,
-27,
-3,
18,
-57,
-27,
-5,
-7,
-1,
22,
4,
-34,
0,
-2,
13,
-8,
-7,
-10,
-11,
0,
23,
50,
-34,
27,
4,
24,
-2,
-18,
24,
-31,
-34,
53,
-29,
-42,
4,
48,
10,
4,
66,
21,
-12,
-31,
-34,
49,
7,
-25,
22,
-6,
22,
48,
-55,
60,
-12,
42,
-8,
-67,
-15,
-44,
-10,
-50,
7,
-58,
35,
-24,
21,
-44,
26,
-62,
-90,
2,
46,
54,
26,
-15,
52,
15,
-2,
-14,
-29,
24,
-10,
-28,
-10,
0,
-48,
-17,
19,
15,
-61,
16,
-7,
-27,
6,
20,
-44,
15,
6,
-29,
-29,
-32,
31,
-8,
24,
-17,
66,
-53,
-17,
10,
-18,
-9,
41,
-2,
70,
-40,
-15,
24,
15,
-40,
10,
-2,
11,
-33,
19,
24,
40,
-57,
-31,
29,
-38,
65,
-20,
28,
5,
13,
-15,
-55,
-18,
-18,
20,
-28,
14
] |
Per Curiam.
The pertinent, facts appear by full quotation in the appellate1 opinion below (3 Mich App 333, 334-336). Presented is question whether the érroneous statement of fact, made by plaintiff’s counsel during final summation, constituted revers ible error. On motion for new trial Judge Brown ruled in the negative. The panel below reversed for reasons appearing in its cited opinion. We hold-that the trial judge was right and therefore reverse- and remand for further proceedings consistent with our order of December 9, 1966, the relevant portion of which is quoted post.
Plaintiff has rightfully alleged, in his application for leave to appeal:
“3. Where counsel for both plaintiff and defendant left to the jury the determination of whether a fact stated by counsel for plaintiff in regard to earnings was in evidence, and counsel for defendant made no request to the court to strike and did not ask for a jury instruction, it was error for the Court, of Appeals to reverse and remand for new trial because of the failure of trial court to withdraw the stated fact from jury consideration.”
The allegation of error decided by the panel was not saved for review. The subsequently ascertained mistake of plaintiff’s counsel, in stating before the jury the fact quoted above, amounted to no error on the part of the trial judge, no request for a corrective instruction having been made at any time. In the absence of such a request no duty devolved upon the trial judge to suspend the. trial in effort to determine whether some witness did or did not testify as represented by plaintiff’s counsel and denied by defense counsel. Suspensions for such purpose are inadvisable at best, the “preferable method” being as announced in Mayo v. Wright, 63 Mich 32.
The remark 'of defense counsel before the jury, that “the jury can tell — that it was contained in the opening statement only,” and his opponent’s rejoinder before the jury, “Gentlemen, we will leave it to you, to whether Edward Kujawski did not testify that his father was making $11,000 per year,” constrains conclusion that both counsel were willing at the time to let the jury decide who was right as regards the testimonial record. That conclusion, coupling it with the omission of defense counsel to ask for a peremptory corrective instruction and, later, to prefer a formal request for such instruction, left the incident free of the' taint of reversible error. As was said in Mazzolini v. County of Kalamazoo,. 228 Mich 59, 62, of a like occurrence, “In any event the .remedy was then available, if needed, and the incident, passed then, is by now.”
See the collection of cases made in Herbert v. Durgis, 276 Mich 158, 166, 167, and the following passage of Marr v. Saginaw County Agricultural Society, 364 Mich 373, 377:
“We do not disagree with the trial court’s state-' ment -but call attention to the fact that appellant did not request the court to instruct in regard to, plaintiff’s closing argument and did not at any time during trial, nor in this appeal, complain of the court’s instruction. ..Therefore,, the question of the propriety or impropriety of plaintiff’s closing argument is not before this Court.
“In Curth v. New York Life Ins. Co., 274 Mich 513, we dealt with an appeal involving an action for double indemnity against an insurance company, and it was conceded that remarks of plaintiff’s counsel in argument to the jury were improper. In refusing to reverse, our Court stated (pp 524, 525):
“ ‘The trial judge was not asked to make a ruling nor to charge the jury not to pay any attention to the remarks. At the end of the charge, attorneys for both sides were invited to make any further suggestions hut they remained silent. Consequently, we may not reverse the case on the impropriety of the remarks as the objecting attorney in taking his exception failed to ask for a ruling, or that the jury be instructed to pay no attention to them. Merely taking an exception is insufficient. The general rule is stated in Heck v. Henne, 238 Mich 198, 205:
“ ‘ “To save the point for review, it was necessary not only to take an exception, hut also to request the court, either then and there, or in final instructions, to instruct the jury to disregard the improper argument. Spencer v. Johnson, 185 Mich 85; People v. Maczulski, 194 Mich 193; Walz v. Peninsular Fire Insurance Co., 221 Mich 326; Genack v. Gorman, 224 Mich 79.” ’ ”
Aside from the foregoing it appears rather clearly that no prejudice resulted from the statement of counsel thus made. The amount of the jury’s verdict is not immoderate, plaintiff’s proof of damages under the wrongful death statute considered. What was said in Dikeman v. Arnold, 83 Mich 218, and Varty v. Messmore, 132 Mich 314, is applicable here:
“Various exceptions were taken to the remarks of Mr. Boudeman, one of the attorneys for the plaintiffs, in summing up the case to the jury. While some of his deductions from the testimony, and claims made by him, might not coincide with our ideas, Ave find no such error in any of his remarks as would warrant a reversal of the judgment. An attorney is entitled to some license in his argument, and the testimony to him may bear quite different inferences and conclusions than might he deduced by a disinterested and unbiased judge. But if we were to reverse cases because the attorneys of the -parties claimed more from the testimony for their clients than we could discern in the evidence, or argued that facts were established when we thought they were not, we should not only invade the province of the jury, but vacate most, if not all, of the judgments that come for review before us.” (Dikeman at 221, 222.)
“Complaint was also made in the motion for a new trial of the alleged misconduct of counsel in arguing the case to- the jury. We think there was no such misconduct as justifies us in setting aside the verdict. It was claimed the testimony was misstated; but there is nothing to indicate that there was any intentional misstatement of facts by the counsel. It is only in a very clear case of a misstatement, which is not open to correction, that the court would interfere to vacate a verdict.” (Varty at 316.)
‘ Reversed and remanded as in the first paragraph of this opinion set forth. Plaintiff will have costs of his appeal to this Court. Other costs will abide the final result.
Deti-imers, C. J., and Kelly, Black, T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred.
The erroneous (because not proven) statement of counsel was that the decedent “had made his way in life until he was earning some $11,000 per year,”
“Two ways are open for counsel for a defendant when the plain-, tiff’s counsel, in his closing argument to a jury, takes positions not warranted by the pleadings and evidence. One is to object to the statements of counsel, and obtain a ruling of the court upon them, as to whether they are proper or improper to be made; the other is to request the court to instruct the jury upon the point, so that any false or erroneous positions may be corrected. The latter is the preferable method, as it conduces to a more orderly .and seemly disposition of the matter in dispute, while a resort to the former interrupts argument, and is apt to foment contention and distract the'mind of the jury.” Mayo v. Wright, 63 Mich 32, 37, 38.
See CL 1948, § 691.581 et seq. (Stat Ann 1959 Cum Supp § 27.711 et seq.). — Reporter.
This quotation was applied most recently to Hayes v. Coleman, 338 Mich 371, 382, 383.
Our order of December 9, 1966, reads as follows:
“On order of the Court (O’Hara, J., dissenting), the motion for leave to file a ’ cross appeal and the motion for order extending the scope of review are considered and the same are denied. Review by this Court shall be restricted to the questions posed by plaintiff’s application for leave to appeal. In the event the Court of Appeals is reversed, the ease will be remanded to that Court for review of allegations of error which were not passed upon by it. Application 'for leave to appeal may be made from any adverse ruling.” | [
14,
-27,
7,
-22,
-6,
-11,
-19,
-20,
-31,
40,
27,
-14,
16,
2,
37,
-48,
-1,
3,
12,
-43,
-9,
-12,
21,
67,
-29,
-20,
-15,
31,
38,
-26,
3,
6,
-14,
16,
-29,
-15,
11,
16,
8,
23,
10,
-14,
13,
-16,
-62,
7,
-24,
12,
7,
-19,
26,
-2,
-10,
30,
-8,
17,
11,
33,
2,
-32,
2,
-10,
-27,
-28,
20,
-31,
-4,
8,
-36,
45,
-86,
6,
36,
-45,
-49,
-27,
4,
4,
-55,
0,
-6,
-2,
29,
4,
-41,
-1,
51,
-44,
4,
9,
23,
31,
-31,
-20,
-14,
-1,
60,
-7,
5,
11,
-3,
3,
32,
5,
-15,
6,
-37,
-23,
32,
14,
70,
15,
-16,
-14,
-50,
-21,
1,
-6,
-10,
-20,
41,
-4,
60,
24,
31,
14,
18,
3,
-18,
-8,
8,
29,
3,
-18,
-5,
-8,
8,
-2,
8,
-11,
73,
-13,
-35,
-5,
68,
-9,
-42,
24,
-13,
24,
-30,
23,
-1,
18,
7,
-22,
-10,
-40,
31,
59,
45,
36,
-59,
-22,
-5,
15,
2,
-31,
13,
-46,
24,
39,
50,
-13,
-21,
21,
-4,
-49,
-20,
41,
-47,
52,
1,
-29,
-21,
-24,
-46,
-1,
-6,
20,
-21,
24,
6,
23,
62,
-22,
18,
42,
28,
1,
-58,
10,
17,
-5,
13,
2,
-9,
-18,
16,
17,
-27,
13,
-33,
-59,
-7,
-39,
0,
3,
5,
39,
-19,
-12,
-4,
1,
-25,
1,
23,
29,
0,
2,
-20,
10,
-17,
-24,
24,
-14,
25,
30,
39,
8,
4,
6,
33,
-47,
-21,
42,
36,
37,
-34,
0,
13,
-13,
42,
-32,
-31,
-25,
-7,
-3,
-94,
-17,
14,
37,
-30,
54,
-20,
18,
-21,
61,
10,
-40,
24,
-26,
15,
-12,
-7,
-14,
-32,
-33,
17,
-17,
-17,
32,
11,
6,
-44,
16,
4,
4,
41,
26,
60,
-16,
-32,
23,
39,
27,
53,
5,
-28,
-13,
-13,
0,
-10,
5,
14,
-4,
-51,
1,
-43,
20,
9,
33,
44,
49,
11,
38,
-64,
27,
30,
-45,
-39,
0,
9,
-44,
-15,
-50,
28,
-44,
-31,
-13,
-42,
42,
-8,
47,
31,
-10,
36,
2,
3,
16,
26,
-24,
-13,
-15,
-10,
-16,
17,
9,
-50,
35,
-21,
30,
0,
27,
3,
-15,
-1,
-27,
-10,
20,
19,
1,
30,
0,
-18,
31,
-16,
-18,
-6,
48,
-8,
-32,
-54,
-16,
-60,
5,
24,
9,
-7,
41,
-41,
12,
27,
-22,
-18,
20,
-1,
0,
-26,
25,
-3,
-16,
-13,
-19,
-37,
26,
-7,
5,
-30,
-3,
-52,
-35,
30,
-6,
21,
-15,
-39,
-10,
30,
34,
11,
31,
11,
29,
0,
-29,
14,
-39,
34,
-42,
18,
-51,
23,
6,
8,
2,
9,
13,
37,
-10,
6,
12,
-7,
-61,
-10,
34,
-47,
12,
15,
0,
-36,
25,
-34,
0,
-13,
-29,
30,
-26,
-6,
-23,
4,
-24,
42,
-37,
-13,
0,
-17,
-25,
5,
-5,
37,
-48,
-23,
11,
15,
-11,
-11,
-12,
17,
54,
13,
-24,
21,
72,
-18,
0,
-8,
-21,
12,
-33,
46,
-5,
20,
-48,
-37,
4,
2,
-17,
3,
-53,
-24,
44,
-27,
-22,
-65,
-32,
-48,
-16,
-43,
23,
-24,
24,
25,
-13,
18,
-32,
31,
-106,
41,
-6,
21,
27,
-7,
51,
27,
-64,
43,
19,
-9,
38,
-30,
3,
3,
-21,
8,
-23,
-54,
14,
-15,
-4,
42,
72,
37,
-27,
14,
61,
-38,
-46,
5,
35,
-26,
34,
-6,
16,
9,
-14,
-25,
6,
2,
18,
19,
-22,
-9,
-1,
-7,
-11,
-23,
0,
45,
-83,
13,
8,
7,
62,
69,
9,
-28,
-11,
45,
-8,
52,
-39,
-30,
22,
2,
9,
48,
54,
-10,
-25,
-13,
45,
19,
-33,
6,
-37,
37,
-6,
37,
-23,
-24,
-4,
-7,
-2,
-40,
-43,
-9,
-34,
29,
33,
11,
-5,
-17,
14,
11,
-26,
-6,
52,
25,
8,
64,
-18,
-22,
-21,
10,
-4,
-30,
48,
-57,
84,
6,
37,
-44,
-36,
4,
-5,
-19,
-9,
-19,
-64,
50,
1,
-42,
-23,
-17,
-20,
-3,
-19,
1,
-22,
43,
2,
24,
-45,
18,
-63,
16,
19,
10,
-27,
0,
16,
22,
-54,
1,
-4,
39,
47,
31,
-27,
14,
7,
-13,
-4,
-33,
26,
-13,
9,
11,
-15,
29,
-2,
46,
44,
30,
32,
21,
23,
-15,
-15,
-22,
13,
8,
-18,
8,
-36,
5,
26,
-20,
15,
-14,
24,
-1,
0,
16,
12,
47,
19,
5,
-56,
14,
-26,
24,
-9,
-26,
-35,
14,
27,
44,
-19,
-22,
31,
-17,
-35,
-6,
29,
-16,
-10,
-35,
-8,
13,
2,
-20,
43,
12,
31,
34,
-25,
5,
-8,
-13,
12,
14,
6,
-33,
49,
-14,
2,
-4,
-20,
14,
27,
7,
-14,
-26,
27,
23,
27,
-10,
32,
29,
6,
9,
-4,
-27,
77,
51,
-27,
-36,
-14,
-18,
-13,
-45,
-8,
-38,
37,
-28,
-20,
-16,
19,
-61,
-41,
55,
39,
-21,
46,
-27,
0,
8,
6,
11,
-4,
-32,
-22,
12,
-24,
22,
10,
-74,
22,
52,
-64,
-78,
29,
44,
0,
44,
-8,
36,
14,
2,
-8,
36,
-23,
-3,
5,
0,
29,
29,
-1,
42,
-14,
4,
31,
-26,
-27,
-3,
16,
5,
-10,
19,
27,
38,
-38,
22,
12,
-1,
-48,
-14,
18,
-15,
-58,
-11,
44,
2,
-12,
1,
38,
-28,
-17,
7,
-23,
-32,
33,
23,
32,
-23,
23,
-22,
-14,
3,
-10,
17,
12,
-22,
12,
-27,
-13,
33,
17,
-18,
22,
10,
-21,
66,
-10,
-38,
18,
21,
-47,
0,
32,
-4,
6,
-43,
24,
-9,
-5,
-11,
42,
20,
15,
-21,
21,
12,
-11,
-35,
-75,
-36,
-3,
68,
55,
35,
0,
-18,
-19,
5,
5,
-11,
-19,
-22,
4,
25,
-6,
49,
-33,
-1,
11,
-16,
58,
-24,
11,
-18,
-31,
40,
-26,
-17,
-3,
15,
-2,
-42,
63,
-11,
-26,
-26,
-26,
16,
-25,
-28,
-7,
17,
-9,
-11,
-40,
14,
-14,
-3,
-11,
-13,
-11,
-76,
-25,
6,
46,
-57,
-28,
-91,
36,
-2,
14,
-41,
-28,
-5,
4,
10,
-42,
11,
48,
-1,
-16,
-8,
37,
0,
8,
-1,
0,
-16,
0,
-37,
-20,
17,
-13,
10,
-18,
-37,
-37,
71,
-12,
-47,
5,
15,
-15,
-21,
19,
-27,
-24,
-41,
-13,
9,
-18,
11,
-46,
35,
24,
-39,
31,
-35,
-7,
-1,
26,
-1,
22,
61,
-19,
15,
-12,
0,
25,
-32,
-23,
27,
-10,
-7,
55,
-14,
17,
7,
-65,
0,
-25,
23,
62,
6,
29
] |
Brennan, J.
This appeal is by leave granted from a decision of the Court of Appeals reversing the circuit court. Husband and wife, plaintiffs, recovered verdicts at the hands of a jury in the Wayne circuit court and the trial judge entered judgments thereon. Motions for judgment notwithstanding the verdicts or for a new trial in each case were denied.
On May 21, 1961, Della Jaxon was a passenger on a D.S.ft. bus northbound on Woodward avenue. She fell and was injured while in the process of getting off the bus at the bus stop on the Woodward avenue overpass at Davison avenue. The áccident occurred about 12:30 in the afternoon. It was a clear, sunny day. Mrs. Jaxon had been riding D.S.R. buses on this same line for 17 years, about once or twice a week. It was her testimony that the bus customarily stopped close enough to the curb so that in stepping off of the bus she could step directly onto the curb. There was testimony from a supervisor of the D.8.R. that D.S.R. drivers were instructed to go as close to the curb as possible to discharge the passengers. On the day in question, the bus on which the plaintiff, Della Jaxori, was riding was brought to a stop at the Davison bus stop in such a way that the rear door was 3 or 4 feet from the curb. Mrs. Jaxon testified that there were other passengers disembarking from the bus in front of her and that as she stepped out of the rear door she was unable to see that the bus was not at the curb by reason of these other passengers. She apparently expected to step onto the curb, but alas there was no curb underfoot and the plaintiff went atumbling. Mrs. Jaxon fell victim to Fetridge’s law.
Four issues present themselves for determination in this cause and the facts necessary for each will be discussed in connection therewith: (1) Whether the D.S.K,. was free from any negligence as a matter of law; (2) Whether the plaintiff, Della Jaxon, was guilty of contributory negligence as a matter of law; (3) Whether the court erred reversibly in refusing to permit a police report to be read in evidence'; (4) Whether the court erred reversibly in making reference to a parking statute.
Issue number one, whether the D.S.K. was free from negligence as a matter of law. There have been a number of cases predicated upon the failure of a bus driver to bring the bus to a stop so that passengers can alight onto the curb. The general rule is that a carrier is obligated to bring his conveyance to a stop so as to discharge its passengers in a reasonably safe place. In general, whether the place at which a given passenger was discharged was or was not a safe place under the circumstances is a question of fact for the jury. In the instant case, the bus driver was a victim of Gumperson’s law.
It seems that in approaching the intersection of Woodward avenue and Davison, the driver of' defendant’s bus was prevented from approaching- the bus stop in the curb lane by reason of several vehicles stopped in the right-hand or curb lane for the apparent purpose of turning- right onto the eastbound Davison service drive. Acting- upon the welcome probability that all of the vehicles in the curb lane proposed to turn right onto the Davison service drive, the bus driver proceeded north in the second lane. Upon having thus committed himself, the contrary of this welcome probability was asserted, and at least one of the automobiles which had been apparently waiting in line to turn right proceeded instead directly north alongside of the bus. The driver was thereupon required to slow or stop the bus and permit traffic to clear in the curb lane before approaching the bus stop. This series of events resulted in the bus approaching the curb at somewhat of an angle so that, although the front of the bus was quite close to the curb, the rear of the bus, and particularly the rear exit, was 3 or 4 feet from the curb. It was for the jury to determine whether the defendant’s bus driver was acting in the premises as a reasonably prudent man under the same or similar circumstances. While it cannot be said that the driver was guilty of negligence as a matter of law, neither can it be said that he was free from negligence as a matter of law. It was a question of fact.
Issue number two, whether the plaintiff, Della Jaxon, was guilty of negligence as a matter of law. Mrs. Jaxon testified that she was aware that the bus bad come to ber stop, that sbe was not aware that tbe bus was out from tbe curb 3 or 4 feet, that ber view out of tbe door was blocked by other alighting passengers, that in looking down sbe saw only tbe pant leg of a man in front of ber, that tbe other passengers alighted without difficulty, and that sbe expected to step onto tbe curb. Whether ber expectations were reasonable, whether ber view was obstructed, whether a reasonably prudent person in tbe same or similar circumstances would have waited in tbe doorwell until sbe could make a more careful observation before stepping down were all matters for tbe jury. It determined as a matter of fact that tbe plaintiff was not guilty of contributory negligence and this factual determination ought not to be disturbed by appellate judges who have been denied tbe opportunity to bear the witnesses, observe their mannerisms, and evaluate their testimony.
Issue number three, whether tbe court erred reversibly in refusing to admit tbe police report in evidence. A police officer was called as a witness. He bad no independent recollection of tbe accident except to say that be bad been called to tbe scene, bad assisted tbe plaintiff, and taken ber to tbe hospital, and bad made tbe usual investigation and prepared tbe usual report. Apparently defense counsel wanted to get before tbe jury a statement which tbe plaintiff bad made to tbe officer, which statement was recorded in bis accident report. Such a statement would not have been unavailable as evidence by reason of tbe statute. Tbe statutory exemption refers only to reports required under “this chapter.” Tbe only persons required to make reports under the statute are drivers of vehicles and persons in charge of garages or repair shops. The statute does not refer to any report by a police officer to his superiors. The purpose of the exempting section of the statute is to shield the prior sections of the law from constitutional challenge on the ground that they require self-incrimination. But although the report involved in this case was not privileged under the statute, it was not admissible as a past recollection recorded. To qualify a writing otherwise objectionable as hearsay to be admitted in evidence as a past recollection recorded, a proper foundation must be laid. That foundation should consist in the following: (a) a showing that the witness has no present recollection of the facts, (b) a showing that the witness’ memory is not refreshed upon reference to the document, (c) a showing that the document is an original memorandum made by the witness from personal observation, (d) a showing that the document was prepared by the witness contemporaneously with the event and was an accurate recording of the occurrence and, (e) a showing that the substance of the proffered writing is otherwise admissible. Defendant’s offer of the entire police report without any testimony upon the circumstances or the time at which the report was made was insufficient. Finally, since no separate record of the proffered writing was made, there is no way for it to be reviewed upon appeal.
Issue four, whether the court erred reversibly in its reference to a certain parking statute. In the original complaint, plaintiff alleged that' the defendant driver was guilty of negligence in failing to stop the bus within the maximum distance from the curb as required by statute. Plaintiff repeated this allegation in her pretrial statement. Plaintiff’s pretrial statement was read to the jury during voir clire examination to acquaint prospective jurors with plaintiff’s theory of the case. No objection was made by defendant’s counsel at that time. Plaintiff’s counsel in his opening statement again referred to the statute whereupon defense counsel objected on the ground that the statute was a parking statute, that the legislative intent was related to the flow of traffic rather than to the safety of persons getting in and out of vehicles, and that therefore the statute was not relevant to this case. We do not here pass upon the validity of that argument. The court took the objection under advisement and no further reference to the statute was made until the court in its instruction to the jury again read plaintiff’s pretrial statement in setting forth plaintiff’s theory of the case, including the statutory reference. Finally, at the request of defendant’s counsel, the court specifically instructed the jury as follows:
“The Court. There is — I assume that my charge indicated that — the court made a ruling earlier in this proceeding that the allegation of the plaintiffs, at the outset of this trial, that the DSP was guilty of violating a State statute in parking a certain distance from the curb does not apply here. The question of whether or not the bus driver was a reasonable prudent person under like or similar circumstances is what you are to determine.”
This statement by the court was sufficient to answer defendant’s objection. Nowhere did the court tell the jury that the statute did apply. Mere reference to the statute by plaintiff’s counsel in his opening statement did not constitute error where not adopted by the court in its instruction to the jury. The reading of pretrial statements submitted by the parties, particularly where prefaced with such words as “plaintiffs contend,” “defendant contends,” “plaintiffs’ version,” “defendant’s version,” does not constitute an adopting of anything contained therein, whether of fact or of law. A reading of the pretrial statements by the court in this case was prefaced with these words, “I have at this time the obligation to give you again the respective versions of the plaintiff and the defendant, so you will be aware of the theories as presented to me. I will now give them to you.” After reading the excerpts from the pretrial statements, the court said, “That very briefly is the respective position of the plaintiffs and the defendant.” This charge then did not include an adoption by the court of the parking statute which defendant claims is inapplicable, and the charge taken as a whole was not reversibly in error.
For the foregoing reasons, the Court of Appeals is reversed and the judgments of the trial court entered upon the jury’s verdicts are affirmed, with costs to the plaintiffs, appellants in this Court.
Black and Adams, JJ., concurred in result with Brennan, J.
“Fetridge’s law takes its name from a radio engineer named Claude Fetridge, once in tke employ of tke National Broadcasting Company. This Mr. Fetridge, back in 1936, thought up the idea of broadcasting the flight of the famous swallows from Mission San Juan Capistrano in Southern California. As is well known, the swallows depart from the mission eaeh year on October 23d, which is St. John’s Bay, and return to the mission on March 19th, St. Joseph’s Bay. Claude Fetridge conceived the idea of broadcasting the whirr and flutter of eager wings of the departing swallows on October 23d. NBC went to considerable effort and expense to set up its equipment and transport its crew to the mission. And with the entire nation waiting anxiously for this soul-stirring, mystical event, it was discovered that the swallows out of sheer orneriness or because the devil had got to them, had taken their departure a day ahead of schedule. Thus did a flock of passerine birds of the family hirundinidae, eager to moult, lend a sort of immortality to a man named Claude Fetridge.” A Short History of Fingers, H. Allen Smith (1963, Little, Brown & Company), pp 7, 8.
Hole v. Womack (1965), 75 NM 522 (407 P2d 362); Malzer v. Koll Transportation Company (1931), 108 NJL 296 (156 A 639); Del Vecchio v. Haflin Bus Company (1947), 135 NJL 339 (50 A2d 881) ; Boyd v. City of Edmonds (1964), 64 Wash 2d 94 (390 P2d 706); Fordyce v. White Star Bus Lines, Inc. (1931), 304 Pa 106 (155 A 98) ; Greco v. Public Service Interstate Transportation Company .(1947), 135 NJL 280 (51 A2d 1) ; Mills v. City of Cleveland (1954), 97 Ohio App 78 (117 NE2d 471, 55 Ohio Op 310).
Not to be confused with Fetridge’s Law, which in simple language states that important things which are supposed to happen do not happen, especially when people are looking, Gumperson’s Law has been defined: The contradictory of a welcome probability will assert itself whenever such an eventuality is likely to be most frustrating. A Short History of Fingers, H. Allen Smith (1963, Little, Brown & Company), p 7.
“The reports required by this chapter shall not be available for use in any court action, but it shall be for the purpose of furnishing statistical information as to the number and cause of accidents.” CLS 1961, § 257.624 (Stat Ann 1960 Rev § 9.2324).
People v. Thompson, 259 Mich 109, at page 124.
CLS 1961, § 257.675 (Stat Ann 1960 Rev § 9.2375). | [
-34,
2,
-1,
26,
40,
1,
-14,
-4,
-23,
5,
-72,
-36,
53,
25,
-29,
-9,
0,
23,
-5,
-45,
-59,
20,
24,
9,
20,
-15,
17,
-17,
-28,
8,
54,
-34,
54,
3,
-8,
-14,
16,
22,
12,
40,
24,
58,
-51,
-20,
15,
0,
71,
-1,
6,
34,
-53,
23,
-11,
1,
22,
7,
16,
19,
-3,
-10,
-23,
19,
-4,
43,
-32,
-31,
23,
-9,
-68,
0,
-6,
33,
0,
-62,
-45,
77,
22,
76,
0,
11,
1,
12,
36,
-18,
-4,
18,
-29,
7,
-25,
-21,
16,
5,
-20,
25,
3,
6,
-17,
-45,
-8,
-27,
-21,
-13,
22,
4,
16,
0,
-25,
-20,
12,
31,
-32,
21,
42,
43,
9,
-40,
31,
5,
-13,
33,
80,
-27,
27,
13,
-9,
20,
-6,
-13,
4,
-16,
16,
80,
18,
65,
19,
5,
-19,
-25,
7,
-20,
38,
21,
-8,
0,
-22,
11,
4,
24,
-4,
-21,
-24,
25,
26,
-39,
14,
-47,
36,
7,
38,
72,
12,
-25,
7,
28,
-45,
-59,
-1,
30,
64,
-12,
3,
1,
25,
-8,
23,
70,
10,
20,
-37,
2,
-33,
20,
-10,
0,
-53,
-63,
37,
-51,
-40,
-32,
51,
-30,
22,
-7,
-29,
48,
2,
-6,
-1,
-21,
23,
-20,
0,
35,
9,
-4,
-6,
-24,
14,
36,
-46,
-21,
-1,
-28,
33,
-32,
23,
-30,
-2,
-22,
31,
16,
15,
-39,
-33,
3,
-24,
-10,
-20,
-16,
25,
50,
6,
6,
-17,
18,
-11,
-16,
9,
-12,
33,
-12,
0,
-4,
-42,
28,
-16,
-23,
9,
9,
19,
-14,
-22,
-47,
8,
46,
-1,
-22,
0,
-5,
35,
50,
-1,
39,
20,
23,
-17,
15,
-18,
-34,
-23,
10,
-52,
35,
4,
-47,
46,
1,
16,
-16,
4,
9,
-29,
-13,
7,
38,
-22,
62,
43,
-11,
25,
-57,
-45,
68,
22,
-16,
89,
27,
-65,
-23,
68,
-35,
21,
65,
27,
23,
8,
-4,
0,
0,
30,
-15,
29,
-7,
62,
1,
-21,
-6,
55,
-17,
-27,
39,
-9,
5,
15,
-31,
-1,
-21,
0,
-29,
-6,
67,
-37,
19,
63,
0,
43,
-19,
-44,
-7,
-11,
23,
-7,
-7,
9,
-55,
-26,
27,
-39,
8,
-21,
-5,
21,
-18,
-44,
-38,
44,
-56,
-23,
17,
16,
-35,
-34,
6,
4,
-13,
7,
16,
18,
38,
28,
-15,
17,
14,
-20,
-34,
43,
-38,
3,
17,
-28,
-54,
-11,
-52,
-28,
-11,
6,
-41,
-5,
5,
-20,
14,
19,
-8,
-50,
-26,
-20,
104,
-4,
11,
-51,
24,
-12,
-4,
-33,
-16,
-15,
-32,
11,
-36,
-37,
-40,
28,
8,
-49,
10,
7,
-16,
-23,
-42,
-6,
69,
52,
-57,
25,
12,
2,
43,
29,
-22,
-12,
-49,
27,
8,
11,
27,
17,
-27,
-31,
-18,
19,
24,
-80,
25,
-39,
16,
3,
-7,
13,
-24,
54,
33,
64,
17,
-8,
-7,
-31,
20,
25,
-35,
21,
-5,
2,
5,
24,
-16,
-24,
15,
10,
-25,
12,
1,
-26,
-17,
24,
-5,
-43,
-40,
3,
-31,
-25,
18,
-12,
21,
31,
8,
37,
-2,
5,
-13,
19,
47,
-48,
-35,
-7,
2,
35,
-10,
-13,
-25,
-51,
20,
-8,
11,
43,
-18,
0,
-6,
-10,
4,
17,
11,
16,
46,
11,
6,
-28,
60,
49,
-17,
-6,
0,
-31,
-41,
-23,
21,
0,
6,
-20,
-29,
62,
5,
3,
13,
-28,
15,
-41,
-28,
7,
-52,
1,
63,
-32,
-59,
32,
-28,
6,
43,
13,
31,
40,
-4,
-64,
-56,
-17,
-70,
-1,
-60,
-26,
27,
1,
-10,
25,
36,
19,
27,
-10,
-12,
22,
-26,
-40,
40,
-15,
-45,
-26,
40,
-35,
20,
-84,
-28,
-55,
63,
-48,
6,
-6,
5,
28,
1,
9,
1,
-22,
-12,
46,
-24,
36,
-25,
4,
-22,
14,
-27,
43,
10,
-51,
23,
0,
-5,
-43,
-40,
17,
-54,
24,
4,
-74,
-29,
-45,
-6,
-30,
11,
23,
-2,
-47,
1,
-23,
-25,
11,
-25,
24,
-10,
-10,
-55,
-1,
34,
-9,
-5,
-10,
-43,
18,
1,
-10,
22,
20,
35,
-3,
-32,
4,
-38,
-27,
1,
-56,
2,
-57,
58,
-16,
-49,
19,
75,
-15,
27,
-52,
-33,
-18,
31,
8,
-13,
-56,
-25,
-39,
-35,
19,
-8,
-20,
-9,
66,
6,
54,
42,
4,
7,
0,
47,
-22,
46,
-23,
-45,
-2,
-63,
-3,
13,
11,
-54,
-50,
32,
-18,
29,
10,
-13,
57,
23,
-28,
60,
10,
-22,
4,
53,
-59,
-34,
45,
39,
4,
21,
-6,
50,
0,
-30,
15,
1,
24,
-1,
-38,
-11,
-33,
-9,
13,
-39,
-17,
-18,
56,
-37,
47,
27,
-23,
16,
-14,
12,
6,
-28,
-2,
-25,
59,
-8,
-15,
23,
0,
-6,
-31,
-19,
-19,
-1,
21,
6,
-2,
-17,
44,
2,
3,
-50,
36,
-33,
-26,
-47,
18,
-71,
21,
-6,
1,
27,
-10,
11,
11,
21,
-22,
9,
-8,
-27,
-57,
95,
-51,
-56,
18,
-1,
-56,
5,
-27,
-8,
-3,
-7,
-22,
12,
8,
10,
1,
-21,
33,
-25,
-9,
39,
31,
-31,
-25,
13,
-13,
37,
-29,
-6,
17,
-40,
-1,
36,
0,
2,
5,
9,
-12,
3,
13,
13,
29,
21,
-13,
37,
20,
23,
-39,
-10,
0,
-24,
-14,
8,
46,
-20,
7,
-23,
2,
31,
-23,
50,
3,
-15,
13,
-41,
13,
45,
-65,
-4,
30,
-63,
33,
20,
-44,
35,
-67,
40,
20,
1,
-3,
6,
-15,
33,
-33,
9,
-4,
7,
-52,
1,
-11,
32,
-30,
-30,
19,
27,
1,
51,
12,
16,
-25,
-16,
51,
-29,
20,
-49,
28,
-59,
19,
70,
-5,
-45,
2,
-6,
-57,
-2,
34,
60,
16,
-75,
-63,
5,
-34,
60,
35,
-27,
-22,
-26,
8,
15,
-38,
-4,
21,
32,
-32,
-49,
-35,
6,
2,
-17,
31,
26,
-66,
-27,
79,
0,
12,
16,
5,
-20,
3,
5,
-13,
30,
-23,
24,
-18,
-21,
-18,
-8,
-7,
-18,
45,
-9,
-44,
-9,
13,
-10,
-19,
29,
-52,
-19,
9,
75,
-14,
14,
72,
10,
-50,
21,
9,
28,
-22,
-13,
-17,
33,
26,
44,
7,
-6,
56,
-44,
4,
-37,
7,
74,
-22,
-20,
-22,
-25,
-16,
6,
5,
3,
-40,
-34,
21,
-16,
-14,
31,
-22,
-21,
7,
-50,
-68,
49,
-55,
-43,
23,
-23,
-31,
34,
-41,
32,
38,
21,
0,
-13,
41,
58,
2,
0,
31,
15,
27,
31,
-27,
34,
-2,
14,
53,
28,
0,
-12,
-41,
14,
40,
37,
-34,
9
] |
T. M. Kavanagh, J.
Plaintiff-appellant is here on leave granted from a reversal by the Court of Appeals of a judgment rendered by the trial court, sitting without a jury, in favor of plaintiff-appellant Lidke for building supplies furnished in the sum of $5,018.34 with interest, together with taxable costs.
. The facts of the case indicate that Jackson Vibrators, Inc., hereinafter referred to as “Jackson,” owned certain real estate located in Mason connty, Michigan. On November 13, 1958, Jackson sold the the premises to one Robert Rabe nnder land contract for the snm of $35,000. Subsequently, on April 9, 1960, Rabe assigned his vendee’s interest in the land contract to Harris E. Oregg and Prances E. Oregg, husband and wife, defendants-appellees, hereinafter called “Creggs.” The written land contract dated November 13, 1958, provided the following:
“3. Said second party' [purchaser] shall keep all buildings now on or that may hereafter be placed on said premises insured in the name of and in manner and amount and by insurers approved by first party [seller], and leave the policy with first party, and in case of loss the insurance proceeds shall be used for rebuilding, repairing and replacing the leased premises, unless, by mutual agreement, paid to first party and endorsed on this contract to the extent of the amount unpaid thereon and the balance, if any, shall belong and be paid to second party.”
At the time of the original land contract and the assignment to Creggs, Jackson had the premises insured against loss by fire for the period of November 26, 1957, through November 26, 1960. The premium on this insurance was fully paid.
On September 26,1960, a barn and other buildings located on the premises were destroyed by fire. The aggregate amount of the insurance covering the buildings in question under the policy was $31,300. After the fire the Creggs had a conference with Jackson and the Creggs were instructed by one Mr. Pfleiderer, a trustee of Jackson, to go ahead and rebuild the barn. He informed the Creggs that one Morgan Hall and one Miss McDonald would be their bosses and oversee' the building; and that the said Mr. Hall and Miss McDonald would .take charge of the accounting and would keep the finances straight. Morgan Hall was the secretary of Jackson and Miss McDonald was the treasurer.
On the basis of these instructions, the Oreggs proceeded to order materials from Lidke and to contract for labor to rebuild the barn. Said materials were delivered by the plaintiff from time to time between the dates October 24, 1960, and January 18, 1961. During this rebuilding, Mr. Hall made- pe-. riodic checks on the progress of the nev? building and such information concerning the progress was passed on to the trustees of Jackson. All bills were turned over to Miss McDonald as treasurer of Jackson. Near the end of October 1960 Jackson was advised by the insurance carrier that it denied liability under the policy.
Jackson denied liability to Lidke. Plaintiff filed suit against the defendants Jackson and Greggs for-materials furnished in rebuilding the barn upon Oreggs’ order.
It is the plaintiff’s claim that he is a third-party beneficiary of the contract between the defendants under the statute and that said defendants have refused to pay for said materials. CL 1948, '§ 691.543 (Stat Ann 1953 Rev § 26.1233) provides:
“The rights of a person for whose benefit a promise has been made, as hereinbefore defined, shall be deemed to have become vested, subject always to such express or implied conditions, limitations, or infirmities of the contract to which the rights of the promisee or the promise are subject, without any act or knowledge on his part, the moment the promise becomes legally binding on the promisor, unless there is some stipulation, agreement or understanding in the 'contract to the contrary.”
Under count 2 of his declaration plaintiff alleges that defendant Jackson, believing itself responsible for the cost of reconstructing the barn, created its vendee Harris E. Cregg its agent for the purpose of contracting for the reconstruction of said barn. As such agent Creggs contracted for materials to the extent of $5,018.34 and although defendant Jackson paid the labor costs involved in reconstruction, it has refused to pay this plaintiff for materials.
Jackson denied the existence of an unconditional third-party beneficiary contract, asserting that its promise was conditioned upon the receipt of the insurance proceeds, and it denied that the Creggs were acting as its agent.
After hearing the conflicting testimony and examining the exhibits and evidence, the trial court, in a written opinion filed March 10, 1964, made specific findings of fact as follows:
“The proofs clearly preponderated that shortly after the fire, the Creggs met with officials of the company, where it was decided to build a new barn. The cost of reconstructing the original building was prohibitive and it was decided to construct according to plans furnished by the county and State agricultural extension service. Since the Creggs were of the opinion the cost could be reduced by hiring labor and purchasing materials locally, they were authorized by the company to proceed with the building, the only stipulation being that the cost should not exceed the proceeds from the insurance. The balance of the proceeds, if any, were to be credited to the Creggs on their contract. At the meeting, one Mr. Morgan D. Hall and Mary E. McDonald, officials of the company, were appointed as ‘bosses’ to supervise the construction and to represent the company on problems connected therewith. These officials met with the Creggs from time to. tirpe as the building progressed and on several- occasions Mr. Hall inspected the progress at the farm. * * *
“The plaintiff testified that he had done business with defendant Jackson for many years; that he knew of the sale to Rabe and of the assignment to Creggs. He also testified that he was informed of the meeting between the defendants and of the decisions there reached; that defendant Jackson knew from the Creggs he was furnishing the materials and that he also visited with Mr. Hall on two different occasions, once during construction and once after the building was completed, and was never advised or told he would not be paid; that he looked to the company for payment not only because of the agreement between the defendants, but also because he knew the Creggs were financially unable to rebuild from their own resources. He understood the Creggs were acting as defendant’s agents and was promised by them that his bill would be paid.
“Defendant Jackson paid the bills for the labor when presented by the Creggs, but took from them two promissory notes, being defendant Jackson’s exhibits 1 and 2. The notes represented the exact sum paid for the labor.
“In view of the manner in which Jackson handled the insurance on the buildings, it is presumed to have waived the formal requirement provided in the land contract. The company was obviously satisfied with the policy which it had and merely billed the vendees for the premiums. Had the insurance company paid for the loss, the materials and labor would have been paid for from the proceeds and the promissory notes would not have been taken, nor would this suit have been instituted. In this connection, it must be remembered that, at the time of the meeting, between the defendants, there was no suggestion that the insurance company would not pay for the loss. It was not a question of whether or not the loss would be paid but, rather, how much the proceeds would be. It was not learned, until the cou struction was nearly completed, that liability oh the policy was denied. Accordingly, the defendant’s contention that the labor and material bills would be paid only in the event the insurance company stood the loss is entirely without merit and is not substantiated by the evidence.”
Following a discussion of the law and several cases, the trial court concluded that plaintiff was entitled to maintain a cause of action under the third-party beneficiary statute. The court then disposed of the agency question by discussing the testimony with respect to it and stated:
“Defendant Creggs contend they are not liable to the plaintiff since they were only acting as the agent of defendant company in rebuilding the barn.”
The court concluded:
“This court is of the opinion there is much weight in their position and that the defendant company does have a contractual obligation to either rebuild the bam, or to reduce the sum due on the contract by the extent of the loss in the event its insurance company does not pay.”
The court then proceeded to render judgment against defendant Jackson in the amount herein-before indicated.
The Court of Appeals, disregarding the trial court’s specific finding of fact of an agency relationship between the Creggs and defendant Jackson and the specific finding of fact that defendant Jackson did not condition its promise to pay for construction upon receipt of the insurance proceeds, reversed the trial court.
The Court of Appeals stated in its opinion (p 540):
“Upon a review of the entire testimony, it does appear that there was a firm understanding and agreement between Jackson and the Creggs to the effect that the Creggs were authorized to go ahead and contract for labor and materials to rebuild the barn; that Jackson would pay these bills from the insurance proceeds.”
As to the agency question, it said (pp 542, 543):
“The record herein affirmatively established by the plaintiff’s witnesses that Jackson made no representation to the plaintiff, and that the plaintiff relied on the statements of an alleged agent to establish his authority. It is the finding of this Court that plaintiff failed to establish apparent authority or implied agency to hold Jackson liable for the acts .of an alleged agent.”
An appellate court can only reverse findings of fact of the trial court, sitting as a trier of the facts, if it can say that the findings of fact are contrary to a clear preponderance of the evidence. See Kevreson v. Michigan Consolidated Gas Company, 374 Mich 465, 474. Absent such a situation, it cannot disturb the judgment of the trial court.
We cannot say, looking at this record, that the findings of fact are against the clear preponderance of the evidence.
The order of the Court of Appeals reversing the trial court is vacated. The case is remanded to the Court of Appeals with directions to enter its order affirming the trial court. Plaintiff appellant shall have costs.
Dethmers, C. J., and Kelly, Black, Souris, O’Hara, Adams, and Brennan, JJ„ concurred;
1 Mich App 537.
See, currently, CPS 1961, § 600.1405 (Stat Ann 1962 Rev § 27A-.1405). | [
-25,
56,
0,
10,
-16,
33,
-6,
22,
-51,
-32,
0,
0,
30,
-42,
-34,
-9,
-28,
14,
-34,
58,
-15,
-1,
-18,
-19,
7,
-14,
19,
-22,
2,
43,
29,
-35,
9,
-16,
-52,
36,
-36,
-22,
-34,
0,
-13,
-39,
29,
-19,
25,
-19,
24,
-21,
70,
37,
-12,
-9,
40,
3,
0,
-27,
10,
18,
-7,
10,
-7,
-23,
18,
5,
39,
49,
11,
-12,
16,
-3,
36,
20,
-6,
-32,
2,
11,
-10,
43,
-44,
-40,
-12,
-13,
59,
34,
-43,
38,
22,
-32,
-37,
26,
-50,
3,
-2,
10,
2,
-10,
-10,
50,
-2,
42,
-13,
-38,
-39,
19,
4,
-3,
-13,
-44,
-12,
-12,
-28,
-10,
22,
-22,
-1,
-11,
20,
12,
-26,
-5,
25,
0,
-21,
-40,
21,
45,
20,
-6,
-85,
-2,
-16,
-10,
-10,
52,
37,
-22,
23,
1,
-68,
7,
26,
15,
-33,
-33,
-29,
18,
0,
-71,
-59,
-22,
-1,
6,
-21,
45,
5,
-38,
-25,
15,
37,
-64,
34,
-77,
-8,
-8,
-41,
-12,
16,
-3,
20,
19,
-3,
-28,
-18,
-17,
22,
58,
73,
-52,
-21,
-5,
15,
0,
55,
8,
0,
-44,
29,
32,
8,
9,
38,
-14,
-25,
-7,
-47,
-11,
13,
55,
-29,
-17,
39,
-42,
19,
-36,
41,
2,
43,
14,
47,
29,
-20,
-4,
-24,
-14,
-19,
27,
-23,
18,
-15,
-39,
41,
40,
-64,
-15,
-51,
-32,
0,
-18,
22,
-12,
-68,
-8,
58,
70,
-28,
-2,
14,
-7,
51,
-43,
43,
-19,
-49,
-44,
12,
-25,
-29,
-20,
21,
9,
-33,
-10,
-19,
62,
32,
20,
33,
-13,
-3,
12,
22,
6,
-92,
16,
33,
23,
-38,
3,
-22,
47,
-12,
-5,
16,
-49,
-59,
-37,
-2,
30,
13,
-26,
49,
3,
-4,
-51,
-3,
43,
38,
54,
-45,
-22,
23,
-6,
-3,
-30,
58,
-12,
-3,
-26,
37,
4,
-64,
12,
-3,
-11,
36,
-8,
-64,
0,
26,
-11,
-28,
-41,
52,
-52,
-5,
-43,
27,
7,
3,
-26,
61,
30,
-13,
84,
28,
-23,
34,
-30,
-13,
6,
10,
-13,
9,
35,
0,
-35,
50,
-15,
49,
18,
-11,
34,
14,
-35,
-46,
22,
19,
-14,
-7,
28,
-12,
-15,
-6,
19,
-11,
38,
36,
35,
-18,
36,
43,
43,
19,
8,
-15,
-1,
-8,
-17,
-33,
21,
-6,
21,
-2,
10,
6,
13,
-18,
44,
-29,
21,
68,
-47,
-16,
-3,
41,
-8,
-25,
-14,
-23,
25,
-53,
-53,
23,
21,
-36,
-40,
-22,
-23,
-37,
-23,
-14,
7,
-46,
-28,
-62,
16,
-33,
-78,
-33,
-42,
-15,
-42,
-23,
-23,
-13,
42,
28,
1,
9,
7,
42,
19,
-14,
-37,
-6,
-37,
67,
15,
7,
15,
-24,
4,
13,
-24,
19,
11,
-48,
3,
-60,
50,
8,
7,
-41,
-56,
17,
-26,
-31,
19,
29,
3,
-5,
12,
21,
16,
-60,
-1,
-13,
-82,
-12,
9,
43,
-70,
19,
2,
38,
-25,
-3,
15,
34,
-6,
15,
11,
20,
-11,
-27,
-26,
2,
-47,
-16,
60,
51,
20,
-16,
18,
-8,
-17,
0,
23,
0,
50,
57,
45,
14,
-12,
-27,
8,
-17,
-15,
34,
-45,
-13,
-48,
29,
13,
70,
-25,
-19,
-42,
-42,
44,
12,
-31,
41,
34,
18,
43,
21,
21,
15,
25,
1,
-2,
-51,
-7,
-1,
6,
-16,
18,
36,
18,
31,
-33,
40,
-29,
-14,
15,
10,
-2,
-2,
6,
25,
5,
6,
7,
-20,
-4,
-56,
2,
-11,
8,
-4,
-65,
-15,
-9,
-10,
26,
-22,
11,
15,
17,
-4,
85,
34,
-28,
24,
1,
-19,
-34,
27,
3,
-20,
-12,
17,
0,
19,
-47,
-45,
-9,
-50,
22,
-15,
-3,
0,
-25,
-9,
-17,
13,
-13,
-1,
11,
-32,
-2,
1,
-36,
-41,
-19,
38,
14,
-12,
8,
-41,
-32,
-66,
20,
0,
-3,
30,
32,
-1,
34,
-30,
5,
9,
-23,
16,
22,
32,
20,
57,
-11,
-18,
18,
21,
-10,
2,
41,
4,
29,
8,
44,
17,
0,
-28,
22,
48,
0,
38,
19,
-51,
-22,
-31,
-37,
-18,
-8,
-11,
-3,
3,
-63,
-18,
9,
-24,
-23,
15,
45,
-18,
7,
-4,
-3,
16,
-46,
15,
-25,
2,
1,
-51,
-39,
24,
-6,
4,
36,
1,
12,
11,
11,
43,
38,
4,
33,
30,
-10,
46,
-2,
-1,
-11,
55,
-11,
-20,
-31,
9,
20,
-30,
-22,
-11,
-30,
19,
22,
11,
27,
14,
-43,
-29,
12,
55,
-6,
-30,
36,
23,
-51,
55,
32,
14,
33,
47,
-2,
-30,
36,
-10,
-35,
-55,
-25,
-27,
2,
-16,
-61,
33,
-50,
69,
-25,
-6,
-8,
-14,
-4,
-17,
-24,
-50,
-1,
-11,
-1,
-27,
-4,
-9,
-7,
12,
-1,
-52,
49,
49,
37,
32,
-11,
4,
-16,
28,
-27,
-4,
-6,
-11,
16,
-28,
13,
-7,
-3,
-18,
11,
11,
8,
30,
-13,
31,
-38,
-6,
56,
-68,
-36,
-33,
16,
56,
2,
-16,
27,
38,
-19,
-14,
-18,
-18,
-33,
45,
3,
16,
12,
-8,
1,
8,
-26,
-57,
-16,
-7,
35,
11,
-15,
-60,
42,
-2,
-15,
31,
-5,
-55,
-30,
32,
-37,
-15,
0,
38,
-18,
-4,
4,
-13,
47,
-36,
20,
26,
46,
-28,
17,
12,
17,
14,
-3,
-12,
48,
-42,
-26,
-13,
24,
-21,
5,
13,
17,
3,
16,
-15,
-3,
5,
21,
14,
-27,
-19,
-4,
-42,
25,
-47,
-38,
-15,
31,
-42,
-7,
-33,
-19,
31,
3,
36,
-7,
-18,
27,
7,
6,
-2,
37,
0,
10,
-9,
-4,
14,
6,
-57,
23,
-25,
-30,
55,
-26,
-19,
46,
-2,
22,
-2,
53,
-2,
5,
-30,
12,
32,
19,
-31,
20,
-8,
-25,
-12,
-25,
10,
-14,
-13,
-26,
-25,
20,
-5,
32,
-9,
5,
0,
3,
-20,
-4,
-27,
-32,
-44,
23,
4,
15,
-1,
33,
19,
-60,
-43,
-7,
-13,
33,
28,
-15,
-8,
79,
-37,
2,
-11,
62,
14,
-53,
14,
0,
-20,
-20,
0,
17,
33,
33,
-24,
15,
105,
16,
-6,
34,
-5,
19,
32,
22,
-11,
-17,
-17,
1,
3,
-5,
3,
31,
-27,
-15,
48,
-13,
43,
11,
-48,
-10,
17,
-7,
38,
-9,
-29,
-2,
0,
17,
32,
-34,
16,
-28,
-16,
6,
6,
9,
-59,
-9,
-50,
-17,
-9,
-9,
31,
11,
2,
-21,
0,
52,
-18,
-25,
55,
-59,
-3,
-21,
15,
29,
9,
13,
56,
8,
-34,
73,
42,
-50,
-48,
13,
-44,
17,
-22,
-19,
59,
18,
-6,
28
] |
O’Hara, J.
This is an appeal on leave granted from an order of the Court of Appeals denying leave to appeal from a decision of the workmen’s compensation appeal board. The board’s decision affirmed a referee’s holding that plaintiff-appellant did not incur the specific loss of an eye within the meaning of part 2, § 10, as last amended by PA 1956, No 195 (CLS 1961, § 412.10 [Stat Ann 1963 Cum Supp § 17.160]), which provided:
“For the loss of an eye, 66-2/3% of average weekly wages during 162 weeks; for the purpose of this act 80% loss of vision of 1 eye shall constitute the total loss of that eye.”
The facts are stipulated. Plaintiff suffered a personal injury, November 30, 1962, which arose out of and in the course of his employment. As a result of the injury plaintiff developed a cataract. The removal thereof compelled the removal also of the natural lens of his eye. In consequence he had no vision in the lensless eye. He was fitted with a contact lens which enables him to enjoy virtual full vision in the eye when wearing the contact lens, By reason of what is denominated in the record as “'technical problems” this case reached us before the case of Serafin v. Muskegon Motor Specialities and the American Surety Company, 1966, Michigan Workmen’s Compensation Appeal Board Opinions, p 423. That case involved the identical question presented here. We note this because in the Serafin case 5 separate opinions by appeal board members were handed down. In this case a single brief opinion was filed. The rationale of the board members had been fully developed in Serafin. We shall have occasion to refer to the opinions in Serafin to decide the issue here. Except for the names of the parties, no difference between the cases exists.
Four members of the appeal board held in Serafin that the issue here is controlled by Cline v. Studebaker Corporation (1915), 189 Mich 514. The majority held that in an application for specific loss of an eye, the proper test is to measure the degree of vision and coordination after the application of the prosthesis.
The minority view relied also on a decision of this Court in Edwards v. United States Rubber Co. (1949), 325 Mich 203, construed as having held that the proper test is in the degree of vision remaining before the application of prosthesis to the-injured eye.
The difficulty in attempting to apply former holdings of this Court to the case at bar is that no judicial test has ever been applied to the stipulated fact situation here presented. In Edwards, supra, as in all of the previous cases our research has covered, there have been distinguishing facts giving rise to differing questions of law. Some turned on the question of how much vision the workmen had in the injured eye before the industrial injury. Some were controlled by the fact that while more than the statutory percentage of vision remained in the injured eye, the vision was useless industrially because the remaining vision could not be coordinated with that of the uninjured eye.
Cline v. Studebaker is said by appellee to control. We do not so read it. Cline was decided before the 1943 amendment to the specific loss schedule of the act. The case rests on its predecessor, Hirschkorn v. Fiege Desk Co. (1915), 184 Mich 239. The point in Hirschkorn was that the industrial accident board (now appeal board) attempted to apply an equitable solution to a manifestly inequitable statute. The specific loss schedule of the act provided only for the “loss of an eye.” The board found (p 241):
“ ‘That, the usefulness of the left eye of applicant having been destroyed by said injury to the extent of more than one-third, and somewhat less than one-half, the applicant was entitled to an award of 35-weeks’ compensation, * * * that being the fair and reasonable percentage of the 100-weeks compensation, which the law provides for the full loss of the eye.’ ”
The Court observed (p 242):
“The award made by the board was a very equitable one, and is one which we would prefer to sustain, if we could do so without attempting to amend the law by judicial construction.”
Hirschkorn was decided in January, 1915. In the next term, in April, the Court passed upon the application of a similarly injured workman, Cline, whose claim was against Studebaker Corporation, 189 Mich 514. The Court, referring to Hirschkorn, held (p 519):
“The statute does not award compensation for the partial loss of an eye, except as measured by lessened earnings. Although there is no special finding upon the point, it is evident from the amount allowed that the industrial accident hoard treated the injury as ‘the loss of an eye,’ rather than as a partial loss, and that it made its allowance under the schedule of fixed liabilities.”
The only difference between the 2 cases was that plaintiff Cline lost 90% of the vision in the injured eye as against the 35 to 50% in the case of Hirschkorn. The controlling statute, harsh as it was, had not been amended and Cline could not establish the loss of his eye.
It was in this setting that the industrial accident board used the language that has confused the issue here. Strictly speaking it was dicta, for the Court wrote (189 Mich 514, 519):
“Under these circumstances it seems impossible to say that the injury has resulted in the loss of the eye. The use of glasses is a very ordinary occurrence, both by the young and the old. It is unnecessary to determine whether the loss of 90% of the sight is substantially the loss of the eye, because that is not the present case. Ninety percent of the sight is not lost when it can be diminished to 50% by use of common appliances. And it is the duty of the sufferer to minimize the injury as much as he reasonably may. We cannot help but feel it unfortunate, however, that further tests of the eye were not made so as to exclude all possible chance of mistake in so important a matter.
“The case of Hirschkorn v. Fiege Desk Co., supra, must be held as controlling in this one. The statute seems not to have provided compensation for the partial loss of an eye under the circumstances existing here. That case, however, had not been determined when this matter was before the industrial accident board.
“The award must be reversed and set aside.”
Thus it may he seen that the essential point of decision was the lack of proof of loss of an eye under the statute as it was then worded. We reject (¡line as controlling for two reasons: First, the statute has since been amended. Second, it is undisputed here that after the required surgery removing the natural lens, claimant here had a sightless eye, as did claimant Serafin.
We treat this case as one of first impression. We hold the surgical removal of the natural lens made necessary by an injury arising out of and in the course of claimant’s employment is loss of an eye within the meaning of the amended statute.
We recognize that substituting an artificial lens has “restored” vision to the otherwise sightless eye. We point out that a specific loss award is not made as compensation for diminution of use of the involved organ or member. It is not awarded to compensate for loss of earnings or earning capacity. It is awarded irrespective of either fact or both. If ophthalmological advances and refinements in the use of contact lens has in fact rendered the amended statute inconsonant with its original legislative intent, it is the province of the legislature to say so. We construe the statute in the plain meaning of its wording.
The order of the appeal board is vacated. The case is remanded to the board with directions to enter an award for the specific loss provided by statute. Plaintiff may tax costs.
Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, Souris, Adams, and Brennan, JJ., concurred. | [
33,
36,
-13,
-8,
-28,
32,
-17,
-59,
-6,
30,
1,
-36,
-9,
-14,
21,
-2,
32,
36,
-33,
-1,
-8,
24,
22,
-22,
-42,
-41,
39,
-17,
-41,
20,
-34,
-5,
14,
17,
0,
29,
17,
2,
-33,
-15,
28,
30,
-4,
-22,
-39,
-25,
60,
-14,
5,
42,
-39,
-21,
-32,
18,
31,
26,
37,
-1,
7,
50,
-15,
34,
52,
24,
37,
19,
-9,
13,
20,
-9,
-27,
7,
-41,
-22,
-30,
-46,
46,
20,
29,
14,
-39,
-71,
43,
-6,
-50,
51,
0,
36,
-59,
-31,
-29,
-17,
-13,
-14,
-28,
25,
35,
-12,
35,
-7,
-70,
4,
19,
22,
-30,
-9,
5,
36,
-3,
4,
8,
-10,
11,
9,
25,
2,
-29,
0,
3,
-3,
-15,
12,
-1,
18,
36,
32,
-7,
-10,
-1,
-30,
32,
-1,
13,
83,
-6,
-9,
23,
-49,
14,
-3,
-55,
38,
10,
13,
7,
41,
-8,
-20,
-5,
23,
36,
23,
-29,
4,
-16,
-20,
15,
0,
41,
-32,
44,
43,
-14,
34,
-10,
7,
-8,
-17,
12,
37,
42,
-36,
35,
-12,
6,
-9,
70,
-13,
-79,
44,
-78,
17,
16,
32,
-1,
-24,
-29,
-28,
2,
-70,
15,
-17,
-1,
-21,
-39,
34,
12,
-10,
-3,
-18,
0,
-15,
3,
50,
37,
-13,
-23,
-27,
-5,
48,
-20,
-12,
2,
4,
9,
17,
-23,
1,
-42,
-18,
-39,
17,
-24,
-27,
-24,
-52,
-45,
3,
49,
-27,
-2,
29,
23,
-7,
22,
19,
29,
-63,
27,
-22,
-5,
34,
27,
14,
-57,
-15,
4,
-26,
28,
64,
31,
65,
42,
-66,
-45,
-35,
14,
-25,
43,
11,
-69,
20,
42,
7,
-4,
-15,
-18,
-1,
17,
-50,
-18,
-29,
26,
-36,
-2,
-63,
11,
-22,
61,
4,
-60,
25,
-80,
2,
-92,
18,
35,
-28,
-17,
15,
37,
-24,
-41,
-9,
6,
19,
26,
-18,
-15,
-16,
5,
-41,
-53,
0,
9,
-8,
-24,
-50,
-2,
-4,
-54,
-47,
36,
48,
37,
-16,
-25,
-19,
34,
-4,
-4,
31,
8,
-1,
33,
-27,
30,
-57,
-26,
-7,
-49,
35,
-6,
53,
-22,
-1,
-7,
31,
57,
28,
26,
-26,
37,
5,
12,
10,
45,
-12,
85,
17,
-27,
54,
6,
-18,
2,
13,
55,
-33,
-78,
-27,
33,
-15,
20,
42,
-3,
24,
-42,
-4,
-19,
-5,
45,
-6,
71,
0,
39,
15,
11,
-45,
2,
20,
10,
2,
-5,
-92,
-12,
-32,
-20,
33,
-17,
-30,
-39,
-44,
-2,
40,
-41,
29,
17,
-4,
10,
-24,
-4,
-17,
-43,
-4,
-26,
-18,
6,
16,
-41,
-9,
-1,
59,
16,
-13,
10,
-36,
-4,
-3,
-25,
-43,
37,
24,
-33,
-48,
10,
-14,
-16,
-13,
-11,
-12,
-23,
20,
-6,
-19,
-18,
-22,
25,
-5,
-15,
-35,
-34,
-20,
-80,
35,
31,
25,
24,
7,
24,
-20,
19,
17,
51,
23,
-35,
-38,
-1,
23,
-32,
-8,
-14,
2,
-17,
9,
3,
-12,
-44,
39,
85,
-68,
-27,
-3,
-16,
-7,
13,
-37,
6,
32,
0,
-11,
21,
17,
8,
-10,
-2,
-3,
-34,
10,
-10,
-17,
30,
-21,
-2,
-5,
-22,
-9,
-27,
8,
-21,
-30,
-29,
-78,
30,
-10,
57,
-31,
-5,
-70,
59,
-54,
-30,
-26,
10,
42,
12,
-30,
-44,
7,
16,
43,
-24,
-14,
-16,
14,
8,
-21,
-90,
23,
27,
-23,
20,
-10,
46,
0,
-6,
-1,
46,
-4,
-67,
0,
-64,
18,
-25,
19,
29,
-38,
-52,
78,
54,
7,
22,
-1,
-11,
24,
27,
-34,
-1,
34,
41,
-50,
-50,
-7,
10,
41,
15,
-59,
-21,
30,
38,
12,
-20,
4,
38,
8,
23,
5,
24,
-17,
-21,
19,
31,
26,
-26,
-29,
-9,
-18,
33,
-54,
-3,
-9,
-2,
25,
-28,
41,
19,
23,
-4,
30,
-14,
14,
-34,
32,
-21,
8,
3,
43,
-14,
47,
96,
-6,
-9,
-18,
-23,
-72,
-60,
-5,
9,
13,
77,
-10,
27,
29,
-7,
-4,
-39,
28,
24,
-27,
-34,
6,
-1,
1,
-51,
-38,
6,
49,
-28,
42,
-36,
-2,
0,
-9,
53,
-5,
-3,
-28,
-4,
41,
21,
-4,
-13,
49,
12,
-39,
-23,
28,
5,
-4,
-45,
18,
-1,
-26,
-38,
-76,
40,
3,
-29,
-1,
55,
-2,
15,
6,
25,
-14,
27,
-52,
18,
33,
2,
55,
-29,
-17,
-7,
20,
9,
46,
-72,
-3,
35,
-34,
-2,
62,
-17,
-22,
17,
-32,
29,
-38,
-40,
3,
-23,
17,
13,
-9,
11,
23,
0,
3,
79,
-3,
-11,
-5,
-39,
-45,
19,
37,
-25,
0,
-6,
-25,
-6,
-12,
-7,
2,
36,
23,
-12,
-46,
-9,
7,
-24,
28,
-22,
13,
-9,
20,
3,
14,
-27,
19,
-7,
8,
9,
25,
14,
-21,
0,
0,
-6,
32,
-85,
12,
-4,
-19,
-44,
-5,
16,
29,
22,
-17,
24,
-34,
3,
16,
-17,
31,
1,
-31,
-9,
-5,
-6,
-1,
21,
-19,
-6,
7,
-21,
-40,
6,
24,
-16,
-22,
24,
31,
-9,
-25,
-29,
-4,
-20,
-18,
-38,
7,
30,
-8,
24,
-26,
17,
19,
3,
-22,
-18,
15,
7,
6,
26,
-16,
9,
-49,
14,
5,
59,
13,
9,
-14,
17,
-27,
-4,
-24,
-9,
2,
35,
29,
-46,
20,
60,
10,
-5,
4,
13,
47,
0,
11,
-9,
46,
-5,
-13,
0,
-3,
2,
-3,
15,
20,
-64,
17,
-9,
-30,
-19,
17,
-34,
-7,
-33,
-25,
-54,
18,
-16,
15,
19,
-28,
14,
29,
41,
-5,
-11,
60,
-2,
24,
17,
-4,
-2,
-54,
32,
-30,
-15,
0,
-72,
5,
-9,
-14,
-13,
80,
1,
-99,
8,
-42,
33,
-35,
47,
16,
-39,
11,
43,
17,
28,
-23,
-36,
-7,
-4,
47,
21,
-28,
0,
44,
42,
30,
72,
7,
13,
-33,
-30,
37,
-15,
3,
4,
-29,
83,
1,
14,
-30,
24,
-27,
-37,
-2,
-34,
-3,
21,
3,
28,
9,
6,
47,
-1,
21,
28,
-32,
32,
14,
8,
-29,
4,
35,
51,
0,
-51,
55,
-65,
14,
1,
37,
-15,
33,
-30,
-23,
-9,
74,
30,
11,
7,
-15,
-26,
15,
17,
18,
-11,
48,
20,
17,
0,
-34,
-40,
26,
12,
10,
34,
-1,
28,
27,
-42,
-58,
3,
-21,
-40,
-38,
4,
-9,
24,
-56,
19,
-10,
-25,
12,
14,
-47,
-37,
0,
2,
-16,
60,
13,
78,
23,
32,
-4,
-13,
9,
10,
28,
30,
4,
-12,
18,
-9,
-1,
3,
-13,
0,
-4,
-16,
-31,
-81,
-65,
13,
8,
8,
-18
] |
Adams, J.
Defendant Carter pleaded guilty in 1959 to murder in the second degree and is serving his sentence in the State prison of southern Michigan at Jackson. A motion to set aside the conviction and sentence or, in the alternative, for a new trial in the circuit court was made by him in 1965. The motion claimed that the constitutional rights of defendant were violated by failure of the prosecuting attorney to sign and file with the justice of the peace an order authorizing the issuance of the warrant under which defendant was charged and that, in the absence of such an order, the warrant was invalid. Defendant’s motion relied on the provisions of CL 1948, § 764.1 (Stat Ann 1954 Rev § 28.860) and the decision of this Court in People v. Holbrook (1964), 373 Mich 94.
The circuit judge denied the motion. The Court ;of Appeals denied defendant’s application for delayed appeal. Leave to appeal was granted by this Court on February 11, 1966.
The undisputed fact is that the complaint filed with the justice of the peace was prepared by the prosecuting attorney. No order in writing for the issuance of a warrant was prepared or filed. The warrant wás issued by the justice of the peace. Defendant waived preliminary examination and was bound over to circuit court. An information was filed against him in the circuit court by the prosecuting attorney. Defendant was arraigned on the information and counsel was appointed for him. Upon demand of, counsel, the matter was returned to the magistrate for preliminary examination. Defendant was again bound over to circuit court. When he was arraigned on the information, on advice of counsel and after interrogation by the trial judge, he pled guilty to murder in the second degree.
Murder in the second degree is an offense not cognizable by a justice of the peace.
Where the offense is one cognizable by a justice .of the -peace the applicable statute was CLS 1961, § 774.4' (Stat Ann 1963 Cum Supp § 28.1195). This 'is the section of the law which was under consideration in Holbrook. The statutory provision under consideration in this case is found in the code of criminal procedure, CL 1948, § 764.1 (Stat Ann 1954 Eev§ 28.860). Its pertinent provision is as follows:
“It shall not be lawful for any of the above named public officials, to issue warrants in any criminal cases, * * * until an order in writing allowing the same is filed with such public officials and signed by the prosecuting attorney for the county.”
In this present case, the question is whether action by the preparation of a written complaint by the prosecuting attorney and filing of same with the justice of the peace can be construed to satisfy the requirement of the statute.
In People v. Holbrook, in commenting on the policy behind the applicable' statute then in effect (CLS 1961, §774.4 [Stat Ann 1961 Cum Supp § 28.1195]), the majority opinion of this Court stated (p 97): .
“The policy behind the statute would appear to be to insure orderly procedure by, in the main, funnel-ling all law enforcement through the prosecuting attorney, the chief law-enforcement officer of a county. Exception is allowed in connection with traffic violations, or a complainant is permitted to proceed on his own if security for costs is filed with the justice. The filing of costs assures payment to the justice, and is also a test of the complainant’s belief in the guilt of the person accused.”
In People v. Griswold (1887), 64 Mich 722, the Court said (p 723):
“The object sought to be accomplished by that statute was to guard against the indiscretion, frequently indulged in by magistrates, in permitting legal proceedings to be instituted against parties for crime without any previous inquiry into the circumstances.”
In neither Holbrook nor Griswold did the prosecuting attorney direct the issuance of the warrant by written order or otherwise, nor did he participate in the proceedings until after the crucial decision to issue a warrant was made. The purpose of the statute is to require the prosecuting attorney to pass upon the issuance of a warrant before the warrant is issued.
Section 2 of the code of criminal procedure, PA 1927, No 175, being CL 1948, § 760.2 (Stat Ann 1954 Rev § 28.842), in its entirety reads as follows:
“This act is hereby declared to be remedial in character and as such shall be liberally construed to effectuate the intents and purposes thereof.”
The statute does not specify the form of “order in writing” which the prosecuting attorney is to file for issuance of warrants. The preparation of a complaint by a prosecuting attorney and the filing of the same by him with the magistrate fulfills all of the purposes of the statute. The complaint is in writing, it can be prepared only after consideration of the nature of the charged offense, it does provide orderly procedure and it does guard against indiscretion by magistrates acting without the benefit of direction from the prosecuting attorney.
The purpose of the statute having been met and the requirement of the law being that the statute be liberally construed, we find no error.
Care should be taken to note that the holding in this opinion does not return to the overruled holding in Griswold. The policy of the law was recognized in Griswold and is quoted herein even though the holding of Griswold was contrary to that policy. This opinion, in harmony with Holbrook, holds that the prosecuting attorney must signify in writing his approval of the issuance of a warrant. The preparation of the complaint in this case satisfied that requirement. The action of the circuit court in denying defendant’s motion is affirmed.
T. M. Kavanagh and Souris, JJ., concurred with Adams, J.
CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549) — Reporter.
Amended by PA 1965, No 307 (Stat Ann 1965 Cum Supp § 28.1195). | [
84,
33,
2,
54,
-68,
-13,
-16,
-28,
-21,
47,
32,
-17,
-5,
-35,
15,
37,
-3,
5,
12,
-40,
-27,
10,
2,
19,
-16,
-35,
17,
34,
-25,
-2,
-39,
20,
-19,
-24,
21,
-25,
44,
-24,
32,
42,
12,
-22,
21,
-7,
-61,
-74,
4,
4,
6,
-60,
-15,
37,
7,
-20,
-13,
14,
31,
-53,
-42,
22,
-35,
29,
-1,
-19,
-72,
-12,
-26,
23,
12,
-51,
46,
-3,
-21,
45,
24,
34,
-25,
-16,
37,
-4,
13,
26,
-18,
5,
-14,
-27,
-5,
-41,
15,
3,
4,
53,
-59,
-33,
11,
-32,
19,
-8,
34,
1,
-29,
22,
8,
18,
31,
-50,
-21,
-33,
-40,
-14,
-1,
-10,
0,
-39,
7,
-56,
14,
-25,
-11,
1,
7,
-26,
59,
93,
-3,
2,
-11,
-34,
34,
-6,
35,
18,
50,
-50,
1,
4,
37,
1,
20,
21,
-30,
-5,
20,
-24,
28,
-28,
23,
35,
-31,
42,
-49,
47,
-17,
-4,
-15,
15,
7,
-43,
-32,
15,
21,
-18,
25,
-28,
11,
-4,
-75,
0,
10,
-32,
-33,
48,
-3,
37,
34,
-24,
-27,
20,
-6,
-1,
2,
1,
27,
22,
8,
29,
22,
-19,
-2,
-3,
-1,
18,
19,
-15,
51,
50,
-13,
-3,
14,
25,
3,
-38,
24,
-4,
8,
-38,
47,
32,
9,
-14,
-51,
-56,
32,
15,
15,
-15,
-32,
-6,
27,
53,
-19,
4,
64,
34,
-1,
-36,
-3,
35,
-65,
15,
44,
20,
-9,
-4,
6,
-16,
-4,
-11,
57,
-19,
-65,
-16,
85,
-1,
100,
12,
-27,
-6,
-50,
-10,
21,
33,
-54,
-16,
6,
-14,
23,
-46,
6,
4,
14,
-1,
-15,
-26,
-35,
15,
17,
-18,
-36,
-8,
-25,
18,
3,
33,
0,
-17,
-37,
30,
20,
-11,
25,
5,
-13,
-1,
10,
-15,
-32,
-7,
1,
3,
11,
-31,
-1,
10,
-1,
27,
29,
-6,
-15,
16,
18,
-1,
-60,
-52,
-22,
-26,
49,
-14,
1,
2,
0,
38,
0,
-1,
20,
-23,
31,
-31,
44,
-12,
-21,
4,
4,
-36,
34,
33,
6,
10,
-3,
21,
-12,
-18,
2,
-61,
-1,
9,
20,
20,
-24,
65,
4,
-18,
7,
25,
-7,
2,
22,
57,
-30,
-32,
13,
-7,
16,
4,
0,
-14,
-26,
-43,
8,
-21,
23,
18,
-30,
39,
30,
-33,
0,
-15,
33,
22,
42,
-22,
-22,
-37,
-5,
7,
20,
-6,
4,
32,
-9,
-20,
26,
-35,
1,
-6,
0,
6,
27,
51,
-55,
27,
7,
-31,
31,
17,
23,
6,
14,
12,
-14,
1,
2,
-20,
-26,
-10,
-49,
76,
2,
7,
-31,
-11,
36,
53,
5,
-49,
10,
-33,
20,
-15,
0,
-12,
28,
-6,
21,
34,
-22,
16,
8,
-18,
52,
16,
-6,
-18,
12,
59,
-54,
8,
27,
3,
6,
-39,
-8,
-10,
0,
-72,
-33,
-22,
-27,
23,
40,
2,
-9,
-12,
-41,
40,
19,
9,
-56,
-31,
18,
-30,
-3,
39,
25,
36,
-68,
32,
16,
-9,
21,
35,
-69,
-9,
-29,
-23,
-11,
39,
70,
21,
2,
-5,
0,
-12,
0,
-7,
-21,
-73,
69,
17,
-7,
11,
33,
-28,
28,
0,
-2,
-31,
-1,
11,
16,
14,
-2,
16,
5,
-36,
24,
-15,
7,
48,
-1,
2,
11,
8,
-24,
-7,
36,
-54,
-3,
10,
42,
-23,
0,
8,
-13,
-10,
5,
-35,
-13,
-13,
22,
15,
-9,
-2,
44,
33,
-66,
-29,
-27,
-12,
36,
8,
73,
69,
-13,
9,
16,
-55,
10,
-6,
6,
-3,
-7,
-42,
-9,
5,
-20,
13,
-15,
-20,
39,
1,
71,
-8,
-10,
5,
-37,
-39,
50,
25,
9,
25,
5,
16,
-26,
30,
-4,
19,
5,
35,
47,
8,
-38,
-18,
10,
-7,
2,
11,
-26,
-2,
-47,
-15,
35,
-60,
15,
-15,
5,
-43,
32,
0,
47,
39,
-28,
23,
14,
-29,
86,
45,
22,
-41,
14,
0,
20,
0,
-9,
8,
-22,
-48,
-67,
-13,
-30,
-2,
-15,
1,
1,
-28,
19,
-41,
11,
-10,
-50,
21,
-57,
25,
-23,
-4,
-34,
4,
-6,
-18,
-19,
73,
0,
-46,
18,
5,
-33,
-11,
4,
-25,
-10,
-11,
-6,
-10,
37,
-53,
12,
9,
21,
-23,
38,
-7,
-64,
-34,
11,
27,
15,
-9,
24,
13,
5,
-41,
6,
-52,
-43,
-20,
-20,
-17,
25,
-13,
4,
20,
-18,
-32,
31,
23,
2,
16,
-17,
24,
-12,
12,
43,
14,
-35,
-14,
45,
-5,
-47,
12,
17,
-4,
-7,
27,
-15,
-34,
-16,
-31,
-54,
-21,
-79,
34,
8,
57,
-20,
13,
32,
-36,
-19,
15,
-10,
6,
14,
2,
7,
2,
4,
-4,
32,
-65,
42,
-30,
28,
13,
10,
23,
-6,
15,
-8,
32,
-9,
-16,
-66,
-53,
-16,
-16,
50,
-8,
2,
0,
60,
53,
3,
23,
-56,
55,
50,
-44,
-2,
24,
12,
18,
-12,
-60,
-24,
-7,
-19,
35,
54,
27,
3,
-17,
-16,
9,
-17,
26,
-25,
-38,
17,
-34,
-29,
41,
-15,
-33,
2,
-21,
-23,
5,
6,
-42,
33,
-54,
-18,
39,
3,
-4,
37,
33,
-7,
28,
19,
-4,
30,
-10,
-34,
-12,
-23,
6,
3,
30,
46,
34,
-39,
-19,
1,
-64,
-3,
-60,
-11,
-2,
17,
0,
2,
-14,
38,
-32,
28,
-44,
-28,
10,
-4,
35,
39,
1,
7,
-13,
-7,
23,
6,
41,
-4,
-3,
63,
-30,
12,
35,
48,
-6,
31,
32,
-14,
21,
-22,
-19,
-49,
-3,
41,
7,
-22,
-20,
13,
9,
-21,
-67,
1,
19,
8,
-6,
58,
-15,
-69,
8,
29,
29,
14,
27,
10,
8,
-16,
-35,
-39,
-5,
39,
9,
-15,
-15,
-41,
-99,
2,
20,
-27,
62,
-17,
-19,
-30,
12,
-11,
-16,
-3,
-35,
-4,
-22,
11,
-35,
69,
-38,
29,
-22,
-8,
18,
-27,
4,
-32,
-19,
-31,
3,
-83,
-1,
31,
-14,
-14,
39,
53,
27,
-22,
-4,
16,
-14,
-17,
10,
6,
-21,
-12,
-66,
-38,
-22,
32,
-48,
26,
-26,
2,
-40,
-60,
-12,
14,
60,
-44,
-37,
-16,
18,
-11,
-55,
-13,
8,
3,
-6,
4,
-20,
12,
4,
-55,
53,
13,
12,
40,
36,
9,
-4,
-11,
44,
25,
-42,
-6,
-9,
38,
32,
-23,
0,
2,
-30,
-14,
-27,
10,
26,
16,
-13,
79,
19,
-16,
7,
-13,
2,
-44,
12,
-27,
54,
-11,
-51,
-46,
37,
34,
56,
13,
32,
41,
-11,
-29,
75,
-26,
30,
-12,
-22,
-10,
-19,
-23,
44,
-24,
13,
-66,
7,
-32,
8,
-53,
32
] |
Souris, J.
(for reversal). Plaintiff, by original action, sought from the Court of Appeals its writ of mandamus to compel the Michigan parole board to assume jurisdiction ovér him for the purpose of considering his entitlement to release from imprisonment on parole. Upon plaintiff’s application to review denial of the writ by the Court of Appeals (Moore v. Parole Board, 4 Mich App 261), we granted leave to appeal.
Moore, without the assistance of counsel, pled guilty to first-degree murder in 1938 and was convicted and sentenced therefor to life imprisonment in solitary confinement at hard labor as required by our statute. CL 1948, § 750.316 (Stat Ann 1954 Rev §28.548). In 1950 the successor of the sentencing judge denied a delayed motion to vacate sentence and for new trial and this Court affirmed. People v. Moore (1955), 344 Mich 137. The United States Supreme Court, however, reversed on the ground that petitioner had sustained his burden of proving that his guilty plea was invalidly accepted because obtained without the benefit of counsel and absent an intelligent waiver of his right to counsel. Moore v. Michigan (1957), 355 US 155 (78 S Ct 191, 2 L ed 2d 167). In 1958, on remand, Moore was tried for first-degree murder, this time with counsel’s assistance, and was convicted by jury verdict of second-degree murder. The trial judge, in sentencing Moore to imprisonment for 25 to 40 years, commented that he had considered, “but not by way of reduction of sentence”, the fact that Moore had spent nearly 20 years in prison under the sentence invalidated by the United States Supreme Court.
This action in mandamus was commenced in 1964. Under our statute (CLS 1961, § 791.234 [Stat Ann 1965 Cum Supp § 28.2304]), prisoners sentenced to imprisonment for indeterminate terms become subject to the jurisdiction of the parole board when they have served time equal to their minimum sentences less allowances made for regular and special good-time service. Unless plaintiff prevails herein, he claims that he will not be subject to the board’s jurisdiction, and thus not eligible for parole, until at the earliest 1970 when his minimum term of 25 years less regular and special good-time allowances since his 1958 conviction will have been served. It is his contention in this proceeding that the nearly 20 calendar years he served under his invalidated conviction and sentence from 1938 to 1958, and the regular and special good-time credit he earned during that time, should be credited to him for the purpose of determining the parole board’s jurisdiction to consider him for parole and, we assume, for the purpose of determining the expiration of his maximum sentence.
Had Moore’s second conviction occurred after June 22, 1965, the date PA 1965, No 67 was adopted and given immediate effect, it is agreed that the sentencing judge would have been required to credit him for the time he had served under the sentence imposed for the prior erroneous conviction by reduction of the maximum sentence to be imposed. In 1958, however, when Moore was convicted the second time, the statute’s language was permissive only and not, as it has been since 1965, mandatory.
Moore contends that the statute has been construed to be retroactively applicable, relying upon a statement appearing in one of our earlier decisions before the 1965 amendment (Attorney General v. Recorder’s Court Judge [1954], 341 Mich 461, 475), and, furthermore, that the 1965 amendment did not adversely affect the statute’s retroactivity. In the Attorney General’s Case this Court said, “By its language this enactment was made retroactive.” It is this statement the plaintiff relies upon to support his contention that the statute, before and after its amendment, is retroactively applicable and that, therefore, it permitted, and now requires, the parole board to credit a prisoner with time served and earned during prior imprisonment under an erroneous conviction.
The contention, however, does not fit the language of the statute which grants power only to the sentencing judge and not to the parole board. Furthermore, if it be argued that the statute authorizes the sentencing judge now to reduce a prior valid sentence to the extent of time served during imprisonment under an erroneous conviction, prior decisions of this Court suggest that the statute so construed would impinge impermissibly upon the power of pardon and commutation of sentences granted exclusively to the governor by article 6, § 9 of our Constitution of 1908 and article 5, § 14 of our Constitution of 1963. People v. Freleigh (1952), 334 Mich 306, and cases cited therein. For these reasons we cannot give to the statute the meaning urged upon us by plaintiff, nor do we believe this Court’s statement in the Attorney General’s Case, quoted above, means other than that the statute is retroactive only in the sense that time served under erroneous convictions before, as well as after, its enactment thereafter could be considered by a sentencing judge and credited against the sentence to be imposed upon conviction after retrial.
An alternative contention made by plaintiff is that the statute, even in its original form, requires a sentencing judge to allow credit for past time served under an erroneous conviction, and we agree. In numerous cases, in this State and in other jurisdictions, the word “may” when used in legislation or in contracts has been construed to mean “shall”, the context of its use considered. See, for example, the following cases from this Court: McBrian v. City of Grand Rapids (1885), 56 Mich 95; Grand Lodge of Ancient Order of United Workmen v. Fisk (1901), 126 Mich 356; Gitchell v. Whipple (1901), 126 Mich 646; Freud v. Wayne Circuit Judge (1902), 131 Mich 606; and Brooke v. Brooke (1935), 272 Mich 627. Cf. Smith v. School District No. 6, Fractional, Amber Township (1928), 241 Mich 366. See, also, Supervisors of Rock Island County v. United States, ex rel. State Bank (1867), 4 Wall (71 US) 435 (18 L ed 419) (relied upon pertinently by this Court in Corliss v. Village of Highland Park [1903], 132 Mich 152, 160, 161), where the Supreme Court, in construing a statute which provided that a board of supervisors “may, if deemed advisable”, levy a special tax when the county owed debts its current revenues were not sufficient to pay, held the quoted phrase to require a tax levy, the statutory condition existing. It expressed the reasons for its decision, singularly applicable to the decision we reach, as follows:
“In King v. Inhabitants of Derby, Skin 370 (90 Eng Rep 164), there was an indictment against ‘divers inhabitants’ for refusing to meet and make a rate to pay ‘the constables’ tax.’ The defendants moved to quash the indictment, ‘because they are not compellable, but the statute only says that they may, so that they have their election, and no coercion shall be.’ The court held that may, in the case of a public officer, is tantamount to shall, and if he does not do it, he shall be punished upon an information, and though he may be commanded by a writ, this is but an aggravation of his contempt.
“In Rex & Regina v. Barlow, 2 Salk 609 (91 Eng Rep 516), there was an indictment upon the same statute, and the same objection was taken. The court said: ‘When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall: thus, 23 Hen VI., says the sheriff may take bail. This is construed he shall, for he is compellable to do so.’
“These are the earliest and the leading eases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries.
“In Mayor of City of New York v. Furze, 3 Hill 612, and in Mason v. Fearson, 9 How (50 US) 248, the words, ‘it shall be lawful’ were held also to be mandatory. See Attorney General v. Lock, 3 Atk 164 (26 Eng Rep 897); Alderman Blackwell’s Case, 1 Vern 152 (21 Eng Rep 868); Dwarris on Statutes 712; Malcom v. Rogers, 5 Cow (NY) 188; Newburg Turnpike Co. v. Miller, 5 Johns Ch (NY) 101, 113; Justices of Clark County Court v. Paris, W. & K. Turnpike Co., 11 B Mon (50 Ky) 143; Minor v. Merchants Bank, 1 Peters (26 US) 48, 64; Commonwealth v. Johnson, 2 Binn (Pa) 275; Virginia v. Justices, 2 Va Cas 9; Ohio, ex rel. Whiteman, v. Governor, 5 Ohio St 528; Coy v. City Council of Lyons, 17 Iowa 1.
“The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language — whenever the public interest or individual rights call for its exercise — the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.
“In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose ‘a positive and absolute duty.’
“The line which separates this class of cases from those which involve the exercise of a discretion, judicial in its nature, which courts cannot control, is too obvious to require remark. This case clearly does not fall within the latter category. People v. Superior Court, 5 Wend (NY) 114, 125, 10 Wend (NY) 285, 289; People v. Vermilyea, 7 Cow (NY) 369, 393; Hull v. Supervisors, 19 Johns (NY) 260.” Supervisors of Rock Island County v. United States, ex rel. State Bank (1867), 4 Wall (71 US) 435, 446 (18 L ed 419).
It may be argued plausibly that the 1965 amendment, changing the word “may” to “shall”, demonstrates that only thereafter did the legislature intend mandatory application of the statute. However, it is also plausible to argue, and we so conclude, that the legislature in 1965 simply eliminated any possibility of mistaking its original intention. The very nature of the law’s subject matter reinforces our conclusion. Six years before the statute was originally enacted, this Court expressed the view that:
“In the last analysis, the law is not vindictive, and possibly the criminal code should be amended as was done in Iowa, so as to credit a prisoner on a new sentence with the time he has served under a void sentence. This also would bring uniformity in the practice. This, however, is a matter for the legislature, not for us.” In re Doelle (1948), 323 Mich 241, 249.
By this language this Court announced its recognition of justice’s requirement that credit be given in the circumstances that we confront today, while acknowledging that its implementation as a matter of uniform State policy was a legislative responsibility. Notwithstanding our acknowledgment of the legislature’s prime responsibility for establishment of such a policy, however, the late Judge W. McKay Skillman, judge of the recorder’s court in the city of Detroit, just two years later, effectively credited a defendant upon retrial with time served on a prior vacated conviction by imposing the new sentence nunc pro tunc as of the date of the original sentence even before there was legislative authority therefor and this Court later affirmed his action in doing so. Attorney General v. Recorder’s Court Judge (1954), 341 Mich 461.
The point is that both the judicial and legislative branches of government by their words and conduct have recognized the justice of crediting such prior service against new sentences and, indeed, now the practice has been established as a matter of enlightened State policy. Thus, by construing the original legislative enactment to have been mandatory, rather than merely permissive, we do no violence to such established State policy.
Plaintiff also contends that denial of credit for past service on a void conviction violates Federal and State constitutional guarantees of equality and due process and against double jeopardy. Fifth and Fourteenth Amendments to the United States Constitution; Mich Const 1908, art 2, §§ 1, 14 and 16, and Mich Const 1963, art 1, §§ 1, 2,15 and 17. While it is not necessary to pass upon such issues, having concluded as we have that plaintiff was entitled by statute to the credit he seeks, we note that identical and related claims recently have received the attention of many State and Federal courts. See, for example, People v. Henderson (1963), 60 Cal 2d 482 (35 Cal Rptr 77, 386 P2d 677); Patton v. North Carolina (CA 4, 1967), 381 F2d 636; United States v. White (CA 7, 1967), 382 F2d 445, and other authorities cited in each of the foregoing cases. These issues also have received recently the attention of legal scholars. See, for example, Agata, “Time Served Under a Reversed Sentence or Conviction — a Proposal and a Basis for Decision” (1963), 25 Mont LR 3; Van Alstyne, “In Gideon’s Wake: Harsher Penalties and the ‘Successful’ Criminal Appellant” (1965), 74 YLJ 606; Note, “Twice in Jeopardy” (1965), 75 YLJ 262; annotation, “Right to credit for time served under erroneous or void sentence or invalid judgment of conviction necessitating new trial”, 35 ALR2d 1283.
There remains for disposition a problem of procedure. This is an original proceeding for writ of mandamus against the parole board, but until the plaintiff’s order of sentence is corrected to reflect the credit we hold the statute required the sentencing judge to grant, the parole board has no clear legal duty to perform which can be compelled by mandamus. Accordingly, this cause is remanded to the Court of Appeals to be held in abeyance by that Court to accord plaintiff an opportunity to apply to the successor of the sentencing judge for correction of his order of sentence in accordance herewith. Thereafter, within a reasonable time, if the parole board exercises jurisdiction over plaintiff pursuant to CLS 1961, § 791.234 (Stat Ann 1965 Cum Supp § 28.2304) or if otherwise plaintiff be discharged from his sentence, the Court of Appeals shall dismiss the plaintiff’s petition for the writ of mandamus. On the other hand, if the parole board fails so to exercise its jurisdiction over plaintiff, the Court of Appeals shall issue its writ of mandamus to compel such action forthwith.
Reversed and remanded. Plaintiff may tax his costs.
Dethmers, C. J., concurred with Souris, J.
Adams, J.
(for reversal and resentencing). I am unable to agree with Justice Souris that the word “may” as used in PA 1954, No 205 (CLS 1961, § 769.11a [Stat Ann 1954 Rev § 28.1083(1) ]) should be construed to mean “shall”.
The powers of courts in connection with sentencing have presented questions since the early judicial history of this State. In the case of Crippen v. Peo ple (1860), 8 Mich 117, defendant was indicted for a public nuisance arising from his acts in constructing and maintaining a mill dam. He was convicted and ordered by the court to abate the nuisance and to demolish the dam. There was no sentence of imprisonment or fine. On appeal the question was whether the order for removal of the dam was a final judgment on which a writ of error would lie. Justice Manning, writing for the Court, said:
“A judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of proceedings instituted therein.”
Justice Manning came to the conclusion that the judgment of the trial court was erroneous. He then said (p 124):
“For these reasons, as there is no judgment for imprisonment or a fine, we regard the order for the removal of the dam as erroneous. And here the question arises, whether, the error being in the judgment itself, and not in a part of the record preceding the judgment, we can do any thing more than reverse the judgment. We clearly have no power to correct the error by rendering such judgment as the court below should have given.” (Emphasis added.)
In the case of Elliott v. People (1865), 13 Mich 365, plaintiff in error, convicted in the recorder’s court on an information for embezzlement, was sentenced to the Detroit house of correction for two years. He appealed, alleging that no sentence could lawfully be given requiring him to be confined in the house of correction for more than one year. This Court agreed and held:
“We think this is the correct view of the statute; and that when the house of correction is made the place of imprisonment for county jail offenses, it must be treated as if it were itself, to that extent, the county jail. We think, therefore, that the sentence for more than one year was unauthorized and invalid. Being an excess of authority, and therefore an unlawful sentence, we cannot subsiitihte for it another sentence which the court below might have given, but did not give in fact: Rex v. Ellis, 5 B & C 395 (108 Eng Rep 147); Rex v. Bourne, 7 Ad & El 58 (112 Eng Rep 393); Shepherd v. Commonwealth, supra [2 Metc (43 Mass) 419]. There being no error except in the judgment, there can be no new trial, and the court below cannot give a second judgment. The judgment must therefore be reversed, and the prisoner discharged.” (p 367.) (Emphasis added.)
See, also, O’Neil v. People (1867), 15 Mich 275.
These cases undoubtedly received the attention of the legislature. PA 1867, No 170, read as follows:
“Whenever, in any criminal case, tried in any circuit court or in the recorder’s court in the city of Detroit, the defendant shall be adjudged guilty, and a punishment by fine or imprisonment shall be imposed in excess of that allowed by law, the judgment shall not for that reason alone be judged altogether void, nor be wholly reversed and annulled by any court of review, but the same shall be valid and effectual to the extent of the lawful penalty, and shall only be reversed or annulled on writ of error or otherwise, in respect to the unlawful excess.” (Emphasis added.)
In cases involving the excessive sentence statute this Court has reversed the excess portion of the sentence but affirmed the remainder. A number of such cases have been decided since 1867. See, for example, People v. Parkhurst (1883) 50 Mich 389; People v. Ver Planck (1925), 231 Mich 340; Cross Company v. UAW Local No. 155 (1966), 377 Mich 202, 223.
In addition to the excessive sentence cases, the Court has dealt with a variety of other sentences without relying on the excessive sentence statute: illegal — People v. Anchsornby (1925), 231 Mich 271; erroneous — People v. Baum (1930), 251 Mich 187; improper — People v. Hoaglin (1933), 262 Mich 162; irregular — People v. Harrison (1916), 194 Mich 363, People v. Ver Planck, supra; wrong — People v. Robinson (1931), 253 Mich 507; nullity — People v. Gunsell (1951), 331 Mich 105; invalid — In re Rhyndress (1947), 317 Mich 21.
In the above cases, almost without exception, the Court has found that the conviction itself was proper and that only the sentence was in some respect deficient. The cases were sent back to the trial judge for resentencing. The reasons for following this procedure, as opposed to the procedure followed in the case of excessive sentences, were discussed in the case of People v. Farrell (1906), 146 Mich 264. Subsequently, in the case of In re Vitali (1908), 153 Mich 514, the Court in a unanimous opinion announced :
“The case of People v. Farrell (1906), 146 Mich 264, is authority for the proposition that where the trial court has imposed an illegal sentence it has the power to substitute for it a legal sentence notwithstanding the illegal sentence has been partly executed.” (p 515.)
See, also, People v. Baum, supra; People v. Mellor (1942), 302 Mich 537.
Cases allowing credit for time served under an unlawful imprisonment begin with People v. Parkhurst, supra. The defendant was convicted of embezzlement and confined in the house of correction at Ionia for one year. Under the statute the punishment for the offense was three months. The Court noted that the judgment should be reversed for the excess portion of the sentence only, and then said “but as three months have noiv expired, the defendant is entitled to an immediate discharge.” (Emphasis added.) See, also, In the Matter of Henry Franklin (1889), 77 Mich 615; People v. Gilbert (1910), 163 Mich 511. In People v. Ancksornby, supra, the trial judge was instructed by this Court to “take into consideration the fact that the defendant has served six months in prison under the unauthorized sentence.” In In re Cowan (1938), 284 Mich 343, credit was given upon new sentence for all time actually served under the vacated sentence. In In re Doelle (1948), 323 Mich 241, defendant had served almost eight years when the sentence was vacated. On new trial, defendant pled guilty to a lesser offense. He was sentenced to a minimum term of one year and a maximum term of four years’ imprisonment in accordance with the statute. In denying defendant’s claim that he was entitled to full credit for the time served under the vacated sentence, Justice Butzel wrote (four other Justices concurring) :
“It appears that the trial judge did consider defendant’s previous imprisonment when he set and recommended a minimum term of one year. * * * In the last analysis, the law is not vindictive, and possibly the criminal code should be amended as was .done in Iowa, so as to credit a prisoner on a new sentence with the time he has served under a void sentence. This also would bring uniformity in the practice. This, however, is a matter for the legislature, not for us.” (Emphasis added.)
In In re DeMeerleer (1948), 323 Mich 287, defendant was denied full credit for the time served under an earlier sentence which had been vacated by the United States Supreme Court. In In re Wall (1951), 330 Mich 430, sentence under the habitual criminal statute was vacated and defendant was re-sentenced under the prior jury verdict. It was held defendant, having already served the full statutory maximum applicable to the later sentence, was entitled to his discharge. In the case of Attorney General v. Recorder’s Court Judge (1954), 341 Mich 461, this Court upheld the device used by the recorder’s court judge of imposing a sentence on a lesser offense nunc pro tunc as of the date of the original sentence which had been vacated. This in effect gave defendant full credit for the time he had served in prison under an improper verdict.
In the majority of the above cases it has been recognized that a defendant was entitled to credit for time served under an unlawful imprisonment. But in the Doelle and DeMeerleer Cases, because the defendant later pled guilty or was convicted of a lesser offense, it was held that the grant of credit was in the discretion of the judge upon sentencing but limited to the maximum and minimum sentences provided by law. In re Doelle directed the legislature’s attention to the problem.
PA 1954, No 205, was an effort by the legislature to define the powers of the judiciary in connection with a grant of credit for time served under an unlawful imprisonment. It is so well recognized that “may” is permissive and “shall” mandatory, on the basis of use of the word “may”, there is a strong inference the legislature intentionally made the grant or allowance of credit a matter for the discretion of the sentencing judge. An examination of chapter 9, Judgment and Sentence, of the code of criminal procedure would indicate that the legislature had no difficulty in determining whether to use “shall” or “may” to mandate or to permit various actions under the provisions of that chapter. See, for example, the use of these words in sections 2a, 3, 4 and 5, which precede section 11a (added by PA 1954, No 205) and section 12, as amended, which follows. Up to the time of legislative enactment, the cases had apparently held that the discretion of the sentencing judge was restricted by the maximum and minimum terms provided for in the statute under which a defendant was convicted or pled guilty. PA 1954, No 205 purported to enlarge the discretionary powers of a judge so that in a case of unlawful imprisonment full credit for the time served could be given.
As has been noted, this Court has dealt with a great variety of unlawful imprisonments and has exercised judicial power, supplemented in some instances by legislative authorization, to correct the same. Where the sentence originally imposed is valid and legal, however, the situation is entirely different. Neither the Supreme Court nor the sentencing court has the power or authority to change or vacate such a sentence and subsequently to impose a new one. People v. Meservey (1889), 76 Mich 223; People v. Kelley (1890), 79 Mich 320; In re Dudney (1942), 303 Mich 402; People v. Fox (1945), 312 Mich 577; People v. Chivas (1948), 322 Mich 384; Elliott v. Department of Corrections (1955), 343 Mich 681; People v. Connor (1957), 348 Mich 456. As stated by Justice Souris, the reason for the rule is that the power to reprieve, commute, or pardon is lodged in the executive branch of government. For examples of the executive power, see People v. Brown (1884), 54 Mich 15; People v. Moore (1886), 62 Mich 496; People v. Cummings (1891), 88 Mich 249; Rich v. Chamberlain (1895), 107 Mich 381; People v. Freleigh (1952), 334 Mich 306.
It follows that if PA 1954, No 205, is a constitutionally valid statute, defendant’s sentence must be upheld, the trial judge having exercised a permissive discretion. The infirmity in PA 1954, No 205, is that it grants without standard or rule of law to the judiciary the power as a matter of grace to recognize or to refuse to a defendant credit for the time served by him under a “void sentence”, a “void conviction”, or a “prior erroneous conviction”. It will be recalled that, under the excessive sentence statute, the excessive portion of the sentence shall be reversed or annulled. The unlawful sentence is to be corrected. Under PA 1954, No 205, however, the unlawful sentence having already taken place, the defendant is at the mercy or discretion of the sentencing judge. If denied the credit, he has no remedy. This creates a wholly unreasonable classification. It is quite as unfair to exact double time as excessive time. It is equally unfair to leave this to the discretion of the sentencing judge with the result that one defendant may receive credit for the portion of his debt paid to society while another defendant may not. The result, statewide, is total absence of uniformity in the treatment of defendants.
Violation of due process in a situation such as we have here has been analyzed by Judge Sobeloff of the United States court of appeals for the Fourth Circuit, in Patton v. North Carolina (1967), 381 F2d 636, as follows:
“The principle of fair dealing which impels judges in passing sentence to take into account the time a defendant was deprived of his liberty while awaiting trial, Dunn v. United States (CA 4, 1967), 376 F2d 191, insists even more inexorably that he shall not be finessed out of credit for time he was forced to serve under an invalid sentence. The trial and conviction may be voided on appeal, but the time illegally exacted by the unconstitutional sentence is an irreversible fact. It is grossly unfair for society to take five years of a man’s life and then say, we now acknowledge that this should not have happened, but we will set everything right by refusing to recognize that it did happen.”
The 1965 amendment by changing the word “may” to “shall” eliminates the constitutional infirmity contained in the statute. A sentencing judge should proceed as heretofore in imposing sentence in accordance with the provisions of chapter 9 of the code of criminal procedure, except that in imposing sentence for a term of years he shall give credit for time served under an illegal sentence in accordance with PA 1965, No 67 (CL 1948, § 769.11a, as amended [Stat Ann 1965 Cum Supp § 28.1083(1)]).
I agree with the suggestion of Justice Souris to remand to the Court of Appeals for eventual remand to the sentencing judge who shall vacate the erroneous sentence and resentence with proper credit for time served.
Reversed and remanded. No costs.
Kelly, T. M. Kavanagh, and O’Hara, JJ., concurred with Adams, J.
Brennan, J.
(for grant of writ for limited purpose). Plaintiff was convicted in 1958 of murder in the second degree. Previously, the plaintiff had spent nearly 20 years in prison under an invalid sentence after a plea of guilty, arising out of the same homicide. The prior plea and sentence were invali dated by the United States Supreme Court. At the time of sentencing in this case, there was a statute in Michigan which permitted the trial judge to grant or allow the defendant credit against and reduction of the statutory maximum sentence equal to the time already served on the prior erroneous conviction. The offense of second-degree murder of which the defendant was convicted in 1958 is punishable by imprisonment in the State prison for life or any term of years in the discretion of the court.
Without discussing the question of whether the prior sentence credit statute was mandatory or permissive in 1958, it is readily apparent that the prior sentence credit statute does not apply to the offense of second-degree murder. The statute required allowance of credit against and by reduction of the statutory maximum sentence. It is patently impossible to reduce a sentence of life by the number of years served under the prior invalid sentence. Thus a sentence of “life imprisonment less 20 years” is meaningless, absent God-like foreknowledge of the future or a statutory formula utilizing life expectancy tables. Similarly, where the maximum term of years is left entirely to the discretion of the sentencing judge, it is impossible meaningfully to reduce the maximum by the number of years served under the previous sentence. In such a case, the process of reduction is entirely a subjective thing in the mind of the sentencing judge.
In the present case, the sentencing judge in imposing a sentence of 25 to 40 years commented that he had considered Moore’s previous invalid imprisonment “but not by way of reduction of sentence.” In an offense, such as second-degree murder where no specific statutory maximum sentence is imposed, the best we could expect of a judge in applying this statute is that he declare upon the record that he has reduced the maximum sentence by the amount of the previous invalid sentence. Had the trial judge in this case sentenced the defendant to a term of 25 to 60 years, then reduced the 60 by 20, he would have achieved the same result, and clearly in the light of his discretion under the second-degree murder statute, he would have been entitled to do so. Neither can it be contended that this impossibility of applying the sentence credit statute to second-degree murder is a mere legislative oversight or a condition of grave injustice or a constitutional deprivation which ought to be cured by this Court’s engaging in fancy judicial footwork.
It is obvious that the sentence credit statute does not apply to first-degree murder for in that case life imprisonment is mandatory and no amount of time served under a previous invalid sentence could reduce that penalty. If the trial judge in this case had seen fit to impose a life sentence upon the defendant as he had the authority to do, none could say that it was possible to reduce such a maximum by any specific term of years.
Therefore, the real question in this case is not whether credit should have been given against the maximum sentence under the prior invalid sentence credit statute, but rather whether good time and special good time made by Moore during his prior erroneous incarceration should be counted in determining his eligibility for parole under the 1958 conviction. In the case of Meyers v. Jackson (1929), 245 Mich 692, 693, the life sentence of Meyers was commuted by the governor “so that the same will expire 15 years from date of sentence.” Meyers argued that he was entitled to good-time allowances by way of reduction of the 15-year commuted sentence. The Court held:
“Obviously, the question of good time applies only to those [sentences] where the date of expiration of sentence is fixed. Plaintiff was sentenced to imprisonment for life. The period of his imprisonment was not fixed. There is no provision in the statute whereby a prisoner sentenced to imprisonment for life, without parole or commutation of sentence at an earlier period, may be discharged.” Meyers v. Jackson, supra.
At first blush, it would appear that the Meyers Case is a precedent for the proposition that a person sentenced to life imprisonment cannot earn good time. The statute concerning good time does not make any such distinction. It says:
“Every convict who shall have no infraction of the rules of the prison or the laws of the State recorded against him, shall be entitled to and shall receive a reduction from his sentence as follows: [there follows the itemization of the various good time allowances].”
The statute specifically says that it shall not be construed so as to allow any good time in cases of commuted sentences unless so stipulated in the executive order commutating the sentence. This statutory provision would seem to bolster the following reasoning in the Meyers Case, supra, at page 693:
“The date of expiration of plaintiff’s sentence is fixed by executive order at 15 years from date of sentence. Plaintiff, if he accepts the benefit of the commutation granted, must accept it in accordance with the terms imposed by the executive authority granting it.”
Since in the Meyers Case there was a commutation, and since plaintiff in the Meyers Case could not accept the commutation other than on its plain terms, the language in the Meyers Case to the effect that good-time allowances do not apply to life sentences was not essential to decision there. Normally, of course, the point is moot, since no amount of good time earned can reduce a life sentence. It simply is not possible to deduct a stated number of years from an indefinite life sentence. And further, with respect to life sentences other than for murder in the first degree, the statute (CLS 1961, § 791.234 [Stat Ann 1965 Cum Supp § 28.2304]) provides that the parole board should have jurisdiction after 10 calendar years. It is therefore the obvious legislative assumption that the question of whether or not a lifer earns good time is moot.
Despite such legislative assumption, the present factual situation requires us to determine whether a lifer does in fact earn good time even though in most cases it has no practical value.
As we have seen, the good-time statute purports to give good-time credits to every convict who behaves himself in prison.
Clearly, the purpose of this enactment is to encourage good behavior by prisoners and thus generally to improve conditions in the prisons and reduce custodial costs to the taxpayers.
Presumably, the statute makes no distinction between lifers and other convicts by reason of the fact that the legislature wanted to encourage good behavior by lifers as well as by all other prisoners.
Admittedly, the good-time credit incentive is rather nebulous in the case of a convict imprisoned for life. But since hope and postconviction pleas spring eternal within the incarcerated human breast, it cannot be said the good-time credit law is not at least some encouragement to them. At least, it appears that the legislature thought it would he so, and its policy determination is binding on this Court.
We hold that the petitioner, Willie B. Moore, was a “convict” within the meaning of the good-time statute during his prior incarceration under invalid sentence, and as such, he is entitled to have such allowances for good behavior as were earned by him during those years credited to him, for purposes of parole consideration.
Mandamus should issue for such purposes only.
Black, J., concurred in result with Brennan, J.
See CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549). — Reporter.
The statute, as amended in 1965, reads as follows:
“Whenever any person has heen heretofore or hereafter convicted of any crime within this State and has served any time upon a void sentence, the trial court, in imposing sentence upon conviction or acceptance of a plea of guilty based upon faets arising out of the earlier void conviction, shall in imposing the sentence specifically grant or allow the defendant credit against and by reduction of the statutory maximum by the time already served by such defendant on the sentence imposed for the prior erroneous conviction. Failure of the corrections commission to carry out the terms of said sentence shall be cause for the issuance of a writ of habeas corpus to have the prisoner brought before the court for the taking of such further action as the court may again determine.” (Emphasis added.) CLS 1961, § 769.11a, as amended by PA 1965, No 67 (Stat Ann 1965 Cum Supp § 28.1083 [1]). The only change made in 1965 was to substitute the word “shall” for the word “may” which previously appeared.
This same provision has been carried forward into the code of criminal procedure and appears without substantial change as CL 1948, § 769.24 (Stat Ann 1954 Rev § 28.1094).
PA 1927, No 175 (CL 1948, § 769.1 et seq. [Stat Ann 1954 Rev § 28.841 et seg.]). — Reporter.
Added by PA 1953, No 130 (CLS 1961, § 769.29 [Stat Aim 1954 Rev § 28.1074(1)]). — Reporter.
By PA 1949, No 56 (CLS 1961, § 769.12 [Stat Ann 1954 Rev § 28-.1084]). — Reporter.
The language of PA 1954, No 205.
It follows, a fortiori, that such credit includes recognition of popular or special good time earned during an illegal incarceration.
Moore v. Michigan (1957), 355 US 155 (78 S Ct 191, 2 L ed 2d 167).
CLS 1961, § 769.11a, as amended by PA 1965, No 67 (Stat Ann 1965 Cum Supp § 28.1083 [1]).
CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549).
CLS 1961, § 769.11a, as amended by PA 1965, No 67 (Stat Ann 1965 Cum Supp § 28.1083 [1]).
CLS 1961, § 800.33 (Stat Ann 1954 Rev § 28.1403).
“Lifer” is a slang word meaning “convict serving a life sentence”. Since the word is simple, descriptive, inoffensive, and generally understood, cumbersome snbsütntes are eschewed. | [
53,
8,
-39,
11,
-33,
33,
-24,
-62,
-52,
18,
-1,
-8,
-4,
-42,
35,
-18,
12,
51,
-54,
7,
1,
36,
21,
4,
3,
-29,
6,
65,
-20,
28,
14,
-18,
24,
-30,
-11,
-42,
4,
-53,
47,
64,
-5,
5,
-2,
40,
-78,
4,
48,
37,
40,
-24,
-17,
45,
60,
23,
-17,
29,
15,
-24,
-37,
0,
-20,
21,
-43,
-6,
10,
10,
9,
-14,
-17,
-42,
3,
-10,
-8,
5,
8,
23,
49,
9,
26,
-50,
26,
18,
-2,
-42,
-37,
55,
-12,
-1,
-19,
9,
-1,
28,
-78,
-27,
3,
-30,
18,
-23,
62,
-47,
-35,
-1,
-37,
-14,
30,
-23,
-15,
0,
0,
12,
28,
25,
1,
2,
-5,
-23,
-58,
-6,
-14,
1,
-4,
-29,
40,
41,
43,
3,
14,
2,
38,
14,
0,
43,
44,
-2,
-12,
9,
-1,
31,
12,
-59,
-27,
-21,
53,
-31,
5,
-16,
-26,
14,
34,
13,
2,
10,
5,
33,
17,
35,
33,
-3,
-28,
34,
10,
37,
0,
2,
-11,
-18,
-40,
21,
-4,
-33,
-26,
19,
24,
43,
2,
25,
-22,
41,
41,
24,
-59,
36,
21,
-19,
-45,
2,
18,
-15,
-24,
-57,
-33,
1,
38,
-1,
44,
-3,
53,
8,
15,
50,
-21,
-1,
-2,
48,
22,
-40,
11,
21,
13,
36,
-40,
14,
-2,
-21,
-28,
-8,
10,
12,
9,
26,
-59,
-30,
0,
-10,
-22,
-17,
21,
37,
7,
-10,
11,
-7,
34,
42,
51,
8,
10,
53,
36,
-9,
-33,
-2,
37,
-1,
56,
0,
7,
-45,
-7,
2,
7,
27,
31,
-20,
-68,
-22,
36,
-26,
-46,
-29,
-35,
1,
-11,
-25,
-5,
47,
-24,
28,
-39,
-14,
-11,
-9,
30,
-21,
-20,
-15,
-16,
49,
17,
-16,
55,
15,
-2,
24,
-44,
-40,
8,
-18,
-13,
50,
20,
3,
-14,
59,
44,
39,
28,
-37,
5,
23,
-4,
-27,
-48,
1,
31,
-6,
-14,
1,
22,
-38,
24,
-17,
-22,
4,
17,
1,
-21,
-25,
43,
-6,
-26,
31,
22,
-81,
35,
14,
75,
-2,
-43,
19,
-22,
5,
-28,
25,
-2,
42,
-6,
-1,
-18,
19,
10,
-8,
-6,
12,
-2,
-17,
-14,
32,
-8,
-30,
-10,
32,
15,
-7,
0,
-34,
-19,
-90,
-17,
9,
17,
-21,
-49,
0,
38,
11,
-13,
-11,
46,
-12,
87,
28,
6,
-51,
-1,
30,
25,
28,
-34,
-42,
-36,
2,
-1,
-37,
30,
-27,
-19,
-25,
29,
-30,
-54,
-29,
-16,
-36,
-37,
-6,
35,
29,
39,
-24,
-16,
-12,
-25,
-16,
32,
-9,
-23,
54,
-30,
18,
-45,
6,
75,
55,
22,
-45,
8,
-52,
53,
-25,
22,
10,
43,
-45,
-5,
13,
-27,
10,
-1,
8,
16,
12,
31,
-25,
10,
23,
-43,
-48,
33,
-8,
-3,
0,
-22,
-32,
-13,
-40,
-13,
-22,
11,
-5,
-17,
26,
-15,
-49,
-47,
10,
-29,
22,
12,
-63,
-22,
-30,
3,
-21,
19,
-6,
-45,
22,
57,
-23,
-28,
26,
-9,
3,
-36,
-23,
-18,
20,
-11,
-27,
-11,
6,
-45,
-3,
-12,
52,
4,
-54,
-19,
-66,
-28,
17,
32,
9,
-28,
48,
-20,
28,
-40,
7,
4,
8,
9,
-10,
8,
-10,
29,
-40,
11,
10,
25,
2,
-27,
47,
11,
7,
-27,
-33,
7,
-4,
-30,
-3,
38,
-20,
21,
51,
-28,
-8,
5,
-20,
1,
-21,
-1,
5,
23,
44,
-29,
-34,
-32,
-9,
43,
0,
29,
53,
10,
-14,
3,
36,
11,
0,
38,
-3,
-40,
-39,
32,
-45,
-50,
0,
26,
-18,
28,
-11,
47,
19,
-42,
1,
-32,
44,
-20,
29,
10,
41,
-5,
20,
-16,
62,
38,
24,
-37,
1,
24,
19,
-88,
-29,
0,
-39,
-4,
-21,
54,
-41,
-40,
15,
26,
-52,
8,
-8,
-22,
-26,
28,
-8,
-26,
49,
-1,
12,
25,
12,
18,
-5,
-23,
-1,
7,
-7,
-25,
-23,
-45,
31,
-2,
-4,
-56,
46,
26,
12,
1,
-32,
-26,
-55,
9,
-45,
-28,
0,
26,
39,
-29,
-6,
3,
-18,
-41,
-10,
2,
-13,
-57,
73,
-9,
-20,
52,
6,
32,
0,
2,
-34,
-35,
32,
-35,
-23,
-3,
-9,
19,
10,
30,
12,
3,
11,
-38,
33,
2,
21,
-35,
3,
-18,
-33,
18,
6,
19,
-15,
-17,
-23,
0,
-14,
5,
57,
-54,
1,
-38,
-10,
-16,
22,
11,
10,
-16,
52,
-25,
51,
1,
28,
35,
-44,
24,
16,
-6,
8,
-2,
-8,
1,
32,
-6,
-43,
25,
-11,
29,
2,
-66,
2,
8,
30,
7,
24,
-3,
-64,
-25,
44,
-11,
-59,
-7,
35,
53,
22,
5,
-10,
-12,
-13,
28,
-24,
-14,
-21,
24,
23,
-1,
18,
-23,
26,
5,
-4,
-32,
-24,
-15,
-5,
27,
-27,
11,
24,
6,
0,
-2,
35,
-24,
-13,
74,
-1,
-33,
27,
5,
7,
-8,
27,
-26,
-14,
8,
-43,
89,
21,
4,
-52,
-12,
25,
10,
17,
10,
53,
7,
-26,
-88,
25,
-57,
-54,
0,
-38,
-6,
-49,
-4,
7,
-21,
5,
-28,
57,
31,
15,
39,
-9,
-14,
-17,
19,
-5,
-17,
-11,
38,
-15,
46,
-5,
-4,
33,
43,
49,
-20,
73,
-32,
-26,
-36,
0,
-12,
-10,
45,
-4,
-51,
21,
66,
-14,
12,
-9,
-6,
13,
6,
9,
28,
44,
33,
-17,
-2,
27,
15,
0,
-1,
-35,
46,
-26,
-5,
23,
-14,
-30,
-50,
57,
14,
-40,
-70,
63,
-12,
0,
-3,
-22,
70,
-53,
0,
10,
3,
9,
-6,
18,
13,
-39,
34,
-5,
-55,
-1,
64,
-3,
-56,
-2,
10,
-27,
-28,
6,
38,
-83,
54,
45,
-24,
-1,
17,
-41,
-25,
10,
-6,
-7,
-7,
16,
-11,
0,
-12,
42,
-19,
-33,
44,
-17,
28,
9,
34,
-44,
11,
-7,
28,
3,
-39,
13,
-68,
-19,
22,
-26,
-69,
17,
58,
-37,
-22,
42,
1,
12,
-4,
-16,
-1,
14,
-29,
14,
-9,
-32,
11,
-93,
-29,
28,
41,
-50,
12,
-36,
-44,
-22,
-61,
-18,
-22,
55,
5,
-13,
-53,
-7,
1,
-32,
-16,
26,
12,
-4,
-29,
14,
-52,
-11,
-41,
32,
6,
38,
31,
6,
6,
-39,
-24,
5,
19,
-22,
14,
1,
0,
1,
1,
-5,
50,
22,
-29,
6,
-53,
34,
26,
-22,
43,
26,
-72,
-25,
21,
13,
17,
63,
0,
5,
-30,
4,
-25,
34,
-10,
24,
-48,
10,
10,
-25,
-14,
61,
-16,
-24,
31,
-3,
58,
-16,
0,
21,
-40,
-2,
-86,
60,
2,
-21,
-40,
2
] |
Souris and O’Hara, JJ.
This is an appeal on leave granted by this Court from the circuit court for Wayne county, bypassing the Court of Appeals pursuant to GCR 1963, 852.
Appellant was found guilty of contempt, by the Honorable Charles Kaufman, a judge of the Wayne circuit court, for refusal to testify in a one-man grand jury proceeding presided over by the Honorable George E. Bowles, also a judge of the Wayne circuit court. Judge Kaufman sentenced appellant to six months’ confinement in the Detroit house of correction, or until the expiration of the above designated grand jury, or until such time as he should purge himself of such contempt by answering the questions addressed to him in the grand jury proceeding. Upon his initial refusal to answer the questions, appellant was ordered so to do under a grant of immunity by the grand juror. The grant of immunity was from all subsequent prosecution for any offense concerning which any responsive answer to such questions may have tended to incriminate appellant.
Appellant challenges his conviction for contempt on multiple grounds. He contends that the one-man grand jury proceeding from which his contempt conviction resulted is an illegal extension of a prior one-man grand jury beyond the one-year period allowed such juries by statute and that his contempt conviction, therefore, is void. He also contends that the immunity granted him is not coextensive with his privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution; that, furthermore, the State failed to demonstrate to him the nature and extent of the immunity granted; and that, therefore, his contempt conviction for refusing to answer the grand juror’s questions violates his rights guaranteed him by the Fifth Amendment. Finally, he urges that his contempt conviction is void because it arose out of proceedings conducted under our one-man grand jury statute which he claims violates “the doctrine of separation of powers”, by which we presume he means that it violates Const 1963, art 3, § 2, and, as well, that it violates the due process clause of the Fourteenth Amendment to the United States Constitution.
The questions put to him by the grand juror all relate to so-called “little black books” seized in the appellant’s restaurant-tavern. In it are entries purported to be in the handwriting of appellant and allegedly showing payments of money to Detroit police officers presumably as bribes to induce the officers to refrain from enforcing the law as to defendant.
We conclude that the Bowles grand jury is not an illegal extension of a preceding one-man grand jury; that the immunity granted appellant is as broad as is required by the Fifth Amendment’s guarantee against self-incrimination; that the State performed its obligation of advising appellant of its grant of immunity to him; that the one-man grand jury statute does not violate either our State Constitution’s separation of powers provision or the Fourteenth Amendment’s due process clause; and that, therefore, the appellant’s contempt conviction for refusal to answer the grand juror’s questions must be affirmed.
I.
Appellant contends that Grand Juror Bowles exceeded the permissible scope of his inquiry when he put questions to appellant relating to the “little black books” seized by a previous one-man grand jury presided over by the Honorable Edward S. Piggins, another of the judges of the Wayne circuit court, and that appellant’s refusal to answer those questions, therefore, was not conduct punishable as contempt. His theory is that the statute, CLS 1961, § 767.1 (Stat Ann 1951 Rev § 28.911), imposes a 12-month time limit upon grand juror inquiry into the subject matter of any granted petition for such inquiry and that no subsequent grand juror thereafter can investigate the same subject matter. The pertinent portion of the cited statute, added by PA 1951, No 276, reads as follows: ,
“No inquiry or proceeding hereunder shall continue longer than 6 months unless extended by specific order of the said judge or his successor for an additional period not to exceed 6 months.”
The record before us discloses that while Grand Juror Piggins was conducting his inquiry certain documents came into his possession on the basis of which this appellant and another person were indicted for conspiracy to bribe a Detroit police officer. Judge Piggins served as grand juror for two successive six-month periods ending in August of 1966. Shortly before expiration of the Piggins grand jury, the judges of the Wayne circuit court granted a petition by the attorney general for another Wayne county one-man grand jury inquiry and Judge Bowles thereafter, on September 8,1966,. was designated by his colleagues to conduct it. On January 6, 1967, upon Judge Bowles’ petition, this Court ordered transferred to Judge Bowles certain of the records of the Piggins grand jury, which had been filed with the clerk of this Court pursuant to CLS 1961, § 767.6a (Stat Ann 1954 Rev § 28.946[1]). Our order of January 6, 1967 is set forth, in full, in the margin.
Later in January, 1967, appellant was subpoenaed to appear before Grand Juror Bowles and was asked the questions for his refusal to answer which he-was cited and subsequently convicted of contempt. The questions related to certain documents transferred by our order to the Bowles grand jury from those deposited with us by the Piggins grand jury. These documents were the evidentiary basis upon which appellant had been indicted by Grand Juror Piggins for conspiracy to bribe a police officer. Appellant has not yet been tried on this indictment.
We do not accept as correct appellant’s construction of the above-quoted provision of the statute, that is to say, that no grand juror may investigate the subject matter of a prior one-man grand jury. The quoted language added to the statute by PA 1951, No 276, does not indicate intrinsically the legislature’s purpose, nor has our attention been directed to anything extrinsic of the statutory amendatory language from which we can discern that legislative purpose. We must determine the legislature’s meaning from the statutory language alone, therefore. While it may be conceded that the language is not literally inconsistent with the construction put upon it by appellant, that is not the only construction consistent with its terms, nor is it the construction we believe most consistent with the permissible objectives sought to be achieved by the one-man grand jury law.
We construe the above-quoted statutory language to mean that no judicial officer designated to serve as a onerman grand juror to investigate specified allegations of crime may do so for more than two •consecutive six-month periods. By this provision we believe the legislature manifested its intent to limit the time within which a particular judge could exercise the- extraordinary powers of a grand juror. 'That a grand juror’s powers are extraordinary, for a judicial officer, will be considered subsequently in this opinion. That the legislature was aware of the possible : political consequences of such power is manifest in that part of CL 1948, § 767.3, as amended, PA 1965, No 251 (Stat Ann 1965 Cum Supp § 28.943) quoted in the. margin. . We perceive no rational leg islative purpose in foreclosing one-man grand jury inquiry into any particular criminal activity beyond tbe period of one year, but we do perceive a rational purpose, manifested by tbe above-quoted provision from PA 1951, No 276, and tbat portion of CL 1948, § 767.3, as amended, quoted in tbe margin, to limit to one year tbe exercise by any particular judge of tbe extraordinary powers of inquiry authorized by our one-man grand jury law. Thus construed, the time limitation of CLS 1961, § 767.4 is a time limitation upon tbe judicial officer performing duties as a one-man grand juror, and not a time limitation upon grand juror inquiry into a specific subject of criminal activity. So construed, tbe statute would not preclude a grand juror’s investigation of tbe subject matter investigated by a prior grand juror, provided, of course, tbat tbe subject of inquiry is within the proper scope of inquiry of tbe second grand juror.
Because we construe tbe time limitation as affecting the grand juror, rather than tbe inquiry, another issue is presented: may one grand juror utilize tbe evidence produced by a predecessor grand juror? Pertinent to this issue are tbe so-called secrecy provisions of CL 1948, § 767.3, as amended (Stat Ann 1965 Cum Supp § 28.943), CLS 1961, § 767.4 (Stat Ann 1954 Rev § 28.944), and CLS 1961, § 767.6 (Stat Ann 1954 Rev § 28.946), tbe pertinent provisions of which are italicized in tbe margin. We construe the statutory provisions italicized in the margin to permit access by one grand juror to the records of a prior grand juror upon order of this Court, but subject to the secrecy provisions of CLS 1961, § 767.4 which attach to all information or evidence coming to the attention of a grand juror’s inquiry. We perceive no reason for requiring a grand juror to retrace the path of a predecessor grand juror, considering the availability of the desired evidence and the convenience of the witnesses.
On the foregoing basis, this Court entered its order of January 6, 1967. On the basis of tangible evidence obtained initially by the Piggins grand jury, Grand Juror Bowles asked certain questions appellant refused to answer notwithstanding the immunity granted to him. We conclude that appellant’s conviction for contempt for refusal to answer is not vulnerable to attack because predicated upon evidence obtained in the first instance by another grand juror.
II.
A.
Appellant’s principal argument on this appeal is that the immunity granted him, to induce his answering the questions put to him, is not coextensive with the Fifth Amendment to the United States Consti tution, and therefore, that he could not be convicted legally of contempt for invoking the Fifth Amendment’s privilege against self-incrimination. He insists that the immunity granted was not coextensive with his Fifth Amendment privilege because it failed to specify that this immunity extended to a prosecution presently pending in the recorder’s court of the city of Detroit; to a possible prosecution on a charge which was theretofore dismissed as to appellant on preliminary examination, and as to which he was not in jeopardy; and to possible forfeiture proceedings aimed at revoking his restaurant and alcoholic beverage licenses. The prosecutions in recorder’s court are for conspiracy to bribe and bribery of Detroit city police officers.
The order of immunity granted by Grand Juror Bowles reads, in pertinent part, as follows:
“It is therefore Ordered that said Gus Colaoasides be and he hereby is directed to forthwith responsively answer said questions and all related questions which may hereafter be put to said witness, and, in accordance with said statute, this court does hereby grant immunity to said Gus Colaoasides from all subsequent prosecution for any offense concerning which any responsive answer to such questions may have tended to incriminate him.”
Appellant argues that the phrase “subsequent prosecution” is too narrow in view of the scope of the self-incrimination rights granted by the State and Federal Constitution. The people counter by arguing that In re Watson (1940), 293 Mich 263, a case with facts paralleling this Colacasides case, settles the issue in favor of the validity of the grant of immunity.
Looking to the language of the order, one notes that immunity is granted “in accordance with said statute.” The statute earlier in the order was described as “the statute in such case made and provided”, which means CLS 1961, § 767.6 (Stat Ann 1954 Rev § 28.946), set forth in the margin, supra, at pp 80, 81.
Appellant does not challenge the validity of section 767.6; rather, his attack is upon the immunity order that was issued pursuant to the statutory provision. That order, however, must be read in the light of the statute as it, in turn, was interpreted by this Court in Watson, supra.
In Watson, the Court used broad language in finding the one-man grand jury immunity provision constitutional. Said the Court (p 277):
“The grant of immunity from crime is a large responsibility. The legislature, acting in the public interest for the detection and suppression of crime, has lodged this extraordinary power in the discretion of the magistrate, and the immunity granted extends to any prosecution by the State for any offenses that may he disclosed by the answers of the witness or for any offenses to which such testimony may lead.”
Earlier the Court had said (p 276):
“The witness shall not ‘thereafter he prosecuted for any offense concerning which such answers may have tended to incriminate him’; and we construe the statute to afford a protection against prosecution by the State as broad as the Constitutional provision securing the privilege against self-incrimination.” (Emphasis added.)
Although, the present immunity statute differs from the one quoted in Watson, the present statute contains parallel language:
“No person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him.”
Watson, then, gives CLS 1961, § 767.6 as broad a scope as the Federal privilege against self-incrimination. See Malloy v. Hogan (1964), 378 US 1 (84 S Ct 1489,12 L ed 2d 653). We conclude that the following statement, from Malloy, is a principle of law binding upon us (p 8) :
“The Fourteenth Amendment secures against State invasion the same privilege that the Fifth Amendment guarantees against Federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining [Twining v. New Jersey (1908), 211 US 78 (29 S Ct 14, 53 L ed 97)] for such silence.”
and that Watson gives Michigan’s immunity statute a scope as broad as the Malloy decision requires.
Thus we conclude that Watson, instead of being a “judicial relic”, as appellant contends, construes section 767.6 to be consistent with our Federal and State constitutional requirements. The immunity order explicitly says the immunity grant is in accordance with the statute, and the statute, as interpreted by Watson, gives immunity coextensive with the privilege. The statute, and the order issued thereunder, thus are constitutionally valid. We need determine only whether the privilege and, thus, the granted immunity apply to preclude use of the evidence sought from appellant in criminal proceedings now pending and in any subsequent license forfeiture proceedings.
The Watson Case has specific application to the pending prosecution, for the defendant in that case was already a defendant in a criminal case when the grand juror called upon him for testimony. In Watson the Court referred to In re Kittle (CA 2, 1910), 180 F 946, as a case which “properly announces the rule.” The following language from Judge Learned Hand’s opinion in Kittle supports our conclusion that testimony taken from appellant by the grand juror may not be used in the pending prosecution (p 947):
“I shall assume that the inquiry is of the .subject matter of some crime, and, indeed, of the crime laid in the existing indictment. When so questioned, the witness must answer. * * * And, when given, his answer will thereafter protect him from further prosecution. It will be a good bar to this very pending prosecution, if it be pertinent to the subject matter.” (Emphasis added.)
The Watson decision adopted the foregoing language as its own, and its application to the present situation means that matter obtained by the grand juror would not be usable — either by itself or as a lead — in the pending prosecution. Appellant’s fears concerning the pending case against him thus are unfounded — at least insofar as they are based on information the grand juror has requested.
The Watson Case, by its express terms, applied to the pending prosecution against the defendant Watson. We do not believe we are obligated to anticipate that the judge in the pending prosecution will incorrectly apply the law of that case, and we decline to do so. The grand juror, in granting immunity, is not required to list every proceeding covered by the immunity.for the rather obvious reason that the statute and the Watsón Case, by their terms, apply to prosecution for any offense, directly .or indirectly growing out of any testimony given by him. The prosecution which appellant complains is not covered by the grant of immunity is “pending.” Since it is “pending” it has not taken place. Since it has not taken place it can be nothing but “subsequent” to the proceedings before the grand juror. The grant of immunity extended to it.
The next question is that of the use of the compelled answers in any possible future license forfeiture proceedings. The following language of the revised judicature act, presumably based upon the Federal and State privileges against self-incrimination, is in point:
“Any competent witness in a cause shall not be excused from answering a question relevant to the matter in issue, on the ground merely that the answer to such question may establish, or tend to establish, that such witness owes a debt, or is otherwise subject to a civil suit; but this provision shall not be construed to require a witness to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture, nor in any respect to vary or alter any other rule respecting the examination of witnesses.” CLS 1961, § 600.2154 (Stat Ann 1962 Rev § 27A.2154).
This statute states the legislature’s understanding of the scope of the privilege against self-incrimination. Although the statute may not be all-inclusive, according to constitutional standards, it expressly prohibits a witness from being exposed to a forfeiture if he is required to give testimony. We draw two conclusions from the provision: first, that a license forfeiture may not be imposed because of testimony or leads from such testimony if appellant is required to testify despite his assertion of the privilege against self-incrimination ,• and, second, that the immunity granted under section 767.6 must be at least as broad as the judicature act provision, thus precluding a forfeiture of license after immunity has been granted, that is, a forfeiture ordered solely on the basis of information or leads gained by the grand juror after such grant of immunity.
B.
Another aspect of appellant’s immunity argument merits our attention. He claims that before a witness who has been granted immunity can be convicted of contempt for refusal to answer questions put to him, he must be apprised of “the nature and extent of said immunity.” For this proposition appellant relies upon Raley v. Ohio (1959), 360 US 423 (79 S Ct 1257, 3 L ed 2d 1344), and Stevens v. Marks (1966), 383 US 234 (86 S Ct 788, 15 L ed 2d 724). He concludes that because he was not advised by the grand juror whether the grant of immunity extended to the currently pending criminal prosecution against him and to alcoholic beverage license forfeiture proceedings, his contempt conviction was invalid.
Neither Raley nor Stevens stands for the proposition for which appellant cites them. In Raley, the witnesses were not advised at a legislative hearing that a State statute granted them immunity. In Stevens, investigators tried to hold the witness to a waiver of immunity. In both cases the Supreme Court reversed contempt convictions, not because, as appellant asserts, the witnesses were not advised of “the nature and extent” of the immunity granted them but, rather, because the witnesses were left in doubt as to whether they had any immunity whatsoever. In this case of Colacasides, on the other hand, appellant was not only advised orally that he was granted immunity but, as well, and pursuant to statutory requirement, a copy of the order granting immunity was given to appellant who, at all times, was represented by counsel. Nor does appellant deny that he was advised of the grant of immunity. His attack on this point is that the grand juror failed to specify exactly what lies within the scope of the immunity granted. Furthermore, he claims that Federal requirements are not met by our determination now of the scope of the immunity granted but, instead, that its scope should have, been “demonstrated” to him by the grand juror at the time of the grant of immunity.
As authority for this proposition he relies on the following language in footnote 11 in Stevens:
“The suggestion that we should remand the case to the New York courts for a finding of whether or not petitioner was misled is, we think, wide of the mark. A State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his before it may hold him in contempt for refusing to answer questions that would otherwise be incriminating. Whether the State has met its burden must be measured at the time of the alleged contempt. A declaration that there was a valid immunity uttered for the first time on appeal would come too late.”
We think appellant misreads Stevens. Of course the “burden” must be measured at the time of the alleged contempt. But the “burden” the United States Supreme Court alluded to in Stevens was whether any grant of immunity was in fact made, not the legal construction of its scope, nor the specific proceedings to which it applied. These were and remain, and of necessity by the nature of things have to be, matters of judicial construction. We do not interpret Stevens to mean that a grand jury witness can vitiate the express terms of the immunity provision of the statute by a subjective declaration that the grand juror did not “demonstrate” to his satisfaction that the immunity offered extended to a specific proceeding then in being or to some possible proceeding in the future. The argument, while ingenious, is not supported by.the language relied upon. Neither Raley nor Stevens requires more than was done here — merely that the grand juror advise the witness of the existence of immunity if immunity be, in fact, granted.
III.
Finally, we come to appellant’s contentions that this State’s one-man grand jury law violates the separation of powers doctrine, as set forth in Const 1963, art 3, § 2, and the due process clause of the Fourteenth Amendment.
A.
In this country it is not normally the function of a judge to investigate the occurrence of crime. That function normally is performed by the executive branch of government as part of its duty to enforce .the laws. Experience has demonstrated, however, that regularly constituted law enforcement agencies sometimes are unable effectively and lawfully to enforce the laws, particularly with respect to corrupt conduct by officers of government and conspiratorial criminal activity on an organized and continuing basis. Our experience also has demonstrated that the common-law 23-man grand jury is unwieldy and ineffective for the investigation of such crimes in a modern, industrialized, and mobile society. It has demonstrated also that corruption in government and organized crime are susceptible to discovery and prosecution if the investigative body has the power to compel some participants therein to testify by enforcing attendance of witnesses by subpoena and granting immunity from prosecution, but police agencies in this country do not possess such extraordinary power. The ineffectiveness of the common-law grand jury considered, and absent the power lawfully to compel testimony, police agencies are thwarted too frequently, for society’s safety, in their efforts to investigate such criminal activity. Traditionally in this country, such extraordinary power has been entrusted only to judicial officers. Absent constitutional authority therefor, such essentially judicial power cannot be granted validly to police agencies without violating the separation of powers provision of our Constitution. Const 1963, art 3, § 2.
This dilemma has been resolved in this State by its unique one-man grand jury, comprised of a judicial officer who can properly exercise the subpoena power and the power to grant immunity in order to compel testimony. Appellant, however, contends that a judicial officer cannot also perform investigative duties without violating the separation of powers mandate of Const 1963, art 3, § 2. That constitutional provision, however, contains a significant exception, “except as expressly provided in this Constitution.” In article 6, § 29, we find that circuit judges are among those judicial officers granted the powers of conservators of the peace. If conservators of the peace possessed the powers now exercised by circuit judges as one-man grand jurors, whether executive or judicial in nature, the exercise of such powers would not violate article 3, § 2, either because they are judicial in nature or because, if executive, they are expressly authorized by article 6, § 29 and, thus, within the exception stated in article 3, § 2. We find, for reasons to be stated, that conservators of the peace at common law possessed the power to investigate crime for the purpose of apprehending offenders. We hold, therefore, that circuit judges now possess such investigative power, as conservators of the peace, and their exercise of such power in the performance of duties as one-man grand jurors does not violate Const 1963, art 3, § 2.
The nature of the conservator’s power was considered by this Court in In re Slattery (1945), 310 Mich 458, in another unsuccessful challenge to the constitutionality of our one-man grand jury law. A few years earlier, in In re Sanderson (1939), 289 Mich 165, the Court traced the historical development of the office of conservator of the peace from its origin in England to its ultimate merger in the office of justice of the peace. Little more need be added to what was written in Slattery and Sander-son in support of the conclusions we have reached, conclusions which are consistent with those to be found in those two cases.
Taswell-Langmead’s English Constitutional History (11th ed, Theodore F. T. Plucknett), summarizes this historical development:
“Conservators of the peace. In the appointment of knights to receive the oaths may probably be discerned the germ of the office of conservator, later justice, of the peace. Custodes pads were assigned in 1252, 1253 and 1264 and from 1285 were closely associated with the enforcement of the Statute of Winchester. They afterwards appear to have been occasionally chosen by the landholders of the county, but were finally appointed to their office by the royal writ or commission. Their constant function was to take indictments of felonies and misdemeanours, and to hold the accused until trial by royal judges. In 1329, 1332, 1338, and from 1350 to 1364 they were given powers to try their prisoners, and this became permanent in 1368. Their early functions of supervising the militia were soon transferred to separate commissions of array, but after the Black Death they frequently dealt with the new labour and price-control legislation. The local courts paled before them, the sheriff became their servant, and parliament (where many J.P.s sat in the House of Commons) constantly confided new and important tasks to them.” (p 126.)
“The principal organ [of county government] in fact had come to be the justices of the peace. Their early history has already been mentioned; as time went on their duties were immensely increased by statute, not only in the sphere of criminal administration but also in that of poor law and general local government. A vast and confused mass of legislation which defies analysis conferred wide and very miscellaneous powers.” (pp 685, 686.)
Another historian, discussing criminal jurisdiction in England, reports these conclusions about the office of justice of the peace:
“The remedy was found in the office of justice of the peace. This office has late twelfth-century origins, but the important steps were taken in the fourteenth century. A statute provided that ‘worthy’ men were to be appointed to keep the peace and hear and determine felonies. Further statutes enacted that they were to hold their sessions four times a year. Before these statutes these worthy men were more conservators of the peace than justices ; the duty of hearing and determining felonies made them ‘justices of the peace’, or more simply ‘justices’. * * * .
“The powers of justices were extended somewhat in the fifteenth century, and increased greatly in the sixteenth century. * * * Thirdly, the justices were instructed to hold preliminary inquiries into allegations of crime that might lead to trial at assizes or quarter sessions. This.was in the nature of police powers in ‘getting up’ a case, not really a judicial activity and suitable only for a-society that lacked an adequate police force. No substantial change took place until the middle of the nineteenth century.” The Machinery of Justice in England, it. M. Jackson, LLD (4th Ed 1964), at pp 92, 93.
History adds weight to the reasoning of Justice Butzel’s opinion in Slattery. . Conservators of the peace, historically, were empowered to make investigations and “get up” a case. Circuit judges, possessing the conservator’s powers by virtue of article 6, § 29, therefore, do no violence to our separation of powers doctrine, article 3, § 2, by exercising such powers of investigation as one-man grand jurors.
While we recognize that in Slattery this Court said that a judge conducting a one-man grand jury proceeding acts in a judicial capacity, 310 Mich at 467, we do not believe it necessary to re-examine that question in this case. We mention the matter only because appellant asserts, without citing any supporting authority, that if grand jury proceedings are not judicial, appellant cannot be held in contempt. Whether a circuit judge acts in a judicial capacity or in an executive capacity as grand juror, there is no constitutional bar to the legislature’s providing by law, as ours has, that a witness who fails to answer questions asked of him may be punished for contempt, the contempt proceedings to be conducted in public by another judge and not by the grand juror. Such procedure customarily is followed in enforcing by contempt process refusals to obey lawful orders of disclosure made by agencies of the executive branch of government. See Penfield Company of California v. Securities and Exchange Commission (1947), 330 US 585 (67 S Ct 918, 91 L ed 1117). See, also, Interstate Commerce Commission v. Brimson (1894), 154 US 447, 485, 486 (14 S Ct 1125, 38 L ed 1047).
The debates of the recent constitutional convention which produced our Constitution of 1963 disclose that the delegates considered omitting from the new Constitution all reference to the conservators of the peace. Indeed, the convention’s judiciary committee so recommended, but when it was brought to the delegates’ attention in debate that omission of the grant to judges of conservator’s powers might affect adversely the validity of our one-man grand jury law, the delegates voted to include in their final proposal the language which now appears as Const 1963, art 6, § 29. The official record of the convention’s proceedings reports the following introductory comment on the “conservator” proposal by the chairman of the convention’s judiciary committee :
“Mr. Danhok: Mr. President, members of the convention, some time back, we had an exclusion report to strike the provision in the 1908 Constitution which made the Supreme Court judges, the circuit judges and the justices of the peace conservators of the peace within their respective jurisdiction. I might state at the time we considered this matter, none of the attorneys nor the circuit judges serving on my committee could see any par ticular advantage to the section, nor did research indicate that there was any reason that it be retained. The governor’s advisory committee likewise recommended its removal. But we received a letter from Detroit from Circuit Judge Joseph Sullivan in which he brought to our attention a case involving the validity of the one-man grand jury system in the State of Michigan. In this particular case, the question was on the validity of the one-man grand jury and Justice Butzel, writing the majority opinion of the court, pointed out the difference between Michigan and New York, and the reason why Michigan could sustain a one-man grand jury system and why New York could not. And one of the items which Justice Butzel referred to constantly in about 3 pages of his opinion was the fact that circuit judges by the Constitution of 1908 were authorized to be conservators of the peace and that their duties and functions sitting as a grand jury would be within this particular section. Now, the odd part of it is that he went on to state that even in spite of this provision, he did not feel that sitting as a one-man grand jury was a nonjudicial function. But in going over it with Mr. Joiner and other members of the staff, and in talking with Mr. Ford, we came to this conclusion: that we should not endanger the one-man grand jury system; that if it is to be abolished, it should be abolished by the agency and the body which created the one-man grand jury system, namely, the legislature, and that we would not be worried if Justice Butzel had not spent approximately 3 pages of the opinion pointing-out that Michigan could have a one-man grand jury system while New York could not because we had this provision making the judges conservators of the peace.
“Now, we have amended it slightly to read Supreme Court, Court of Appeals and circuit judges and other judges as provided by law, so that the legislature, if it deems, in its wisdom, to have the judges of courts of limited jurisdiction be conservators of the peace, it can so do. The committee considered this at the time that it was brought before the committee. We had about 14 people. We got 10 votes in favor. Eleven are needed on a committee proposal. I did not get the 11. However, Mr. Ford was absent. He joined with me in this particular amendment. We would urge the adoption thereof.” 2 Constitutional Convention 1961 Record, p 2703.
In addition to the chairman of the convention’s judiciary committee, others expressed the view that if the State’s one-man grand jury system were to be changed, it should be accomplished by the legislature. The convention then approved the “conservator” clause by a 58-55 margin. Shortly afterward, a delegate specifically proposed a clause to be added to the article on the judiciary, to provide as follows:
“One-man grand juries are hereby abolished.” The proposal was defeated, 73-32. 2 Constitutional Convention 1961, Record, pp 2709, 2710.
The significance we place upon the foregoing actions of the constitutional convention is that the delegates correctly regarded the “conservator” clause important to the constitutional validity of our one-man grand jury law. When the convention and, thereafter, the people of this State approved the document that was to become the Constitution of 1963, including both the “separation of powers” clause (article 3, § 2) and the “conservator” clause (article 6, § 29), they declared in legal effect that a judge exercising the powers of a conservator of the peace was not thereby violating the separation of powers clause.
B.
Relying generally upon Mr. Justice Rutledge’s concurring opinion in In re Oliver (1949), 333 US 257 (68 S Ct 499, 92 L ed 682), appellant invites our reconsideration of the constitutionality of Michigan’s one-man grand jury law. It is his claim that our law is incompatible with current concepts of due process, citing recent United States Supreme Court decisions applying guarantees of the Fourth, Fifth and Sixth Amendments of the United States Constitution to the States by incorporation into the due process clause of the Fourteenth Amendment. In Oliver a contempt conviction under the then Michigan grand jury statute was reversed, but not on the ground contended for by Mr. Justice Rutledge. In short, the Rutledge opinion suggests the unconstitutionality of the statute and postulates that the majority opinion in that case demonstrated how far the Federal Supreme Court (p 280) “departed from our constitutional plan when, after the Fourteenth Amendment’s adoption, it .permitted selective departure by the States from the scheme of ordered personal liberty established by the Bill of Rights. In the guise of permitting the States to experiment with improving the administration of justice, the Court left them free to substitute, ‘in spite of the absolutism of continental governments,’ their ‘ideas and processes of civil justice’ in place of the time-tried ‘principles and institutions of the common law’ perpetuated for us in the Bill of Rights. Only by an exercise of this freedom has Michigan been enabled to adopt and apply her scheme as was done in this case.”
After paying tribute to Mr. Justice Rutledge’s foresight, appellant then urges that the quoted language is (or at least should be) considered the present view (though not yet expressed) of the present United States Supreme Court. This conclusion, it is urged, can be reached by a process of judicial osmosis. While acknowledging that the law as originally enacted, in 1917, has been amended from time to time to correct potential evils disclosed by court decisions, appellant contends that the law still reposes in the one-man grand jury such “awful authority” that we should strike it down as violative of our current concepts of due xorocess.
Judicial declarations of statutory unconstitutionality we think should be made of sterner stuff. We cannot, by the suggested process, strike down a presumptively constitutional legislative act. The fact is that the one-man grand jury law, as it appears on our statute books today, is very much different from that which heretofore has been reviewed for constitutional validity by this Court and by the United States Supreme Court in In re Oliver, supra.
Today, a witness called before the grand juror is entitled to the presence and assistance of counsel in the room where he is being examined. CL 1948, § 767.3, as amended by PA 1965, No 251 (Stat Ann 1965 Cum Supp § 28.943). The grand juror no longer may act as the examining magistrate at a hearing on a complaint or indictment resulting from the inquiry, nor may he hear any motions to dismiss or quash any such complaint or indictment; he may not hear any charge of contempt arising out of the inquiry, except for neglect or refusal to appear in response to a summons or subpoena issued by him; and he may not preside'at a trial resulting from the inquiry. CLS 1961, § 767.4 (Stat Ann 1954 Rev § 28.944). No longer does the statute permit a grand juror to search out criminal conduct generally but, instead, it requires the order authorizing the inquiry, and the complaint upon which such order is based, to “be specific to common intent of the scope of the inquiry.” CL 1948, § 767.3, as amended by PA 1965, No 251 (Stat Ann 1965 Cum Supp § 28.943). Moreover, to forestall abuse of witnesses by grand jury staff personnel, the statute now prohibits the taking of any testimony in the absence of the grand juror and it requires that, upon arrival of a witness in response to a subpoena, the grand juror be notified thereof forthwith and that he forthwith take the witness’ testimony. CL 1948, § 767.3, as amended by PA 1965, No 251 (Stat Ann 1965 Cum Supp §28.943). The statute, despite an early interpretation, has permitted the grant of immunity to a witness who invokes his privilege against self-incrimination and the scope of the immunity granted, as we have noted above, is as broad as the privilege itself. CLS 1961, § 767.6 (Stat Ann 1954 Rev § 28.946). Finally, to reduce the risk of unwarranted damage to the reputations of witnesses appearing before the grand juror, as well as to enhance the likelihood of the inquiry’s success, proceedings before the grand juror are prohibited from disclosure by any person participating therein as an official or as a witness or counsel for a witness, except when necessary in judicial proceedings or in disciplinary proceedings against an attorney, and violation of such require ment of secrecy constitutes a misdemeanor punishable by fine and imprisonment. CLS 1961 § 767.4 (Stat Ann 1954 Bev § 28.944). The statute specifically provides that the transcript and record as to any witness be made available to him when rele vant to any appeal or other judicial proceeding. CLS 1961, § 767.6a (Stat Ann 1954 Rev § 28.946[1]).
However deficient this State’s one-man grand jury statute once may have been, when measured against now recognized standards of due process, appellant has failed to persuade us that, as now written, it denies due process.
We find the present statute meets all of the re-' quirements of the Michigan Constitution of 1963 and the Constitution of the United States. No rights of appellant guaranteed thereby have been denied him. The judgment of contempt entered by the Wayne circuit court and the sentence imposed pursuant thereto are affirmed. No costs, constitutional issues being involved.
Dethmers, C. J., and Black and Brennan, JJ., concurred with Souris and O’Hara, JJ.
See In re Colacasides (On Application for Bail), 6 Mich App 298.
“In the Matter of the Petition of George E. Bowles, Grand Juror
“The petition of George E. Bowles, grand juror, for an order of this Court authorizing petitioner or any member of his staff to take custody of boxes 1 through 13 of the Judge Edward S. Piggins grand jury records from the clerk of this Court having been duly considered,
“It is Ordered by the Court, That the elerk of this Court is hereby directed to deliver to Grand Juror George E. Bowles, or a member of his staff designated therefor by Grand Juror.George E. Bowles yn writing, boxes 1 through 13 of the records of the Edward S. Piggins grand jury and to take a receipt for such records;
“It is Purther Ordered, That Grand Juror -George E. Bowles shall obtain all synopses of testimony, doekets, journals, reporters' notes, transcripts, exhibits, and all other records, originals or duplicates, not heretofore filed by the Edward S. Piggins grand jury with this Court, whether in the hands of the Michigan State police •or the Detroit police department or any other person or persons, -and shall deliver an inventory of the same and a receipt therefor to the clerk of the Supreme Court;
“It is Purther Ordered, That said records be kept in the possession of Grand Juror Bowles until the further order of this Court iu the same manner and subject to the same conditions of secrecy as are provided by statute for all other records acquired during the course of the grand jury inquiry and that, pursuant to statute, they may, be made available to the State of Michigan for its lawful use thereof in prosecutions and other proceedings arising out of the Edward S. Piggins grand jury.
Sgd. John R. Dethmers Chief Justice
Dated; January 6, 1967”
“Any judge, prosecuting attorney or special prosecuting attorney, or the attorney general participating in any inquiry .under this sec- lion which continues more than 30 calendar days shall thereafter he disqualified from appointment or election to any office other than one held at the time of the inquiry. The disqualification shall not extend more than 1 year from date of termination of the inquiry, as determined by final order of the judge entered prior to such date.”
“Any person called before the grand jury shall at all times be entitled to legal eounsel not involving delay and he may discuss fully with his eounsel all matters relative to his part in the inquiry without being subject to a citation for contempt. The witness shall have the right to have eounsel present in the room where the inquiry is held. All matters revealed to the attorney shall be subject to the requirements of secrecy in section 4, and any revelation thereof by the attorney shall malee him subject to punishment as provided in section 4. No testimony shall be taken or given by any witness except in the presence of the judge.” (CL 1948, § 767.3, as amended in PA 1965, No 251 [Stat Ann 1965 Cum Supp § 28.943].)
“Except in cases of prosecutions for contempt or perjury against ivitnesses who may have been summoned before the judge conducting such inquiry, or for the purpose of determining whether the testimony of a witness examined before such judge is consistent with or different from the testimony given by such witness before a court in any subsequent proceeding, or in cases of disciplinary action against attorneys and counselors in this State, any judge conducting such inquiry, any prosecuting attorney and other persons who may at the discretion of such judge be admitted to such inquiry, who shall while conducting such inquiry or while in the services of such judge or after his services with such judge shall have been discontinued, utter or publish any statement pertaining to any information or evidence involved im any such inquiry, or who shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, or who shall disclose that any person has been questioned or summoned in connection with any such inquiry, or who shall disclose or publish or cause to be published any of the proceedings of such inquiry otherwise than by issuing or executing processes prior to such indictment, or shall disclose, publish or cause to be published any comment, opinion or conclusions related thereto, shall be guilty df a misdemeanor. punishable by imprisonment in the county jail not more than 1 year or by a fine of not less than $100.00 nor more than $1,000.00, or both such fine and imprisonment in the discretion of the court, and such offense when committed by a public official shall also constitute malfeasance in office. Upon the termination of such inquiry if the judge shall malee no presentment of crime or wrongdoing as to any person or persons whose apprehension or removal from office he has not so caused, he may, in his discretion, with the consent of the person who may be named, file with the cleric of the county in which such inquiry has been conducted, a report of no finding of criminal guilt as to any person or persons involved in such inquiry, either as witness or otherwise, whose involvement in such inquiry has become public.” (CLS 1961, § 767.4 [Stat Ann 1954 Rev § 28.944].)
“No witness shall upon such inquiry be required to answer any questions, or shall be convieted for contempt upon refusal to do so, when the' answers might tend to incriminate him. A written order granting to such witness immunity from such incrimination may be 'entered by said judge pursuant to a written motion by the prosecuting attorney or other duly authorized representative of the State in such proceeding; which order shall set forth verbatim the questions which such. witness refused to answer. A true copy of such motion and order.-shall be delivered to such witness before he shall answer such questions.; The order granting immunity so made shall thereafter exténd to all -related questions which may thereafter be put to such witness until such judge advises the witness that said immunity no longer-applies. All-such questions and the answers thereto shall be '-reduced to writing under the direction of such judge and a true co'py of such transcript, duly certified by such judge, shall be delivered to such witness as soon as practicable thereafter. The provisions for secrecy provided for in section S hereof shall apply to all copies of such motion, order and transcript so delivered to such witness except that the witness may he privileged to disclose the same to his attorney if such witness should thereafter he prosecuted for any offense directly or indirectly growing out of any testimony given hy him in such inquiry. No person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him. No such order granting immunity shall extend beyond the scope of such inquiry, nor shall it extend beyond the particular questions set forth in any such motion, order or transcript.” (CLS 1961, § 767.6 [Stat Ann 1954 Rev § 28.946].)
See footnote 2, supra.
“No person shall be compelled in any criminal ease to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings. shaJl not l?e infringed.” Const 1963, art 1, § 17,
CLS 1961, § 767.6 (Stat Ann 1954 Rev § 28.946), see footnote 4, supra.
Even in 1850 the common-law grand jury was subjected to devastating criticism. See Constitutional Convention Debates, 1850, re marks by Delegates Sullivan (pp 54, 55), Pierce (pp 55, 56) and McLeod (pp 197-201). The constitutional language concerning tho common-law grand jury was deleted in 1850, although the legislature has perpetuated the institution. (CL 1948, §§ 767.7-767.25 [Stat Ann 1954 Rev §§ 28.947-28.965].)
“The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this Constitution.”
“Justices of the supreme court, judges of the court of appeals, circuit judges and other judges as provided hy law shall he conservators of the peaee within their respective jurisdictions.”
In re Slattery (1945) 310 Mich 458,
Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L ed 2d 1081, 84 ALR2d 933) ; Gideon v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733); Douglas v. California (1963), 372 US 353 (83 S Ct 814, 9 L ed 2d 811); and Malloy v. Hogan (1964), 378 US 1 (84 S Ct 1489, 12 L ed 2d 653).
A practice the statute allowed formerly and upheld in People v. McCrea (1942), 303 Mich 213, 247, 248. See, also, September 1948 Michigan State Bar Journal, p 66 (vol xxvii, No 9).
See In re Oliver (1947), 318 Mich 7, reversed (1949), 333 US 257 (68 S Ct 499, 92 L ed 682), and In re Murchison (1954), 340 Mich 151, reversed (1955), 349 US 133 (75 S Ct 623, 99 L ed 942).
Another practice the statute allowed formerly and upheld by an equally divided court in People v. St. John (1938), 284 Mich 24, 27, 28.
People v. Willson (1919), 205 Mich 28, 43, 44.
On December 9, 1966, this Court issued the following order directed, by its terms, to all judges of courts of record “now conducting or hereafter authorized to conduct” proceedings under our one-man grand jury law, to assure full compliance with the secrecy provisions of the statute:
“State op Michigan
in the Supreme Court
“In the Matter of
One-Man Grand Jury Proceedings
“To All Judges of Courts of Record:
“On this Court’s own motion, all judges now conducting or hereafter authorized to conduct one-man grand jury proceedings hereby are directed to order all members of their grand jury staffs and other persons admitted to sueh inquiries to eomply fully with the following provisions of CLS 1956, § 767.4 [Stat Ann 1954 Rev § 28.944]:
“ ‘Except in cases of prosecutions for contempt or perjury against witnesses who may have been summoned before the judge conducting sueh inquiry, or for the purpose of determining whether the testimony of a witness examined before sueh judge is consistent with or different from the testimony given by sueh witness before a court in any subsequent proceeding, or in eases of disciplinary action against attorneys and counselors in this state, any judge conducting sueh inquiry, any prosecuting attorney and other persons who may at the discretion of such judge be admitted to sueh inquiry, who shall while conducting such inquiry or while in the services of sueh judge or after his services with such judge shall have been discontinued, utter or publish any statement pertaining to any information or evidence involved in any sueh inquiry, or who shall diselose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, or who shall diselose that any person has been questioned or summoned in connection with any such inquiry, or who shall diselose or publish or cause to be published any of the proceedings of sueh inquiry otherwise than by issuing or executing processes prior to such indictment, or shall diselose, publish or cause to be published any comment, opinion or conclusions related thereto, shall be guilty of a misdemeanor punishable by imprisonment in the county jail not more than 1 year or by a fine of not less than $100.00 nor more than $1,000.00 or both sueh fine and imprisonment in the discretion of the eourt, and sueh offense when committed by a public official shall also constitute malfeasance in office.’
“The foregoing direction of full compliance with section 767.4 shall apply equally to the judges performing duties as grand jurors. Any violations hereof shall be deemed to be eontempt of this Court.
Sgd. Thomas M. Kavanagh Chief Justice
“Dated: December 9, 1966” | [
18,
-18,
26,
35,
-23,
-5,
-42,
-12,
-74,
5,
9,
22,
-15,
-28,
32,
-50,
-7,
46,
28,
-16,
42,
-36,
-10,
41,
2,
-21,
-37,
59,
-74,
-22,
21,
-11,
17,
-41,
31,
-50,
63,
4,
14,
9,
-34,
11,
-35,
25,
-26,
8,
-33,
12,
3,
-30,
19,
37,
-13,
27,
-39,
-46,
19,
-2,
-16,
-21,
-7,
35,
-21,
-37,
-31,
-32,
-6,
25,
-4,
-17,
2,
-39,
-1,
-19,
15,
-8,
-6,
-31,
10,
3,
-32,
9,
9,
-13,
6,
-15,
21,
-43,
-40,
44,
-4,
-10,
-50,
6,
24,
-32,
80,
-9,
43,
-35,
-13,
-18,
3,
41,
69,
29,
-10,
3,
-11,
7,
33,
-22,
16,
0,
-42,
-31,
-14,
1,
-21,
-21,
0,
-25,
38,
-17,
-11,
-37,
12,
-22,
11,
5,
52,
53,
56,
-34,
-5,
18,
-33,
-25,
72,
38,
12,
-15,
36,
10,
32,
-22,
1,
28,
53,
14,
-22,
-6,
7,
16,
-12,
24,
45,
-51,
3,
54,
29,
-15,
-17,
-23,
17,
-9,
-66,
-4,
-15,
1,
12,
-16,
20,
2,
-19,
-18,
-38,
16,
-19,
24,
-18,
37,
-50,
-9,
28,
-7,
-8,
-23,
-11,
-15,
8,
-2,
16,
-47,
24,
73,
41,
44,
16,
-12,
-8,
16,
-11,
39,
27,
-21,
49,
3,
0,
-17,
-48,
5,
59,
-49,
-3,
-37,
-32,
-14,
0,
23,
-18,
-19,
-24,
16,
-1,
-8,
23,
31,
20,
7,
27,
19,
-5,
27,
-36,
-12,
44,
-48,
20,
3,
-111,
-14,
56,
-12,
25,
23,
-38,
7,
-22,
18,
18,
-18,
10,
13,
-63,
-31,
10,
-22,
2,
-7,
18,
22,
-24,
-4,
-19,
-6,
-19,
0,
-19,
0,
-13,
6,
7,
6,
21,
39,
20,
13,
-14,
-18,
-14,
-40,
-10,
14,
21,
-13,
22,
14,
0,
-16,
8,
6,
-33,
30,
23,
25,
3,
-14,
25,
11,
16,
19,
27,
0,
6,
9,
20,
-2,
14,
-19,
32,
0,
-1,
-16,
15,
4,
1,
49,
9,
-21,
-17,
17,
-39,
-43,
-1,
-28,
-5,
-40,
-9,
-53,
24,
45,
-13,
8,
-5,
-9,
-10,
19,
23,
5,
0,
-48,
-28,
-4,
35,
9,
-14,
60,
-64,
-29,
-10,
16,
24,
7,
-13,
-10,
-17,
-6,
16,
-19,
1,
-25,
-6,
43,
-24,
-23,
-26,
-33,
0,
27,
24,
-42,
-8,
-5,
-41,
48,
-17,
-30,
-29,
18,
-26,
-28,
16,
-41,
6,
0,
-4,
3,
4,
14,
-46,
16,
9,
2,
10,
-9,
41,
18,
60,
12,
-21,
-37,
13,
45,
-24,
-15,
-29,
78,
10,
-22,
3,
19,
5,
20,
27,
4,
-26,
37,
57,
-62,
10,
-8,
78,
-12,
36,
-27,
-15,
28,
40,
18,
35,
-48,
13,
-35,
-14,
48,
-16,
3,
6,
10,
0,
31,
-14,
20,
23,
-12,
-8,
-10,
25,
3,
-6,
28,
-33,
-3,
-19,
10,
-3,
9,
15,
43,
10,
-78,
-34,
-30,
-3,
10,
-26,
23,
19,
6,
-17,
0,
-9,
35,
-55,
-19,
2,
0,
26,
-3,
17,
39,
2,
2,
-70,
-16,
-19,
-23,
-40,
-22,
-20,
-45,
-10,
16,
39,
31,
6,
0,
16,
0,
16,
36,
4,
15,
-7,
-18,
-8,
-39,
9,
-2,
13,
4,
-8,
28,
0,
-18,
35,
-1,
43,
-33,
22,
8,
31,
4,
-8,
17,
-23,
-56,
-24,
-31,
68,
-5,
13,
-39,
30,
-14,
-2,
-38,
-14,
-34,
4,
14,
-1,
-1,
21,
-58,
-77,
-32,
2,
28,
34,
-20,
-25,
-41,
13,
-9,
-27,
-21,
16,
-9,
-38,
-30,
34,
6,
-6,
-8,
-44,
4,
34,
36,
30,
46,
4,
41,
25,
11,
11,
25,
-19,
-8,
40,
-41,
-8,
10,
-14,
10,
0,
-6,
-17,
-15,
-9,
-16,
1,
-35,
47,
-29,
-20,
21,
12,
-5,
22,
0,
5,
18,
26,
28,
0,
-4,
24,
-13,
59,
-1,
-40,
-68,
-19,
38,
-53,
-15,
-36,
26,
10,
-10,
-22,
-24,
30,
-21,
-19,
-48,
-46,
-26,
-6,
-24,
-7,
15,
0,
7,
27,
37,
-12,
-25,
-17,
13,
-8,
-15,
42,
-43,
18,
-15,
-21,
-10,
-19,
44,
42,
-25,
0,
-36,
-18,
11,
45,
-45,
2,
0,
-26,
30,
-9,
-17,
18,
-22,
19,
2,
-20,
-44,
1,
14,
25,
5,
6,
-16,
18,
0,
-39,
-11,
-25,
-8,
36,
4,
-13,
-37,
-3,
-10,
12,
9,
7,
14,
16,
20,
52,
-8,
-28,
-7,
-56,
-17,
-44,
-1,
-22,
18,
30,
-13,
43,
5,
17,
-19,
-14,
46,
-2,
-26,
-15,
-22,
-43,
41,
-37,
-38,
-23,
16,
40,
-12,
1,
-14,
-2,
8,
5,
-37,
-4,
20,
32,
19,
-29,
-49,
-53,
-10,
6,
37,
-13,
-20,
-9,
-31,
39,
-4,
-13,
-31,
37,
47,
8,
11,
-42,
59,
27,
-10,
-44,
-17,
19,
54,
13,
-5,
-22,
16,
1,
17,
25,
2,
-57,
-46,
-8,
-5,
-43,
45,
-40,
10,
0,
-49,
21,
41,
-9,
-56,
49,
-15,
8,
22,
-33,
36,
-19,
-51,
-24,
11,
14,
17,
35,
20,
7,
22,
10,
36,
38,
-3,
37,
-33,
-16,
-6,
31,
2,
18,
29,
-13,
-9,
-30,
-20,
-39,
-29,
0,
-5,
35,
6,
2,
-10,
11,
9,
-12,
-27,
11,
20,
11,
17,
10,
35,
-16,
-12,
22,
4,
7,
-6,
23,
0,
-33,
1,
-29,
20,
-51,
11,
-47,
38,
24,
11,
-24,
-44,
-45,
15,
41,
-6,
43,
35,
38,
38,
-1,
-39,
9,
1,
6,
-62,
50,
-21,
41,
17,
55,
13,
-47,
17,
18,
11,
4,
0,
-27,
-39,
19,
-31,
48,
-8,
28,
-58,
-39,
-4,
-1,
63,
-10,
-35,
-14,
32,
-13,
0,
55,
-30,
-6,
3,
13,
-29,
8,
-9,
65,
51,
17,
30,
-18,
29,
-12,
13,
8,
-27,
-43,
17,
57,
-48,
-30,
38,
-12,
49,
-22,
-42,
6,
-46,
-30,
14,
18,
-20,
9,
-34,
13,
-11,
10,
-43,
19,
0,
-24,
-44,
-68,
22,
-6,
72,
-18,
-10,
-12,
-8,
-4,
-52,
10,
16,
-23,
6,
-13,
-43,
12,
0,
-16,
15,
-2,
-26,
6,
29,
-44,
0,
-18,
9,
10,
28,
-29,
17,
12,
-10,
17,
12,
22,
-30,
-11,
-6,
1,
35,
19,
-1,
7,
14,
-50,
-18,
26,
22,
-7,
20,
-10,
54,
-3,
-10,
13,
18,
3,
7,
-16,
-6,
44,
0,
17,
3,
11,
40,
23,
-13,
26,
-6,
-6,
31,
17,
8,
-33,
9,
7,
-10,
-24,
33
] |
T. M. Kavanagh, J.
Plaintiff George Klein filed a declaration (now called complaint) in Wayne county circuit court alleging he suffered actionable injuries on January 4, 1961, when struck by a truck driven by defendant Albert Wagenheim. Plaintiff Olga Klein, wife of George Klein, filed suit for loss of consortium. The cases were consolidated for trial.
After the testimony, argument, and the court’s instructions, the jury began its deliberations. Subsequently they returned to the courtroom and requested the testimony of the trial be read back to them. The trial judge disposed of the request in the following manner:
“The Court. I have a note, members of the jury, that says the jury specifically requests that the testimony be read over to them.
“Let me explain that to you. I do not deem it proper to read any testimony, unless you read all of the testimony of the case, for the simple reason that if you read some of it you tend to emphasize that over the’other.
“So that I have always held, and I think it is generally held, although some judges may not agree with, me, that it is improper to read part of the testimony.
“I. feel the only proper way to do it would be to read, everything in the case. I wonder if you want to take 2 days and have it all read back to you.
“(Juror No. 9 rises.)
“The Court. Are you the foreman, sir?
“Foreman. Yes, sir.
“This was what we had in mind. We would like to hear it all read over again.
“The Court. Well, as a last resort. * * * It would take 2 days; it can’t be read any faster than it was given. That means we would have to release the reporter and tie him up somewhere in another courtroom, and get a new reporter in, and you would have to sit and listen to all of it.
“And how long did the case take? It took nearly 2 days, didn’t it? It can’t be read any faster than you heard it in the trial. I wonder if we want to be tied up that long in reading it all.
“Why don’t you try to work a little more and see if you can come up with something, and see what happens? You may retire.”
The jury retired for further deliberations. They brought in a verdict of no cause of action. Plaintiffs appealed.
The Court of Appeals’ majority held that the trial judge’s denial of the jury’s request was prejudicial and reversible error requiring a new trial. See 3 Mich App 74.
: The dissenting opinion in the Court of Appeals cites two cases in support of his belief that the rule in Michigan is that it is within the discretion of the trial judge as to whether such testimony should be read to the jury.
Defendant-appellant is here on leave granted. He argues that the trial judge did not abuse his discretion and therefore did not commit reversible error when the jury asked him to read the testimony and the judge, instead of doing so, asked them to retire and try to work a little more and see if they could come up with something.
In the case of People v. Shuler, 136 Mich 161, a criminal case, after the jury had retired to consider their verdict they wished information as to certain testimony which had been produced before them, and the court complied with their request. The Supreme Court said (p 167):
“We think this was a matter within the discretion of the court, and that it was not reversible error.”
Also, see Gold v. Detroit United Railway, 223 Mich 209, where the Court said (p 212):
“It must be borne in mind that the reading of any testimony and the extent to which it shall be read is primarily addressed to the sound discretion of the trial judge.”
See annotation, 50 ALR2d 176, “Right to have reporter’s notes read to jury,” where it is said at p 193:
“It is within the sound judicial discretion of the trial court to grant a request of the jury to have read to them by the court stenographer the shorthand notes of the testimony of particular witnesses.”
We hold the trial court was in error in saying:
“I do not deem it proper to read any testimony, unless you read all of the testimony of the case, for the simple reason that if you read some of it you tend to emphasize that over the other.”
This is not now and never has been the law in Michigan. However, we do not believe it was reversible error, for the reason he did not rule out the possibility of having the testimony read at a later time, but directed the jury to “try to work a little more and see if yon can come np with something, and see what happens.” See Patterson v. Phillips, 216 Wis 165 (256 NW 624).
Under the circumstances of this particular case, we hold the trial court did not commit reversible error.
The Court of Appeals’ reversal and grant of a new trial is reversed, and the judgment of no cause of action in the trial court is affirmed. Defendant-appellant shall have costs.
Dethmers, C. J., and Kelly, Souris, O’Hara, Adams, and Brennan, JJ., concurred with T. M. Kavanagh, J.
Black, J., concurred in the result. | [
13,
6,
18,
41,
25,
-29,
26,
-9,
-26,
-18,
-27,
-43,
35,
-34,
-7,
-59,
12,
-65,
21,
-18,
-35,
1,
26,
62,
16,
7,
-23,
10,
11,
-16,
-11,
22,
-17,
-1,
-25,
-13,
64,
-15,
-49,
16,
-9,
-9,
-2,
19,
-15,
2,
31,
-11,
28,
-13,
44,
-9,
22,
11,
14,
-30,
-4,
98,
12,
-3,
20,
15,
2,
-47,
1,
1,
-31,
-8,
-45,
-38,
-71,
-19,
47,
-54,
-42,
-20,
10,
27,
-7,
9,
-4,
-10,
46,
-1,
-53,
-43,
30,
-71,
46,
-38,
11,
22,
-39,
5,
20,
-13,
22,
-14,
1,
57,
-11,
11,
20,
11,
-34,
10,
-34,
-69,
9,
-2,
-19,
3,
60,
-28,
-19,
-19,
-14,
15,
-9,
-31,
42,
10,
-17,
-30,
10,
22,
-4,
15,
1,
-18,
7,
39,
38,
-21,
33,
8,
-9,
-82,
51,
-9,
23,
-4,
8,
-22,
35,
0,
-35,
-23,
-23,
53,
-29,
5,
2,
-22,
-24,
-38,
-25,
-23,
12,
0,
69,
19,
-18,
7,
0,
-27,
13,
-31,
10,
-24,
-29,
-6,
45,
-1,
14,
-19,
3,
-55,
-5,
40,
-15,
27,
0,
15,
-35,
-16,
-7,
36,
-31,
14,
43,
-15,
-7,
5,
7,
23,
-26,
2,
8,
-12,
35,
0,
0,
-47,
-50,
19,
-10,
-38,
41,
29,
4,
-8,
0,
-21,
5,
-23,
3,
-21,
-12,
-24,
-7,
-7,
-14,
-31,
-57,
20,
18,
23,
29,
-15,
7,
25,
7,
47,
12,
47,
82,
-39,
50,
-29,
9,
-20,
60,
-5,
11,
19,
-46,
-21,
-21,
-12,
-10,
15,
3,
-58,
-26,
-28,
23,
16,
14,
-29,
47,
44,
-17,
3,
-17,
11,
-10,
30,
-11,
5,
39,
-66,
5,
-36,
-24,
-30,
-10,
-56,
3,
41,
6,
-34,
-12,
3,
-51,
-4,
-36,
35,
-16,
7,
47,
11,
2,
10,
23,
1,
7,
14,
-50,
4,
-7,
-5,
9,
20,
15,
-7,
-44,
-17,
6,
-19,
16,
-33,
59,
0,
15,
17,
22,
41,
15,
-7,
-27,
24,
-35,
7,
26,
-12,
-11,
-37,
3,
2,
-7,
39,
-24,
38,
62,
-59,
-16,
49,
28,
25,
10,
-5,
-17,
-2,
9,
-12,
2,
9,
-22,
16,
-1,
-6,
65,
0,
-19,
-16,
-45,
-52,
19,
4,
41,
-36,
59,
49,
-21,
-29,
1,
-41,
-4,
45,
-24,
-16,
23,
-17,
-43,
-42,
40,
11,
26,
74,
-23,
-21,
-24,
-14,
2,
0,
-13,
-6,
-3,
35,
-9,
6,
-8,
-10,
-23,
22,
-13,
17,
-3,
1,
-32,
18,
16,
34,
9,
22,
-11,
-34,
30,
17,
21,
-35,
19,
-26,
-10,
-11,
30,
32,
66,
-9,
-23,
40,
23,
-10,
5,
0,
17,
11,
39,
-46,
-13,
-24,
13,
-53,
24,
12,
1,
-2,
19,
-17,
-16,
28,
-21,
28,
3,
-14,
-7,
19,
16,
11,
24,
30,
24,
-3,
-24,
6,
5,
-28,
-23,
52,
8,
-2,
-30,
86,
15,
-54,
-17,
-40,
19,
-17,
90,
-39,
-40,
24,
2,
-31,
-8,
20,
59,
-16,
16,
19,
-21,
-15,
-36,
-27,
-15,
0,
16,
24,
12,
-16,
-71,
-2,
-63,
-14,
-21,
29,
11,
10,
-32,
55,
15,
23,
10,
4,
22,
-10,
33,
-27,
46,
-6,
0,
34,
22,
39,
5,
45,
-36,
7,
48,
-8,
-10,
7,
-46,
-54,
17,
-4,
-42,
-90,
42,
-25,
15,
16,
20,
23,
-33,
-33,
-17,
-11,
-42,
49,
-40,
-17,
19,
-27,
-42,
16,
18,
33,
99,
-59,
17,
-7,
27,
-39,
20,
27,
22,
-19,
18,
49,
9,
29,
39,
3,
-22,
-34,
12,
-40,
-13,
-39,
-38,
11,
-43,
-20,
-20,
41,
-37,
-28,
-24,
-4,
-53,
49,
-6,
-18,
39,
2,
-16,
6,
-30,
-16,
-39,
19,
76,
-47,
17,
-19,
2,
-42,
59,
-35,
-19,
-21,
1,
15,
-1,
-1,
-14,
-15,
-2,
-71,
-34,
-1,
-28,
-50,
-46,
5,
-14,
56,
-26,
37,
-18,
-35,
-25,
-2,
-7,
-11,
-23,
-11,
-5,
4,
-7,
35,
-9,
18,
29,
18,
7,
22,
-27,
-16,
47,
-15,
0,
-62,
-63,
-2,
-61,
-59,
-45,
4,
-6,
10,
-9,
-10,
40,
-2,
18,
5,
32,
26,
-53,
3,
-36,
-29,
0,
9,
0,
2,
41,
-38,
-1,
5,
25,
20,
5,
0,
3,
2,
23,
-31,
32,
14,
-9,
18,
-43,
11,
27,
-35,
-55,
-40,
41,
31,
-23,
17,
49,
12,
2,
-8,
-31,
-28,
-21,
-44,
-19,
43,
31,
32,
54,
-2,
-22,
-14,
-55,
-55,
0,
-12,
-32,
-45,
30,
18,
-16,
5,
12,
-27,
14,
16,
32,
-5,
21,
-29,
25,
-8,
-76,
-3,
-26,
59,
-16,
-49,
-25,
-24,
20,
27,
34,
-19,
-7,
-3,
-9,
14,
0,
-25,
29,
60,
39,
-52,
-14,
37,
11,
12,
-39,
2,
16,
5,
-6,
-66,
-34,
1,
62,
-24,
-37,
8,
-22,
-31,
-34,
-26,
-40,
39,
7,
1,
-25,
-19,
-25,
-29,
-44,
-7,
54,
-23,
41,
-2,
36,
27,
-23,
-54,
-26,
-29,
23,
-28,
-15,
-14,
-35,
24,
11,
43,
25,
-22,
45,
-23,
4,
16,
21,
10,
7,
54,
-18,
-36,
-12,
-2,
4,
11,
-1,
21,
12,
-3,
27,
-12,
28,
3,
-9,
-2,
30,
-11,
11,
-61,
-7,
31,
0,
-9,
45,
28,
-7,
-34,
62,
10,
-29,
15,
-30,
-33,
-19,
35,
-46,
-2,
17,
-1,
-16,
-16,
-3,
-48,
30,
-11,
25,
-14,
-13,
-6,
-7,
-10,
25,
9,
-16,
14,
16,
0,
71,
29,
-46,
10,
-29,
6,
-23,
-39,
0,
2,
-65,
4,
-16,
40,
-6,
-22,
21,
-21,
-46,
-14,
0,
37,
29,
-8,
-18,
-30,
14,
0,
4,
-5,
29,
43,
74,
62,
59,
2,
-25,
8,
-32,
27,
31,
-3,
-21,
-12,
-9,
-40,
9,
8,
5,
-3,
7,
-1,
-7,
0,
40,
14,
13,
32,
8,
73,
17,
-1,
12,
-52,
27,
30,
-11,
-54,
-59,
1,
4,
-36,
-5,
5,
4,
-47,
-23,
8,
-25,
5,
45,
-20,
-33,
3,
38,
23,
24,
-2,
25,
24,
36,
3,
11,
-11,
7,
-46,
-28,
24,
-17,
-36,
30,
21,
-6,
-27,
10,
-20,
49,
7,
4,
-3,
40,
9,
0,
-10,
15,
-4,
-7,
-24,
-45,
15,
28,
25,
-47,
8,
23,
0,
58,
-38,
-7,
40,
10,
1,
36,
-16,
38,
-24,
4,
12,
24,
54,
-24,
30,
27,
-16,
35,
12,
16,
-44,
15,
1,
18,
22,
20,
10
] |
Dethmers, C. J.
On August 24,1926, the decedent died leaving a will dated August 31, 1925. In paragraph 11 he established a trust for the benefit of his niece for her lifetime. The will provided, upon the death of that life beneficiary, for termination of the trust and distribution of the corpus “to her [that niece’s] issue by right of representation; and if she is without issue then surviving” the fund was to be kept, with accumulations, as a perpetual trust for the benefit of the Evangeline Home and Hospital of the defendant, Salvation Army. The niece died on March 29, 1963, leaving no issue born of her body surviving. She did, however, leave one adopted son, the plaintiff, born on November 17, 1926, whom she had adopted on June 9,1928.
At the time of the testator’s death, in 1926, as also of the making of his will in 1925, it was the law in Michigan that the term “issue” used in a last will and testament did not include an adopted child. Russell v. Musson (1927), 240 Mich 631; In re Chapple’s Estate (1953) 338 Mich 246. In 1957, six years before the death of the life beneficiary herein, the legislature adopted an amendment to the adoption statutes (CLS 1961, § 710.9, Stat Ann 1962 Rev § 27.3178[549]), to provide, in effect, that thereafter the term “issue” should include an adopted child. So held in In re Miner Estate (1960), 359 Mich 579.
The above fact and law situation presents the question, then, whether the testator’s intent as to inclusion of an adopted child within the meaning of the term “issue” is to be determined according to the law in effect at the time of the testator’s death or at the time of the death of the life beneficiary.
We speak of the problem as being one of determining the testator’s intent. That intent must govern. In re East’s Estate, 325 Mich 352; In re Ford’s Estate, 331 Mich 220; In re Sewart Estate, 342 Mich 491; Mills v. Butler, 364 Mich 422.
Defendant points out, touching on testator’s intent, that at the time of his execution of the will and subsequent death plaintiff had not only not yet been adopted but had not even been born. The significance thereof defendant stresses by partially quoting from Russell v. Musson, supra, in which it was held that testamentary provision for the child of another person does not include that person’s adopted child unless the will expresses a clear intent that it be included, the following (p 634) :
“The question appears to turn upon the intention of the testator. * * * In the instant case the children were not adopted until after the will was made and testator was declared incompetent. There is nothing in the will which indicates that testator intended they should he included. In view, of this we must hold that the adopted children do not satisfy that provision of the will.”
Testator did not use the word “heir” or “child”, but “issue”.- At the time of its use in execution of the will that word, as we have seen, did not, in Michigan, include an adopted child. This is indicative of testator’s intent. As stated in 4 Page on Wills (Bowe-Parker 1961 Rev), § 34.22, pp 447, 448:
“It has been said that ‘issue’ does not mean heirs at law, whether at common law or under the statute of descent. * * * It does not include, an adopted child,”
So much for the matter of actual proof of intent not to include the adopted child.
There are presumptions of intent to be considered. In the case of In re Miner Estate, supra, the situation was that the 1957 adoption statute amendment became effective two weeks before the death of the testatrix. This Court held the amendment controlling of that case and the construction of the terms “lineal descendent” or “issue”. In holding the natural son of an adopted daughter of a testatrix to be a lineal descendant or issue and hence competent to contest the will of testatrix, this Court said, with respect to. the very statute involved in the instant case, the following:
“It appears clear that it is this statute which is controlling in our present case since it is the one which was in effect at the death of the intestate. In re Loakes’ Estate, 320 Mich 674; In re Dempster’s Estate, 247 Mich 459.”
The meaning of the case, conversely, -would be that had the ¡death of the testatrix preceded the statutory amendment the pre-existing law would have controlled.
In the case of In re Dempster’s Estate, 247 Mich 459, it was held that the law governing an adoptive mother’s--rights to inherit from an adopted son at '.the time of the- latter’s death controlled as distinguished from the provisions of a statute enacted after his death but during the lifetime of the adopting mother. This Court said:
“In determining that the personal property of an intestate, subject to the payment of his lawful debts, is to be distributed among those persons who were his heirs at the time of his death, the foregoing-bases are in full accord with the Michigan decisions. Richmond v. Railway Co., 87 Mich 374; Parks v. Norris, 101 Mich 71.”
The intent of the testator must be held to have been what the words employed in his will meant at the time of his death. It was not competent for the legislature to change his will in that respect by statutory amendment adopted after his death.
The holding of the Court of Appeals affirming -that of the circuit court, which was in accord herewith,., is -affirmed, with costs to defendant.
Kelly, Black, T. M. Kavanagi-i, Souris, O’Hara, and Adams, JJ., concurred.
Brennan, J., did not participate in the decision of this case.
1 Mich App 624. — Reporter. | [
-11,
16,
12,
-36,
-31,
18,
26,
25,
3,
-27,
-87,
11,
5,
62,
-27,
-21,
21,
40,
-79,
-33,
-14,
24,
-27,
30,
24,
-31,
48,
13,
16,
-46,
-26,
-10,
9,
-11,
-8,
-14,
41,
-58,
46,
9,
3,
-5,
53,
16,
-51,
0,
33,
-19,
-15,
25,
24,
-28,
-17,
22,
36,
23,
42,
-25,
-41,
19,
-21,
-51,
21,
18,
-17,
16,
-8,
27,
-27,
-14,
21,
-6,
-24,
-22,
13,
-43,
13,
4,
-38,
-13,
6,
-14,
5,
-44,
-16,
-39,
-16,
39,
-19,
11,
-53,
1,
-30,
-12,
-26,
65,
18,
-8,
-13,
-11,
-2,
-29,
-16,
37,
45,
4,
-40,
7,
47,
-2,
0,
-23,
12,
89,
0,
0,
-86,
-28,
-70,
-5,
-16,
-15,
-24,
-22,
15,
24,
-53,
10,
74,
6,
-6,
45,
6,
19,
-64,
-36,
-29,
-70,
-6,
-32,
17,
24,
16,
-65,
11,
13,
-28,
-32,
36,
-55,
-30,
47,
0,
47,
2,
-9,
-19,
-52,
-8,
-39,
-14,
-11,
5,
35,
-42,
-30,
-25,
18,
-18,
19,
-6,
23,
-36,
16,
-4,
74,
-21,
-22,
-48,
21,
0,
36,
40,
-16,
-20,
-26,
11,
33,
11,
9,
-21,
-27,
-19,
40,
-23,
34,
-22,
14,
7,
-12,
17,
-33,
31,
-29,
-40,
-11,
0,
-22,
-32,
-22,
8,
64,
-16,
39,
-69,
-25,
-14,
-20,
-21,
-6,
7,
-5,
50,
31,
17,
-21,
19,
-22,
-85,
-39,
-15,
-24,
3,
17,
-30,
36,
7,
8,
-19,
45,
3,
-33,
24,
-7,
-3,
-2,
57,
1,
35,
34,
1,
16,
9,
35,
21,
-34,
17,
-9,
16,
-60,
1,
-11,
-49,
-17,
16,
62,
17,
-25,
21,
-23,
51,
-13,
75,
-11,
6,
-63,
-1,
-12,
-1,
-7,
-17,
45,
-18,
-9,
18,
-7,
-54,
-14,
6,
67,
79,
-22,
76,
-66,
36,
31,
10,
6,
-6,
-14,
15,
45,
-6,
47,
4,
-19,
-25,
38,
28,
-40,
-11,
19,
2,
-4,
17,
-21,
-42,
-42,
17,
36,
40,
38,
8,
25,
-6,
-4,
-15,
-9,
-4,
46,
-66,
1,
35,
-30,
8,
-24,
14,
-28,
13,
-9,
20,
13,
10,
-14,
44,
-60,
5,
-29,
-43,
15,
5,
48,
20,
20,
-43,
0,
35,
-41,
14,
50,
-22,
-30,
8,
45,
-43,
3,
-2,
-36,
6,
7,
-12,
4,
-19,
-7,
4,
22,
18,
38,
-14,
50,
-53,
42,
35,
47,
31,
-37,
-13,
18,
19,
2,
-6,
-34,
-13,
-1,
-52,
26,
-19,
0,
-22,
-27,
-15,
40,
-19,
-35,
2,
47,
-15,
0,
29,
43,
27,
22,
39,
-59,
17,
-8,
23,
-58,
16,
31,
11,
9,
9,
-56,
-41,
-42,
-24,
13,
-29,
-52,
-16,
31,
42,
-23,
51,
-26,
20,
3,
-25,
1,
18,
35,
30,
-4,
-12,
31,
1,
-21,
14,
-34,
-17,
-13,
40,
10,
5,
12,
10,
-2,
-52,
-35,
-25,
-30,
49,
-16,
-7,
-14,
12,
-14,
37,
-2,
9,
-21,
-102,
-17,
20,
45,
19,
-7,
-3,
12,
30,
25,
-23,
-25,
-25,
28,
24,
-58,
-1,
4,
36,
-20,
4,
5,
-8,
-23,
-41,
22,
18,
-15,
11,
9,
18,
35,
26,
-39,
35,
-38,
-48,
-14,
3,
-1,
-18,
26,
-19,
18,
62,
-18,
17,
0,
45,
0,
-16,
26,
21,
6,
39,
1,
7,
-20,
57,
-31,
-8,
23,
-24,
47,
1,
-1,
-34,
-16,
-31,
-9,
20,
43,
-45,
-23,
32,
18,
-20,
-47,
-26,
-40,
-19,
22,
23,
29,
0,
-20,
0,
-5,
14,
54,
17,
-62,
-2,
-56,
9,
-24,
-31,
5,
26,
-36,
7,
-19,
-8,
9,
49,
27,
-9,
-14,
-1,
9,
-4,
-2,
-59,
23,
7,
22,
17,
27,
44,
-30,
-38,
-2,
14,
11,
22,
14,
11,
-31,
-53,
-10,
9,
-32,
-15,
0,
-2,
-56,
53,
-44,
-7,
-49,
9,
-7,
-23,
5,
-12,
-27,
-3,
16,
-35,
49,
43,
0,
7,
14,
20,
30,
24,
23,
62,
-52,
-20,
-17,
-26,
-17,
-9,
19,
0,
-18,
-37,
7,
22,
0,
-50,
8,
-11,
-19,
54,
-14,
-50,
-23,
-31,
20,
-51,
38,
28,
-63,
30,
23,
-4,
-15,
-43,
13,
-3,
66,
54,
33,
13,
18,
9,
0,
-26,
13,
25,
23,
-1,
22,
70,
12,
-44,
19,
-20,
15,
-23,
-6,
7,
-13,
18,
28,
34,
-15,
-11,
-1,
-10,
-25,
9,
91,
48,
33,
-35,
32,
-22,
2,
-68,
0,
-17,
35,
-18,
-17,
29,
44,
46,
-73,
-67,
18,
19,
-39,
23,
-49,
-57,
3,
15,
10,
56,
45,
53,
-42,
-10,
-63,
7,
-49,
-43,
6,
70,
49,
27,
-6,
19,
-8,
-36,
69,
-70,
46,
-66,
11,
11,
44,
-15,
33,
18,
16,
22,
3,
-32,
-14,
-12,
53,
-5,
-53,
7,
62,
-15,
6,
11,
-8,
-25,
-3,
11,
-33,
14,
-1,
-13,
-5,
-60,
13,
3,
1,
-16,
13,
43,
34,
-13,
14,
36,
0,
52,
0,
12,
7,
-54,
13,
7,
53,
9,
15,
-25,
-24,
23,
-26,
38,
13,
9,
9,
44,
22,
12,
5,
-72,
20,
-8,
-20,
-27,
-14,
-42,
-13,
-7,
32,
11,
-27,
49,
9,
10,
3,
7,
6,
45,
32,
17,
-61,
15,
11,
-21,
5,
13,
-47,
-34,
12,
-24,
-26,
11,
-20,
-20,
0,
22,
24,
29,
4,
-17,
0,
-16,
-24,
-38,
62,
21,
-30,
-13,
-33,
-11,
-8,
-41,
0,
-18,
-32,
66,
-5,
21,
-45,
1,
42,
-80,
-42,
-55,
-68,
-36,
-19,
16,
4,
0,
32,
30,
35,
-33,
11,
1,
13,
56,
-52,
15,
2,
-5,
26,
-7,
-5,
-38,
-19,
-38,
-7,
7,
-22,
-6,
-8,
-34,
24,
-48,
-67,
24,
25,
46,
-16,
-5,
-20,
3,
37,
-2,
30,
14,
-7,
-7,
-37,
26,
-23,
6,
-38,
12,
-22,
55,
38,
-58,
41,
-55,
19,
-41,
-8,
30,
-23,
8,
5,
-14,
54,
12,
-46,
-59,
45,
12,
-1,
44,
-54,
-37,
-42,
-2,
-15,
75,
20,
1,
45,
8,
-5,
-71,
-19,
-2,
2,
17,
45,
54,
-47,
26,
-32,
13,
15,
-65,
23,
6,
-20,
20,
-34,
18,
-1,
20,
-24,
-14,
18,
-33,
39,
-5,
-15,
-19,
0,
-52,
-35,
23,
60,
-17,
46,
-10,
30,
26,
49,
6,
-21,
-10,
-43,
-18,
60,
-59,
-12,
-22,
20,
-42,
-47,
-4,
-7,
-51,
59,
15,
25,
-2,
64,
17,
9,
60,
0,
-4,
3
] |
Adams, J.
Plaintiff Michigan Consolidated Gas Company was desirous of acquiring the Belle River Mills gas field, located in St. Clair county, for an underground natural gas storage field. The field has a storage surface area of 1,835.86 acres. Prior to filing of its petition in condemnation, plaintiff acquired storage rights, surface rights, and lessee’s interests in oil and gas leases in at least 1,376.895 surface acres.
Plaintiff proceeded under PA 1923, No 238, as last amended by PA 1961, No 69 (CL 1948 and CLS 1961, § 486.251 et seq. [Stat Ann and Stat Ann 1965 Cum Supp § 22.1671 et seq.]), in the probate court for St. Clair county. Plaintiff’s statutorily granted powers, here pertinent, are contained in section 2 of that act:
“To condemn all lands, easements, rights-of-way, gas royalties, dry natural gas leaseholds and other property and any and all interest therein, * * * which may be necessary for pipeline rights-of-way or for an underground natural gas storage field or fields * * * [here follow various provisos, definitions, provisions for proceeding in probate court, and provisions pertaining to condemnation for a water power project]. In any case where the petitioner seeks to exercise the rights conferred by the provisions of paragraph sixth of section 2 hereof, for the purpose of acquiring any property or interest therein for use as a natural gas storage field, the petitioner shall first have acquired and its petition shall contain the additional allegation that the petitioner has acquired, prior to the filing of such petition, by any means other than by condemnation, at least 75%, computed in respect to surface area, of the property rights and interests in the underground field required for storage purposes, and its petition shall also contain an accurate description of the surface area underlaid by the formation or formations to be used for natural gas storage.” (Emphasis supplied.)
On January 19, 1965, the St. Clair county probate court entered its order holding that the 75% jurisdictional requirement of the statute had been met. Defendants Beier appealed to the St. Clair circuit court, and at the same time began an action as plaintiffs in the circuit court for superintending control of the probate judge. From orders of the circuit court dismissing the appeal from probate court and dismissing the complaint for superintending control, defendants appealed to the Court of Appeals. That Court also upheld the decision of the probate court. For the opinion of the Court of Appeals, see 4 Mich App 502. The case is before this Court upon grant of application for leave to appeal.
Defendants claim that plaintiff, in addition to the property rights it did acquire, was required to ac quire “the fee mineral estates and royalty interests reserved to the landowner-lessors” in at least 1,-376.895 surface acres, equivalent to 75% of these so-denominated interests, to satisfy the jurisdictional requirement of the statute. Defendants’ theory is that “the statute applies separately to each property right and interest required for gas storage purposes, that each such property right and interest is itself an entirety to which the 75% [requirement] applies.” They argue that the controlling language —“the property rights and interests in the underground field required for storage purposes” — of necessity must mean, among other property rights, gas royalties, because authority is given to condemn gas royalties in the opening portion of the above-quoted section of the statute.
Both plaintiff and defendants devoted much of their briefs to a discussion of the question as to whether royalty rights are interests in real property or are personalty, and as to just what the nature and legal attributes of such rights may be. The record before us contains neither testimony nor any exhibit from which it may be determined what are the terms and conditions of a specific royalty interest involved in this litigation.
Royalty rights are sometimes treated as having the legal attributes of personal property and sometimes of real property. People v. Blankenship (1943), 305 Mich 79; Mark v. Bradford (1946), 315 Mich 50; PA 1893, No 206, § 8, as amended by PA 1964, No 275 (CL 1948, § 211.8, as amended [Stat Ann 1965 Cum Supp § 7.8]). We do not pass upon the nature of such rights in these proceedings since we do not regard an answer to that question as necessary to decision.
The property rights and interests plaintiff required to operate an underground field for storage purposes were: (1) access to the surface, (2) the container — that is to say, that portion of the underground area within which the gas will be stored, and (3) the contents of the container (whatever native gas and oil may remain in the container).
The proposition was stated by Judge of Probate Vera I. Black as follows:
“The property rights and interests required under PA 1923, No 238 for underground storage were: (i) the right to the minerals; (ii) the right to the formations; and (iii) surface rights.”
Prior to the filing of its petition to condemn, Michigan Consolidated had acquired the right to 88.928 % of the minerals in the Belle River Mills storage field, computed in respect to surface area. We agree with the conclusion of the probate judge that “even if the royalty interest (generally l/8th) is deducted from Michigan Consolidated’s right to 88.928% of the minerals, Michigan Consolidated would nevertheless have acquired the right to more than 75% of the minerals.”
The legislature enumerated, both specifically and generally, the property rights a corporation, proceeding under the statute, may condemn. Condemnation may be used to acquire property for gas storage, for acquisition of lands in connection with hydroelectric or water power projects, and for gas pipeline rights-of-way. The legislature, however, used general terms rather than specific — “the property rights and interests * * * required for storage purposes” — when it set forth the 75% jurisdictional requirement. This made the requirement a total one covering whatever the property rights or interests might be that were needed in a given situation. As Judge McGregor of the Court of Appeals pointed out in the opinion of that Court:
“The statutory construction urged by appellants would completely frustrate the legislative intent and purpose. Innumerable types of interests can be created in real estate formations, limited only by tbe imagination of man. If tbe statute were construed to require appellee to bave 75% of eacb and every sucb interest, it is apparent that a single recalcitrant landowner could create a ‘one-of-a-type’ interest wbicb be could refuse to sell and tbus permanently obstruct any storage field development.”
Defendants agree that plaintiff bad acquired tbe requisite 75% of tbe container and of tbe surface rights. Consequently, plaintiff’s acquisition of well over 75% of tbe minerals satisfied tbe jurisdictional requirements of tbe statute. Plaintiff need not, prior to instituting condemnation proceedings, acquire 75% of any so-called fee mineral estate or royalty interest unless sucb property rights were needed to make up 75% of tbe oil, gas, and minerals within tbe storage area.
Tbe decisions and findings of tbe lower courts are affirmed, with costs to appellee.
Dethmers, C. J., and Kelly, T. M. Kavanagh, Souris, O’Hara, and Brennan, JJ., concurred.
Black, J., did not sit. | [
-2,
64,
34,
-23,
-32,
10,
36,
24,
-11,
39,
10,
-17,
72,
-2,
-4,
-29,
43,
25,
-11,
-4,
-53,
7,
-2,
52,
6,
-4,
21,
-1,
18,
-21,
-86,
-15,
-17,
-43,
-19,
-5,
38,
9,
-4,
-16,
11,
26,
29,
2,
-25,
-46,
-14,
8,
32,
8,
-3,
32,
-10,
-16,
-9,
-20,
-5,
-31,
-31,
3,
-11,
3,
13,
79,
44,
52,
-11,
-13,
19,
7,
13,
39,
-6,
12,
49,
22,
-7,
-15,
16,
-18,
6,
40,
20,
38,
-89,
22,
-58,
-27,
7,
-21,
-10,
-25,
-59,
10,
39,
46,
1,
-64,
8,
-11,
-26,
48,
-8,
24,
-18,
6,
-2,
-36,
5,
-7,
0,
-46,
22,
-63,
-30,
-1,
22,
-39,
59,
-8,
-15,
-34,
19,
-20,
-32,
-31,
-9,
-8,
2,
14,
24,
-17,
-17,
3,
50,
13,
17,
-12,
17,
17,
-18,
-39,
-3,
23,
3,
33,
21,
-50,
-5,
-11,
-34,
15,
44,
40,
26,
31,
18,
13,
19,
12,
40,
-37,
-10,
4,
-56,
-22,
11,
-23,
-52,
-33,
-37,
24,
-7,
-17,
-15,
-7,
13,
21,
-60,
2,
28,
-35,
23,
10,
-21,
-6,
-27,
-7,
-39,
-27,
7,
7,
43,
-16,
-93,
55,
-18,
38,
-25,
27,
49,
-38,
9,
-9,
-13,
-10,
12,
12,
-1,
-48,
2,
24,
-50,
-23,
-16,
-24,
17,
-29,
32,
-37,
25,
-28,
21,
50,
12,
30,
7,
-21,
-14,
-52,
7,
-30,
22,
11,
-33,
1,
27,
18,
33,
-7,
-16,
-12,
-41,
-25,
11,
0,
-38,
-24,
-43,
79,
-12,
-87,
-18,
21,
19,
2,
-39,
28,
-11,
-26,
19,
3,
-51,
18,
-11,
73,
-43,
-50,
-21,
5,
-18,
-11,
43,
24,
-46,
-22,
31,
-46,
0,
32,
2,
-11,
-34,
-2,
-32,
29,
-49,
-2,
-88,
19,
-34,
55,
11,
-3,
14,
-23,
53,
-35,
20,
18,
-37,
-3,
-29,
-23,
3,
-3,
-32,
32,
8,
-1,
-7,
60,
-16,
8,
8,
-36,
56,
-11,
39,
26,
30,
-12,
-20,
39,
21,
48,
17,
-41,
9,
53,
12,
7,
35,
-17,
-23,
0,
-18,
-47,
-25,
30,
52,
3,
7,
9,
7,
2,
20,
5,
-2,
-34,
-42,
-49,
39,
45,
-25,
-36,
-38,
10,
-26,
18,
38,
5,
-24,
-15,
18,
-34,
-10,
-48,
29,
33,
21,
12,
12,
70,
24,
-5,
24,
-42,
-4,
11,
27,
-27,
10,
-18,
76,
5,
-1,
-5,
2,
13,
-16,
-16,
-3,
65,
23,
-10,
41,
-18,
-4,
-31,
79,
47,
0,
-12,
-28,
-12,
-13,
-7,
59,
5,
13,
-26,
-12,
14,
-22,
-2,
47,
5,
-9,
-21,
13,
5,
-26,
-25,
33,
-46,
-19,
0,
-47,
8,
-3,
30,
22,
32,
17,
27,
-37,
21,
-1,
6,
-28,
8,
17,
-26,
8,
-27,
6,
24,
20,
19,
-16,
77,
-22,
-10,
-37,
39,
0,
-30,
20,
-16,
-41,
23,
7,
-18,
-38,
-5,
-5,
3,
40,
-1,
-46,
104,
-15,
-4,
21,
2,
27,
18,
-11,
0,
87,
5,
-57,
-6,
36,
-31,
35,
35,
35,
13,
29,
-2,
24,
-56,
50,
10,
34,
-7,
34,
4,
-15,
1,
0,
-2,
-5,
40,
-51,
39,
-11,
26,
30,
-7,
26,
-47,
-20,
-9,
16,
5,
-16,
0,
-24,
19,
23,
14,
2,
-22,
-4,
-38,
40,
16,
24,
-51,
-17,
53,
-34,
-22,
-37,
34,
-38,
-31,
29,
18,
19,
-32,
-16,
36,
-40,
-38,
-87,
-19,
-22,
-34,
-30,
29,
-15,
-13,
-25,
-25,
2,
10,
-42,
-7,
9,
-44,
63,
-4,
14,
-47,
39,
0,
-17,
31,
67,
-41,
65,
15,
7,
-34,
-21,
50,
-12,
-33,
-8,
-51,
-7,
21,
19,
-39,
2,
-22,
18,
-25,
-5,
-30,
29,
47,
18,
11,
12,
-23,
14,
-21,
-4,
-4,
33,
8,
26,
-1,
8,
-17,
-5,
8,
18,
-3,
54,
12,
26,
-78,
46,
-40,
-26,
-17,
46,
14,
0,
6,
-4,
-24,
-26,
51,
-55,
-20,
-19,
5,
38,
9,
29,
-3,
-20,
-22,
-35,
-40,
-22,
-23,
-3,
-43,
19,
-1,
-5,
-19,
-19,
16,
31,
46,
27,
23,
8,
-39,
64,
-16,
57,
10,
11,
-32,
-4,
-11,
40,
-16,
70,
4,
10,
-2,
-34,
-35,
-17,
-12,
32,
27,
45,
28,
-4,
7,
-27,
3,
45,
9,
46,
71,
16,
-27,
6,
13,
-26,
79,
-33,
-51,
15,
-20,
0,
-13,
-30,
63,
34,
15,
1,
11,
6,
-42,
2,
-1,
-32,
-19,
47,
37,
7,
42,
18,
2,
-10,
-22,
-17,
-43,
-47,
-27,
-8,
-27,
-44,
21,
-53,
-4,
-33,
33,
10,
22,
1,
-4,
-5,
-9,
-21,
-2,
4,
-49,
-10,
-8,
-4,
-58,
-4,
-8,
-51,
15,
-1,
32,
13,
75,
6,
-72,
-43,
-35,
-58,
14,
2,
-10,
-29,
-46,
21,
-48,
16,
23,
-6,
0,
-1,
16,
-39,
-17,
-3,
18,
-15,
7,
18,
8,
-10,
-10,
66,
-64,
-33,
0,
-1,
5,
38,
-9,
-33,
-7,
16,
-63,
-27,
7,
31,
31,
10,
-46,
0,
18,
-36,
-16,
4,
-32,
-18,
-3,
-21,
18,
4,
-6,
-3,
-36,
6,
26,
-49,
51,
-62,
25,
27,
-30,
-59,
21,
-28,
-30,
53,
-1,
-1,
23,
40,
27,
-24,
6,
-1,
-39,
28,
-18,
-25,
-33,
12,
-50,
0,
-23,
-81,
-14,
16,
6,
47,
48,
-29,
21,
-30,
-21,
65,
-1,
16,
-11,
0,
54,
56,
-6,
-56,
7,
40,
-25,
-9,
-4,
6,
54,
-16,
-5,
-45,
19,
20,
3,
-59,
-27,
-4,
-20,
-70,
44,
24,
-14,
8,
-3,
40,
2,
-32,
15,
45,
-38,
-49,
22,
-14,
-3,
26,
-22,
-18,
-19,
-24,
-17,
29,
3,
5,
24,
-21,
-37,
25,
-25,
-26,
-10,
-31,
28,
-66,
9,
-30,
-23,
2,
33,
33,
37,
-5,
2,
-36,
40,
-15,
20,
6,
28,
-24,
-42,
10,
-46,
0,
59,
12,
-19,
14,
-16,
6,
-17,
-12,
16,
1,
90,
25,
-14,
-15,
48,
-5,
24,
39,
13,
-36,
-21,
1,
-40,
-41,
-2,
-26,
56,
-11,
11,
34,
-18,
-16,
3,
-10,
18,
-40,
-4,
-34,
11,
60,
10,
8,
14,
21,
-45,
-11,
-115,
-13,
26,
14,
-71,
-52,
-37,
16,
-7,
18,
40,
55,
-51,
40,
5,
-7,
13,
-11,
14,
17,
-2,
-39,
20,
23,
38,
55,
-1,
48,
40,
-12,
11,
23,
-19,
22,
16,
-10,
3,
-19,
10,
27,
-54,
-21,
36
] |
Per Curiam.
Defendant was convicted of assault with intent to do great bodily harm less than murder in violation of MCL 750.84; MSA 28.279, following a jury trial. He was sentenced to serve from 6-1/2 to 10 years in prison. Defendant appeals his conviction as of right._
The only issue defendant presents on appeal which merits discussion is his claim that the trial court failed to properly instruct the jury concerning his theory of the case. With respect to this issue, defendant appears to confuse two distinct concepts. He argues that a trial court is required to instruct sua sponte on defendant’s theory of the case and the law as it relates thereto.
It is well-established that, where the theory presented to the jury by defendant is a central issue in defendant’s trial, the trial court is required to instruct the jury as to the law on that issue even if defendant fails to request such an instruction. People v Ora Jones, 395 Mich 379, 394; 236 NW2d 461 (1975); People v Stanley Jones, 69 Mich App 459, 461; 245 NW2d 91 (1976); People v Morris, 99 Mich App 98; 297 NW2d 623 (1980); People v Newman, 107 Mich App 535, 537; 309 NW2d 657 (1981); People v Hearn, 100 Mich App 749, 753; 300 NW2d 396 (1980); People v Rone (On Second Remand), 109 Mich App 702, 713; 311 NW2d 835 (1981); People v Paquette, 114 Mich App 773, 779; 319 NW2d 390 (1982); People v Jansson, 116 Mich App 674, 685-687; 323 NW2d 508 (1982). At least one panel of this Court has relied on these opinions to conclude that the trial court is also required to sua sponte present to the jury defendant’s theory of the case. People v Gay-ton, 81 Mich App 390, 394; 265 NW2d 344 (1978). With this conclusion we cannot agree. The law by which a case is to be decided is distinguishable from a party’s theory. People v Robinson, 79 Mich App 145, 162; 261 NW2d 544 (1977). The duty of the trial court to present a party’s theory is governed by GCR 1963, 516.7:
"(a) The court shall present to the jury the issues in the case and, if a party requests after the close of the evidence, that party’s theory of the case.
"(b) After the close of the evidence each party shall submit in writing to the court a statement of the issues and, if a party makes a request under subrule . 7(a), his theory of the case as to each issue. * * * The theory may include those claims supported by the evidence or admitted.” (Emphasis supplied.)
In our opinion, the trial court is not required to present defendant’s theory to the jury unless defendant makes a request for the same. People v Trammel, 70 Mich App 351, 353-354; 247 NW2d 311 (1976); People v Samuel Smith, 85 Mich App 404, 414; 271 NW2d 252 (1978), rev'd in part on other grounds 406 Mich 945; 277 NW2d 642 (1979); People v Peery, 119 Mich App 207; 326 NW2d 451 (1982).
In the present case, defendant does not claim that a legally recognized defense was presented concerning which the trial court inadequately instructed the jury. Rather, he merely claims that reversal is required because the trial court failed to sua sponte present to the jury his theory of the case. For the reasons stated above, defendant’s claim is rejected.
We have also examined defendant’s remaining claims and find them to be without merit. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979); People v Delongchamps, 103 Mich App 151, 159; 302 NW2d 626 (1981); People v Coyle, 104 Mich App 636, 639; 305 NW2d 275 (1981).
Affirmed. | [
40,
7,
-15,
-59,
-23,
-25,
9,
-11,
-46,
47,
0,
-15,
35,
23,
33,
-16,
1,
-21,
-26,
-33,
4,
20,
4,
33,
-46,
-32,
9,
55,
18,
-22,
55,
1,
-16,
-41,
10,
-42,
-10,
-15,
10,
14,
46,
53,
-19,
-6,
-62,
-9,
27,
-34,
4,
29,
80,
3,
-25,
-18,
-1,
-5,
5,
-1,
-27,
13,
11,
18,
-62,
-34,
6,
-51,
-7,
-4,
-52,
-39,
-83,
-4,
-8,
11,
1,
-3,
-34,
10,
37,
-4,
12,
-22,
42,
-13,
-28,
-5,
7,
-23,
-43,
-7,
8,
4,
-35,
0,
21,
2,
63,
-58,
32,
-14,
31,
12,
-32,
-11,
-35,
12,
-57,
-3,
22,
-9,
14,
23,
11,
-33,
-44,
-23,
-19,
11,
-29,
25,
-5,
26,
18,
16,
24,
6,
29,
-19,
23,
-44,
-9,
38,
-4,
10,
-21,
49,
1,
0,
45,
30,
-15,
39,
51,
-25,
44,
-6,
-53,
-12,
30,
19,
9,
2,
-42,
0,
0,
-27,
-20,
-48,
-17,
1,
11,
31,
-59,
9,
32,
7,
-30,
-17,
2,
-14,
30,
-19,
79,
17,
39,
-2,
-5,
-30,
17,
2,
-11,
12,
28,
17,
-3,
12,
-75,
5,
-24,
12,
22,
41,
-19,
-17,
66,
49,
30,
38,
51,
-11,
-20,
-3,
1,
15,
9,
-53,
-41,
-22,
30,
-23,
-17,
21,
-25,
-26,
-6,
-40,
-19,
-43,
-12,
34,
-43,
22,
-3,
-46,
-3,
-61,
2,
18,
-17,
19,
54,
12,
-6,
-2,
-14,
2,
25,
6,
29,
13,
-20,
-19,
27,
-28,
-16,
42,
42,
41,
-40,
-10,
73,
5,
16,
-3,
-50,
-42,
18,
-20,
-62,
5,
-8,
42,
-13,
27,
-63,
44,
11,
6,
-43,
36,
-10,
-6,
-24,
46,
-4,
-11,
-50,
7,
21,
-10,
3,
56,
40,
11,
-61,
-17,
-39,
-1,
-5,
0,
27,
-33,
-25,
-10,
46,
30,
-8,
15,
-9,
-19,
26,
-1,
32,
11,
25,
-7,
-8,
3,
1,
-23,
23,
24,
6,
6,
0,
55,
-28,
37,
57,
-50,
-29,
-16,
21,
-68,
3,
0,
34,
-58,
-17,
-10,
-79,
-10,
27,
20,
29,
20,
2,
20,
7,
-1,
-1,
-16,
-4,
29,
34,
7,
-25,
0,
-2,
-25,
-13,
21,
-5,
-20,
-7,
-32,
-27,
-35,
-36,
6,
3,
-19,
43,
-13,
13,
12,
-6,
-29,
19,
18,
-22,
-15,
-27,
-6,
-67,
-14,
36,
13,
-23,
49,
-42,
0,
54,
-15,
27,
5,
-12,
35,
9,
27,
-10,
-33,
4,
-15,
10,
49,
-49,
25,
33,
-1,
-12,
2,
4,
16,
-28,
-4,
-16,
7,
37,
33,
-7,
57,
29,
47,
-2,
-20,
17,
-40,
38,
-31,
18,
-37,
37,
-5,
-5,
19,
-29,
-10,
-19,
-58,
-15,
3,
23,
-20,
25,
20,
-34,
17,
18,
-41,
-37,
33,
-7,
20,
-4,
-37,
-5,
-23,
0,
-49,
3,
-3,
7,
-25,
-4,
31,
48,
25,
30,
25,
-8,
-11,
-52,
-11,
45,
-21,
-39,
-35,
10,
-14,
8,
0,
-3,
10,
-11,
25,
-40,
74,
-5,
-22,
14,
38,
-23,
-30,
-7,
-3,
-15,
-31,
5,
-45,
-23,
1,
0,
10,
-11,
2,
19,
22,
-2,
12,
-1,
11,
-8,
-15,
24,
9,
57,
-34,
27,
20,
13,
56,
-2,
55,
8,
-35,
24,
-61,
-4,
42,
-24,
-61,
19,
-35,
-3,
26,
-10,
-24,
-49,
-45,
47,
-4,
-16,
-19,
51,
25,
-29,
-57,
17,
-35,
-39,
24,
25,
-6,
26,
8,
-23,
16,
52,
25,
-7,
36,
15,
-33,
42,
-35,
-17,
1,
29,
-1,
-23,
-3,
57,
48,
12,
-32,
-11,
-23,
87,
-31,
19,
24,
-44,
42,
-40,
-8,
54,
36,
-19,
30,
19,
26,
-38,
-30,
-19,
-61,
31,
-17,
8,
7,
1,
31,
21,
0,
-27,
-73,
7,
-36,
-30,
11,
50,
-9,
2,
-21,
14,
18,
-13,
-22,
-10,
-17,
70,
7,
7,
17,
-31,
26,
-26,
-22,
-51,
12,
1,
-37,
13,
6,
-1,
-62,
-27,
-15,
-27,
-44,
10,
-27,
-14,
6,
-24,
18,
5,
15,
-13,
-52,
6,
61,
0,
-5,
32,
-1,
-60,
70,
-19,
-65,
-45,
39,
7,
-37,
12,
5,
-60,
53,
1,
0,
28,
38,
-20,
-8,
4,
42,
-21,
-18,
1,
-10,
2,
5,
-2,
44,
0,
11,
17,
14,
-2,
-22,
-25,
-54,
31,
-19,
33,
-14,
-13,
6,
64,
-29,
12,
9,
49,
-24,
47,
-40,
41,
-9,
-22,
-5,
19,
-54,
23,
-21,
15,
-2,
1,
-11,
-9,
-41,
-11,
55,
-34,
-21,
12,
-2,
-64,
-62,
-12,
73,
-24,
-37,
19,
25,
11,
31,
17,
16,
-14,
21,
12,
-9,
23,
21,
-9,
20,
0,
7,
12,
-1,
-3,
4,
-49,
-32,
-22,
9,
7,
-63,
40,
36,
-12,
14,
32,
23,
-51,
24,
51,
19,
-63,
-65,
-10,
-4,
-45,
-14,
-13,
-29,
27,
-26,
1,
-14,
-40,
-39,
33,
-2,
-37,
40,
-14,
4,
-2,
-17,
8,
9,
-27,
4,
-36,
-29,
12,
-37,
-53,
-3,
12,
26,
-2,
49,
51,
-18,
-22,
-9,
15,
0,
21,
-5,
43,
-17,
-39,
54,
17,
-2,
28,
33,
50,
8,
-71,
2,
16,
26,
-30,
-7,
41,
-18,
-7,
48,
7,
-22,
5,
20,
17,
-22,
-12,
-20,
28,
-5,
-14,
54,
8,
-49,
5,
33,
-18,
1,
28,
-1,
8,
31,
37,
7,
0,
0,
6,
-6,
24,
17,
-35,
0,
5,
-11,
-23,
33,
55,
32,
-18,
36,
4,
30,
33,
10,
-44,
-34,
1,
2,
-5,
10,
28,
22,
-23,
14,
-61,
16,
-53,
40,
8,
-12,
-25,
12,
-1,
-44,
-34,
-38,
-54,
-5,
17,
26,
-6,
-17,
-6,
-15,
2,
21,
11,
-50,
-3,
3,
4,
20,
22,
-15,
-2,
12,
-55,
23,
-28,
4,
31,
30,
43,
20,
-40,
-19,
16,
-34,
-12,
85,
14,
-6,
-9,
-64,
-10,
-34,
-4,
10,
-15,
-11,
-14,
-52,
-21,
12,
19,
-35,
8,
-39,
-3,
-15,
-59,
60,
-25,
8,
-40,
16,
-3,
-25,
-45,
-61,
-25,
27,
-12,
-21,
10,
39,
-38,
-13,
-16,
1,
-8,
18,
46,
29,
-19,
39,
3,
15,
5,
-2,
19,
-47,
45,
10,
19,
-6,
-30,
31,
-25,
-58,
17,
3,
-12,
16,
-20,
13,
-34,
-25,
0,
16,
3,
29,
-20,
40,
36,
-5,
16,
5,
-10,
72,
7,
36,
-17,
2,
17,
16,
-20,
-34,
-9,
-22,
33,
18,
-34,
4,
5,
-11,
-8,
5,
-9,
73,
-34,
-9
] |
Per Curiam.
Defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549, and first-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(2), in exchange for a charge reduction, dismissal of a third count and concurrent sentences of 12 to 20 years. He appeals by right.
The defendant contends that the trial court’s failure to inform him, pursuant to GCR 1963, 785.7(l)(d), of the mandatory minimum sentence for second-degree murder requires reversal of the conviction on that charge. We note first that the defendant’s sentence bargain did not excuse the trial court from its duty to advise the defendant of the mandatory minimum sentence for second-degree murder. In People v Greene, 414 Mich 896; 323 NW2d 4 (1982), our Supreme Court held that a sentence bargain is irrelevant to the court’s obligation to tell the defendant that the offense to which he is pleading is nonprobationable. Obviously, the Supreme Court has decided that information which would be meaningless to a defendant guar anteed a sentence — for example, that the offense is nonprobationable — must still be communicated to the defendant. The mandatory minimum sentence would also be meaningless to such a defendant; nevertheless, the court must still advise the defendant of it. Second, we disagree with the people’s argument that the sentencing language appearing in the second-degree murder statute — "life, or any term of years” — states no mandatory minimum sentence. Although a few panels of this Court have held as much, see People v Landis, 91 Mich App 345; 283 NW2d 647 (1979); People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), we follow the view expressed in People v Taylor, 112 Mich App 94; 315 NW2d 202 (1982), and hold that this language mandates a minimum sentence of "any term of years”. The trial court’s failure to inform the defendant of this mandatory minimum sentence requires us to reverse his conviction for second-degree murder. People v Jones, 410 Mich 407; 301 NW2d 822 (1981). Accordingly, the case is remanded to allow the defendant an opportunity to withdraw his plea.
The defendant next contends that the court did not give him his right to allocution guaranteed by GCR 1963, 785.8 when it sentenced defendant on the second-degree murder and first-degree criminal sexual conduct convictions. The record supports defendant’s claim. Accordingly, the defendant’s sentence for the-first-degree criminal sexual conduct conviction is set aside and the case remanded for resentencing on this conviction to allow the defendant and his lawyer an opportunity to address the court in accordance with the court rule. People v Berry, 409 Mich 774; 298 NW2d 434 (1980). In addition, if the defendant chooses to plead guilty to the second-degree murder charge again, the trial court is instructed to allow him his right to allocution.
The defendant’s three remaining claims are without merit. We address them briefly. First, the trial court is not obliged to tell the defendant that he has the right to remain silent at the plea-taking hearing; the court need only inform the defendant of his right to remain silent at trial. Second, even if the defendant’s confession admitting first-degree criminal sexual conduct was obtained illegally, People v Peters, 397 Mich 360; 244 NW2d 898 (1976), cert den 429 US 944; 97 S Ct 365; 50 L Ed 2d 315 (1976), held that a guilty plea is not the product of an illegally obtained confession on similar facts. Defendant’s final claim — that his plea to second-degree murder was the product of an illegally gained confession — is rejected on similar grounds.
Reversed and remanded. | [
13,
1,
0,
12,
-94,
-12,
11,
-19,
-44,
4,
25,
-52,
-14,
-14,
51,
-26,
18,
35,
-31,
28,
-8,
4,
11,
43,
-10,
-13,
24,
17,
24,
57,
7,
21,
-4,
-72,
4,
-1,
3,
-10,
0,
43,
49,
-24,
2,
2,
-24,
-34,
44,
-14,
50,
-19,
12,
39,
23,
0,
3,
38,
10,
10,
12,
32,
-17,
5,
-32,
-3,
-30,
-17,
16,
61,
-22,
5,
6,
-8,
-27,
-4,
38,
-2,
15,
29,
20,
27,
16,
-4,
23,
-19,
4,
32,
20,
-33,
30,
-13,
17,
-9,
-28,
-27,
18,
-7,
14,
-19,
12,
-41,
-21,
10,
6,
45,
9,
6,
-48,
-15,
-25,
52,
-11,
34,
6,
-45,
-29,
-42,
-45,
-12,
-16,
12,
-1,
7,
21,
66,
34,
-19,
-2,
-17,
0,
-12,
-27,
32,
3,
-19,
25,
33,
-7,
12,
51,
30,
-41,
-18,
12,
7,
67,
4,
-21,
-6,
24,
25,
0,
15,
-27,
-19,
-6,
-31,
7,
-47,
-30,
3,
63,
2,
-40,
7,
-53,
-5,
-48,
13,
-24,
-23,
-12,
1,
41,
36,
41,
-9,
-50,
11,
46,
23,
-19,
21,
23,
-32,
-27,
7,
-3,
10,
-26,
6,
-20,
13,
-4,
-16,
58,
41,
-5,
75,
35,
20,
-30,
-31,
20,
69,
7,
-53,
-20,
-23,
-45,
16,
-82,
-23,
-33,
-38,
3,
24,
-44,
-9,
-17,
20,
-56,
-38,
-26,
-40,
6,
-13,
2,
8,
15,
7,
10,
27,
-18,
34,
0,
38,
30,
49,
45,
-9,
-6,
-54,
16,
-38,
44,
30,
43,
-15,
-43,
-18,
25,
6,
43,
5,
-34,
-4,
38,
17,
-31,
-40,
-8,
23,
11,
-9,
-68,
54,
-44,
-7,
-78,
-9,
3,
0,
32,
9,
-22,
-24,
-12,
26,
-23,
2,
-5,
19,
40,
-7,
-27,
-10,
-59,
22,
8,
41,
68,
-7,
-44,
25,
57,
-10,
4,
-48,
-41,
0,
20,
-28,
44,
-28,
41,
14,
4,
-11,
-28,
-49,
-19,
-8,
-23,
18,
5,
3,
-39,
-18,
77,
24,
-12,
-18,
19,
-26,
9,
-44,
27,
-14,
19,
-8,
-62,
17,
-3,
31,
42,
5,
14,
7,
2,
43,
25,
-15,
6,
-15,
-32,
3,
20,
59,
-24,
-14,
28,
9,
0,
15,
-31,
-22,
-25,
-44,
11,
-47,
35,
3,
-16,
-7,
-22,
57,
-15,
4,
21,
65,
66,
-19,
-36,
-44,
-22,
12,
40,
21,
-32,
13,
-4,
1,
32,
-25,
37,
51,
-72,
-1,
5,
-9,
-51,
-71,
-9,
-46,
26,
29,
14,
13,
65,
-37,
-7,
-14,
22,
-49,
-20,
21,
11,
-13,
-25,
36,
-31,
40,
39,
47,
-26,
-51,
14,
-45,
52,
-60,
7,
-15,
49,
16,
0,
26,
12,
36,
-24,
-29,
17,
21,
10,
-50,
-3,
55,
-33,
2,
33,
4,
-59,
4,
-30,
-14,
36,
-23,
-47,
-32,
-15,
-14,
16,
18,
1,
-57,
-16,
15,
-31,
-17,
2,
-50,
0,
-35,
-47,
-31,
36,
-47,
-32,
-32,
34,
-40,
0,
4,
-1,
33,
12,
9,
-19,
26,
22,
36,
41,
21,
-34,
22,
-21,
-11,
-33,
-48,
24,
-75,
-12,
-15,
28,
-22,
-8,
1,
11,
-3,
-13,
50,
25,
-46,
-33,
15,
5,
-15,
1,
2,
29,
-8,
29,
19,
17,
-23,
-5,
-38,
0,
-32,
-14,
43,
27,
1,
54,
-27,
-32,
1,
-19,
-8,
-41,
24,
48,
2,
13,
-38,
62,
3,
-52,
-41,
-1,
-25,
8,
18,
-34,
45,
0,
15,
6,
16,
18,
1,
-39,
-15,
-12,
-21,
11,
-23,
6,
37,
33,
-45,
-7,
-7,
48,
17,
20,
22,
-32,
-8,
45,
22,
34,
-18,
-57,
34,
-64,
16,
21,
17,
-17,
28,
73,
57,
-45,
-38,
-37,
-22,
23,
0,
20,
-9,
-75,
37,
60,
-8,
-20,
-34,
0,
-76,
-19,
29,
14,
41,
-46,
7,
27,
18,
0,
31,
47,
-21,
33,
-9,
-38,
-1,
-31,
10,
-14,
-33,
-46,
13,
15,
38,
-8,
-29,
45,
-16,
-47,
-14,
-43,
22,
19,
11,
-1,
-33,
-34,
10,
22,
16,
-2,
-45,
-42,
22,
19,
-12,
64,
44,
3,
62,
12,
-34,
-36,
23,
-5,
-18,
27,
6,
-27,
31,
20,
19,
23,
19,
-38,
14,
-27,
65,
-43,
-26,
54,
-26,
19,
6,
-8,
1,
23,
-3,
-11,
-7,
47,
-17,
-29,
-22,
4,
-40,
-13,
-32,
10,
-15,
17,
0,
-14,
29,
9,
-16,
17,
-32,
71,
38,
-18,
24,
20,
14,
13,
-31,
-38,
22,
-37,
-7,
-28,
-17,
-40,
34,
-46,
6,
-30,
6,
-50,
-43,
-7,
34,
-8,
-14,
31,
-1,
2,
-3,
5,
-17,
9,
29,
14,
-27,
25,
14,
20,
30,
-26,
6,
-29,
8,
-22,
50,
-70,
-18,
-25,
14,
-1,
-28,
12,
-9,
82,
38,
36,
28,
-29,
35,
64,
-23,
-44,
-48,
-13,
1,
-13,
22,
-14,
-2,
-13,
-43,
15,
-25,
-51,
-48,
-8,
10,
-18,
18,
-19,
37,
-9,
-36,
-47,
9,
-59,
-18,
-2,
-13,
22,
-25,
-5,
38,
-2,
17,
-6,
46,
53,
27,
11,
40,
25,
-2,
50,
-22,
11,
-19,
-13,
17,
-7,
-23,
31,
-24,
61,
35,
-18,
56,
35,
-37,
-6,
-28,
50,
-10,
18,
5,
-59,
-12,
-1,
-18,
10,
-33,
-22,
14,
9,
-13,
10,
23,
0,
1,
-24,
23,
-11,
5,
11,
-62,
36,
6,
6,
47,
23,
0,
7,
16,
31,
-71,
-6,
-10,
-14,
30,
-31,
20,
27,
0,
26,
-3,
-11,
-3,
39,
8,
16,
-3,
6,
-43,
-21,
4,
63,
-31,
-25,
-1,
-19,
4,
-22,
18,
2,
-14,
63,
30,
-3,
4,
-57,
-27,
-23,
18,
19,
9,
-49,
-6,
-10,
-32,
-14,
21,
44,
-42,
54,
-21,
13,
15,
39,
24,
1,
15,
3,
46,
3,
12,
-22,
25,
13,
-18,
-43,
14,
46,
-61,
-1,
75,
8,
31,
33,
1,
-15,
-39,
-53,
-13,
-11,
7,
19,
-33,
4,
-16,
56,
-42,
-1,
-44,
-17,
-14,
-39,
0,
-60,
20,
-34,
-28,
14,
-16,
-30,
-32,
-22,
1,
-50,
7,
-36,
36,
-16,
1,
-88,
14,
-10,
-31,
32,
13,
11,
-33,
23,
6,
22,
-46,
36,
-36,
29,
-30,
2,
-6,
-6,
-37,
-1,
-30,
21,
-6,
-4,
39,
36,
1,
-47,
-43,
16,
6,
23,
17,
-11,
-9,
-7,
-7,
2,
0,
-44,
66,
0,
-3,
-68,
1,
0,
32,
2,
-28,
-13,
13,
64,
-37,
-15,
15,
0,
10,
-58,
38,
-20,
54,
-15,
26
] |
M. J. Kelly, P.J.
Plaintiff appeals as of right from the trial court’s judgment which awarded plaintiff $2,287.50 after a bench trial.
The facts in this case are not in great dispute. Defendant John D. Brydges was the owner of a sole proprietorship, Brydges Home Improvement Company. The sole proprietorship was subsequently incorporated under the laws of Michigan. Mr. and Mrs. Brydges transferred to the new corporation whatever assets they had in the sole proprietorship. A book value of $10,000 was placed upon this contribution. In return, they received 70% of the outstanding stock of the corporation. Mr. Brydges received 7,143 shares and Mrs. Brydges received 2,857 shares.
Shortly before the incorporation occurred, plaintiff, Joseph J. Davis, Jr., contacted Mr. Brydges about employment. Plaintiff and defendants discussed the expansion of the business to include manufacture of what was then a scarce commodity, insulation material. It was agreed that Davis and defendant Wildrex English would invest in the new corporation. Davis contributed $40,000 in cash to the corporation, $24,000 in December, 1977, $4,000 in March, 1978, and $12,000 in April, 1978. In return for this contribution, Davis received 2,857 shares, or 20% of the outstanding stock of the corporation. English contributed $20,000 in cash and received 1,428 shares, or 10% of the outstanding stock.
In February, 1978, the parties, along with the corporation, entered into a stock purchase agreement. Although the agreement was the subject of negotiations between the parties, the trial court found as fact that the agreement was drafted by attorneys for the corporation. Paragraph 4 of the agreement provided for the repurchase of the shares of stock owned by Davis or English in the event that either one of them should cease to be employed by the corporation:
"4. Termination of Employment. In the event the employment with the Corporation of Joseph J. Davis, Jr. or Wildrex A. English is terminated for any reason whatsoever, whether or not that termination be voluntary or involuntary, the employee so terminated shall sell to the Corporation, and the Corporation shall purchase from such terminated employee, all of the issued and outstanding shares of the capital stock of the Corporation then owned by the terminated employee. The purchase price and terms of purchase for said stock shall be as indicated in paragraph 1(d) above; except the interest shall be two percent (2%) over the prime rate as charged by Union Bank and Trust Company, N.A., of Grand Rapids, Michigan, on the closing date, and if the total purchase price is equal to or less than the terminated employee’s initial investment for such stock, the total purchase price shall be paid within two (2) years after closing, and if the purchase price exceeds the terminated employee’s initial investment for such stock, an amount equal to the initial investment must be paid within two (2) years after closing.”
Paragraph 1(d) provided the terms for such a repurchase:
"1(d) Price and Terms. The purchase price for said stock shall be the purchase price as determined under paragraph 3 of this agreement. The terms of purchase shall be twenty percent (20%) of the purchase price at closing and the balance in four (4) equal annual payments, commencing one (1) year after the closing, including interest on the balance at one percent (1%) over the prime rate as charged by Union Bank and Trust Company, N.A., of Grand Rapids, Michigan, on the closing date. The balance shall be evidenced by a promissory note, which note shall contain a right of prepayment of all or a part thereof without penalty and a provision for acceleration in the event of a default in payment of interest or principal.”
The parties’ agreement also required that the remaining shareholders guarantee payment of any note given by the corporation for repurchase of a stockholder’s shares:
"9. Purchase by Corporation. Whenever the Corporation shall, pursuant to this agreement, be required to purchase shares of the capital stock of the Corporation, each Stockholder and the personal representatives of any decedent shall do all things and execute and deliver all papers as may be necessary to consummate such purchase. Any note required to be given hereunder by the Corporation as part of the purchase price shall be endorsed and guaranteed by the remaining or surviving Stockholders, as the case may be, who shall not be discharged from such liability by reason of the subsequent extension, modification or renewal of any such note.”
Finally, the agreement provided:
"18. Bankruptcy. If the Corporation shall be involved in financial difficulties as evidenced by (a) Corporation consenting to the appointment of a receiver for all or a substantial part of its property; or (b) Corporation filing a petition in bankruptcy or for reorganization or for the adoption of an arrangement under the Federal Bankruptcy Act or an answer or admission seeking the relief therein provided; or (c) Corporation being adjudicated a bankrupt; or (d) the entry of a court order, without the consent of the Corporation, appointing a receiver or trustee for all or a substantial part of the property of the Corporation, unless said order is dissolved within thirty (30) days from the date of entry thereof; this agreement shall become void and of no further effect.”
On October 16, 1978, Davis notified Mr. Brydges that he was resigning, effective immediately. This notice was given pursuant to ¶ 4 of the stock purchase agreement. Under the terms of the agreement, the closing date for repurchase of Davis’ shares would have been January 15, 1979. By agreement, the closing date was postponed until February 15, 1979. On February 13, 1979, the corporation filed a petition for bankruptcy under Chapter XI.
After a hearing in the United States District Court for the Western District of Michigan, that court held that Davis’ rights under the stock purchase agreement were vested and Davis could enforce the repurchase provisions in spite of ¶ 18 of the stock purchase agreement. The bankruptcy court found further, however, that the corporation’s obligation under ¶ 4 of the stock purchase agreement was limited to $3,050, which was the corporation’s surplus capital at the time of the filing of the petition in bankruptcy. Subsequently, the corporation paid Davis $762.50.
On August 10, 1979, Davis brought suit in circuit court against the defendants for breach of the stock purchase agreement. Following a bench trial, the trial court held in accord with the federal district court that ¶ 18 of the agreement did not affect Davis’ right to compel the repurchase of his shares by the corporation. This finding is not challenged on appeal. The trial court found as fact that the repurchase price for Davis’ shares under |[ 3 of the agreement, as referred to by ¶ 1(d), above, was $40,000. No party disputes this factual determination on appeal. The trial court found further, however, that the obligation of the corporation to repurchase Davis’ shares was limited by MCL 450.1365; MSA 21.200(365), which provides in part that "A corporation may purchase its own shares only out of surplus * * Since the parties agreed that the corporation’s surplus was $3,050, the trial court held that Davis was limited to receiving $3,050 in return for all of his shares. The court concluded, therefore, that defendants’ obligation to "endorse and guarantee” the notes of the corporation for repurchase of Davis’ shares under ¶ 9 of the agreement was limited to $3,050. Since the corporation had already paid Davis $762.50, defendants were held liable to Davis for $2,287.50.
The trial court was correct in finding that, subject to limited exceptions, a corporation may purchase its own shares only out of surplus. See MCL 450.1365; MSA 21.200C365). In addition, in order for a corporation to execute a promissory note for its shares, it must have sufficient surplus to cover the amount of the note at the time of purchase. The availability of surplus is to be determined as of the purchase date, not at the time of payment. See MCL 450.1367; MSA 21.200(367). Since the corporation in the instant case had a capital surplus of only $3,050, it could outlay only up to that amount to purchase its own shares and could not issue a combination of cash and promissory notes in excess of that amount.
Paragraph 9 of the stock purchase agreement does not impose primary personal liability on the part of the remaining shareholders. The stockholders are required only to endorse and guarantee notes of the corporation given .for repurchase of another stockholder’s shares. Since the corporation in this case was prohibited by Michigan law from giving any notes to Davis after outlaying its $3,050 capital surplus, there were no notes for the remaining stockholders to endorse or guarantee. The remaining stockholders, therefore, are not liable to Davis for any amount beyond what the corporation could legally pay for Davis’ shares.
Under the parties’ agreement, however, the corporation is required to pay $40,000 in exchange for Davis’ 2,857 shares. Since the corporation may legally pay Davis only $3,050, and the remaining stockholders are not required to make up the difference, Davis is not required to submit all of his 2,857 shares to the corporation. Since Davis will receive only 7.625% of what he was entitled to receive for all of his shares under the stock purchase agremeent, we hold that he must submit only that percentage of his shares to the corporation. Thus, in return for a total sum of $3,050, Davis must transfer to the corporation only 218 of his shares.
Affirmed as modified.
"A corporation may purchase its own shares only out of surplus except as provided in sections 366 and 367 [MCL 450.1366; MSA 21.200(366) and MCL 450.1367; MSA 21.200(367)].”
"A corporation which has purchased its own shares out of surplus may defer payment for the shares over a period as may be agreed between it and the selling shareholder. The obligation so created constitutes an ordinary debt of the corporation and the validity of any payment made upon the debt so created is not affected by the absence of surplus at the time of the payment.” | [
-3,
33,
16,
27,
-3,
5,
3,
-33,
-31,
17,
-11,
21,
20,
6,
-15,
9,
-20,
-21,
-15,
-15,
12,
0,
-24,
-9,
15,
-3,
12,
17,
5,
-35,
-27,
13,
-18,
-70,
-13,
26,
-38,
44,
-13,
1,
-11,
-8,
44,
16,
-24,
-31,
19,
-30,
48,
23,
43,
16,
39,
-54,
9,
-11,
-27,
51,
-41,
15,
-2,
14,
40,
26,
9,
29,
6,
11,
3,
-12,
-37,
-51,
11,
-5,
2,
-34,
-7,
-1,
-22,
-38,
22,
3,
34,
-20,
-57,
16,
26,
8,
-1,
46,
-9,
2,
-7,
9,
48,
40,
-51,
-28,
-24,
14,
-11,
-37,
4,
12,
35,
2,
12,
-35,
-44,
17,
-44,
2,
20,
52,
-39,
28,
3,
-31,
10,
12,
4,
14,
-44,
-7,
41,
-1,
10,
-5,
-26,
45,
36,
11,
-70,
27,
-26,
-61,
-17,
17,
-7,
-14,
19,
54,
13,
-42,
-56,
76,
-31,
-32,
29,
-16,
-19,
-20,
32,
46,
8,
-8,
-9,
42,
49,
-60,
8,
-25,
25,
-21,
-33,
-50,
-17,
9,
-18,
3,
-8,
-4,
-8,
-62,
-27,
45,
7,
-17,
-19,
-19,
-29,
11,
-7,
24,
-12,
3,
63,
6,
25,
42,
56,
-6,
-6,
5,
-50,
0,
-12,
46,
10,
13,
19,
-64,
-18,
-12,
36,
-49,
28,
18,
-13,
-10,
-17,
28,
4,
-46,
-7,
20,
11,
-30,
13,
-16,
63,
-72,
-1,
30,
-45,
-45,
17,
-24,
15,
-35,
-53,
14,
32,
-8,
-75,
-35,
-1,
33,
19,
-11,
-30,
-16,
-39,
20,
-19,
-10,
-49,
-16,
6,
59,
-9,
18,
-6,
39,
-11,
2,
-24,
24,
-2,
-1,
-3,
48,
-77,
27,
8,
-33,
-20,
10,
-28,
31,
-18,
5,
47,
29,
-32,
-58,
-36,
61,
0,
-23,
27,
-31,
6,
13,
-34,
31,
8,
47,
-40,
17,
-2,
63,
13,
11,
42,
-30,
30,
15,
-23,
26,
-57,
-23,
11,
-19,
-17,
25,
-50,
25,
18,
-16,
-1,
-30,
4,
-67,
46,
-80,
-18,
22,
-4,
-51,
52,
40,
-11,
-10,
70,
-7,
67,
-57,
3,
-1,
17,
-36,
-19,
26,
5,
24,
70,
-27,
17,
-11,
24,
-16,
37,
-29,
-6,
-35,
-2,
18,
1,
-12,
-42,
-17,
9,
34,
17,
0,
22,
18,
-33,
3,
14,
-22,
32,
-30,
-22,
-18,
-19,
-18,
8,
27,
16,
45,
-30,
-33,
39,
26,
-3,
-11,
-34,
30,
-8,
-20,
28,
1,
33,
-36,
-4,
-17,
-25,
-23,
-92,
7,
-7,
21,
1,
-40,
-12,
-29,
-36,
26,
-3,
22,
-27,
-9,
-48,
-31,
53,
0,
0,
-7,
-25,
22,
49,
8,
-64,
-19,
35,
-55,
14,
30,
16,
1,
3,
-46,
-5,
-23,
-16,
51,
-21,
-51,
-47,
32,
50,
-31,
42,
31,
-56,
-29,
-7,
3,
-28,
-23,
-53,
3,
21,
29,
-26,
4,
80,
51,
-13,
67,
0,
1,
12,
8,
7,
-37,
-16,
-2,
25,
-15,
43,
-7,
13,
-9,
58,
-1,
5,
53,
22,
28,
32,
11,
-20,
-12,
-4,
-2,
3,
-49,
33,
11,
-5,
8,
-16,
-2,
3,
-40,
-34,
23,
37,
35,
26,
47,
-21,
-13,
4,
4,
-11,
7,
7,
-43,
46,
-11,
-5,
-6,
0,
-62,
-28,
32,
-43,
17,
21,
60,
14,
20,
-31,
38,
36,
32,
-10,
-8,
-32,
33,
-17,
32,
9,
-4,
31,
-10,
-6,
42,
1,
-18,
59,
-22,
-10,
-13,
12,
-46,
23,
0,
-44,
50,
-22,
-15,
4,
5,
31,
18,
-20,
6,
-10,
23,
29,
-2,
14,
8,
42,
24,
-68,
35,
-15,
-3,
21,
-26,
-31,
-16,
14,
51,
-12,
26,
-10,
66,
21,
-48,
25,
-11,
-63,
17,
-3,
-21,
40,
12,
-2,
-21,
32,
46,
14,
-3,
-38,
-45,
-8,
-59,
30,
-7,
20,
-15,
39,
0,
-37,
5,
-28,
-53,
-26,
-36,
-16,
38,
29,
13,
-21,
13,
17,
0,
-19,
-18,
6,
-29,
-19,
19,
16,
-2,
0,
-50,
27,
75,
32,
45,
-6,
23,
34,
-32,
-11,
17,
15,
15,
-29,
-3,
-30,
-28,
-27,
-19,
48,
5,
12,
-53,
-21,
-11,
10,
19,
-11,
-18,
22,
34,
-2,
9,
28,
38,
16,
-62,
38,
-5,
-2,
-9,
24,
-6,
-31,
8,
48,
-15,
-2,
-12,
43,
-19,
55,
-8,
-16,
6,
37,
35,
-5,
0,
-14,
-28,
-4,
-22,
38,
-33,
-21,
-48,
-20,
-26,
-32,
-33,
-16,
10,
-12,
41,
28,
-18,
-40,
26,
-5,
28,
5,
25,
-42,
27,
-7,
32,
15,
-16,
-4,
15,
-34,
36,
-17,
-33,
-19,
-40,
-32,
-32,
-4,
-16,
11,
38,
0,
-51,
-22,
-9,
-1,
0,
-3,
8,
-21,
11,
12,
-58,
-52,
0,
57,
-38,
-33,
-24,
-41,
27,
19,
25,
1,
22,
17,
-23,
22,
63,
-25,
-27,
-15,
13,
-82,
-10,
-30,
18,
19,
31,
-13,
25,
-23,
-13,
-1,
-10,
-83,
18,
9,
47,
-15,
-17,
68,
49,
-22,
-34,
28,
-6,
-23,
13,
-5,
-69,
18,
23,
43,
9,
-43,
-20,
15,
3,
17,
-35,
33,
42,
6,
-48,
-60,
21,
11,
-23,
33,
-35,
19,
-28,
29,
-42,
-22,
-17,
47,
30,
13,
-16,
-71,
-15,
-33,
41,
0,
4,
-41,
-22,
14,
7,
-21,
35,
-45,
19,
-21,
3,
1,
77,
27,
-2,
1,
-11,
11,
-4,
5,
-8,
-69,
-20,
45,
-2,
-28,
6,
-16,
-37,
-19,
-25,
0,
38,
-25,
3,
34,
20,
0,
-11,
17,
25,
-53,
21,
11,
-27,
-6,
-1,
-15,
-14,
-7,
0,
-22,
2,
-12,
84,
9,
4,
-1,
16,
-5,
17,
29,
-1,
16,
10,
25,
-21,
9,
39,
-43,
7,
8,
-64,
35,
-42,
17,
-8,
-20,
-57,
-3,
-44,
-64,
49,
10,
35,
39,
-14,
-1,
33,
-10,
12,
12,
47,
-69,
57,
21,
20,
16,
3,
16,
-38,
-30,
-24,
36,
47,
41,
41,
0,
33,
7,
42,
-51,
5,
-1,
-32,
26,
-38,
-8,
-2,
31,
43,
29,
28,
-66,
-16,
2,
32,
1,
0,
1,
-31,
9,
35,
-14,
-25,
-11,
21,
-41,
15,
0,
-15,
3,
19,
42,
-2,
40,
-62,
-6,
-82,
-15,
-48,
33,
-73,
-8,
20,
11,
-6,
-3,
-48,
26,
-13,
-26,
42,
12,
-50,
4,
22,
-16,
-43,
8,
-15,
31,
-5,
17,
-24,
14,
13,
29,
-69,
11,
0,
-43,
9,
-29,
48,
-5,
63,
-6,
-26,
0,
1,
55,
1,
-46,
54,
-10,
81,
-41,
28,
-3,
21,
-18,
23
] |
Per Curiam.
Defendant appeals his February 25, 1981, jury conviction of carrying a weapon in a vehicle, contrary to MCL 750.227; MSA 28.424. Sentenced to one year probation and 30 days in the county jail, to be served after appeal, defendant appeals of right.
On July 24, 1980, two state police officers sighted a van stopped in the traveled portion of US 2 and 41 at approximately 1:15 a.m. Having turned on the police spotlight to illuminate the interior of the van, Officer LaLonde approached the vehicle. He looked through the passenger window and saw a Luger pistol lying on the console of the van. His view of the gun was not obstructed in any fashion. Officer Shine testified that LaLonde called his attention to the pistol, and that he reached through the driver’s window and retrieved the gun.
Defendant was sitting in the driver’s seat, asleep, at the time he was approached by the officers. Both officers testified that defendant was extremely intoxicated.
At trial, defendant claimed that he was so intoxicated that he did not know of the presence of the gun and that it was so dark, as evidenced by the fact that the police needed to use "exceptionally bright” lights, that he did not see the gun when he got into the van earlier that night.
On appeal, defendant challenges the sufficiency of the evidence to sustain a conviction. He claims that no evidence was presented to show that he was "carrying” the weapon, or that he had knowledge of its presence. Defendant asserts that the established facts permit the inference only that he had been awake and operating the van before the police arrived on the scene.
To support a conviction for carrying a weapon in an auto, the prosecution must show: (1) the presence of a weapon in a vehicle operated or occupied by the defendant, (2) that the defendant knew or was aware of its presence, and (3) that he was "carrying” it. People v Butler, 413 Mich 377; 319 NW2d 540 (1982). Butler explicitly omitted consideration of the sufficiency of the evidence against the defendant in that case but clearly held that the element of "carrying” is distinct from knowledge of the gun’s presence and does not automatically follow from proof of the defendant’s knowledge. Id., p 391. See also People v Jerome I Smith, 21 Mich App 717, 722; 176 NW2d 430 (1970).
In footnote 11, p 390 the Butler Court noted factors considered in other jurisdictions for evaluating the sufficiency of the evidence against a defendant charged with carrying a weapon in an auto. Factors noted included, inter alia, the proximity of the weapon to the person of the defendant and the defendant’s ownership or operation of the vehicle. We are persuaded that the evidence in the present case, viewed in a light most favorable to the prosecution, was sufficient to establish both the elements of knowledge and "carrying”. The troopers’ testimony showed that the weapon was in plain view on the console of the van within an arm’s length of defendant. Defendant was the certified owner of the vehicle and was its sole occupant at the time of his arrest. The open display of the gun on the console makes defendant’s asserted ignorance implausible. Defendant’s exclusive control of the van, with the gun in plain view, was sufficient to establish that he knew of and was carrying the weapon.
We have considered defendant’s challenge to the jury instructions and conclude that the instructions were proper. The trial judge did not invite the jury to pile inference upon inference but merely instructed them upon the evidence. People v McWilson, 104 Mich App 550, 555; 305 NW2d 536 (1981).
Affirmed. | [
22,
-3,
28,
13,
-17,
-20,
-57,
49,
-39,
50,
-12,
4,
22,
20,
42,
2,
49,
57,
41,
-55,
-43,
-13,
-34,
29,
1,
-39,
4,
48,
-49,
24,
26,
-18,
35,
-51,
-2,
3,
42,
32,
19,
20,
24,
41,
-4,
21,
-50,
-38,
-12,
0,
14,
21,
41,
8,
-38,
-22,
-5,
24,
0,
-14,
74,
36,
31,
31,
-13,
28,
-66,
26,
17,
41,
-65,
-11,
-19,
-12,
-33,
-7,
10,
2,
-10,
27,
6,
25,
-13,
18,
48,
0,
37,
6,
-44,
-39,
3,
-41,
-4,
-2,
-37,
-53,
-21,
4,
29,
-89,
28,
-28,
-49,
37,
9,
-17,
7,
58,
-34,
-32,
-8,
-56,
2,
23,
35,
6,
-33,
-18,
2,
0,
34,
58,
16,
0,
55,
-1,
33,
-65,
16,
-23,
-27,
19,
-45,
10,
50,
46,
-29,
-17,
2,
-3,
28,
51,
10,
49,
25,
-19,
6,
35,
3,
-14,
12,
45,
-3,
-2,
-34,
27,
-34,
-1,
4,
-35,
8,
6,
-37,
4,
-16,
-18,
62,
-21,
-25,
-12,
-8,
-29,
-9,
-4,
57,
-3,
75,
15,
-2,
36,
8,
-18,
8,
27,
4,
5,
11,
-43,
-20,
28,
-51,
-56,
-29,
17,
20,
-20,
-1,
45,
1,
19,
-6,
-61,
43,
-35,
-11,
-23,
21,
15,
12,
-26,
32,
15,
-19,
21,
9,
-48,
-7,
-29,
-27,
-9,
-19,
10,
-1,
10,
12,
-34,
27,
-9,
-37,
18,
-27,
25,
26,
15,
0,
13,
-51,
-22,
10,
-53,
37,
7,
28,
-11,
6,
-49,
21,
7,
-25,
-25,
-17,
25,
3,
-20,
-15,
-10,
-32,
-17,
32,
-28,
18,
29,
-12,
46,
0,
31,
-38,
64,
23,
4,
-38,
4,
-27,
7,
-19,
17,
6,
0,
0,
37,
-8,
24,
29,
25,
2,
0,
-6,
4,
-29,
46,
20,
-22,
8,
-27,
-74,
0,
19,
-4,
39,
22,
-60,
0,
40,
36,
-10,
12,
-27,
-9,
12,
13,
-35,
19,
20,
21,
8,
51,
26,
27,
3,
-43,
-9,
1,
-49,
0,
-12,
-27,
13,
-6,
12,
-8,
27,
-19,
-20,
-33,
-12,
17,
-10,
9,
-33,
-21,
21,
37,
-39,
-1,
2,
1,
31,
33,
1,
44,
15,
-29,
25,
-22,
50,
2,
-5,
-59,
3,
-10,
1,
-15,
26,
2,
18,
22,
19,
-20,
18,
15,
-36,
36,
-17,
-94,
-7,
-2,
-36,
-37,
16,
-20,
-8,
-12,
-33,
-40,
15,
-50,
-28,
-43,
-6,
-9,
12,
-19,
-22,
-8,
-12,
-53,
-4,
-14,
6,
35,
57,
-19,
-7,
6,
28,
-6,
-39,
-38,
10,
-5,
-6,
-30,
-32,
39,
11,
76,
7,
18,
20,
22,
41,
-44,
8,
15,
7,
-29,
43,
-24,
-14,
22,
-22,
-21,
41,
-19,
3,
-25,
9,
29,
-24,
-49,
34,
0,
-30,
-39,
-25,
37,
4,
-15,
-11,
-27,
-20,
-4,
-23,
-1,
57,
-13,
-32,
78,
39,
-9,
18,
-3,
9,
-20,
-52,
-24,
27,
-47,
-67,
-41,
40,
-63,
48,
20,
-19,
-36,
-29,
15,
-20,
8,
12,
23,
13,
5,
-6,
11,
-7,
-19,
-30,
2,
29,
46,
0,
-1,
16,
6,
-13,
1,
-12,
-14,
21,
-30,
-35,
-5,
-33,
0,
16,
14,
32,
0,
1,
50,
-13,
64,
-29,
-24,
-3,
-20,
-23,
-11,
23,
31,
6,
-14,
20,
10,
-8,
22,
-1,
-53,
-59,
1,
68,
39,
21,
-39,
60,
54,
7,
-2,
-22,
12,
43,
37,
-26,
-23,
15,
-21,
-20,
-10,
21,
25,
0,
20,
-2,
-46,
-1,
-73,
34,
3,
-39,
-9,
-26,
43,
41,
56,
-1,
-7,
-35,
-6,
62,
-62,
-12,
29,
-29,
1,
-43,
38,
5,
28,
-46,
35,
-15,
57,
-27,
13,
-17,
-1,
47,
-11,
-19,
-46,
-28,
2,
45,
19,
-5,
22,
-33,
-31,
-25,
8,
36,
3,
-26,
41,
33,
12,
12,
6,
25,
-5,
54,
2,
4,
-21,
-38,
-7,
-27,
-3,
21,
-28,
-41,
-48,
-11,
29,
-5,
-49,
-40,
17,
25,
-39,
-38,
-11,
-1,
-15,
19,
37,
25,
28,
-42,
-40,
7,
-1,
34,
-14,
8,
-24,
-21,
32,
0,
-68,
-16,
2,
-16,
-10,
13,
38,
-58,
4,
4,
4,
16,
22,
-54,
-68,
26,
-13,
-30,
-37,
-1,
-17,
6,
-27,
7,
22,
-15,
32,
-8,
-2,
16,
0,
-17,
-26,
17,
-35,
29,
43,
-9,
2,
46,
1,
3,
34,
39,
-16,
-16,
-6,
27,
1,
-40,
-15,
12,
8,
-22,
-30,
-21,
-37,
27,
-43,
-24,
32,
-16,
56,
2,
22,
-7,
-16,
-33,
-13,
-5,
13,
-7,
13,
27,
-5,
3,
61,
9,
-27,
15,
6,
27,
-7,
37,
-28,
3,
-15,
6,
9,
-6,
-23,
-67,
-25,
62,
-38,
-10,
-9,
18,
-54,
37,
-5,
-5,
52,
31,
3,
-40,
54,
53,
-5,
-34,
-65,
31,
-31,
16,
-24,
-43,
-26,
-43,
5,
4,
2,
-51,
-57,
5,
-28,
-30,
0,
-75,
23,
61,
-28,
4,
17,
-37,
7,
-13,
21,
-52,
-28,
-22,
-15,
8,
-23,
-41,
-12,
3,
-9,
0,
-13,
32,
-1,
-18,
38,
61,
-27,
-6,
26,
-8,
17,
11,
-15,
49,
-19,
-40,
-23,
8,
35,
14,
-17,
-18,
-44,
28,
24,
-2,
-23,
-13,
-14,
67,
-51,
-36,
18,
-6,
12,
44,
59,
-54,
-17,
4,
-29,
-15,
32,
45,
54,
-11,
45,
9,
4,
22,
-3,
52,
23,
-26,
17,
-27,
-25,
37,
-2,
0,
54,
-14,
-10,
-18,
-6,
-14,
2,
16,
-10,
4,
-41,
12,
35,
16,
23,
33,
71,
-32,
36,
-38,
49,
-14,
24,
19,
-44,
37,
7,
38,
-18,
-68,
-6,
-61,
-9,
8,
53,
-18,
-22,
-26,
-3,
61,
2,
23,
-28,
-6,
-52,
-44,
41,
93,
-19,
29,
-3,
-31,
-53,
-23,
-11,
46,
0,
35,
-8,
-67,
-25,
51,
29,
-14,
74,
35,
31,
24,
-52,
-38,
-38,
-5,
31,
-14,
17,
-2,
-56,
-17,
26,
19,
-44,
36,
-25,
-8,
19,
-38,
72,
-39,
52,
6,
33,
-45,
41,
-32,
-36,
-23,
10,
17,
-7,
-10,
-4,
-27,
-16,
-6,
50,
-1,
8,
36,
37,
-35,
-8,
-30,
42,
9,
-25,
2,
-14,
28,
-13,
-3,
-9,
-26,
16,
-23,
-36,
-24,
-12,
60,
4,
-16,
30,
-39,
-21,
-60,
21,
0,
32,
-18,
26,
-3,
23,
10,
-4,
-13,
25,
14,
50,
22,
1,
-31,
-14,
-68,
10,
-22,
-43,
-20,
-29,
-45,
0,
-13,
24,
-60,
8,
-30,
16,
23,
11
] |
T. M. Burns, P.J.
On August 3, 1981, the trial court dismissed plaintiffs complaint requesting a writ of mandamus against defendants. Four days later, the trial court denied plaintiffs motion for reconsideration. Plaintiff appeals as of right.
Public Act 78 of 1935 established the civil service system for police and fire departments and created a commission. MCL 38.509; MSA 5.3359 gave this commission the authority to promulgate rules and regulations. Subsequently, defendant Shelby Township Police and Fire Civil Service Commission promulgated the following rule:
"The appointing authority will, according to the Act, interview each person when certified as next eligible prior to appointment and shall, with sole reference to the relative merit and fitness of the candidate, make appointment so certified, providing:
"(a) Applicant must have minimum 20/40 vision uncorrected, visual field normal.” Rule 2, § 6.
In 1979, defendant Shelby Township Civil Service Commission published notices inviting applicants to apply for the position of Firefighter EMT (Emergency Medical Technician). The published notice included a requirement that the applicant have 20/40 vision (uncorrected) in both eyes. Plaintiff applied but attached a letter from an optometrist stating that his "unaided visual acuity measured 20/400 O.U.”. Even though the specific requirement for visual acuity was not met, the civil service commission certified plaintiff as eligible to take the examinations telling him that, because he was exceptionally qualified, it would waive this requirement. After placing second on the eligibility list, plaintiff was certified by the civil service commission.
On September 3, 1980, the township supervisor sent plaintiff a letter informing him that he had been "approved for appointment to the Shelby Township Firefighters Department for employment and was to contact the Fire Chiefs Office for the processing of employment”. However, he was eventually removed from the eligibility list because of his vision problem. Plaintiff has subsequently sued, asking for a writ of mandamus requiring the civil service commission to employ him immediately as a firefighter and be allowed back pay and benefits from September 3, 1980.
Once an agency has issued rules and regulations to govern its activity, it may not violate them. Brown v Dep’t of State Police, 392 Mich 811 (1974); Golembiowski v Madison Heights Civil Service Comm, 93 Mich App 137, 148; 286 NW2d 69, 74 (1979), lv den 408 Mich 893 (1980). Certifying plaintiff as a firefighter would violate the commission’s own rules.
However, plaintiff argues that the civil service commission has the right to waive its own regulations on eligibility. He cites MCL 38.510(b); MSA 5.3360(b):
"The commission may refuse to examine an applicant, or after examination, to certify as eligible, an applicant who is found to lack any of the established preliminary requirements for the examination of position or employment for which the applicant applied; or who is so physically disabled as to be rendered unfit for the performance of the duties of the position to which the applicant seeks appointment; or who is addicted to the habitual use of intoxicating liquors or drugs; or who may have been guilty of a crime; or who has been dismissed from the public service for delinquency or misconduct; or who has made a false statement of a material fact, or practiced or attempted to practice a deception or fraud in the appplication, in the examination or in the securing eligibility; or who refuses to comply with the rules and regulations of the commission.” (Emphasis added.)
Plaintiff argues that the use of the word "may” gives the commission discretion. However, "may” does not always grant such discretion; it is often interpreted to mean "shall”. In Kment v Detroit, 109 Mich App 48, 61-62; 311 NW2d 306, 311 (1981), this Court stated:
"Ordinarily, use of the word 'shall’ indicates that the doing of a particular thing is mandatory while use of the word 'may’ grants discretion. * * * This is not always the case, however, and it has often been held in the context of particular statutes that the term 'shall’ is not mandatory and that the term 'may’ is. * * * 'Although the form of the verb used in a statute, i.e., whether it says something "may” or "shall” or "must” be done, is the single most important textual consideration bearing on whether a statute is mandatory or directory, it is not the sole determinant and what it usually connotes can be overcome by other considerations.’ 2A Sutherland, Statutory Construction (4th ed), § 57.03, p 415. Chief among such 'other considerations’ is, of course, the intent of the Legislature. * * * In determining the intent of the Legislature, certain generalities may be adduced concerning specific types of statutes and it has been said as a general rule that 'the permissive word "may” is interpreted as mandatory when the duty is imposed upon a public official and his act is for the benefit of a private individual’. 1A Sutherland, Statutory Construction (4th ed), § 25.04, p 301.”
Smith v City Comm of Grand Rapids, 281 Mich 235, 242-243; 274 NW 776 (1937), further supports the word "may” being interpreted as mandatory:
" 'Statutes which confer upon a public body or officer power to act for the sake of justice, or which clothe a public body or officer with power to perform acts which concern the public interests or the rights of individuals, are generally regarded as mandatory, although the language is permissive merely, since they are construed as imposing duties rather than conferring privileges.’ 59 CJ, pp 1076, 1077.”
See also McBrian v Grand Rapids, 56 Mich 95, 98-99; 22 NW 206 (1885).
Therefore, this inquiry’s focus centers on the statute’s specific purpose. In Day v Gerds, 54 Mich App 547, 550; 221 NW2d 221 (1974), this Court stated:
"The civil service act here involved was enacted to provide a civil service system based upon 'examination and investigation as to merit, efficiency and fitness for ¿ppointment, employment and promotion of all officers and men’. * * * Its purpose was to benefit the public by providing better qualified personnel and to protect the officers and employees from arbitrary and unjust, removal. * * * In order to facilitate the selection of better qualified people the act calls for appointments to be made on the basis of competitive examinations.”
See also Wayne County Prosecuting Attorney ex rel Taxpayers v Highland Park, 308 Mich 425, 434; 14 NW2d 53 (1944); Saginaw Firefíghters Ass’n Local No 422 v Police & Fire Dep’t Civil Service Comm, 71 Mich App 240, 243; 247 NW2d 365, 367 (1976).
The civil service system was established basically to abolish favoritism and unfair advantage in municipal hiring and to create fair competition among applicants. Allowing the commission to waive its own rules and regulations to allow a particular applicant to become certified would undermine the basis of this act. As such, we interpret this statute as being mandatory rather than discretionary.
We do realize that our ruling is somewhat anomalous in the present case. The civil service commission specifically waived its visual acuity rule because it found plaintiff to be otherwise so very qualified for the position. However, we believe that overall the act’s purposes will be better achieved by holding the commission to its own rules. Nothing prevents the commission from changing its rule to allow people with visual problems under certain circumstances to be certified.
Because plaintiff is not arguing estoppel on appeal, we need not address the issue. See Nickola v Grand Blanc Twp, 394 Mich 589; 232 NW2d 604 (1975); Cross v Whedon, 93 Mich App 13; 285 NW2d 780 (1979).
Plaintiff also argues that he is entitled to a hearing before the commission. MCL 38.510(b); MSA 5.3360(b). Although we generally agree with plaintiffs interpretation of this act, we do not believe that a remand for such a hearing in this particular case would be worthwhile. We have already determined that plaintiff cannot be hired for the position unless defendant civil service commission changes its visual acuity rule. As such, he cannot prevail at such a hearing.
Affirmed. | [
18,
-80,
3,
35,
14,
64,
-17,
-25,
-33,
68,
19,
-40,
92,
-3,
20,
-8,
5,
87,
-6,
-58,
-47,
24,
2,
32,
-49,
23,
24,
1,
-49,
10,
-56,
-1,
-32,
-30,
-64,
13,
13,
-6,
7,
40,
59,
-41,
-16,
-36,
-47,
-41,
-12,
35,
-17,
6,
-44,
55,
4,
55,
-45,
32,
6,
-37,
30,
-17,
-29,
39,
-19,
33,
-25,
38,
-45,
64,
58,
23,
12,
7,
-18,
-12,
11,
30,
7,
-42,
17,
48,
-38,
-49,
16,
6,
30,
58,
23,
3,
34,
-60,
-13,
-1,
-57,
12,
-37,
-18,
-21,
-21,
44,
30,
-54,
35,
16,
6,
-12,
0,
-63,
22,
-12,
-15,
4,
-51,
33,
-38,
7,
-1,
-19,
23,
50,
26,
17,
-22,
32,
-13,
24,
12,
7,
14,
-50,
11,
18,
12,
6,
36,
-26,
-35,
37,
19,
5,
6,
-65,
10,
-37,
0,
-4,
-30,
-32,
3,
-41,
-22,
2,
8,
43,
15,
-43,
8,
40,
-17,
29,
-2,
33,
25,
-34,
-9,
14,
4,
-21,
-22,
-27,
21,
9,
3,
39,
-23,
32,
-60,
47,
-36,
-39,
3,
-24,
-49,
-14,
0,
15,
3,
-41,
-68,
-10,
-18,
30,
-48,
20,
21,
19,
-2,
-20,
35,
-26,
-43,
19,
25,
-19,
0,
-16,
23,
-18,
-42,
-21,
20,
-12,
3,
12,
18,
26,
16,
-3,
22,
-33,
-38,
-48,
-26,
28,
-22,
2,
0,
-22,
22,
11,
-12,
-9,
14,
18,
-6,
-17,
-29,
25,
21,
79,
11,
-66,
39,
27,
33,
-16,
-12,
6,
-46,
16,
29,
-8,
-7,
7,
-50,
-34,
-16,
-19,
25,
49,
13,
-24,
0,
34,
-8,
-13,
5,
5,
61,
55,
-2,
21,
7,
32,
-43,
-12,
-9,
-21,
-50,
22,
24,
-33,
-14,
-100,
2,
-62,
13,
8,
-17,
-54,
10,
5,
7,
-53,
51,
32,
-10,
43,
19,
-4,
-5,
24,
-27,
-13,
-21,
10,
-45,
-32,
-61,
1,
20,
7,
-22,
50,
17,
17,
-37,
-25,
-25,
-49,
-5,
21,
12,
-24,
24,
-51,
-57,
-2,
29,
13,
-20,
-5,
-31,
-30,
37,
46,
20,
21,
8,
56,
-6,
8,
3,
15,
59,
12,
4,
-7,
-18,
33,
-40,
6,
58,
3,
11,
1,
8,
8,
-81,
-19,
20,
3,
34,
-28,
0,
9,
4,
11,
11,
35,
-23,
41,
0,
28,
-27,
9,
0,
19,
12,
16,
31,
-8,
-53,
6,
-16,
2,
-38,
-5,
-5,
-24,
-64,
-24,
5,
-78,
20,
-30,
68,
3,
23,
43,
38,
16,
-20,
-32,
13,
-16,
38,
-32,
-16,
-6,
-1,
6,
45,
40,
-20,
19,
-42,
25,
-22,
-9,
33,
-37,
-17,
-10,
7,
-37,
-56,
-65,
26,
21,
28,
-19,
-45,
52,
-7,
-32,
-35,
4,
-53,
-19,
0,
-38,
-16,
-22,
14,
-35,
20,
4,
-5,
-27,
25,
-5,
9,
58,
17,
-13,
-21,
-35,
58,
-13,
-24,
-30,
-13,
-34,
-35,
-20,
3,
-54,
29,
28,
-29,
-39,
-8,
-82,
-45,
-59,
-24,
-6,
-16,
-29,
-17,
38,
38,
-1,
-29,
-1,
-35,
31,
16,
5,
-13,
15,
25,
-23,
-3,
20,
66,
4,
-2,
-47,
-38,
-17,
-11,
-21,
61,
5,
-35,
15,
8,
-32,
5,
-46,
6,
32,
41,
43,
15,
-37,
38,
-36,
6,
-13,
0,
-39,
26,
44,
10,
-62,
10,
32,
12,
19,
-46,
44,
16,
37,
83,
6,
18,
-27,
-16,
15,
6,
-54,
9,
23,
-16,
0,
53,
19,
-32,
30,
-14,
-33,
-22,
-23,
-18,
-24,
16,
19,
36,
33,
0,
33,
34,
2,
1,
0,
52,
12,
21,
13,
32,
-3,
16,
43,
9,
-18,
15,
-41,
5,
24,
22,
8,
33,
4,
-31,
35,
-74,
-16,
4,
-29,
-3,
-12,
22,
-13,
42,
-29,
-13,
-16,
26,
-27,
25,
-37,
25,
-2,
21,
62,
26,
68,
-34,
-28,
8,
-35,
-68,
-26,
-14,
-25,
15,
47,
-2,
-22,
32,
40,
0,
0,
16,
36,
6,
38,
-9,
32,
-29,
-30,
-23,
67,
5,
-59,
21,
2,
1,
-19,
-15,
-5,
-24,
38,
-37,
36,
73,
20,
3,
6,
33,
-17,
-80,
-33,
9,
6,
6,
-16,
2,
-5,
-20,
-38,
2,
14,
22,
11,
30,
14,
-9,
17,
15,
8,
-27,
8,
-6,
32,
35,
-40,
-21,
-6,
22,
-24,
-3,
-15,
-10,
-14,
34,
3,
-44,
-13,
73,
-4,
8,
83,
-48,
-16,
5,
6,
31,
-18,
12,
-37,
-4,
-7,
27,
20,
-1,
18,
-14,
-50,
18,
-19,
9,
36,
-14,
-4,
17,
48,
24,
-4,
-10,
-26,
51,
-5,
30,
-16,
-17,
-7,
-41,
29,
28,
-6,
-39,
28,
12,
-31,
0,
-38,
10,
-3,
-50,
54,
13,
32,
-32,
72,
-7,
-62,
12,
-49,
-23,
-55,
-36,
-5,
3,
-5,
27,
17,
17,
11,
-30,
10,
8,
-10,
5,
15,
0,
-10,
28,
14,
2,
15,
-35,
32,
-28,
0,
-97,
-15,
-4,
17,
9,
19,
-1,
-33,
-44,
-35,
-17,
-17,
-50,
-16,
-16,
1,
-26,
35,
17,
21,
-40,
-8,
-52,
1,
24,
16,
30,
-2,
27,
-38,
-35,
5,
20,
27,
55,
-16,
6,
-26,
-17,
20,
0,
-6,
-17,
20,
-17,
12,
21,
-4,
29,
34,
-47,
12,
11,
-48,
43,
43,
4,
5,
-34,
-23,
-5,
64,
66,
36,
-4,
-27,
9,
4,
-11,
-47,
-22,
5,
2,
-27,
23,
-44,
-13,
0,
1,
35,
0,
-27,
-52,
23,
6,
-24,
-30,
10,
17,
2,
-63,
12,
3,
30,
-23,
-46,
-54,
-14,
20,
-7,
-12,
22,
-1,
12,
-42,
28,
-70,
35,
3,
-13,
10,
4,
37,
37,
7,
1,
41,
-11,
16,
-34,
24,
9,
-16,
10,
29,
21,
10,
28,
8,
48,
-42,
-64,
27,
16,
-22,
-1,
-29,
29,
0,
6,
-33,
24,
-35,
5,
26,
-9,
-41,
-10,
1,
62,
33,
-3,
26,
-9,
-29,
4,
5,
18,
5,
28,
-29,
6,
-13,
17,
-5,
-9,
14,
-46,
38,
-44,
14,
-15,
-4,
10,
2,
31,
28,
-73,
45,
-12,
13,
-37,
8,
-9,
-1,
-3,
64,
13,
29,
40,
-79,
-13,
28,
50,
35,
-28,
27,
-9,
0,
-117,
-24,
-5,
17,
-49,
-16,
68,
13,
25,
-61,
-2,
2,
-6,
-35,
39,
-22,
-26,
-26,
-5,
-16,
-34,
72,
33,
40,
34,
43,
-12,
20,
34,
23,
-5,
27,
-32,
-13,
51,
1,
32,
-11,
-22,
-5,
24,
-16,
-74,
-28,
64,
17,
-20,
-14
] |
Per Curiam.
Upon the granting of special leave by the circuit court, plaintiff filed a quo warranto complaint in order to remove Merrill Bailey from the office of Mayor of Norton Shores and replace Bailey with himself. Summary judgment was granted in favor of all defendants while accelerated judgment in favor of plaintiff was denied. Plaintiff appeals as of right. Defendants cross appeal.
Plaintiff and Bailey received the same number of votes in the November, 1981, Norton Shores mayoral election. One absentee ballot marked with a check mark instead of a cross was not counted. Had the vote been counted, plaintiff would have won the election. Instead, the candidates drew lots and Bailey was named mayor.
Michigan statutes governing elections are clear. MCL 168.803; MSA 6.1803 provides in pertinent part:
"3. Marks other than crosses used to designate the intention of the voter shall not be counted.
"5. * * * This provision shall not be construed as validating so-called 'check marks’.”
While a voter’s intent is of great importance, where intent conflicts with clear statutory requirements, the statute controls. McNally v Wayne County Bd of Canvassers, 316 Mich 551; 25 NW2d 613 (1947). While appellate courts are free to overrule their own existing case law, they must generally follow the clear dictates of the Legislature as they appear in unambiguous statutes. Although the election statute governing the marking of ballots may result in the loss of some votes, comprehensive and uniform guidelines are necessary in order to ensure that elections are conducted fairly, impartially, and efficiently. Any other rule would result in endless confusion and would make the local inspectors judges of the voters’ intentions. Given the clarity of the statute, the trial court’s order granting summary judgment was proper.
This case is disposed of on plaintiffs appeal. We therefore do not address the issue raised by defendants on their cross-appeal.
Affirmed. | [
-12,
-34,
-2,
-65,
-45,
41,
20,
-7,
-12,
39,
-25,
7,
15,
99,
-12,
-44,
18,
-58,
26,
10,
-3,
-38,
-52,
33,
-38,
-47,
7,
12,
-3,
10,
-29,
-8,
-25,
-38,
-4,
-15,
-22,
11,
4,
32,
-32,
-12,
-17,
-38,
-60,
-6,
30,
6,
2,
18,
37,
29,
-33,
0,
11,
48,
2,
-28,
-10,
-49,
-7,
21,
20,
11,
22,
-12,
-20,
3,
7,
-49,
35,
9,
-43,
-60,
-46,
-19,
17,
18,
-24,
36,
-7,
-5,
-18,
-20,
40,
-45,
9,
-11,
46,
-27,
-15,
-16,
-41,
-19,
22,
23,
36,
-46,
53,
29,
42,
53,
-10,
-3,
-30,
-18,
11,
8,
29,
-69,
2,
-2,
2,
27,
-1,
24,
-13,
5,
15,
4,
15,
-12,
-10,
4,
47,
13,
-6,
28,
-48,
-16,
8,
76,
35,
-60,
28,
49,
-19,
-11,
59,
22,
87,
60,
50,
-26,
26,
-25,
28,
4,
-3,
0,
-20,
47,
-16,
17,
5,
11,
22,
-57,
22,
47,
-19,
57,
-27,
-23,
-32,
-8,
-12,
40,
5,
-25,
34,
-16,
12,
10,
24,
2,
-52,
7,
-21,
-23,
-6,
14,
-12,
35,
4,
-19,
-11,
-39,
-41,
-17,
71,
-38,
19,
-55,
57,
3,
29,
58,
3,
17,
4,
-13,
5,
21,
-26,
-7,
55,
-14,
-46,
46,
-38,
-81,
15,
-41,
52,
8,
33,
-33,
-2,
18,
4,
14,
-7,
-20,
-31,
-20,
-16,
15,
3,
63,
-4,
18,
12,
5,
-22,
11,
3,
-25,
18,
-4,
-56,
-34,
41,
31,
0,
-16,
24,
2,
21,
11,
7,
-37,
-5,
-25,
-30,
19,
-34,
1,
-18,
4,
9,
18,
-17,
-69,
-86,
41,
34,
48,
-56,
-9,
-28,
26,
17,
-18,
-11,
-19,
8,
28,
-3,
-25,
26,
20,
32,
39,
-33,
40,
-39,
34,
47,
44,
-48,
27,
-18,
42,
48,
8,
33,
-16,
26,
-36,
2,
43,
18,
15,
1,
-21,
3,
-23,
20,
28,
11,
-8,
-9,
50,
-12,
32,
-5,
-49,
-9,
-4,
-26,
21,
-24,
-68,
-64,
33,
45,
-13,
14,
-46,
-14,
21,
-33,
-2,
65,
-13,
40,
40,
6,
-44,
21,
-18,
57,
-13,
43,
-16,
-37,
-14,
-41,
4,
38,
15,
1,
-22,
0,
-19,
-4,
-36,
-24,
-14,
8,
9,
11,
29,
63,
-21,
48,
20,
27,
51,
-41,
-33,
3,
34,
-35,
-40,
-17,
40,
35,
39,
-33,
-29,
45,
-58,
28,
-7,
38,
-34,
26,
-26,
-49,
20,
-50,
-6,
-40,
6,
-21,
-32,
4,
10,
-18,
9,
18,
55,
-41,
12,
-35,
0,
-15,
18,
-65,
46,
21,
-29,
15,
-42,
21,
-8,
21,
-2,
36,
-1,
-44,
-53,
9,
-22,
-5,
35,
26,
36,
-28,
11,
-24,
-98,
-30,
-17,
0,
-31,
5,
-4,
-1,
-27,
-8,
-40,
-58,
-10,
12,
32,
-19,
25,
18,
-12,
20,
-23,
-14,
-1,
31,
-46,
4,
-79,
-37,
-16,
-41,
46,
-11,
3,
-27,
21,
8,
-23,
-3,
21,
9,
30,
-87,
-8,
-23,
52,
-2,
-9,
14,
-35,
-27,
7,
-24,
-16,
9,
-10,
-36,
-21,
14,
20,
17,
23,
37,
51,
-26,
6,
-7,
47,
11,
13,
-8,
-2,
39,
-19,
-7,
-25,
12,
24,
-36,
1,
42,
73,
7,
0,
-14,
6,
6,
24,
14,
-63,
-39,
-16,
15,
55,
-24,
-11,
-10,
19,
-26,
46,
-22,
23,
30,
25,
-10,
-18,
-20,
-7,
1,
56,
49,
47,
63,
-36,
-15,
-45,
32,
-6,
-2,
24,
-66,
-52,
-45,
-31,
-38,
-9,
-14,
0,
2,
-41,
35,
27,
-29,
-3,
6,
-24,
-32,
-36,
43,
3,
8,
-49,
10,
23,
-12,
19,
16,
-4,
1,
1,
-55,
-11,
40,
-25,
31,
23,
-15,
-28,
-11,
-72,
-37,
22,
-9,
-4,
-50,
20,
36,
-26,
47,
6,
-39,
-1,
45,
-46,
2,
-6,
-7,
-53,
0,
1,
-34,
3,
33,
-14,
-28,
-66,
20,
-4,
-35,
25,
3,
70,
4,
-23,
9,
-43,
15,
31,
39,
-11,
-50,
10,
-45,
-46,
-14,
35,
44,
0,
7,
41,
36,
-57,
8,
0,
-11,
-48,
25,
-62,
44,
75,
23,
2,
3,
-52,
-1,
5,
-19,
-41,
-23,
-6,
-5,
2,
18,
20,
-43,
-12,
23,
41,
54,
4,
15,
-71,
4,
-9,
-5,
-23,
-23,
50,
-24,
-21,
-12,
24,
34,
-105,
-19,
29,
-40,
4,
-22,
-4,
31,
-10,
7,
-11,
-28,
21,
26,
4,
2,
53,
25,
76,
-43,
10,
41,
-12,
24,
20,
-20,
3,
-20,
-6,
1,
-3,
-35,
-38,
12,
55,
-15,
-24,
22,
-11,
31,
20,
18,
-9,
33,
-1,
18,
-2,
18,
9,
-1,
-3,
49,
13,
-46,
16,
-8,
-20,
22,
-4,
-11,
59,
24,
-11,
-22,
22,
-2,
46,
9,
10,
-30,
15,
-17,
-13,
47,
9,
-14,
-28,
59,
13,
23,
-6,
-12,
28,
1,
6,
12,
-8,
-7,
-46,
1,
36,
21,
-44,
29,
-11,
-10,
9,
44,
-16,
-52,
-1,
3,
-12,
-77,
-6,
7,
-46,
-17,
9,
31,
0,
-17,
-10,
2,
8,
27,
7,
8,
11,
-75,
11,
-16,
42,
-8,
37,
0,
1,
-11,
-8,
51,
-3,
-17,
12,
-10,
-29,
8,
-2,
-18,
-13,
-29,
11,
15,
29,
18,
29,
28,
42,
32,
82,
-11,
-53,
-7,
13,
-18,
-18,
-8,
-7,
-11,
-10,
-31,
21,
-24,
27,
-26,
-15,
13,
20,
-15,
-7,
1,
-38,
45,
-34,
-31,
30,
-4,
26,
8,
3,
-8,
18,
-7,
-43,
29,
21,
-1,
-6,
-3,
74,
-5,
1,
-32,
-10,
-53,
-11,
-34,
-19,
20,
-7,
-5,
-41,
-21,
-16,
-35,
10,
-16,
-11,
28,
1,
5,
36,
-9,
25,
-1,
27,
-7,
0,
21,
-16,
-13,
-11,
22,
-27,
-18,
14,
1,
-11,
28,
-18,
1,
-22,
-31,
-3,
-22,
16,
33,
8,
-7,
-4,
-6,
3,
41,
-32,
9,
27,
0,
-29,
-12,
38,
-3,
-26,
36,
-52,
8,
62,
11,
-64,
-51,
-14,
-15,
2,
-37,
43,
-71,
17,
-38,
5,
17,
39,
-13,
-2,
-15,
-16,
-30,
26,
14,
45,
14,
35,
29,
7,
-38,
-77,
-23,
-9,
-13,
-15,
11,
-5,
48,
-37,
-26,
-33,
7,
84,
13,
12,
15,
0,
-5,
-2,
20,
9,
-44,
17,
22,
-32,
19,
-55,
-31,
-11,
-25,
-43,
-50,
15,
54,
52,
11,
-11,
14,
-5,
28,
45,
0,
21,
-2,
-36,
60,
-5,
-43,
45,
-26,
-23,
-22,
-11,
-5,
25,
17,
1
] |
R. M. Maher, P.J.
Defendant, Jerry Wayne Smith, was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548. Sentenced to life in prison, he appeals as of right.
On April 27, 1978, four men participated in an armed robbery of the Brooks Brothers Food Store in Ypsilanti. Two of the robbers entered the store while two waited outside in separate cars. Four employees — Warren Wilfred Brooks, his brother Thomas Brooks, MaryJo Wayne, and Kenneth Mericle — were in the store when the robbers made their entrance.
In the course of the robbery, Thomas Brooks said, "Go ahead, you son of a bitch, shoot me”, and began walking toward the door. One of the robbers, identified at trial as the defendant, thereupon took the life of Thomas Brooks with a blast from a shotgun.
Defendant raises several claims on appeal, one of which requires reversal.
I
Defendant first challenges the in-court identification by the victim’s brother, Warren Wilfred Brooks. Mr. Brooks had identified the defendant at a pretrial lineup and again at trial. Although the court suppressed the lineup identification as impermissibly suggestive, it found that the in-court identification had a sufficiently independent basis.
When a trial court decides whether an in-court identification has an independent basis, it must consider eight factors.
1. Prior relationship with or knowledge of the defendant.
2. The opportunity to observe the offense.
3. Length of time between the offense and the disputed identification.
4. Accuracy or discrepancies in the pre-lineup or showup description and the defendant’s actual description.
5. Any previous proper identification or failure to identify the defendant.
6. Any identification prior to the lineup or showup of another person as defendant.
7. The nature of the alleged offense and the physical and psychological state of the witness.
8. Any idiosyncratic or special features of defendant. See People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977). The prosecutor must show by clear and convincing evidence that, considering these factors, "the in-court identification has a sufficient independent basis to purge the taint caused by the illegal confrontation”. 400 Mich 97 (footnote omitted).
Applying the evidence to the above eight factors we find the following.
1. The witness had no prior relationship with or knowledge of defendant.
2. The witness viewed defendant for about one to 1-1/2 minutes from 3 to 4 feet away.
3. The in-court identification occurred about 10 months after the offense.
4. The witness’s description of defendant to the police is consistent with defendant’s actual description.
5. The first time the witness viewed the lineup he failed to identify defendant because Mr. Brooks thought he was to identify his accomplice, a shorter man.
6. Mr. Brooks had not identified another person as the defendant prior to the lineup.
7. The offense — first-degree murder — is a most serious crime. The victim was the witness’s brother. Although the witness was not fatigued or under the influence of alcohol, his perception of the killer must have been affected by this traumatic event.
8. Defendant has no idiosyncratic or special features.
The first, third and seventh factors and, to a lesser extent, the fifth factor weigh against a finding of sufficient independent basis. The evidence weighing in favor of such a finding is, therefore, only somewhat stronger and is not in our judgment clear and convincing. However, on review we do not substitute our judgment for that of the trial court. This Court will not overturn a trial court’s ruling at a suppression hearing unless it was clearly erroneous. People v Ealey, 102 Mich App 301, 305; 301 NW2d 514 (1980). We do not find that the trial court’s ruling was clearly erroneous and, accordingly, we affirm it.
II
Defendant next argues that the prosecutor’s reference to Charles Manson in his closing argument requires reversal. We cannot agree._
A prosecutor’s remarks must be examined in the context in which they were made. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977); People v Allen, 351 Mich 535; 88 NW2d 433 (1958). The prosecutor was apparently trying to point out that the police in this case, unlike those in the Manson investigation, had made no mistakes. He was, thus, commenting only on the strength of his case. This is permissible. People v Rowen, 111 Mich App 76, 82-83; 314 NW2d 526 (1981).
III
Defendant next contends that the trial court erred in failing to require the prosecution to call Donald White as a res gestae witness. The prosecution is indeed obliged to call all res gestae witnesses. See People v Castaneda, 81 Mich App 453; 265 NW2d 367 (1978). However, the prosecutor is not under a duty to call an accomplice. People v Belenor, 408 Mich 244, 246; 289 NW2d 719 (1980); People v White, 401 Mich 482, 508-509; 257 NW2d 912 (1977). White was an accomplice inasmuch as he helped plan the robbery and stood as lookout. He was tried separately and was acquitted, however, before he was to testify at defendant’s trial. His acquittal nevertheless does not change his status as an accomplice for purposes of applying the exception to the res gestae rule. The rationale behind the exception was stated in People v Raider, 256 Mich 131, 135-136; 239 NW 387 (1931):
"Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own.”
This case illustrates the wisdom of this reasoning. Defendant had two trials. Testifying at defendant’s first trial, White made statements that were inconsistent with his testimony in his own case, causing the court to grant defendant’s motion for mistrial. White was later charged with perjury. Moreover, White, still facing the perjury charge, refused to testify at defendant’s second trial, invoking the privilege against self-incrimination. The trial court found, and we agree, that there was a sufficient foundation to invoke the privilege. Under these circumstances, the trial court properly excused the prosecution from calling Donald White as a res gestae witness.
IV
Finally, defendant claims the court erred in admitting gruesome photographs of the victim. Although defense counsel had earlier objected to the jury’s viewing the photographs immediately after admission, he did not object to the admission of the photographs. Without a proper objection, appellate review is precluded absent manifest injustice. People v Embree, 70 Mich App 382; 246 NW2d 6 (1976).
Admission of photographs lies within the sound discretion of the trial court. People v Eddington, 387 Mich 551, 562; 198 NW2d 297 (1972); People v Rocha, 110 Mich App 1, 13; 312 NW2d 657 (1981). The issue upon review is whether the photographs are substantially necessary or instructive to show material facts or conditions or merely calculated to excite passion and prejudice. People v Falkner, 389 Mich 682; 209 NW2d 193 (1973).
We find that these photographs were neither substantially necessary nor instructive to show a material fact and were introduced only to excite the jury’s passion and prejudice. Admitting these photographs caused a manifest injustice. Accordingly, we reverse.
The photographs were used twice at trial and only to establish that the extensive wounds they depicted were those of Thomas Brooks. The nature of the wounds, however, did not serve to rebut defendant’s alibi defense; nor was it relevant to any element of first-degree murder. As Judge Bronson said in People v Wallach, 110 Mich App 37, 67; 312 NW2d 387 (1981):
"Since defendant did not deny that the victims were brutally killed, but only his participation in the killings, the photographs were improperly admitted. They had no probative value in tending to establish first-degree murder as opposed to some other type of killing nor any value in rebutting defendant’s defense. Moreover, at least some of the photographs, particularly the color shots, may well have had a tendency to inflame the jurors and distract their attention from truly probative evidence.”
In a case similar to this one, the Supreme Court wrote:
"Defendant’s appropriately filed notice of alibi and his consistent reliance on alibi as his defense, coupled with the unrebutted proof that [the murder victim] was killed by a shotgun blast, rendered the use of these photographs neither substantially necessary nor instructive to show material facts or conditions. We can find no other reason for their use than to excite passion and prejudice.” People v Falkner, supra, p 685.
The photographs of Thomas Brooks served only to inflame the jury. Their admission was reversible error.
Reversed and remanded.
In his closing argument, the prosecutor addressed the jury:
"[By Mr. Noah]: Then we go to the green Dodge. Coincidentally, Mr. Nowak finds one fingerprint of the owner, and that’s on the hood of the car. He finds two fingerprints of Donald Lathan [sic], one on the steering wheel, and Johnson tells you that Lathan [sic] is the driver, at least during the robbery. But how many fingerprints of Jerry Wayne Smith does he find in that Dodge? Not one, not two, not three, not four, but five; five total fingerprints of Jerry Wayne Smith on that Dodge Dart with the license plate HTL 682.
"Now Mr. Smith tells you, and faced with the fingerprint evidence what else can he do, defense counsel said he’s going to explain what happened and he tries to make this explanation. He tells you he steals this little Dodge Dart, he didn’t want to do it, and he’s driving it for a short period of time, and he gets out his wallet to buy some Chámpale, and his probation officer’s card falls out and makes him nervous about being in the car. I would submit to you that that would be insulting your intelligence and it’s clearly a cock and bull story.
"But let’s examine where those fingerprints of Mr. Smith are at in this car. Two of the left middle finger of Jerry Wayne Smith are on the driver’s door outside. Two of the left thumb are on the driver window inside, and here’s the one with — one fingerprint of this right index finger of Jerry Wayne Smith is found on the door molding below the window inside the passenger door.
"Now I’m going to anticipate a moment that Mr. Williston is going to be trying to attack the police investigation, talk about — In cases like this, and the cases are legion, where police have made mistakes. None was made in this case, but it brings to mind an illustration by Vincent Bugliosi about the Manson murders, and the house that Manson went to, Polanski’s rented house, had a gate, a fence and the gate * * *.
"Mr. Williston [defense counsel]: Your Honor, at this time I’m gonna object. Counsel’s getting off on a tangent. I think it’s highly prejudicial to the rights of my client, and I think this is far afield from the evidence that’s being introduced in this court.
"The Court: How does this * * *.
"Mr. Noah: I was trying to illustrate where in a case there was an apparent fingerprint on a button, and the police officer made the observation that to open the gate put his thumb on the button. There’s nothing like that in this particular case. The first officer on the scene, a patrolman, did what he was trained to do, and that’s to preserve the scene for evidence. A lot of evidence was found, and a comment could be made for all nine of the (inaudible) that killed Mr. Brooks; it really wouldn’t have mattered whether they found one or none. It’s obvious to all how Mr. Brooks died. But the one piece of evidence that was important to preserve was that little fingerprint on the Kool pack of cigarettes.” | [
42,
-4,
3,
2,
38,
-59,
-27,
-44,
-50,
50,
9,
-24,
-27,
17,
20,
9,
-34,
-10,
19,
-82,
-9,
-2,
-23,
36,
-13,
-45,
1,
58,
-35,
15,
15,
-25,
33,
-58,
-22,
48,
43,
5,
-42,
61,
-26,
12,
27,
21,
-47,
6,
-10,
-8,
6,
-13,
28,
-9,
35,
41,
-31,
-20,
27,
20,
47,
9,
31,
14,
9,
-10,
-12,
-76,
45,
27,
-24,
-17,
-32,
-34,
-24,
39,
1,
-20,
1,
4,
36,
-35,
9,
7,
17,
-22,
-60,
-6,
-10,
-42,
-12,
-17,
-19,
35,
-24,
-39,
35,
-21,
15,
-14,
20,
4,
17,
17,
-36,
-40,
25,
52,
4,
-39,
-22,
19,
-5,
6,
50,
3,
-39,
-36,
-44,
8,
-16,
48,
0,
20,
48,
-11,
20,
-81,
11,
-23,
4,
32,
14,
36,
2,
27,
-49,
30,
-2,
31,
-22,
-35,
-17,
26,
-39,
-27,
22,
50,
-1,
21,
37,
5,
-19,
36,
-42,
17,
-7,
27,
14,
-70,
-75,
-26,
38,
-21,
33,
-8,
27,
11,
-19,
-60,
-34,
-43,
-28,
-24,
40,
0,
58,
60,
38,
12,
14,
-16,
-19,
18,
-10,
23,
-64,
18,
-7,
-7,
-38,
4,
1,
-3,
-46,
40,
40,
27,
32,
-7,
2,
-15,
24,
-43,
19,
-48,
6,
6,
16,
29,
-16,
-26,
4,
24,
15,
-12,
5,
-18,
30,
7,
37,
-48,
-26,
-50,
6,
6,
19,
-50,
-35,
-4,
1,
-3,
14,
-33,
-14,
14,
-32,
30,
22,
-78,
10,
30,
40,
-48,
44,
-4,
20,
70,
30,
40,
-7,
-7,
8,
24,
-39,
32,
-39,
-5,
18,
-34,
-1,
23,
-35,
30,
-7,
7,
22,
36,
0,
38,
-66,
0,
0,
-77,
38,
0,
15,
-53,
-32,
17,
14,
-42,
51,
7,
-5,
20,
34,
-54,
-12,
39,
29,
46,
47,
18,
-25,
-44,
37,
11,
33,
-24,
-25,
22,
52,
47,
-41,
-36,
-65,
1,
40,
-44,
-54,
30,
10,
24,
-67,
-26,
79,
-15,
-18,
28,
-20,
-21,
-19,
-30,
33,
-15,
66,
-27,
20,
3,
-24,
-29,
-25,
-38,
-4,
-11,
-56,
-24,
27,
18,
52,
20,
-34,
-40,
-46,
26,
32,
8,
14,
41,
-44,
-86,
41,
7,
-3,
1,
-32,
-46,
-46,
-9,
30,
-19,
20,
-21,
-80,
2,
10,
27,
-55,
10,
-3,
44,
-23,
-56,
-8,
-18,
11,
9,
21,
5,
11,
-22,
-29,
35,
70,
-62,
13,
-8,
12,
-52,
-9,
14,
-17,
-11,
-27,
-55,
-70,
30,
-76,
22,
53,
-29,
-45,
-11,
11,
40,
12,
-21,
-47,
1,
16,
-31,
-1,
54,
29,
34,
-45,
-25,
15,
-27,
-13,
5,
33,
16,
21,
-16,
0,
-33,
-54,
58,
-4,
-20,
18,
-43,
-4,
-25,
17,
26,
-46,
-31,
34,
-36,
-61,
-74,
-12,
-18,
-13,
28,
-72,
-23,
-1,
-29,
-28,
-8,
-34,
-44,
-52,
56,
16,
-37,
18,
0,
66,
-43,
-54,
4,
12,
-3,
-3,
-43,
9,
-7,
9,
-23,
-45,
-1,
-24,
-36,
34,
16,
27,
-7,
14,
-18,
9,
-10,
-30,
-19,
-13,
-48,
-3,
33,
9,
48,
43,
-13,
41,
42,
-6,
5,
12,
-57,
-32,
-17,
10,
1,
48,
62,
44,
18,
-11,
30,
-10,
11,
-41,
27,
4,
-18,
-52,
53,
-39,
-37,
25,
-23,
19,
61,
-25,
-17,
15,
-18,
-19,
-23,
69,
-34,
23,
6,
64,
54,
-10,
-29,
-26,
-33,
-12,
0,
27,
21,
2,
-23,
83,
-35,
39,
-18,
54,
-1,
64,
9,
-4,
-8,
0,
-21,
-9,
-13,
18,
20,
37,
56,
0,
-51,
-27,
28,
20,
1,
-71,
14,
-8,
18,
-32,
45,
27,
62,
-33,
47,
26,
10,
-20,
17,
-55,
33,
33,
-23,
50,
-3,
16,
13,
-12,
-5,
34,
-43,
-39,
-33,
43,
-27,
80,
-18,
-26,
-19,
60,
-46,
0,
-7,
4,
-25,
6,
23,
-57,
-9,
-7,
-29,
-22,
5,
-63,
36,
62,
-27,
-14,
-25,
-36,
34,
-10,
-28,
0,
-17,
-2,
-35,
-7,
30,
3,
-8,
6,
7,
-55,
-3,
12,
33,
17,
29,
36,
0,
-26,
0,
-4,
-21,
-32,
11,
-16,
-14,
0,
-5,
33,
8,
-26,
19,
6,
39,
-28,
-23,
-27,
30,
10,
-34,
53,
-4,
12,
28,
9,
17,
6,
19,
-40,
-44,
9,
9,
-13,
-37,
-6,
-7,
15,
50,
-18,
-29,
18,
-15,
-35,
52,
-9,
-35,
81,
-15,
33,
-28,
-25,
-3,
1,
-23,
-22,
6,
0,
5,
41,
-59,
-26,
30,
0,
31,
7,
-11,
42,
10,
-9,
-15,
7,
56,
-99,
-17,
56,
-18,
34,
31,
17,
-19,
14,
10,
30,
-5,
-16,
6,
14,
54,
-8,
-12,
8,
37,
-34,
-41,
8,
17,
-53,
-45,
-22,
-59,
51,
60,
10,
21,
7,
8,
0,
73,
42,
23,
-33,
-24,
1,
30,
-49,
-10,
-45,
-15,
9,
-45,
64,
-41,
-63,
-17,
-47,
75,
-57,
52,
5,
-18,
8,
0,
-8,
48,
-14,
4,
48,
-29,
-20,
-9,
-2,
-1,
-15,
6,
-49,
58,
-13,
50,
36,
-37,
1,
-16,
14,
18,
60,
-15,
48,
-19,
22,
12,
-16,
2,
56,
0,
-14,
-3,
-65,
39,
-54,
-27,
-22,
-10,
8,
-51,
26,
-59,
-54,
28,
-14,
-36,
6,
-69,
-31,
42,
11,
60,
38,
0,
-23,
26,
-31,
4,
64,
34,
33,
14,
67,
36,
14,
-23,
26,
-27,
-4,
0,
-11,
-12,
-6,
16,
-3,
30,
14,
3,
18,
-21,
-1,
-27,
-34,
29,
12,
-44,
18,
45,
-41,
10,
2,
41,
-17,
58,
15,
11,
-55,
16,
35,
38,
34,
31,
41,
-5,
59,
-64,
-27,
-17,
-15,
32,
-12,
22,
-57,
-27,
2,
-15,
-8,
-48,
10,
-35,
-28,
27,
-6,
-26,
29,
2,
-9,
16,
7,
-16,
11,
22,
-28,
27,
12,
18,
26,
-31,
29,
14,
40,
19,
31,
-61,
34,
26,
-14,
51,
6,
43,
36,
-46,
-23,
3,
39,
-33,
35,
1,
-3,
4,
-2,
6,
-23,
13,
-10,
-29,
-63,
-13,
-10,
-27,
-56,
26,
30,
25,
35,
-19,
-32,
-25,
3,
15,
-26,
36,
56,
-1,
-1,
-13,
-26,
6,
-22,
-62,
48,
-33,
18,
-64,
4,
19,
-6,
-5,
-38,
0,
-15,
12,
4,
-7,
14,
19,
-9,
33,
-15,
26,
-18,
82,
0,
36,
-8,
29,
-49,
-18,
-8,
42,
14,
13,
-3,
-13,
-15,
42,
-23,
-7,
-31,
-30,
2,
-1,
-20,
8,
-14,
24,
-28,
29,
-38,
24,
-24,
47
] |
Beasley, J.
After being charged in three different informations with delivery of controlled substances, in violation of MCL 333.7401, subds (1), (2)(b), and (2)(c)- MSA 14.15(7401), subds (1), (2)(b), and (2)(c), defendant, Roderick Dean Letts, was bound over for trial. Following an entrapment hearing, the trial court filed a written opinion granting defendant’s motion for dismissal of the charges. From this holding, the prosecutor appeals as of right.
A review of the transcript of the entrapment hearing indicates that on August 30, 1980, defendant was incarcerated in the Wexford County Jail for contempt of the district court resulting from his failure to pay a fine and costs that were imposed for a reckless driving conviction. Shortly thereafter, on September 8, 1980, a Wexford County Sheriff’s Department undercover officer, who was using the alias David Thorne, was lodged in the Wexford County Jail on a sham commitment. Thorne received a four-day sentence from the same district judge purportedly for possession of marijuana. While in jail, Thorne gained defendant’s trust, induced him into believing that he was a drug user, and convinced defendant to sell him drugs upon their release.
Subsequent to their discharge from jail on September 11, 1980, Thorne and defendant visited Thorne’s apartment where they smoked marijuana. Soon thereafter, defendant delivered LSD to Thorne. After this transaction, Thorne remained in communication with defendant and purchased small quantities of marijuana from him. Thorne also informed defendant of his desire to acquire cocaine, but was unsuccessful in his efforts to entice defendant to purchase cocaine from a third person.
On October 23, 1981, warrants were issued for defendant’s arrest for delivery of LSD on September 11, delivery of marijuana on October 20, and delivery of marijuana on October 21.
In granting defendant’s motion to quash the informations, ithe trial court found that the conduct of the police agency, by which defendant was induced to sell drugs to the undercover officer, constituted entrapment.
In People v Turner, the Michigan Supreme Court, relying on the dissenting opinion of Justice Potter Stewart in United States v Russell, adopted the objective test for entrapment:
"In my view, a pérson’s alleged 'predisposition’ to crime should not open him to government participation in the criminal transaction that would be otherwise unlawful.
"But when the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced — I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.”
The design of the entrapment doctrine is to discourage law enforcement officers from engaging in wrongful conduct and to avoid the implication that the judiciary extends its approval of impermissible governmental activity. In People v D’Angelo, the Court stated:
"When an accused claims entrapment he is asserting, in essence, entitlement to the benefit of a judicial policy that his claim, if true, is a bar to the prosecution of the case. His claim does not involve an assessment of guilt or innocence and, in fact, is irrelevant to it. It is in that respect that the entrapment claim is unique and distinguishable from the more common defenses in criminal cases such as alibi, insanity, self-defense, lack of specific intent and the like, which assert the absence of one or more elements of the crime charged and involve therefore the assessment of guilt or innocence. The defense of entrapment is not interjected to establish the absence of an essential element of the crime but to present facts collateral or incidental to the criminal act which justify acquittal on the ground of an overriding public policy to deter instigation of crime by enforcement officers in order to get a conviction.”
The defendant has the burden of proving an entrapment claim by the preponderance of the evidence, and an appellate court applies the "clearly erroneous standard” to the trial court’s ruling on the motion. The objective standard of entrapment does not, ipso facto, preclude the employment of undercover agents. Rather, it serves to deter conduct which is so reprehensible that it cannot be condoned by the judicial system.
In People v Alford, an undercover officer posed as an overweight patient in order to receive narcotics for himself and others from the defendant physician. The Alford Court, in reversing the trial court’s ruling that the defendant was entrapped, ruled that the officer did not attempt to form a special friendship with the physician as a means of promoting the delivery of controlled substances. The Alford Court held that the conduct of the undercover officer was not so reprehensible as to amount to entrapment as a matter of law, since, instead of inducing defendant Alford into furnishing him with narcotics, the officer merely appeared at defendant’s medical office, where he requested and received controlled substances.
In People v White, the Court held that entrapment occurred because the police officers manufactured or instigated the crime. In that case, an undercover officer approached the defendant and asked to purchase controlled substances from him. After the officer gave the defendant money, the parties agreed to meet several days thereafter. Upon the defendant’s failure to appear at the scheduled meeting, the officer again made contact with him. When the defendant explained that he did not acquire the drugs because he lacked transportation, the officer transported him from Oscoda to Detroit and furnished him with additional money to purchase a larger quantity of drugs than were initially requested. After the transaction was consummated, defendant was arrested and charged with delivery of heroin.
In the within matter, we conclude that the trial court’s finding of entrapment was not clearly erroneous. The trial judge made strong, clear findings that were fully supported by the evidence. The police agency herein manufactured the crimes by placing an undercover officer in jail with defendant for the purpose of persuading defendant to sell him drugs. The officer established a trusting relationship with defendant and maintained the friendship subsequent to defendant’s release from jail. The police agency’s actions transcended merely providing defendant with an opportunity to commit a crime. We find that the well designed scheme, like the factual setting in White, supra, resulted in far more than giving defendant an opportunity to commit a crime; rather, the police "manufactured” the crime.
Affirmed.
390 Mich 7, 21; 210 NW2d 336 (1973).
411 US 423, 445; 93 S Ct 1637; 36 L Ed 2d 366 (1973).
People v D’Angelo, 401 Mich 167, 173; 257 NW2d 655 (1977); 21 Am Jur 2d, Criminal Law, § 204, pp 371-372.
People v D’Angelo, supra, p 179.
People v Artuso, 100 Mich App 396, 402; 298 NW2d 746 (1980), lv den 411 Mich 870 (1981), cert den 454 US 877; 102 S Ct 357; 70 L Ed 2d 187 (1981).
Lewis v United States, 385 US 206, 208-209; 87 S Ct 424; 17 L Ed 2d 312 (1966); People v Alford, 405 Mich 570, 590; 275 NW2d 484 (1979); 8 Michigan Law & Practice, Criminal Law, § 67, p 136.
People v Turner, supra, pp 21-22; 8 Michigan Law & Practice, Criminal Law, § 67, pp Í34-135; 21 Am Jur 2d, Criminal Law, § 206, pp 375-379.
People v Alford, supra.
411 Mich 366; 308 NW2d 128 (1981). | [
30,
-21,
14,
0,
-46,
9,
-31,
0,
-46,
18,
66,
-11,
47,
-13,
-22,
22,
-2,
42,
32,
-24,
-6,
-23,
40,
62,
-4,
-53,
11,
58,
0,
13,
-5,
-10,
90,
-49,
-1,
-4,
26,
-17,
61,
-2,
-9,
19,
-30,
-1,
-63,
-21,
-30,
-9,
24,
-6,
30,
21,
32,
34,
25,
-9,
24,
-46,
73,
12,
-45,
5,
6,
-11,
-13,
10,
-61,
8,
1,
-9,
-19,
19,
-36,
-15,
15,
-3,
-9,
34,
30,
34,
42,
72,
14,
51,
17,
3,
-45,
-57,
3,
-1,
-5,
-26,
-1,
0,
-59,
-26,
3,
10,
15,
-53,
-13,
24,
-14,
-17,
54,
20,
-3,
-40,
-46,
9,
-36,
-31,
9,
-12,
-10,
-28,
-24,
10,
4,
33,
-31,
-46,
19,
-12,
-6,
-76,
-11,
-19,
13,
-33,
4,
39,
32,
4,
-48,
38,
13,
30,
-8,
14,
-48,
38,
53,
6,
25,
-17,
1,
-20,
1,
47,
-51,
-45,
33,
52,
-18,
35,
-3,
-19,
-30,
5,
18,
-1,
3,
-15,
6,
-69,
-23,
25,
-42,
-18,
78,
31,
-2,
32,
-26,
-20,
13,
25,
10,
-43,
-30,
-14,
-31,
12,
-3,
1,
6,
17,
-28,
29,
11,
9,
0,
44,
13,
26,
4,
24,
-47,
-9,
1,
43,
-1,
12,
16,
-8,
7,
33,
47,
9,
-26,
-37,
58,
-57,
23,
-23,
-34,
42,
14,
-29,
-14,
13,
13,
-3,
-46,
-28,
-4,
29,
-29,
33,
64,
36,
33,
20,
-32,
-1,
11,
3,
67,
29,
-10,
-62,
-58,
-60,
30,
-26,
16,
-5,
-15,
-20,
-7,
-7,
-23,
-26,
-49,
-29,
9,
-73,
24,
30,
10,
10,
-22,
54,
6,
13,
-41,
28,
-67,
20,
-58,
-1,
-16,
-36,
-38,
9,
-13,
30,
28,
13,
62,
-8,
23,
22,
-12,
31,
12,
73,
-21,
3,
20,
-8,
-22,
-22,
39,
1,
19,
19,
8,
54,
2,
35,
-40,
0,
-17,
-36,
70,
8,
0,
-13,
33,
-46,
59,
-18,
-34,
-32,
10,
-30,
49,
-32,
-37,
23,
-12,
19,
1,
-25,
51,
7,
53,
-27,
17,
-21,
-32,
-19,
-33,
33,
-44,
-8,
-9,
24,
-78,
-20,
53,
9,
27,
11,
4,
-3,
-15,
-30,
38,
-36,
17,
14,
-32,
27,
-29,
-38,
23,
7,
28,
-31,
-29,
27,
34,
-14,
21,
-30,
-30,
29,
11,
-35,
3,
25,
1,
-46,
-11,
-26,
1,
8,
-58,
-24,
23,
14,
-24,
-52,
-19,
6,
15,
-10,
-22,
69,
31,
12,
-18,
7,
43,
28,
17,
-23,
24,
43,
32,
-6,
-4,
-31,
19,
23,
28,
-46,
-43,
6,
-12,
58,
-32,
-3,
43,
18,
-8,
-32,
-1,
13,
-24,
-52,
41,
6,
-15,
-17,
-33,
17,
12,
17,
54,
-44,
-23,
-13,
-66,
0,
-1,
-12,
6,
-89,
-33,
39,
52,
-36,
-12,
-19,
42,
-7,
-19,
-28,
-1,
-28,
-38,
83,
8,
-18,
-34,
-21,
34,
-33,
-27,
-16,
28,
-23,
-46,
-17,
52,
-11,
18,
49,
19,
2,
-91,
-13,
7,
29,
-11,
35,
20,
38,
-7,
0,
5,
-50,
12,
-58,
10,
47,
15,
-70,
5,
5,
20,
25,
8,
-14,
-12,
71,
-6,
22,
10,
30,
31,
-26,
54,
-6,
-12,
33,
-14,
52,
-22,
42,
-35,
-21,
-8,
0,
-11,
37,
24,
0,
22,
21,
-10,
41,
24,
-60,
-25,
-33,
18,
-6,
9,
-10,
36,
24,
-15,
39,
14,
-43,
31,
-23,
0,
3,
25,
-37,
12,
-26,
-12,
-33,
-22,
67,
-10,
-1,
19,
-8,
41,
39,
-39,
1,
-65,
-9,
35,
6,
-16,
17,
-3,
1,
52,
36,
18,
53,
12,
38,
17,
25,
7,
28,
-37,
46,
56,
5,
-30,
5,
12,
-13,
33,
-20,
-14,
-54,
-11,
-5,
0,
-15,
-10,
5,
-6,
-50,
1,
44,
18,
15,
13,
14,
0,
-74,
51,
23,
-31,
0,
36,
14,
2,
-27,
34,
7,
-66,
-46,
-20,
-8,
-75,
4,
-21,
7,
-7,
-36,
-47,
3,
17,
-22,
-8,
3,
-5,
18,
29,
-25,
1,
17,
-36,
3,
0,
54,
-63,
23,
4,
1,
-4,
-11,
7,
-16,
-30,
27,
1,
-21,
64,
-44,
-46,
-15,
-12,
0,
-11,
26,
-45,
-16,
60,
-53,
-67,
-32,
16,
-26,
-31,
-31,
-39,
-19,
-35,
-45,
13,
-27,
28,
-22,
-2,
37,
18,
-54,
7,
25,
-58,
7,
8,
71,
-28,
-3,
-4,
16,
-31,
-20,
-39,
-15,
-8,
-20,
35,
29,
-25,
-2,
-6,
-13,
30,
1,
-32,
55,
-73,
15,
12,
-7,
-3,
6,
-32,
21,
-48,
1,
-12,
7,
12,
19,
33,
43,
22,
-55,
-10,
-95,
48,
-31,
12,
-35,
6,
40,
-42,
60,
28,
-2,
25,
-30,
-7,
7,
-7,
-1,
37,
3,
-26,
23,
29,
24,
18,
6,
-76,
-2,
51,
6,
-57,
-15,
-47,
24,
-4,
-48,
-9,
7,
-38,
45,
45,
-1,
12,
-46,
-23,
-49,
-40,
7,
-17,
38,
-35,
-36,
32,
17,
9,
10,
-16,
-6,
-22,
-2,
33,
17,
30,
-41,
59,
-2,
30,
19,
14,
31,
59,
6,
62,
44,
42,
11,
-2,
30,
31,
-30,
9,
17,
-17,
26,
28,
-60,
8,
44,
-31,
-44,
-33,
-19,
43,
53,
2,
-43,
-33,
40,
39,
-39,
-14,
-5,
-18,
54,
39,
10,
-23,
6,
14,
-53,
2,
44,
3,
1,
-15,
-30,
22,
-4,
41,
-38,
23,
-8,
21,
-82,
-35,
0,
-54,
68,
-30,
30,
36,
37,
1,
27,
-19,
-41,
-13,
-17,
37,
-5,
35,
7,
-9,
-3,
-12,
41,
-13,
11,
-19,
-18,
-26,
-66,
23,
-22,
13,
7,
14,
-33,
-10,
-7,
49,
3,
-72,
10,
-70,
-3,
27,
1,
11,
19,
25,
-52,
21,
-23,
-27,
13,
41,
-11,
-23,
2,
-3,
-34,
-38,
-27,
26,
32,
-58,
-15,
-38,
20,
16,
-7,
11,
43,
9,
29,
-12,
9,
2,
-2,
-6,
13,
-12,
-18,
-43,
-33,
-69,
24,
16,
-20,
36,
-4,
-17,
29,
-47,
52,
54,
64,
-26,
15,
39,
32,
-35,
-15,
-32,
23,
-50,
-2,
-15,
-17,
0,
-25,
-30,
62,
13,
-17,
-3,
10,
16,
6,
0,
5,
-6,
-30,
-12,
-13,
66,
10,
-9,
16,
38,
-25,
-87,
-48,
-24,
6,
43,
9,
16,
44,
-8,
-28,
-19,
-83,
-54,
52,
-26,
45,
-42,
-38,
-40,
-1,
10,
-6,
-36,
23,
78,
-21,
-13,
-26,
-23,
-22,
2,
-15,
13,
-86,
-5,
30,
29,
19,
-72,
52,
-30,
25,
-9,
35
] |
Per Curiam.
This appeal arises from a July 17, 1979, jury verdict of $1,145,000 awarded to plaintiff in a wrongful death action. Defendant Grosse Pointe Park appeals as of right from the denial of its motion for new trial or remittitur.
The decedent, a 13-year-old boy, was struck and killed on July 16, 1975, by a Grosse Pointe Park city garbage truck. The trial judge instructed the jury that decedent’s two parents and three siblings were the next of kin who could recover damages if defendants were found liable. Both trial counsel expressly stated their satisfaction with those instructions.
On appeal, defendant first alleges that the verdict was excessive and influenced by passion or prejudice and that the trial judge abused his discretion in denying the motion for new trial or remittitur. The appropriate standard of review is the "shock the judicial conscience” standard. Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981). If the amount awarded does not "shock the judicial conscience”, the trial judge has not abused his discretion in denying the motion for a new trial or remittitur.
The wrongful death act provides for compensation for the loss of society and compansionship. Bradfield v Estate of Burgess, 62 Mich App 345, 350-351; 233 NW2d 541, 544 (1975). Just as no marketplace formula exists to mathematically calculate pain and suffering, no precise formula exists for the loss of society and companionship. Those determinations are for the jury, and a reviewing court will not arbitrarily substitute its judgment for that of the factfinder. Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914, 918 (1942). Furthermore, placing a monetary value on a human life is at best a nebulous decision-making process which does not lend itself to an exacting type of review. The jury’s award of over one million dollars for plaintiffs loss of society and companionship of the 13-year-old boy does not seem unreasonable; rather, this award is within the limits of what reasonable minds might deem just compensation for the imponderable loss of society and companionship. See Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977), lv den 402 Mich 867 (1978). Because plaintiff provided sufficient evidence of the loss of society and companionship, this Court declines to alter the award. The trial judge did not abuse his discretion in declining to grant a new trial or to order remittitur.
Defendant next claims that the trial judge erred in instructing the jury that decedent’s three siblings could recover damages for loss of society and companionship. Because defendant failed to timely object to this instruction, this Court will not reverse the trial court absent manifest injustice. Drouillard v Metropolitan Life Ins Co, 107 Mich App 608; 310 NW2d 15 (1981).
This issue has recently been decided in Crystal v Hubbard, 414 Mich 297; 324 NW2d 869 (1982). In approving Scott v Burger King Corp, 95 Mich App 694; 291 NW2d 174 (1980), the Supreme Court ruled that siblings may recover in a wrongful death action even if the decedent’s parents still live:
"We are convinced that the Legislature never intended, in a case such as this one, to limit the right to seek damages for wrongful death to the actual 'heirs at law’ by which is meant those persons who are the nearest of kin actually surviving decedent who would be entitled to inherit pursuant to our law of descent and distribution.
"As a final matter, and apart from inferences to be drawn from the judicial and legislative history of § 2922, we do not think it was the intention of the Legislature to arbitrarily restrict the right to seek compensation to actual heirs at law and nearest of relatives while expanding the measure of damages to lost companionship. To do so would make the vagaries of familial survival the touchstone of recovery instead of the loss of the society and companionship which ordinarily exists among family members and, generally, to an even greater degree among more closely related individuals.
"Instead, we are convinced that the boundary we recognize today, establishing the right to seek compensation for the wrongful death of another, is in accord with the probable legislative judgment concerning human relationships inherent in our intestate succession laws. Those laws presume, as indeed is generally established by common experience, that certain intrafamily relationships are stronger than others and seek to distribute intestate property accordingly. There exists here an assumption that some positive relationship exists between almost all relatives. The wrongful death act, with its emphasis on compensating lost companionship, appears designed to compensate for the destruction of family relationships — those implicitly assumed to exist by our intestacy laws among family members identified as potential intestate takers.” (Footnote omitted.) 414 Mich 307, 324-326.
Such a broad reading of the words "next of kin” in the wrongful death statute has been followed in other jurisdictions as well. Martz v Revier, 284 Minn 166; 170 NW2d 83 (1969); Karr v Sixt, 146 Ohio St 527; 67 NE2d 331 (1946); Wilson v Pollard, 190 Ga 74; 8 SE2d 380 (1940); Bartley v Boston & N St R Co, 198 Mass 163; 83 NE 1093 (1908). See also 31 ALR3d 379, 387 (1970).
Affirmed. | [
-27,
71,
-29,
-1,
-33,
-17,
34,
-8,
-22,
-5,
-43,
-36,
5,
36,
26,
-39,
-18,
8,
-5,
-38,
-11,
-16,
23,
-23,
-5,
-42,
36,
-2,
23,
-16,
-27,
-19,
22,
-31,
6,
6,
30,
-46,
-29,
55,
27,
-22,
14,
13,
-32,
2,
46,
-19,
36,
-12,
-14,
20,
3,
-4,
12,
33,
22,
12,
-22,
46,
12,
-18,
5,
-17,
28,
-1,
-39,
41,
-11,
31,
-23,
11,
13,
48,
24,
-11,
-11,
12,
-24,
-3,
-19,
-41,
26,
-3,
-46,
-12,
9,
-20,
2,
15,
5,
-18,
11,
-20,
-16,
34,
75,
-60,
5,
-25,
33,
2,
48,
18,
2,
-32,
2,
-15,
5,
3,
-7,
36,
1,
-4,
-49,
22,
-32,
15,
0,
2,
-7,
-1,
30,
-18,
30,
7,
49,
17,
1,
8,
11,
43,
-9,
3,
50,
7,
-23,
-39,
40,
-24,
-31,
26,
0,
-16,
-4,
14,
-12,
-18,
14,
13,
-8,
15,
-5,
47,
69,
-41,
-6,
-63,
7,
-11,
7,
-2,
-5,
26,
-19,
-46,
25,
-16,
-30,
0,
31,
14,
28,
-36,
53,
23,
70,
-50,
-33,
1,
-9,
67,
51,
21,
-42,
-54,
-22,
-37,
-37,
-18,
-8,
-30,
-39,
-49,
-19,
25,
50,
-22,
5,
5,
4,
-28,
22,
42,
-9,
-4,
12,
-75,
27,
-3,
36,
-14,
3,
-22,
-6,
0,
-7,
-44,
-22,
9,
-32,
12,
19,
-32,
-12,
-11,
-39,
22,
-55,
-10,
24,
5,
11,
-28,
-3,
-13,
12,
21,
-11,
-26,
6,
-2,
86,
-17,
-32,
7,
15,
-3,
-10,
50,
-29,
13,
18,
-9,
7,
3,
26,
27,
13,
-39,
5,
20,
21,
23,
-4,
30,
-21,
50,
-59,
-50,
10,
-14,
29,
-5,
12,
-52,
-3,
-7,
64,
6,
0,
-22,
38,
-39,
-34,
34,
-70,
8,
5,
27,
76,
0,
39,
-27,
28,
33,
6,
-12,
34,
17,
6,
3,
-16,
24,
-19,
-15,
5,
44,
-14,
19,
-4,
-2,
-2,
31,
24,
38,
-122,
-20,
55,
6,
-13,
20,
-43,
-32,
-9,
-4,
9,
-28,
-19,
-2,
-42,
64,
15,
8,
37,
-30,
0,
-1,
-2,
-9,
37,
10,
-35,
-9,
-14,
-22,
18,
16,
-23,
24,
-21,
24,
34,
23,
-17,
-18,
24,
-30,
17,
27,
50,
-20,
-12,
-9,
-7,
34,
14,
-41,
-49,
29,
0,
25,
28,
4,
-4,
-34,
-1,
21,
2,
46,
-28,
-26,
5,
-20,
-2,
25,
-7,
40,
9,
11,
-43,
-48,
5,
8,
-28,
105,
-19,
-2,
0,
-52,
-51,
32,
0,
24,
23,
23,
-5,
-21,
-17,
8,
8,
26,
75,
4,
39,
-47,
46,
-28,
23,
-52,
53,
10,
46,
-9,
-59,
-15,
-10,
14,
4,
-22,
17,
2,
11,
-77,
13,
23,
6,
0,
11,
-13,
-61,
22,
-10,
-38,
-13,
4,
-31,
30,
14,
-40,
-17,
24,
-13,
34,
-17,
-7,
4,
-23,
15,
14,
25,
2,
28,
-27,
5,
-1,
-38,
87,
46,
-11,
-48,
22,
-30,
31,
36,
-6,
14,
22,
31,
-3,
21,
-58,
-29,
-28,
-31,
22,
-11,
-11,
-8,
-65,
33,
16,
18,
26,
15,
7,
-2,
40,
7,
-13,
13,
-31,
36,
6,
22,
-74,
-27,
-37,
-2,
-26,
45,
8,
-27,
17,
9,
44,
24,
-23,
26,
32,
-16,
-6,
-30,
11,
-36,
-7,
-33,
14,
-24,
-45,
-5,
-30,
7,
-44,
-19,
-23,
-5,
-32,
-12,
5,
-11,
22,
38,
40,
-12,
-9,
14,
-2,
40,
20,
9,
8,
-24,
15,
2,
-32,
6,
-37,
24,
-33,
6,
55,
36,
15,
-4,
-53,
-8,
-58,
42,
19,
-8,
1,
-10,
-23,
-29,
23,
49,
34,
-28,
1,
36,
17,
-12,
-16,
-9,
-29,
17,
39,
34,
32,
-13,
34,
21,
-30,
-68,
-16,
-35,
-61,
28,
-45,
-25,
45,
-30,
0,
44,
-21,
-38,
-7,
15,
-15,
57,
37,
-16,
-7,
10,
20,
29,
-48,
-4,
16,
-12,
-15,
-5,
-15,
-20,
5,
-12,
-44,
-71,
32,
24,
8,
4,
21,
-49,
3,
0,
8,
-8,
-19,
-43,
37,
9,
-43,
-9,
-41,
-36,
12,
-9,
-11,
-20,
22,
28,
-24,
25,
-3,
-4,
-4,
-29,
-33,
31,
23,
-35,
-10,
-37,
42,
-12,
7,
0,
42,
13,
21,
-17,
10,
-18,
29,
-52,
27,
12,
28,
-29,
-29,
-3,
50,
15,
18,
-83,
8,
59,
-10,
-25,
12,
-19,
-4,
14,
-18,
27,
60,
-7,
-18,
-4,
15,
-11,
8,
-43,
5,
32,
16,
-33,
-21,
-36,
43,
12,
-13,
-17,
-19,
-1,
-47,
-19,
0,
-57,
-26,
6,
-16,
16,
-23,
48,
23,
-44,
14,
-21,
-24,
-3,
38,
9,
-20,
18,
-35,
-8,
-21,
-7,
-7,
-17,
11,
-12,
-3,
25,
29,
1,
34,
-11,
28,
26,
5,
0,
34,
54,
57,
-10,
-6,
11,
-3,
-40,
29,
8,
-3,
10,
12,
30,
13,
-54,
34,
-4,
-29,
-3,
0,
-30,
12,
9,
-23,
-3,
35,
30,
42,
-13,
-60,
-5,
-39,
-38,
22,
8,
-39,
-26,
44,
41,
-17,
-1,
-12,
42,
-34,
32,
50,
16,
-6,
-35,
-2,
-25,
-10,
-1,
6,
47,
-11,
-42,
7,
-2,
4,
16,
14,
-2,
20,
62,
27,
-2,
-16,
35,
-1,
16,
7,
45,
7,
-11,
-6,
8,
52,
-21,
17,
-20,
2,
-11,
-3,
6,
-27,
-26,
40,
42,
48,
9,
11,
-9,
26,
-3,
-29,
28,
9,
-12,
-44,
-70,
-16,
-6,
-20,
40,
32,
-36,
7,
-27,
97,
0,
-32,
13,
-32,
-30,
27,
-35,
33,
-38,
32,
-8,
2,
-11,
-29,
28,
-18,
21,
-4,
-1,
41,
24,
-34,
-26,
-3,
32,
5,
12,
-11,
-54,
-12,
-39,
-13,
24,
-33,
-32,
-8,
11,
-38,
-3,
-45,
11,
-40,
4,
-8,
-7,
-10,
-16,
25,
29,
-2,
-17,
-14,
0,
-53,
-19,
21,
-13,
1,
19,
-56,
7,
-56,
-21,
33,
-10,
0,
-49,
-5,
5,
-28,
-14,
-12,
0,
-32,
3,
-36,
-28,
34,
-9,
-26,
-35,
-14,
-5,
8,
49,
-34,
7,
26,
25,
18,
39,
33,
-47,
23,
-44,
6,
12,
31,
65,
-23,
-31,
-11,
2,
15,
23,
-24,
-16,
-63,
-28,
-88,
26,
-19,
-30,
-1,
-19,
-14,
11,
-25,
-40,
-14,
-11,
-13,
-23,
15,
9,
-23,
4,
-19,
-1,
22,
26,
10,
22,
-5,
-21,
59,
18,
-12,
-27,
9,
-11,
4,
-20,
-26,
-24,
10,
15,
32,
-10,
27,
-16,
-43,
3,
-15,
11,
16,
1,
-3
] |
Per Curiam.
Defendant pled guilty to forgery, in violation of MCL 750.248; MSA 28.445, in exchange for the prosecutor’s agreement to drop other pending charges and to refrain from filing a supplemental information charging the defendant as an habitual offender. The trial court sentenced the defendant to prison for a term of 9 to 14 years. After being sentenced, the defendant applied for counsel to pursue an appeal, and an appeal of right was claimed. Appellate counsel subsequently filed a motion to dismiss appeal and withdraw as appellate counsel, arguing that there were no nonfrivolous issues which could be argued on appeal. This Court issued an order granting the motion to withdraw and affirming the conviction. On February 5, 1982, the Michigan Supreme Court remanded the case to this Court for plenary consideration of the issues raised therein. 412 Mich 934 (1982).
Defendant first argues that the factual basis elicited for his plea of guilty to forgery was inadequate. We agree. The factual basis for the plea consisted of the following:
"The Court: Okay, on 1/26/79 at 1040 Portage Street in the City and County of Kalamazoo, what did you actually do?
"The Defendant: I don’t know where 1040 is. I gave Jeffrey Cook a check for $268.57.
"The Court: At the time, you knew it was no good?
"The Defendant: Right.
"The Court: You intended to defraud and take the money.
"The Defendant: Well, I didn’t get the money. He got the money.
"The Court: But you intended to beat the complainant out of it?
"The Defendant: Perneo-Wheel?
"The Court: Yeah.
"The Defendant: Right.
"The Court: Beat them out of $268.57, and you intended to do it at the time you did it, right?
"The Defendant: Yes.
"The Court: Are you satisfied, Mr. Davis, the elements are there?
"Mr. Davis [prosecutor]: Yes, your Honor.”
The forgery statute applies to persons who "make, alter, forge or counterfeit” certain documents, including checks. MCL 750.248; MSA 28.445. In this case, the only act that the defendant admitted committing was that he "gave” a check to another individual while intending to defraud the complainant. The act of giving a check to another person, even coupled with the intent to defraud, does not constitute the crime of forgery. Thus, we vacate the plea and remand the case to the trial court. On remand the prosecutor must be given the opportunity to supply the missing elements which would establish a factual basis for the plea. Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975).
On remand we also direct the trial court to hold an evidentiary hearing to consider the defendant’s claims that his plea was involuntary, that he was not competent to plead, and that he was denied the effective assistance of counsel. On the record before us we are unable to resolve these issues. If the trial court decides these issues against the defendant, the prosecutor should be given the opportunity to establish the missing elements for forgery.
Lastly, we note that there is no merit to the defendant’s claims that his guilty plea was the result of an illusory bargain and that the trial court improperly sentenced him to a crime for which he was neither charged nor convicted. The defendant’s plea was exchanged for a promise by the prosecutor that he would drop other pending charges and not file a supplemental information. Since the defendant was aware of the prosecutor’s intent to file the supplemental information and since at the time the plea was entered the prosecutor was not required to file a supplemental information prior to the defendant’s conviction, People v Dixon, 103 Mich App 518, 523; 303 NW2d 32 (1981), no illusory bargain occurred, especially since the prosecutor also agreed to drop the other pending charges against the defendant. With respect to the defendant’s claim that he was not sentenced on the proper charge, we find that the trial court merely misspoke when it mentioned the charge of uttering and publishing. That charge was mentioned once in a record replete with references to the defendant’s conviction for forgery, thus, we are convinced that the defendant was properly sentenced for the crime for which he was convicted, i.e., forgery.
Remanded. | [
35,
-7,
21,
19,
-35,
9,
20,
-36,
-18,
40,
6,
-37,
5,
-39,
-34,
-7,
31,
17,
-15,
-30,
-19,
-55,
11,
32,
-43,
1,
27,
48,
9,
-16,
-51,
34,
34,
-58,
7,
-32,
1,
13,
31,
37,
-37,
-56,
10,
24,
-44,
33,
-3,
-32,
15,
-17,
44,
46,
24,
-28,
-14,
49,
-13,
-1,
40,
-7,
8,
-7,
4,
-33,
-36,
-56,
10,
48,
-7,
20,
-6,
1,
27,
-17,
-6,
7,
14,
38,
-41,
29,
-4,
11,
22,
43,
34,
-15,
39,
4,
24,
-30,
11,
0,
-8,
-85,
39,
-17,
25,
6,
44,
-7,
-33,
-11,
-40,
21,
20,
-4,
-8,
-51,
-63,
52,
-19,
-28,
12,
-44,
-12,
-36,
-36,
37,
48,
-45,
-3,
39,
-9,
35,
45,
22,
-1,
-13,
14,
22,
24,
16,
-47,
35,
-30,
-4,
-36,
-1,
13,
22,
-16,
17,
24,
32,
-28,
-36,
6,
-8,
36,
12,
-76,
-47,
-11,
37,
-19,
24,
-56,
-22,
-13,
-5,
6,
20,
-12,
5,
-5,
25,
-26,
-4,
21,
-27,
17,
-5,
10,
-70,
8,
-11,
-4,
-14,
17,
-30,
-4,
49,
12,
-2,
-18,
-13,
-51,
3,
-33,
-4,
-19,
41,
-1,
7,
30,
-29,
2,
20,
37,
-28,
-47,
-24,
47,
16,
-15,
-12,
7,
-32,
-67,
33,
-4,
-37,
26,
-15,
-41,
-9,
31,
-45,
-2,
24,
3,
-6,
17,
-3,
9,
9,
31,
24,
-14,
21,
-27,
-2,
48,
-35,
17,
21,
38,
0,
46,
50,
-44,
-39,
33,
6,
3,
0,
-27,
-16,
20,
-2,
-1,
-9,
-10,
18,
-14,
20,
23,
37,
-41,
-10,
-28,
-21,
-3,
-12,
-40,
46,
-11,
48,
-66,
-2,
30,
-62,
-22,
-14,
-24,
-7,
-50,
35,
-10,
16,
32,
3,
20,
27,
-2,
25,
-24,
49,
64,
-12,
18,
-3,
-2,
33,
36,
-24,
16,
-31,
-44,
9,
38,
-12,
-11,
-67,
-17,
-35,
28,
10,
-78,
-8,
77,
6,
-64,
61,
40,
-43,
3,
-29,
35,
-18,
-29,
22,
-37,
-75,
10,
6,
30,
-37,
4,
0,
7,
35,
2,
-3,
-5,
6,
58,
29,
24,
-20,
-13,
-50,
36,
-32,
-19,
18,
14,
13,
-29,
-32,
19,
6,
7,
36,
-3,
10,
0,
-38,
-21,
-9,
31,
5,
-16,
-28,
42,
-17,
-14,
12,
-30,
30,
-14,
-36,
-26,
1,
2,
-6,
-23,
-22,
-22,
5,
-27,
-11,
15,
22,
12,
-60,
-25,
-36,
-44,
-39,
-27,
-12,
-16,
-39,
-47,
-17,
12,
-18,
10,
0,
10,
32,
49,
33,
-15,
6,
-23,
26,
9,
22,
20,
34,
59,
46,
-14,
-22,
54,
10,
44,
-13,
8,
27,
-7,
-59,
24,
-16,
-22,
54,
25,
-33,
52,
42,
42,
-15,
35,
74,
-48,
-8,
-4,
13,
10,
-21,
-22,
8,
35,
3,
-30,
-18,
-2,
0,
20,
40,
-29,
-37,
-32,
26,
36,
-2,
-34,
-70,
20,
8,
-28,
-39,
25,
3,
2,
-8,
56,
5,
17,
6,
-34,
15,
-39,
9,
12,
-2,
7,
4,
-13,
-1,
-26,
-33,
17,
8,
-45,
-20,
-19,
-47,
-5,
-15,
-40,
49,
0,
50,
-63,
-24,
6,
45,
-31,
10,
-2,
6,
53,
14,
24,
-70,
21,
13,
-21,
26,
33,
-6,
14,
25,
-7,
-17,
-53,
20,
18,
-1,
-7,
-8,
28,
9,
-44,
6,
-46,
40,
0,
-33,
-6,
-8,
19,
-35,
-13,
-26,
-10,
-15,
-9,
24,
26,
77,
-2,
10,
-17,
-46,
5,
-13,
-5,
-25,
41,
-6,
-48,
-42,
34,
18,
24,
-37,
-60,
8,
57,
27,
-2,
7,
-40,
-16,
-2,
-16,
31,
-33,
5,
-4,
6,
35,
28,
-13,
-35,
63,
26,
60,
-26,
-3,
-2,
34,
9,
18,
21,
-17,
-2,
9,
-11,
-42,
-36,
-4,
-54,
-72,
40,
37,
56,
0,
-51,
41,
83,
-43,
-11,
57,
-8,
-33,
68,
-2,
-6,
18,
0,
0,
-31,
-43,
-13,
60,
-6,
3,
33,
-27,
-2,
-38,
-31,
14,
-21,
-14,
21,
-7,
-2,
9,
-31,
-12,
-26,
2,
-37,
-53,
-51,
82,
-25,
-18,
35,
-10,
32,
25,
-13,
-26,
-10,
22,
47,
-14,
43,
-19,
34,
34,
-30,
-9,
13,
1,
-41,
-6,
-16,
7,
-11,
21,
74,
-4,
9,
-31,
-13,
-9,
39,
6,
-58,
-23,
49,
-47,
-33,
-8,
10,
9,
19,
-47,
-22,
-26,
0,
50,
-26,
71,
-33,
8,
54,
2,
12,
2,
3,
-14,
0,
33,
-14,
23,
-38,
-37,
-18,
-17,
14,
11,
-52,
14,
-41,
48,
-36,
-1,
-36,
19,
-29,
0,
-19,
-35,
10,
13,
17,
-18,
10,
18,
3,
20,
6,
-11,
37,
32,
8,
35,
-3,
21,
-17,
35,
-8,
-7,
-33,
-49,
-28,
13,
-4,
4,
20,
-22,
46,
38,
-20,
64,
0,
19,
40,
-9,
-33,
-23,
-33,
31,
-29,
-16,
-40,
22,
-14,
14,
11,
-33,
-3,
-32,
51,
85,
-21,
18,
12,
25,
73,
-40,
16,
29,
-4,
-8,
-8,
-16,
-31,
28,
-1,
7,
12,
-6,
-32,
26,
-7,
0,
13,
-13,
-4,
-31,
-20,
-11,
17,
-21,
-24,
30,
-2,
1,
7,
1,
16,
40,
-17,
2,
-11,
2,
-28,
-23,
-27,
-17,
35,
13,
-39,
0,
-43,
0,
-27,
-18,
-45,
-5,
-28,
13,
27,
23,
-29,
-14,
5,
-1,
-2,
-17,
4,
-75,
-27,
-3,
-16,
64,
16,
27,
8,
-33,
8,
-7,
-8,
-7,
4,
24,
12,
23,
25,
-28,
38,
-4,
-18,
-1,
22,
-7,
-20,
-34,
-7,
-28,
-9,
-22,
-12,
26,
10,
23,
53,
-13,
-22,
-11,
12,
-14,
-4,
-30,
46,
-45,
-32,
-81,
-58,
25,
-16,
18,
-26,
-17,
15,
-22,
31,
-39,
29,
5,
63,
-17,
-22,
-46,
69,
1,
0,
32,
2,
43,
-13,
8,
-10,
7,
-17,
-16,
-3,
54,
11,
-28,
-31,
76,
7,
25,
49,
8,
35,
15,
-34,
33,
0,
32,
-35,
-19,
2,
-29,
12,
-90,
84,
66,
-2,
-55,
4,
18,
-28,
-8,
-50,
-39,
-13,
21,
-5,
18,
-34,
55,
-28,
-5,
10,
-4,
-35,
-10,
21,
-2,
-24,
-9,
-18,
26,
-23,
-36,
11,
11,
-6,
-19,
-1,
-51,
21,
-33,
55,
-20,
-21,
-26,
41,
-25,
-17,
17,
-32,
2,
43,
52,
9,
-49,
50,
-6,
19,
-1,
20,
0,
52,
-40,
-30,
-15,
20,
-2,
1,
-16,
-36,
-25,
-15,
-5,
-37,
14,
7,
-2,
56,
-7,
-1,
6,
-3,
41,
6,
39,
-31,
18,
-3,
79
] |
J. H. Gillis, J.
The Attorney General appeals from an Ingham County Circuit Court judgment affirming an April 12, 1976, order of the Michigan Public Service Commission, which incorporated into Consumers Power Company’s standard rules and regulations a purchased and net interchange power adjustment clause. The appeal also includes circuit court orders in about 35 other cases which approved monthly increases in the utility’s electric rates pursuant to the purchased power adjustment clause.
The issue involved in the appeal is the statutory validity of the purchased and net interchange power adjustment clause, hereinafter referred to as the purchased power adjustment clause.
The case arises from consolidated proceedings before the Michigan Public Service Commission. On July 8, 1974, Consumers Power applied for authority to include purchased and interchange power costs in the fuel adjustment clause, which was then included in its electric rate schedules. That petition was docketed as MPSC Case No. U-4621. On May 28, 1975, Consumers Power filed an application to increase its electric rates annually by at least $118,000,000. That application was docketed as MPSC Case No. U-4840. On July 21, 1975, the commission consolidated the two cases and ordered further hearings on certain matters, including the company’s request to authorize a purchased power adjustment clause. Thereafter, the commission held public hearings on the consolidated cases.
On April 12, 1976, the commission entered its final order in the consolidated cases. The decision allows the company to add to its rate schedules a clause permitting rate increases "to recognize in a timely manner increases or decreases in costs incurred or revenues received by applicant for the purchase or sale of electric energy”. The commission allowed the amendment in recognition of the fact that "power pooling transactions are an integral part of the electrical utility business today” and because "this clause will operate in tandem with the FCAC [fuel cost adjustment clause] to assure that applicant has the incentive to provide the lowest cost available electric energy to its customers at all times”. The commission was of the opinion that the FCAC and the purchased power adjustment clause should work in tandem to give the utility incentive to resort to the least costly alternative of either purchasing additional fuel for its own power generation or buying already-generated power from the power pool.
In authorizing the utility to adjust rates for purchased power and increased fuel costs, the commission limited the company to recovering only 90% of either cost as a further economic incentive. The commission’s reasoning is that: "In times of increasing costs, applicant will necessarily exert every effort to select the particular method of supplying electrical energy which will minimize the 10% portion of the costs which do not pass through either clause. In times of decreasing costs, applicant will similarly seek the mix which will maximize the reduction and improve revenue recoveries at the same time.”
The decision requires that the company maintain a separate accounting for purchased power in order to "eliminate the possibility of any power sales revenue being overlooked in the calculation of the monthly adjustment. Such revenues will act as an offset to expenses incurred for purposes of the adjustment clause.”
Recognizing that the Attorney General had ruled in 1974 that public utilities could not pass through the cost of purchased power without notice and hearing, OAG, 1973-1974, No 4844, p 205 (November 20, 1974), the commission set up an elaborate schedule for monthly notice and hearing for approval of purchased power cost adjustments. In addition, the hearing procedure also provides for semi-annual refunds "through operation of the two adjustment clauses if revenues collected through the combined effect of the clauses exceed 90% of the increase in expense incurred. This will insure a tracking of adjustment clause revenues with expense changes from the customer’s point of view. No additional customer charges will be permitted if the review contemplated shows a lesser revenue collection than changes in expenses incurred. This refund procedure provides additional protection to the customer against any potential overcharge.”
Finally, the commission’s decision provides for a three-month lag between the time that increased or decreased costs under the two adjustment clauses would be incurred and the time they would be billed or refunded to customers. Operating from 1975 test year data, the commission ordered that "the February 1976 fuel cost level should be 'rolled in’ the energy charge and the base cost for the new fuel cost adjustment clause set at 11.98 mills per kWh and the base cost for the purchased and interchange power clause set at 2.55 mills per kWh to reflect applicant’s level of purchases included for the 1975 test year and included in the 1975 staff adjustments used to establish rates in this proceeding.”
Under the commission’s decision, the first purchased power rate adjustment would take place for the July, 1976, billing. Notice of that adjustment was given and a hearing was conducted between June 15 and June 17, 1976. By an order entered June 28, 1976, the commission allowed a purchased power cost adjustment, beginning July, 1976, of 1.9 mills per kWh. Similar monthly hearings were held thereafter and continue to be held at this time. Between July, 1976, and February, 1982, for example, 40 increases in the cost of purchased power were allowed, 26 reductions were ordered and, in two instances, no orders were entered. The amounts of money involved under the purchased power adjustment clause are considerable. Through November, 1981, Consumers Power collected approximately $268,000,000 through purchased and net interchange power adjustments. Detroit Edison and other electric utilities in Michigan have also collected comparable amounts. These amounts represent 90% reimbursement for necessary expenditures actually made by the utilities in providing electric service to customers. The purchased power adjustment capability is important, not only because large amounts of money are involved, but also because the commission found that "there has been increasing reliance on power pooling operations and applicant’s position in recent years [has been] as a net buyer of electrical power from other utilities”.
As noted, adjustments for purchased power are made after notice and hearing each month. In addition, under the commission’s order, semi-annual reconciliations are conducted to even out increases and decreases in fuel costs and purchased power costs. If one or both costs have increased, then the utility recovers 90% of the increase and if one or both costs have decreased, the utility is required to refund 90% of the savings. For example, the six-month period between April and September, 1976, was reconciled at a hearing and by a June 6, 1977, order of the commission. As a result of that hearing, the commission ordered the company to refund $1,591,000 of overrecoveries by making a credit of .83 mills per kWh on July, 1977, billings. Similarly, in its July 19, 1979, reconciliation order, covering the period of January through June, 1978, the commission found that the company had an underrecovery of $5,315,627. However, the commission refused to approve an additional charge to cover that deficiency.
The Attorney General timely appealed the commission’s April 12, 1976, order to Ingham County Circuit Court. The Attorney General also appealed about three dozen commission orders establishing increases in monthly billing adjustments pursuant to the purchased power adjustment clause. The circuit court affirmed.
On appeal, the Attorney General argues that the purchased power adjustment clause procedure approved by the Public Service Commission violates the transmission of electricity act and the public service commission act in several respects. The Attorney General argues that the procedure violates § 7 of the transmission of electricity act, 1909 PA 106; MCL 460.551 et seq.; MSA 22.151 et seq. Section 7 sets out the procedure for rate-making, for electric companies and provides, in part, that the Public Service Commission, in setting electric rates, shall consider "all lawful elements properly to be considered to enable it to determine the just and reasonable price to be fixed for supplying electricity, including cost, reasonable return on the fair value of all property used in the service, depreciation, obsolescence, risks of business, value of service to the consumer, the connected load, the hours of the day when used and the quantity used each month”. MCL 460.557; MSA 22.157. The Attorney General argues that the purchased power adjustment clause violates that section by considering only one factor, cost of purchased power, rather than the several factors enumerated in the section.
The Attorney General also says that purchased power adjustments proceedings are contrary to the transmission of electricity act because they are not commenced by the utility’s petition, as allegedly required by § 2, or by complaint, as allegedly required by § 7.
Finally, in his first issue the Attorney General contends that no purchased power adjustment can be authorized without an investigation and report by the commission’s staff as allegedly required by § 6a(l) of the public service commission act, MCL 460.6a; MSA 22.13(6a).
There is no direct Michigan case law or statu tory authority on point. Nevertheless, it appears that establishment of a purchased power adjustment clause is within the commission’s statutory power.
The Attorney General’s position has validity if we assume that the only way in which the Public Service Commission can change a rate or rate schedule is by conducting a full-scale rate-making hearing, pursuant to all of the procedures specified by the transmission of electricity act and the public service commission act. But, that assumption ignores the very wide authority granted to the commission by statute to regulate public utilities in the state. It also ignores the fact that the very purpose of adjustment clauses, where they are authorized, is to by-pass normal rate-making procedures because they are expensive both for the utility and the regulatory agency, time-consuming, and frequently unnecessary, where the only rate factor changed is the cost of purchased power (or, frequently, fuel). The advantages of fuel adjustment clauses are set out in Wisconsin’s Environmental Decade, Inc v Public Service Comm, 81 Wis 2d 344; 260 NW2d 712 (1978). The case also notes some disadvantages. Fuel adjustment clauses to an extent evade regulatory control and reduce public scrutiny of rate changes, and, because they typically involve factors which are under the partial control of the utility, automatic adjustment of rates to reflect changes in the cost of those controllable factors sometimes tends to result in the elimination of incentives to the utility to economize on the items and to seek greater efficiency. Many of the same advantages and disadvantages are equally applicable to purchased power adjustments, which are the subject of this appeal.
The question is whether Michigan statutes allow the Public Service Commission to implement a purchased power adjustment clause. We hold that they do. The public service commission act confers broad discretion and authority on the Public Service Commission. It provides:
"(1) The public service commission is vested with complete power and jurisdiction to regulate all public utilities in the state except a municipally owned utility, the owner of a renewable resource power production facility as provided in section 6d, and except as otherwise restricted by law. The public service commission is vested with the power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the forma-' tion, operation, or direction of such public utilities. The public service commission is further granted the power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of all public utilities, including electric light and power companies, whether private, corporate, or cooperative, gas companies, water, telephone, telegraph, oil, gas, and pipeline companies, motor carriers, and all public transportation and communication agencies other than railroads and railroad companies.” MCL 460.6; MSA 22.13(6).
Furthermore, § 6a(2) of the public service commission act empowers the commission, as follows:
"(2) The commission shall adopt such rules and procedures for the filing, investigation and hearing of petitions or applications to increase or decrease utility rates and charges as the commission finds necessary or appropriate to enable it to reach a final decision with respect to such petitions or applications within a period of 9 months from the filing thereof. This section or any other law does not prohibit the incorporation of fuel or purchase gas adjustment clauses in rate schedules.” MCL 460.6a; MSA 22.13(6a).
In light of that broad authority vested in the commission, it is reasonable to conclude that the commission can provide, as it has, for monthly purchased power adjustments in rates, after notice and hearing. The procedures established by the commission are in essential harmony with the notice and hearing requirements of both the transmission of electricity act and the public service commission act.
The Attorney General’s contention that the commission is required to consider all elements of rate-making, as required by § 7 of the transmission of electricity act, is not persuasive. As Consumers Power argues, those factors are pertinent when what is before the commission is a utility request for an across-the-board rate increase. Where, however, only a change in the cost of purchased power is involved, it is not necessary to re-examine all of the factors which are involved in establishing the utility’s rates. In Trustees of Clark University v Dep’t of Public Utilities, 372 Mass 331; 361 NE2d 1285 (1977), the Supreme Judicial Court of Massachusetts held that a purchased power adjustment clause is intended to modify the rate to reflect a change in the cost of purchased power, without the necessity of submitting the case to a full-fledged rate-making hearing. The court pointed out that a purchased power adjustment is temporary because it will be eliminated at the next general rate hearing or when the next purchased power adjustment is approved. Similarly, in Petition of Allied Power & Light Co, 132 Vt 354; 321 A2d 7 (1974), the Supreme Court of Vermont pointed out that purchased power adjustments do not have to result in reexamination of the entire rate structure. The court said:
"In times of stable costs, a schedule may remain satisfactory for a considerable time. Even in times of rapid economic change, not all factors involved in establishing fair rates of return may require constant review, if there is nothing about them that has been affected.” 132 Vt 363.
In that case, the court held that purchased power adjustments had to be the subject of notice and hearing, that they could not be automatic. However, the court held, a complete new rate hearing was not required. The court said:
"Even so, in such circumstances of frequent change, to require on every occasion complete reexamination of the rate structure of a utility would be wasteful and redundant. Absent a demonstration of significant change, it would seem that the previously filed evidence on other aspects, as evaluated by previous Board decisions, should stand. This is an area where the Public Service Board’s special competence should be allowed to operate.” 132 Vt 364.
Adjustment clauses for the cost of fuel and purchased power have been approved almost universally by other states, mostly without the necessity of separate hearings. The rationale most frequently used is that changes in rates to reflect increases or decreases in the cost of fuel or purchased power are not changes in the rate schedules, which would ordinarily require a hearing before the regulatory body, but are, rather, a change computed according to a fixed mathematical formula. In one of the leading cases, City of Norfolk v Virginia Electric & Power Co, 197 Va 505; 90 SE2d 140 (1955), the court approved the use of a purchased gas adjustment clause, without the necessity of a separate hearing on each adjustment. The court said:
"The General Assembly has, as stated by Commis sioner Catterall in his memorandum opinion, 'recognized that rate schedules consist not merely of lists of rates in dollars and cents, but that they customarily include provisions that will in various ways affect the rates charged at the time of filing or to be charged thereafter.’
"The proposed escalator clause is nothing more or less than a fixed rule under which future rates to be charged the public are determined. It is simply an addition of a mathematical formula to the filed schedules of the Company under which the rates and charges fluctuate as the wholesale cost of gas to the Company fluctuates. Hence, the resulting rates under the escalator clause are as firmly fixed as if they were stated in terms of money.” 197 Va 516.
Among the cases which have approved the adoption of fuel or purchased power adjustment clauses, or both, automatically or after an administrative hearing for each alteration, are Trustees of Clark University v Dep’t of Public Utilities, supra (purchased power); Petition of Allied Power & Light Co, supra (fuel and purchased power); Evansville v Southern Indiana Gas & Electric Co, 167 Ind App 472; 339 NE2d 562 (1975) (fuel); Consumers Organization for Fair Energy Equality, Inc v Dep’t of Public Utilities, 368 Mass 599; 335 NE2d 341 (1975) (fuel); North Carolina ex rel Utilities Comm v Edmisten, 26 NC App 662; 217 SE2d 201 (1975), aff'd 291 NC 361; 230 SE2d 671 (1976) (fuel); City of Norfolk v Virginia Electric & Power Co, supra (fuel); United Gas Corp v Mississippi Public Service Comm, 240 Miss 405; 127 So 2d 404 (1961) (fuel); Chicago v Illinois Commerce Comm, 13 Ill 2d 607; 150 NE2d 776 (1958) (fuel); see, generally, Foy, Cost Adjustment in Utility Rate Schedules, 13 Vand L Rev 663 (1960). Although those cases, and others like them, hold that fuel or purchased power adjustment clauses are permissible, with or without separate hearings, they also expressly or impliedly recognize that the rate adjustments can be made solely on the basis of a change in the cost of fuel or power, without re-examining each time the other factors that go into full-scale rate-making. In this case, the Michigan Public Service Commission has gone a step further by requiring individual notice and hearing on each purchased power adjustment.
The Attorney General’s complaint that purchased power adjustments are unlawful because there has been no petition or complaint is also rejected. Although not applicable in adjustment proceedings, §§ 2 and 7 were satisfied. Section 2 provides, in part, that "no public utility supplying electricity shall put into force any rate or charge for the same without first petitioning said commission for authority to initiate or put into force such rate or charge and securing the affirmative action of the commission approving said rate or charge”. MCL 460.552; MSA 22.152. As a matter of fact, there was such a petition. Public Utility Case U-4621 was commenced by the utility on July 8, 1974, by a petition to amend its fuel cost adjustment clause to include a purchased power adjustment clause. The commission’s July 21, 1975, opinion and order in that case reflects, in the first paragraph:
"On July 8, 1974, Consumers Power Company (applicant), filed an application for authority to amend the fuel adjustment clause in its electric rates schedules. The amendments proposed by applicant in its initial filing provided for, among other things, inclusion of purchased and interchanged power costs in its fuel adjustment clause and estimation of fuel and purchased and interchanged power costs so as to eliminate the two-month lag between the time costs were incurred and the time the corresponding revenues Were received.”
That request was considered by the commission in the consolidated proceeding and resulted in its April 12, 1976, order, which authorized the purchased power adjustment clause. Once the commission authorized the utility to adjust rates to reflect increases and decreases in the cost of purchased power, the utility had "secure[d] the affirmative action of the commission approving said rate or charge”, as required by § 2 of the transmission of electricity act. Once that authority was granted by the commission, a separate petition or separate complaint under §§ 2 or 7 of the transmission of electricity act was not required éach time the utility sought approval to apply the purchased power adjustment clausé. The authority to make such adjustments as granted by the commission became, in effect, a permanent part of the company’s rates and schedules.
The Attorney General’s contention that a staff investigation and report is necessary is rejected.
Section 6a(l) of the public service commission act provides, in part:
"[T]he commission * * * may in its discretion * * * enter an order granting partial and immediate relief * * *. Provided, That no such finding or order shall be authorized or approved ex parte, nor until the commission’s technical staff has made an investigation and report.” MCL 460.6a(l); MSA 22.13(6a)(l).
The commission’s order in this case, authorizing a purchased power adjustment clause, was not "partial and immediate relief’. It was final relief, amending Consumers Power Company’s rate schedules to provide for purchased power adjust- merits from time to time. As the utility argues, this part of § 6a is simply inapplicable. "Billing adjustments pursuant to the purchased power adjustment clause do not involve the granting of partial and immediate rate relief within the meaning of § 6a. Partial and immediate rate relief involves the grant by the commission of a portion of the total rate relief sought by a utility in a general rate case prior to the close of the evidentiary record where the commission finds on motion of the utility that interim rate relief should be authorized prior to issuance of a final order.”
In a second issue, the Attorney General argues that the commission erred in applying the clause in later proceedings by refusing to consider any factors, other than increased cost of purchased power. At the evidentiary hearing on Consumers Power’s first request for a purchased power adjustment, conducted in June of 1976, the Attorney General says he established through competent evidence that 77,507,160 kWh purchased by the company in April of 1976 was for the purpose of meeting the requirements of increased retail sales which occurred in April of 1976, as compared to a year earlier. The company realized a gross profit of $739,337 on the increased sales in April, 1976. The Attorney General argues that "the commission refused to consider crediting the ratepayers with any portion of the gross profits earned on the increased sales, while at the same time charging the ratepayers for the entire cost of the additional purchased power necessary to make those increased sales”. It is "grossly unfair” and a denial of due process, the Attorney General argues, "to charge Consumers Power’s customers in the June 28, 1976 order with the increased April 1976 purchased power expense, while at the same time refusing to credit the customers with the increased revenues arising from the electric sales growth that occasioned the increased purchased power expense”.
The Attorney General’s contention is incorrect. The hearing in the combined case was conducted primarily on Consumers Power’s May 28, 1975, application for a rate increase. During the process, the commission adjusted or normalized 1975 test year data and information to take into account future factors such as anticipated sales increases and the resulting effect on revenues and expenses. Therefore, when the commission allowed a rate increase by its April 12, 1976, order, it had already given appropriate recognition to factors affecting the company’s gross profits from increased sales, including a reasonable estimate of increased sales for 1976. So, in a sense, the company’s increased revenues and profits from increased sales in 1976 were, already taken into account when the commission approved a rate increase by its April 12, 1976, order. Furthermore, the alleged increased revenues or increased gross profit from April, 1976, sales were presumably taken into account by the commission in its reconciliation process, which was also established by its April, 1976, order approving a purchased power cost adjustment clause.
"The [purchased power adjustment] hearings scheduled for the months of May and November shall include an additional determination as to the amount of ah adjustment to customer bills in the following billing months to offset any excess of revenues collected pursuant to the combined effect of the Fuel Cost Adjustment Clause and the Purchased and Interchange Power Clause during the billing period October through March and April through September, respectively. ” (Emphasis supplied.)
As a matter of fact, the adjustments for the period between April and September, 1976, were the subject of a reconciliation hearing and order dated June 6, 1977. At that time, the commission ordered the utility to refund $1,591,000 of overrecoveries by making a credit of .83 mills per kWh on July, 1977, billings. That credit was made. As a result of this, it does not appear that the company’s increased gross revenues or gross profits for April, 1976, sales were unrecognized or that the company was allowed an unfair profit by being permitted to keep both the increased revenues from sales and the increased rates occasioned by an upward purchased power adjustment.
The final argument made by the Attorney General is that the commission refused evidence which tended to show that the company paid more for purchased power to fill the Ludington pumped storage reservoir than it would have had to pay for additional electricity during peak demand hours when Ludington was generating electricity. The commission rejected the contention, finding: "The commission, after review of this record, is not able to state that economy energy was available in the needed amounts at the time the Attorney General asserts that such could have been purchased.”
In answer, the utility indicates that: "The Attorney General’s argument was rejected by the commission as purely speculative and unfounded in fact. The Attorney General presented no evidence to show that Consumers Power would have been able to buy sufficient amounts of power during the period of peak demand in which Ludington was operating.”
The conclusion of the commission and the utility seems to be correct. At least, the Attorney Gener al’s brief does not point to any evidence in the record establishing that "the resulting cost of Ludington power was greater than the price at which Consumers Power could have purchased additional electricity during the peak demand hours when Ludington was generating electricity”.
The last point the Attorney General makes is that: "Subsequent to the June 28, 1976 order, the commission has continued to refuse to inquire into or make a determination as to whether Consumers Power is purchasing power from other utilities at the lowest possible cost, or whether a portion of the outside power purchases could be obviated to more efficient operation of the company.”
That simple statement of the contention is insufficient to raise an arguable issue. No support for the contention is made, no citations to records of any subsequent hearings are given and no case law or statutory authority is cited. The mere statement of the argument is insufficient to require appellate resolution of the point. The issue is considered abandoned. See, for example, Pelc v Bendix Machine Tool Corp, 111 Mich App 343; 314 NW2d 614 (1981); Swindlehurst v Resistance Welder Corp, 110 Mich App 693; 313 NW2d 191 (1981).
The scope of appellate review of orders of the Public Service Commission is quite narrow. To begin with, all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the commission are deemed, prima facie, to be lawful and reasonable. MCL 462.25; MSA 22.44; Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973); Consumers Power Co v Public Service Comm, 65 Mich App 73; 237 NW2d 189 (1975). The person attacking an order of the commission has the burden of proving by clear and satisfactory evidence that the order complained of is unlawful or unreasonable. MCL 462.26; MSA 22.45; Lansing v Public Service Comm, 330 Mich 608; 48 NW2d 133 (1951); Michigan Bell Telephone Co v Public Service Comm, 85 Mich App 163; 270 NW2d 546 (1978).
In this appeal, the Attorney General has failed to demonstrate, clearly and satisfactorily, that the order of the commission approving the purchased power adjustment clause is unlawful. In light of the commission’s broad authority to regulate rates and services of public utilities and, in particular, in light of the commission’s authority to adopt rules and procedures for hearings on petitions to increase or decrease utility rates in an expeditious manner (§ 6a[a] of the public service commission act), it is concluded that the commission’s order is authorized by statute.
Affirmed. No costs are awarded because the appeal involves questions of public importance.
D. E. Holbrook, P.J., concurs in the result only. | [
-34,
-17,
-5,
22,
13,
29,
17,
-44,
-10,
-10,
13,
31,
21,
-40,
-5,
30,
9,
-15,
6,
37,
-4,
-17,
32,
-4,
-36,
-1,
24,
-55,
-27,
-31,
-19,
-5,
-18,
10,
3,
-22,
-34,
112,
-34,
-40,
12,
-28,
-7,
2,
-10,
-10,
-34,
-36,
13,
-36,
-9,
20,
7,
-26,
-42,
6,
-48,
-32,
-39,
10,
-47,
25,
0,
47,
-27,
0,
-20,
34,
71,
-4,
12,
-20,
-13,
25,
44,
116,
26,
-32,
-35,
-30,
-75,
45,
30,
-62,
48,
1,
36,
6,
6,
22,
-3,
-76,
4,
16,
75,
21,
10,
-14,
38,
17,
-70,
-14,
10,
39,
3,
18,
24,
3,
-12,
-8,
-5,
-43,
-52,
-62,
-13,
-7,
-11,
0,
53,
6,
-35,
14,
-34,
76,
-29,
0,
-16,
-63,
-63,
-2,
-71,
27,
29,
3,
51,
85,
47,
50,
9,
-10,
-60,
-26,
21,
-17,
15,
-16,
17,
-20,
-30,
-10,
-1,
11,
43,
45,
14,
-54,
-18,
12,
26,
-42,
37,
-42,
-18,
-19,
-53,
-33,
-23,
-21,
3,
36,
-22,
5,
24,
-45,
-10,
12,
-28,
5,
-42,
-39,
-43,
-11,
26,
0,
-4,
9,
11,
-33,
-15,
-47,
17,
-57,
-9,
-41,
-38,
21,
0,
53,
-8,
29,
3,
-61,
1,
4,
7,
-70,
-54,
-71,
22,
-6,
-6,
27,
6,
-26,
-7,
83,
18,
17,
0,
-8,
40,
-49,
63,
24,
1,
-28,
2,
49,
6,
-22,
-35,
14,
85,
-1,
-28,
43,
1,
31,
18,
-32,
10,
14,
50,
8,
0,
-2,
-23,
-8,
-14,
-28,
-46,
-63,
-1,
39,
11,
-23,
-2,
-3,
21,
15,
33,
-8,
-24,
-16,
-37,
39,
-27,
-51,
33,
28,
-24,
60,
27,
59,
-52,
11,
-26,
-39,
38,
-57,
15,
-5,
19,
-9,
-13,
15,
-5,
32,
-10,
-33,
51,
-25,
43,
-25,
22,
9,
-12,
-6,
-35,
-47,
-63,
2,
5,
-44,
-28,
46,
3,
41,
11,
32,
22,
20,
13,
-20,
-24,
-84,
-9,
-21,
41,
-3,
39,
-5,
8,
75,
-10,
26,
33,
17,
-3,
-9,
8,
8,
36,
-55,
48,
15,
-2,
23,
5,
21,
27,
16,
27,
-4,
-2,
-29,
6,
2,
-70,
-57,
-96,
-6,
-6,
2,
5,
40,
38,
22,
-10,
21,
17,
51,
-24,
-39,
-37,
14,
27,
5,
10,
51,
31,
43,
-8,
16,
36,
-10,
13,
-6,
-37,
1,
6,
-7,
-2,
-66,
39,
-14,
-76,
61,
-69,
26,
-13,
12,
-48,
30,
52,
-22,
8,
-63,
-70,
-22,
73,
15,
-39,
20,
25,
4,
-18,
9,
2,
50,
24,
-3,
-47,
-20,
-9,
2,
84,
38,
26,
17,
27,
-20,
-64,
-27,
44,
-77,
1,
20,
-5,
15,
-61,
-36,
-4,
-4,
-35,
25,
-22,
-69,
-67,
11,
-3,
0,
-7,
-10,
7,
17,
-65,
-29,
38,
-15,
24,
58,
-12,
11,
14,
48,
-27,
-63,
-8,
-48,
-66,
-8,
54,
-19,
26,
-61,
-4,
65,
25,
48,
-23,
65,
43,
23,
-2,
-56,
1,
-27,
-22,
-38,
-9,
-4,
-53,
1,
-43,
-32,
11,
51,
34,
50,
40,
-10,
11,
-48,
38,
0,
43,
15,
-18,
4,
3,
-72,
8,
-24,
0,
-31,
5,
-15,
-18,
-20,
-5,
-29,
3,
44,
1,
34,
25,
-27,
1,
-12,
-36,
4,
-3,
-10,
-24,
11,
3,
5,
68,
-14,
-22,
1,
18,
-7,
-34,
-34,
-6,
72,
-6,
5,
41,
48,
-30,
1,
17,
-11,
-57,
-58,
23,
20,
-9,
-7,
1,
10,
-27,
37,
-6,
35,
-24,
-27,
-70,
36,
76,
-5,
-5,
30,
-32,
-17,
63,
33,
0,
1,
38,
-11,
46,
-9,
-20,
-71,
-15,
48,
6,
-28,
38,
0,
-58,
-8,
1,
56,
50,
15,
2,
-15,
17,
-2,
75,
23,
54,
-64,
16,
-60,
8,
9,
-50,
0,
55,
17,
29,
77,
-26,
27,
15,
0,
29,
-18,
-14,
32,
15,
3,
5,
-2,
37,
-3,
28,
-20,
23,
20,
-4,
18,
-57,
-24,
-6,
-63,
-75,
-15,
46,
6,
17,
-2,
-36,
22,
-54,
-45,
5,
-14,
-9,
51,
-63,
59,
15,
25,
-9,
40,
-20,
29,
-13,
54,
-45,
8,
16,
1,
20,
-34,
14,
-1,
-21,
25,
33,
-60,
47,
-18,
9,
4,
28,
-8,
20,
-12,
-4,
-6,
36,
9,
-42,
30,
-10,
-29,
0,
23,
16,
43,
4,
-22,
34,
-53,
-53,
-36,
20,
-43,
-16,
-7,
3,
3,
-33,
55,
28,
0,
-44,
16,
-28,
-39,
14,
44,
23,
-22,
3,
13,
48,
23,
-22,
-26,
-28,
5,
-52,
-10,
11,
-41,
-62,
15,
-22,
-53,
-16,
-20,
-101,
9,
44,
-38,
31,
44,
-14,
-55,
-23,
25,
2,
5,
0,
-7,
-59,
-27,
-3,
-17,
13,
-8,
14,
-102,
26,
49,
3,
-30,
-45,
53,
15,
-27,
48,
12,
-8,
40,
7,
-38,
28,
-3,
54,
-14,
11,
-22,
-14,
51,
30,
-30,
18,
-59,
-45,
-6,
-10,
-4,
27,
-25,
16,
-18,
27,
23,
-47,
-28,
27,
54,
36,
-30,
-23,
60,
15,
46,
6,
-52,
-50,
34,
-9,
-30,
-13,
28,
-8,
-20,
-37,
-55,
-24,
-39,
2,
2,
50,
-44,
28,
11,
-26,
38,
22,
16,
-51,
13,
-10,
-60,
12,
53,
-44,
27,
8,
50,
-14,
18,
55,
10,
-41,
4,
0,
-21,
-19,
-53,
1,
-15,
-14,
44,
16,
10,
3,
9,
-3,
53,
-8,
42,
40,
25,
-37,
23,
13,
-60,
12,
55,
-3,
16,
-24,
-54,
-29,
47,
-18,
32,
-8,
-21,
-30,
-33,
32,
-13,
-40,
-32,
-38,
-71,
-25,
-46,
48,
-23,
67,
-41,
33,
50,
0,
83,
27,
-8,
0,
8,
-2,
-25,
10,
6,
37,
27,
-7,
27,
-30,
-48,
-25,
62,
45,
-36,
-84,
16,
33,
25,
14,
-21,
-5,
-11,
11,
-67,
20,
22,
12,
-18,
-47,
-6,
-35,
10,
-2,
-21,
32,
35,
-14,
-4,
-29,
33,
76,
-45,
-37,
43,
-38,
17,
32,
57,
37,
-43,
-61,
1,
-36,
7,
24,
41,
-20,
-76,
24,
9,
24,
-52,
-74,
-21,
-6,
-40,
8,
35,
63,
-27,
19,
-42,
-2,
-5,
-40,
53,
5,
6,
8,
-11,
78,
34,
15,
-39,
56,
24,
-30,
-16,
2,
-14,
-27,
13,
-54,
5,
64,
79,
33,
22,
8,
-38,
45,
4,
34,
9,
21,
-29,
7,
26,
-24,
-34,
-38,
44,
18,
12,
8,
42,
-21,
-22,
7,
42,
53,
17,
0,
2,
15,
-52,
66,
-39,
-19,
0
] |
Per Curiam.
Defendant insurers appeal as of right a circuit court award of interest totalling $19,657.27 on fire insurance proceeds of $192,372.66.
Certain of plaintiff’s property was insured by defendants against fire loss under a Michigan standard fire insurance policy, MCL 500.2832; MSA 24.12832. The policy included coverage for losses incurred in the event of business interruption resulting from fire damage to the insured property. On April 17, 1979, a fire occurréd which resulted in both premise damage and business interruption losses. After receiving notice and proof of loss from plaintiff, defendants promptly paid $557,312.40 but rejected as excessive plaintiffs additional claim of $305,101.98 for damages to certain equipment and business interruption losses. The parties were unable to negotiate an agreement as to the value of these losses.
The insurance policy included the statutory language concerning the selection of appraisers and an umpire. (See MCL 500.2832; MSA 24.12832.) Defendants selected their attorney to serve as their appraiser and plaintiff objected on the basis that he was not a competent and disinterested appraiser as required by the policy. Plaintiff submitted to defendants a list of three appraisers for consideration as prospective umpires, but no selection was made by defendants and the parties were unable to agree upon an umpire.
On December 18, 1980, plaintiff filed a complaint in Oakland County Circuit Court, which complaint was amended on December 31, 1980, seeking enforcement of the insurance contract and an award of interest, alleging that defendants had, in bad faith, failed to comply with the insurance contract for the purpose of wrongly retaining use of monies rightfully due plaintiff. Following a show cause hearing on January 21, 1981, the circuit court appointed an umpire to serve in the appraisal procedure outlined in the insurance policy.
The first appraisal hearing was set for May 27, 1981. On that date, prior to commencement of the hearing, all parties, through counsel, agreed to a modification of the appraisal procedure specified in the insurance policy and agreed that the dispute would be submitted to the court-appointed umpire alone and that his decision would be final and binding on the parties as the award of the umpire. The umpire subsequently held three additional hearings and, on August 27, 1981, rendered his decision awarding plaintiff $192,372.66, of which $42,058.82 represented business interruption losses. However, contrary to the assertion of plaintiff, the decision did not specify a time period within which the award was due and payable.
On September 27, 1981, plaintiff filed a petition requesting judgment in the amount of the umpire’s award, plus interest. On September 28, 1981, defendants’ counsel notified plaintiff’s counsel by letter that defendants would not abide by the decision of the umpire, asserting that, in spite of the May 27, 1981, agreement, the appraisal procedure was not in accord with that specified in the insurance policy. However, on October 9, 1981, some 43 days after the award was rendered, defendants issued a check to plaintiff in the amount of $150,314.24 but withheld the portion of the award for business interruption losses. Thereafter, plaintiff’s petition came on for hearing, and judgment was granted in favor of plaintiff in the amount of the unpaid portion of the award, $42,058.42, and judgment interest totalling $19,657.27. On November 25, 1981, 96 days after the award was originally granted by the umpire, defendants paid the remainder of the award, plus interest, and took this appeal after denial of their motion for rehearing.
Citing O J Enterprises, Inc v Ins Co of North America, 96 Mich App 271; 292 NW2d 207 (1980), defendants assert that the trial court erred in awarding interest on the umpire’s award from the date the amended complaint was filed until the date of judgment. We are of the opinion that defendants’ reliance on O J Enterprises is mis placed. In that case, after the court appointed an umpire at the insured’s request and an award was made, the insurer paid the full award within 60 days of its rendition. In disallowing the award of interest, the court specifically noted that it was not a case where the insurer contested the umpire’s award so that judicial intervention was necessary. Such is not the case before us.
In this case, the insurer contested the umpire’s award, thereby requiring judicial intervention. On September 28, 1981, 32 days after the award was rendered and one day after the insured petitioned for entry of judgment, defendants objected to the form of the award, alleging it was not in conformity with the insurance policy. As a matter of fact, defendants are asserting that same issue in this Court as an alternate basis for denial of the interest award. And though defendants did then pay a portion of the award within the 60-day period after it was granted, the balance was not paid until after entry of judgment.
On the record presented, we find the facts of this case more akin to those set forth in Linford Lounge, Inc v Michigan Basic Property Ins Ass’n, 77 Mich App 710; 259 NW2d 201 (1977). There, as here, the insurer challenged the umpire’s award in the trial court to no avail. This Court affirmed the award of judgment interest by the trial court on the insurance proceeds awarded pursuant to MCL 600.6013; MSA 27A.6013. We are of the opinion that the insured in this case is entitled to interest on the umpire’s award of $192,372.66 at 12% per annum from the date the original complaint was filed to the date of payment. The appellate briefs of the parties indicate that defendants issued checks for payment of $150,314.24 on October 9, 1981, and the balance of the award on November 25, 1981, thereby entitling plaintiff to total interest in the amount of $19,370.62.
Finally, we find defendants’. assertion that the umpire’s award was invalid because it was not signed by the umpire and one appraiser to be without merit. The affidavit of the court-appointed umpire indicates the parties agreed to this modification of the appraisal procedure as outlined in the insurance policy, and the trial court so found. There has been no basis presented to this Court to warrant a reversal of that finding.
Affirmed as modified, costs to the plaintiff. | [
-42,
-12,
-10,
17,
23,
21,
-4,
-76,
-12,
-6,
39,
-8,
33,
2,
-13,
-24,
-50,
6,
-4,
-29,
-22,
-5,
-11,
6,
-49,
-18,
17,
-22,
39,
-6,
-57,
-6,
-20,
21,
-47,
-22,
-37,
14,
-48,
40,
26,
-45,
56,
16,
-52,
-21,
30,
-11,
59,
22,
5,
14,
19,
16,
-23,
-14,
8,
8,
3,
-49,
11,
-23,
35,
62,
17,
16,
-35,
2,
36,
16,
7,
23,
3,
24,
21,
-4,
-1,
-28,
-41,
12,
-11,
-28,
48,
1,
42,
38,
-1,
-14,
-29,
-11,
-101,
-2,
10,
-14,
-23,
1,
43,
-4,
33,
53,
-5,
16,
-30,
-3,
-21,
7,
32,
-43,
-41,
-5,
15,
-8,
-11,
-22,
4,
42,
-11,
-9,
5,
56,
14,
-12,
7,
-32,
14,
73,
27,
6,
-21,
-26,
-20,
49,
-5,
68,
7,
-41,
0,
-35,
2,
-9,
-2,
-42,
-32,
-11,
-7,
-15,
15,
-49,
-13,
5,
-15,
40,
-8,
18,
-18,
12,
15,
-22,
21,
-63,
17,
-20,
-34,
46,
-6,
-17,
22,
-13,
11,
7,
30,
-57,
29,
-35,
0,
-4,
75,
-15,
-34,
32,
-7,
-11,
13,
-18,
23,
-21,
-28,
-27,
-22,
-9,
75,
-34,
-41,
20,
13,
0,
58,
88,
-7,
5,
4,
-42,
0,
11,
49,
0,
20,
-52,
-2,
13,
-21,
36,
-6,
-29,
8,
33,
-9,
0,
-12,
-33,
-29,
23,
-2,
-25,
-13,
-40,
-26,
-20,
34,
-18,
-14,
-11,
41,
6,
-10,
32,
26,
28,
51,
-17,
1,
11,
10,
-16,
-5,
-8,
-26,
28,
9,
11,
-16,
-21,
-1,
13,
6,
-9,
-12,
9,
-50,
21,
-16,
-21,
-39,
-1,
-2,
21,
-24,
7,
5,
12,
2,
20,
29,
2,
-20,
-37,
-6,
-4,
-4,
-21,
-11,
26,
-50,
-21,
-44,
49,
0,
5,
17,
-9,
21,
3,
3,
-25,
27,
-24,
-10,
-55,
48,
-16,
-24,
19,
16,
4,
-22,
-26,
-45,
-62,
-16,
22,
-9,
-1,
-5,
-10,
64,
-31,
-36,
-33,
-20,
-25,
59,
26,
-27,
13,
-17,
-5,
48,
2,
-23,
-1,
-40,
-16,
32,
12,
-5,
-2,
8,
-1,
24,
26,
40,
4,
11,
45,
-18,
29,
33,
-14,
18,
31,
-37,
15,
-40,
17,
12,
5,
58,
-15,
-39,
88,
44,
37,
43,
-5,
17,
32,
-25,
16,
7,
0,
21,
14,
0,
-9,
-29,
-20,
-5,
57,
-16,
12,
45,
-10,
-9,
13,
37,
1,
11,
18,
-45,
-10,
-36,
-24,
26,
49,
-30,
30,
-55,
-25,
-9,
39,
53,
13,
-41,
-2,
-40,
-13,
10,
-35,
-23,
-35,
2,
9,
-24,
-28,
1,
23,
57,
-2,
14,
-18,
35,
-11,
0,
-1,
-33,
-65,
38,
29,
-15,
0,
-27,
26,
-8,
-41,
8,
9,
-50,
-22,
-48,
38,
-5,
19,
-27,
-23,
-2,
-29,
-27,
3,
25,
30,
3,
17,
12,
9,
-72,
31,
-7,
-32,
14,
-11,
34,
-31,
2,
22,
-2,
-9,
19,
46,
67,
-24,
22,
27,
-41,
-14,
-50,
21,
-42,
-51,
-42,
59,
0,
57,
-14,
16,
-37,
-6,
5,
51,
-13,
-22,
17,
-9,
7,
-16,
-21,
10,
-46,
-23,
33,
-98,
-24,
-28,
5,
-13,
27,
-30,
-2,
-29,
-40,
3,
-27,
4,
63,
18,
47,
50,
-22,
0,
0,
-9,
-52,
-46,
-64,
20,
-5,
-14,
-53,
15,
47,
20,
24,
-17,
30,
-24,
-27,
65,
4,
24,
-5,
-2,
-17,
5,
2,
42,
-24,
-3,
-35,
-25,
47,
-18,
24,
-60,
26,
-31,
-20,
75,
7,
-7,
35,
6,
-15,
-13,
6,
10,
34,
-28,
-19,
-37,
40,
0,
-13,
-16,
20,
-22,
31,
13,
-1,
-13,
-42,
51,
-49,
-9,
-20,
-42,
-24,
-5,
24,
29,
-30,
16,
3,
31,
-15,
24,
-16,
-4,
-39,
-43,
23,
-14,
1,
-15,
-57,
11,
-4,
10,
22,
17,
15,
2,
9,
-8,
-24,
-23,
-2,
41,
9,
4,
43,
-8,
56,
34,
60,
3,
14,
25,
24,
-4,
-14,
30,
29,
-17,
27,
-38,
-17,
-31,
-6,
53,
-58,
-11,
-40,
7,
-9,
-10,
-3,
8,
0,
-13,
-30,
-59,
-29,
31,
8,
7,
0,
-17,
29,
6,
-32,
-57,
1,
-17,
-14,
23,
-45,
13,
64,
-4,
36,
49,
-5,
-2,
22,
3,
-17,
10,
-72,
65,
0,
32,
-6,
-15,
5,
40,
9,
-2,
-44,
7,
7,
24,
14,
5,
-17,
-42,
50,
-35,
18,
33,
-4,
-31,
-5,
30,
-33,
26,
-41,
45,
27,
-52,
38,
5,
-21,
5,
29,
-20,
-11,
-9,
1,
-1,
-39,
-9,
3,
-80,
44,
-20,
-11,
-15,
71,
24,
19,
-21,
-24,
-1,
8,
-26,
-53,
2,
-1,
-17,
9,
14,
26,
5,
75,
-26,
-41,
15,
5,
12,
24,
-1,
-29,
44,
-4,
29,
0,
28,
-1,
31,
34,
-1,
4,
-5,
-5,
-4,
8,
-26,
27,
-9,
21,
-36,
-26,
12,
0,
-10,
0,
-22,
0,
-13,
-44,
-22,
7,
7,
28,
-10,
-19,
-28,
21,
-40,
-26,
-13,
-15,
8,
-16,
-24,
-33,
30,
-13,
-15,
1,
-15,
10,
20,
41,
13,
-24,
23,
-58,
-20,
31,
-5,
5,
-22,
-1,
-39,
28,
31,
-58,
0,
-18,
28,
-28,
37,
-24,
9,
-14,
-36,
30,
-40,
0,
19,
5,
-23,
-43,
11,
14,
-4,
-13,
18,
-9,
-9,
37,
-49,
-54,
43,
13,
-14,
-76,
-24,
-27,
9,
-43,
-29,
31,
47,
19,
-20,
16,
-31,
45,
-49,
18,
49,
-16,
-6,
14,
37,
-21,
43,
-36,
24,
-38,
32,
-34,
-34,
-39,
2,
2,
-31,
35,
-21,
1,
-32,
-4,
-6,
-8,
0,
-20,
5,
-33,
79,
39,
0,
-21,
38,
-11,
-31,
-21,
-5,
34,
-44,
-11,
1,
33,
18,
14,
63,
21,
-30,
-5,
26,
11,
-28,
-26,
-17,
-9,
57,
20,
-4,
-28,
39,
0,
-10,
-22,
-44,
-2,
-38,
52,
16,
16,
31,
-7,
2,
-3,
47,
32,
-52,
-7,
-44,
8,
25,
-31,
-11,
46,
0,
-7,
-15,
-9,
21,
9,
33,
27,
-16,
5,
54,
-29,
-3,
-13,
-1,
-30,
-24,
-28,
0,
24,
3,
55,
16,
19,
26,
-7,
-10,
-5,
-46,
0,
-31,
-25,
-30,
29,
12,
-22,
-7,
-16,
-23,
29,
16,
13,
-6,
-54,
-9,
23,
16,
-2,
-3,
34,
0,
14,
13,
9,
68,
1,
2,
27,
19,
43,
3,
5,
34,
-21,
18,
26,
10,
-15,
42,
13,
-16,
-13,
16,
-21,
18,
-35,
-56,
35,
15,
-21,
27
] |
Per Curiam.
This matter is an action for slander. In 1978, the Michigan Bureau of State Lottery received a complaint regarding the operation of bingo games conducted by the plaintiffs for the Michigan Democratic Party. The games were held in a hall owned by defendants Jovanka Stevanovich and Pusan Stevanovich. In response to the complaint, the bureau sent a field representative, defendant Ted Schaeffer, to conduct an audit. Schaeffer appeared at the hall on February 10, 1978, and, during the course of the evening, plaintiff Patricia Haase requested Schaeffer to address the bingo players to explain what he was doing at the game. Schaeffer agreed and addressed the group over a loud speaker system. After making the announcement, Schaeffer turned off the speaker system and began conversing with several of the bingo players. During this conversation, Schaeffer allegedly stated that "the audit was for the protection of the people there and to see if the organization gets the money or someone is making payments on someone’s Cadillac”. Thereafter, Ms. Haase commenced the present action in the circuit court, alleging that she owns a Cadillac, that the people who heard Schaeffer’s remark knew she owned such a vehicle and that the clear meaning of the remark was that she was stealing the bingo money to make payments on her Cadillac.
The circuit court ordered the suit removed to district court where Schaeffer was granted summary judgment pursuant to DCR 1969, 117.2, subds (1) and (3). Plaintiffs appealed to circuit court. The circuit court reversed the district court’s order and reinstated plaintiff’s suit. Defendant Ted Schaeffer then sought and was granted leave to appeal to this Court.
It should first be noted that the language contained in DCR 1969, 117.2, subds (1) and (3) is identical to that contained in GCR 1963, 117.2, subds (1) and (3). Therefore, for purposes of this appeal, this Court shall analyze the matter as though the motions were brought under the general court rules.
Motions for summary judgment under GCR 1963, 117.2(1) challenge the legal sufficiency of the pleadings and are to be determined by an examination of the pleadings alone. This Court’s role as a reviewing court is to accept as true all well-pled facts in the complaint. This Court must determine whether plaintiff’s claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. See Borman’s, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975); Tumbarella v Kroger Co, 85 Mich App 482; 271 NW2d 284 (1978).
Summary judgment under GCR 1963, 117.2(3) is proper when there is no genuine issue as to any material fact. A motion for summary judgment under this section tests whether there is factual support for the claim. Affidavits, depositions, admissions and other documentary evidence must be considered by the court. Further, courts are to be liberal in finding a genuine issue exists in order not to infringe upon a party’s right to a trial of the disputed issues. Tumbarella, supra; Bob v Holmes, 78 Mich App 205; 259 NW2d 427 (1977).
In order to create liability for slander there must be an unprivileged publication of a false and defamatory statement about another which is actionable per se or is the legal cause of special harm to another. False accusation of a crime is slander per se. See Tumbarella, supra.
The alleged defamatory statement in the instant matter was:
"the audit was for the protection of the people there and to see if the organization gets the money or someone is making payments on someone’s Cadillac”.
Upon review of the record, this Court must hold that, as a matter of law, the statement does not constitute slander. The statement did not accuse Ms. Haase or anyone else of committing a crime. The statement was prefaced with the words "to see if’. The literal meaning of the comment was "I am here to investigate”. A statement indicating that an investigation was underway clearly does not rise to the level of defamation.
Because this Court holds the statement not to be slanderous as a matter of law, the issues of privilege, actual malice and malice implied by operation of law need not be addressed.
The decision of the circuit court is reversed and the decision of the district court is affirmed in part. | [
-8,
6,
-29,
47,
6,
-41,
-29,
-4,
-51,
-5,
34,
6,
15,
5,
-37,
-52,
-30,
-37,
-20,
-6,
17,
-35,
-14,
37,
4,
33,
34,
-1,
22,
-54,
19,
-23,
6,
-42,
22,
-21,
61,
22,
-22,
2,
-54,
-36,
31,
-27,
-37,
-19,
6,
-40,
60,
4,
3,
8,
-30,
10,
-3,
-21,
4,
-1,
0,
3,
3,
24,
48,
-36,
63,
-46,
-15,
-33,
-18,
-27,
16,
23,
-52,
-23,
-27,
-75,
-3,
-7,
-17,
39,
-28,
-63,
41,
-18,
-6,
2,
45,
-6,
4,
-59,
-15,
-9,
-11,
21,
16,
49,
31,
9,
55,
10,
-9,
-52,
-34,
24,
22,
4,
74,
-35,
0,
9,
-18,
-25,
8,
-69,
21,
20,
-4,
31,
-24,
-48,
-5,
-24,
12,
61,
8,
30,
38,
-40,
-27,
27,
67,
65,
5,
2,
17,
10,
-5,
-33,
14,
-27,
1,
6,
29,
5,
33,
-37,
32,
70,
42,
-3,
-16,
-63,
10,
34,
-7,
-10,
-27,
-37,
43,
-15,
-13,
-36,
-56,
13,
3,
-14,
43,
-60,
45,
-19,
-12,
-34,
-5,
-20,
-26,
-2,
21,
-12,
-18,
-1,
-37,
43,
27,
34,
-42,
-47,
2,
-45,
-21,
-45,
57,
-21,
38,
1,
35,
40,
8,
49,
3,
-39,
10,
-25,
37,
-1,
14,
-14,
-37,
-36,
-66,
11,
-11,
36,
0,
-38,
7,
-46,
5,
-15,
10,
-6,
-10,
-10,
7,
58,
-48,
-16,
2,
-26,
12,
-15,
58,
4,
43,
-18,
-57,
-20,
38,
-26,
28,
-29,
-56,
-24,
19,
-3,
12,
8,
-5,
0,
9,
-17,
3,
-23,
-5,
17,
-29,
-48,
-34,
36,
-24,
2,
0,
18,
-36,
31,
-43,
-4,
-6,
4,
-58,
-6,
43,
-2,
27,
-23,
-25,
-23,
-17,
13,
34,
1,
-7,
2,
1,
20,
-26,
13,
-26,
-34,
40,
27,
60,
43,
4,
0,
43,
-22,
-32,
-16,
67,
22,
13,
42,
58,
5,
-15,
-32,
17,
-31,
-47,
15,
9,
-16,
-15,
4,
35,
-23,
12,
36,
4,
1,
20,
-66,
-7,
32,
-36,
-56,
28,
-81,
-1,
-14,
20,
4,
-7,
-14,
49,
-17,
23,
-51,
4,
11,
22,
-8,
17,
0,
-7,
27,
-1,
24,
-36,
-58,
-26,
-5,
14,
-29,
25,
-6,
30,
-4,
-19,
68,
11,
71,
44,
13,
17,
-20,
-17,
16,
39,
48,
-52,
-46,
-5,
17,
-37,
-32,
-50,
-41,
-29,
49,
-2,
-5,
25,
-31,
19,
-25,
-39,
2,
-19,
-17,
-33,
-32,
0,
35,
8,
20,
0,
36,
26,
35,
26,
59,
31,
31,
-10,
-10,
12,
-21,
2,
79,
-4,
37,
-21,
-9,
40,
3,
32,
17,
-2,
-48,
7,
-3,
-1,
-24,
32,
-79,
9,
13,
-6,
24,
-20,
-43,
-47,
-45,
-12,
21,
-31,
-9,
25,
1,
16,
-23,
-29,
5,
24,
21,
-16,
-1,
4,
-31,
31,
63,
-42,
-23,
-9,
-9,
19,
-11,
-62,
-22,
5,
-13,
-25,
12,
-22,
17,
-26,
9,
17,
31,
-1,
49,
-51,
73,
-29,
1,
22,
-6,
26,
-22,
20,
74,
22,
-30,
-46,
-55,
25,
-27,
-28,
26,
2,
5,
-18,
14,
11,
50,
-17,
32,
22,
4,
-10,
13,
-9,
25,
30,
-11,
-10,
-47,
25,
10,
-24,
18,
16,
43,
25,
25,
42,
-74,
-50,
19,
-16,
-26,
-62,
-5,
-35,
24,
24,
24,
25,
2,
27,
-48,
57,
-51,
35,
-36,
31,
-10,
-43,
-4,
5,
40,
17,
11,
51,
-22,
43,
-65,
76,
42,
38,
-12,
0,
3,
24,
26,
-27,
-7,
-4,
-18,
-59,
65,
22,
-27,
19,
-34,
-31,
-23,
4,
-50,
-2,
12,
10,
9,
-10,
45,
39,
-39,
-14,
-8,
17,
10,
15,
-17,
17,
10,
26,
32,
15,
-22,
-30,
-48,
12,
0,
17,
21,
-26,
-13,
-56,
8,
32,
-32,
-13,
-6,
-12,
-39,
-32,
-16,
-1,
-35,
36,
-7,
3,
-17,
6,
33,
-31,
-10,
8,
-1,
27,
11,
24,
11,
12,
-27,
7,
2,
-27,
-46,
11,
-14,
31,
3,
-11,
-7,
-10,
27,
-53,
46,
0,
65,
2,
-18,
18,
-2,
13,
6,
-16,
17,
4,
34,
6,
1,
-9,
-32,
-29,
-10,
-8,
-58,
-8,
1,
-17,
-37,
19,
-15,
30,
-9,
18,
13,
22,
-2,
1,
22,
22,
7,
-26,
-28,
-21,
-27,
-50,
7,
-18,
-12,
35,
17,
4,
-27,
17,
-43,
22,
4,
-10,
-20,
79,
16,
16,
-27,
-18,
-54,
-38,
27,
-10,
16,
-4,
-14,
-1,
-58,
11,
39,
-20,
9,
16,
-35,
-37,
-35,
-23,
-40,
-28,
-6,
-54,
-21,
13,
-1,
-2,
-48,
80,
31,
30,
-7,
6,
19,
-15,
27,
-13,
34,
2,
-3,
-42,
39,
12,
55,
8,
-8,
29,
31,
-4,
24,
20,
50,
-10,
24,
-6,
18,
-2,
11,
-22,
0,
30,
-18,
-17,
17,
-5,
-35,
-21,
16,
-14,
65,
30,
-22,
-35,
-35,
3,
-9,
-10,
-17,
13,
-12,
19,
-34,
35,
29,
24,
34,
1,
-13,
36,
1,
9,
27,
-22,
-13,
-3,
-24,
-40,
37,
49,
-12,
-1,
-17,
12,
20,
63,
74,
-26,
0,
-21,
-9,
-11,
-38,
-53,
-15,
11,
-44,
13,
5,
-30,
27,
-4,
-36,
22,
-16,
-39,
21,
-44,
28,
-21,
-24,
27,
21,
34,
-25,
37,
30,
-26,
-51,
56,
-33,
-5,
-16,
-17,
2,
-70,
55,
12,
-14,
13,
-9,
30,
4,
-13,
44,
-3,
-26,
19,
17,
-48,
1,
56,
27,
-9,
46,
-34,
-8,
11,
24,
19,
-2,
56,
-71,
9,
10,
-41,
5,
-3,
-9,
-2,
-10,
-38,
-64,
-22,
-8,
-5,
0,
38,
-42,
-12,
11,
-13,
11,
14,
-13,
3,
44,
-2,
2,
37,
-26,
47,
-53,
9,
-13,
-60,
-62,
3,
25,
14,
10,
-54,
22,
17,
-25,
15,
-7,
-6,
-2,
25,
64,
9,
-43,
14,
29,
-36,
-13,
-1,
-17,
38,
-43,
-35,
25,
-15,
14,
-35,
23,
27,
12,
-81,
12,
47,
38,
20,
2,
-35,
14,
5,
-22,
-52,
-11,
-19,
35,
24,
-1,
-7,
26,
-30,
33,
20,
-15,
-40,
-13,
-5,
27,
43,
7,
51,
-50,
-22,
10,
14,
60,
5,
-4,
-22,
-4,
-35,
-33,
2,
34,
-49,
-36,
30,
-9,
-6,
8,
14,
-2,
-82,
20,
24,
-41,
61,
1,
-6,
-49,
32,
13,
5,
-13,
41,
3,
31,
-15,
14,
-47,
39,
48,
8,
9,
28,
26,
9,
-20,
-1,
-4,
-11,
-13,
14,
3,
-20,
-54,
-42,
68,
3,
-8
] |
M. J. Kelly, J.
On the day initially scheduled for an entrapment hearing, defendant abandoned his entrapment defense and pled guilty to delivery of a controlled substance, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and to being a third-offense habitual offender, MCL 769.11; MSA 28.1083. Defendant was sentenced to a term of from 3 to 20 years in prison. He appeals as of right.
After defendant filed his claim of appeal, appellate counsel timely moved this Court to remand the cause for an evidentiary hearing on the issue of entrapment. Defendant correctly asserted that his claim of entrapment was not waived by his guilty plea, citing the Supreme Court’s interpretation of People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), in People v White, 411 Mich 366, 387; 308 NW2d 128 (1981):
"A claim of entrapment does not involve an assessment of guilt or innocence, but rather expresses a policy that there should be no prosecution at all. In this respect, it is like a jurisdictional defect which is not waived by a plea of guilty.”
Defendant asserted in his motion for remand a scenario predicated upon the assertions that a series of drug transactions were arranged for the defendant by undercover police agents who told defendant that he would be provided portions of any drugs that he could obtain for the officers from the targeted drug traffickers. It was alleged that defendant was a recovering addict and that those successful efforts overcame defendant’s resistance, caused him to again become an addictive user, and impermissibly instigated the crimes for which defendant was charged. Defendant asserted similarities to factual situations occurring in the federal cases of United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973), and Sherman v United States, 356 US 369; 78 S Ct 819; 2 L Ed 2d 848 (1958).
On March 26, 1982, a panel of this Court, in an unpublished order, denied defendant’s motion to remand for "lack of merit in the grounds presented”. Defendant proceeded with his appeal but raised no new issues, alleging only entrapment and praying for reversal. At oral argument, however, appellate counsel alternatively prayed for remand. In any event, the thrust of the appeal is the defense of entrapment.
We hold that we are precluded from reviewing defendant’s claim of entrapment by virtue of this Court’s order of March 26, 1982, denying remand, because we hold that that order constitutes the law of the case.
A defendant has the burden of proving a claim of entrapment by a preponderance of the evidence. People v D’Angelo, 401 Mich 167, 183; 257 NW2d 655 (1977). The Court of Appeals is not to determine in the first instance, without the benefit of a contested lower court hearing, whether a defendant was entrapped. The issue must first be brought to the attention of the trial court before or during trial and decided by that court after an evidentiary hearing. See D’Angelo, supra, pp 178-183. The trial court’s finding may then be subject to áppellate review under the "clearly erroneous” standard. D’Angelo, supra, p 183; see GCR 1963, 517.1.
Since an evidentiary hearing on the issue of entrapment was never held in this case, we have no record evidence before us indicating whether defendant was entrapped. Without the benefit of an evidentiary hearing and the attendant record evidence, defendant’s claim of entrapment cannot be decided on appeal.
It is beyond our power to remand this cause for an evidentiary hearing. The decision of a previous panel of this Court, finding a "lack of merit in the grounds presented” on whether defendant was entitled to a remand for an evidentiary hearing, is the law of the case. When an appeal and a motion to remand are filed, a subsequent order denying the motion to remand for lack of merit in the grounds presented is the law of the case, barring further review of the issue in this Court. See People v Wiley, 112 Mich App 344, 346; 315 NW2d 540 (1981). If a litigant in the Court of Appeals has any objection to a denial of his motion to remand for lack of merit in the grounds presented, his redress is an application for rehearing to the deciding panel or an application for leave to appeal the order to the Supreme Court. See People v Whisenant, 19 Mich App 182, 189; 172 NW2d 524 (1969), aff'd 384 Mich 693 (1971); GCR 1963, 800.4; GCR 1963, 819.4.
Since the prior panel’s order of March 26, 1982, did not explain its reasoning, its denial of remand under the circumstances is not precedential for any other case, but we do note that the prosecutor in opposition to that motion urged that the entrapment defense had been waived by defendant who abandoned the claim on the day that it was set for a hearing. If the prior panel had granted a remand on that issue under the circumstances presented, then it would have created a procedure under which a defendant could avoid raising an entrapment issue in the trial court while negotiating a plea-bargaining agreement. Thereafter, if dissatisfied with the plea-bargaining agreement, the defendant could raise the entrapment issue for the first time on appeal, relying on People v White, supra, and gain an advantage by avoiding the forthright presentation of the potential issue in the first instance before the trial court. We can find no favor with such tactics and under the circumstances would have reached the same result had we gone to the merits of the issue.
Affirmed. | [
21,
-27,
-28,
43,
-19,
-34,
-51,
-18,
-76,
-6,
43,
-25,
3,
-4,
-28,
4,
-9,
5,
38,
-32,
22,
4,
43,
68,
-24,
0,
21,
53,
-14,
-5,
30,
-2,
51,
-55,
9,
20,
28,
-17,
43,
-3,
9,
11,
-49,
0,
-66,
-1,
-16,
-4,
41,
18,
43,
-26,
28,
40,
-6,
27,
2,
0,
80,
25,
-43,
47,
-33,
-45,
6,
14,
-61,
-7,
-65,
-36,
-31,
11,
-28,
15,
-13,
27,
-7,
38,
47,
37,
25,
69,
29,
4,
-2,
53,
11,
-34,
9,
23,
15,
-29,
-51,
-28,
-39,
-7,
-9,
-19,
-2,
-47,
6,
-32,
-40,
-20,
32,
5,
3,
-21,
-41,
47,
-12,
-2,
12,
-31,
-43,
-56,
-10,
-12,
-16,
21,
-13,
-11,
4,
53,
6,
-18,
-13,
-13,
11,
3,
-24,
37,
35,
6,
-66,
27,
25,
13,
4,
47,
-48,
67,
50,
18,
-3,
15,
-26,
14,
39,
29,
-10,
-34,
-9,
57,
11,
-11,
29,
-3,
-40,
2,
-24,
-10,
5,
8,
-24,
-51,
-31,
-17,
-23,
-13,
71,
-1,
37,
63,
-17,
3,
-12,
42,
-16,
-23,
-39,
-4,
-24,
30,
21,
-9,
14,
55,
-46,
42,
22,
16,
-17,
23,
7,
10,
-16,
21,
4,
23,
-11,
28,
-39,
6,
12,
22,
-2,
-30,
35,
9,
-42,
-20,
46,
-95,
2,
-54,
-2,
-21,
5,
14,
-31,
-23,
51,
-3,
-27,
-23,
-11,
53,
-14,
-5,
22,
-38,
8,
47,
-25,
-18,
24,
-21,
78,
-32,
37,
-5,
-18,
-67,
-2,
13,
-2,
-17,
-15,
-22,
42,
20,
-4,
-4,
-25,
-33,
9,
-19,
0,
6,
16,
22,
-56,
11,
-16,
26,
-51,
15,
-30,
36,
-41,
27,
-2,
15,
3,
-11,
-64,
89,
50,
17,
8,
12,
27,
0,
-45,
-4,
19,
57,
48,
1,
19,
-29,
-9,
11,
20,
-26,
21,
35,
-61,
44,
5,
-4,
-26,
-78,
8,
-5,
33,
18,
-10,
-10,
49,
21,
66,
28,
-26,
-37,
8,
-15,
54,
-10,
-74,
25,
-5,
-22,
66,
-48,
49,
-2,
32,
-40,
10,
-33,
-5,
-15,
-29,
49,
-41,
5,
-22,
35,
-82,
-20,
11,
-27,
6,
6,
-14,
-3,
59,
-10,
32,
-21,
31,
-17,
-18,
5,
12,
-76,
6,
-23,
21,
-81,
-2,
-4,
55,
-54,
4,
4,
9,
3,
52,
-36,
-18,
-29,
8,
-15,
-4,
9,
-5,
-24,
-34,
-36,
5,
10,
19,
-87,
-17,
4,
27,
33,
-61,
21,
-1,
-10,
-26,
13,
10,
10,
44,
-14,
3,
32,
54,
-10,
-9,
-14,
20,
38,
3,
8,
-27,
32,
19,
64,
-19,
-14,
36,
-4,
-5,
-52,
21,
4,
15,
-48,
22,
28,
21,
10,
-11,
-70,
-24,
23,
33,
-63,
-17,
24,
-30,
-62,
-22,
2,
-38,
-58,
-60,
28,
22,
14,
-58,
-20,
14,
25,
-16,
38,
-3,
-34,
-16,
58,
12,
-16,
-21,
-16,
9,
2,
-17,
8,
54,
-48,
-12,
0,
33,
-25,
54,
46,
28,
-6,
-48,
42,
-10,
16,
1,
-9,
1,
12,
23,
0,
60,
14,
9,
-60,
10,
10,
-47,
-29,
6,
10,
-26,
-29,
10,
-8,
-46,
35,
-26,
-14,
-8,
33,
52,
13,
54,
-11,
31,
43,
15,
26,
-36,
25,
25,
-25,
-20,
0,
7,
9,
40,
22,
61,
5,
-51,
36,
-47,
-78,
-43,
-10,
46,
-19,
26,
-20,
12,
-5,
-1,
19,
29,
-6,
5,
5,
-26,
7,
7,
-10,
18,
24,
52,
-8,
-16,
53,
13,
9,
0,
-4,
-6,
3,
-54,
-12,
-34,
-10,
59,
25,
-31,
26,
-26,
-33,
48,
45,
-2,
27,
-5,
52,
-27,
-4,
7,
25,
-37,
33,
41,
44,
0,
-45,
-7,
0,
21,
9,
-14,
-27,
-15,
-32,
45,
-18,
45,
43,
-17,
-53,
0,
23,
40,
-13,
-26,
-4,
17,
-6,
-3,
18,
-37,
30,
37,
28,
-14,
-25,
-49,
-2,
-42,
-8,
-32,
31,
-54,
28,
-11,
-45,
-20,
-51,
-83,
32,
1,
-35,
17,
17,
-17,
16,
20,
-18,
-26,
-9,
-45,
-9,
-26,
58,
-8,
26,
15,
7,
-13,
-15,
-7,
-28,
-35,
30,
13,
4,
44,
-11,
-34,
18,
1,
-45,
-10,
28,
-43,
-30,
14,
-34,
-29,
-16,
7,
-25,
-20,
-52,
-30,
33,
21,
-41,
-25,
-35,
20,
-7,
-35,
-27,
5,
-49,
-15,
19,
-51,
-14,
1,
65,
-49,
38,
32,
-7,
-6,
31,
28,
7,
40,
-23,
6,
6,
33,
-44,
-13,
-16,
39,
-3,
-24,
36,
-34,
76,
-19,
10,
-9,
21,
-43,
-22,
-35,
20,
16,
-15,
48,
51,
54,
54,
21,
-22,
2,
-89,
11,
-37,
17,
-17,
-31,
19,
-23,
14,
17,
35,
-17,
-8,
-27,
-2,
-16,
22,
-9,
-11,
34,
-17,
24,
-4,
26,
69,
-38,
14,
51,
-19,
-62,
-33,
-14,
-14,
-27,
-26,
-74,
49,
-20,
-20,
45,
24,
-59,
-53,
30,
-10,
-29,
4,
-23,
65,
-24,
-1,
-30,
30,
-29,
19,
-35,
-10,
-43,
-10,
-7,
7,
-21,
17,
3,
0,
50,
8,
-5,
13,
-17,
9,
20,
-5,
-7,
-8,
0,
11,
-1,
17,
34,
-14,
17,
-15,
7,
2,
32,
19,
-12,
-65,
-6,
-2,
24,
74,
-28,
-53,
-3,
60,
47,
-14,
5,
-19,
-26,
29,
22,
33,
-15,
19,
29,
-32,
-16,
9,
32,
-29,
-6,
27,
-2,
-4,
0,
-48,
4,
28,
3,
-28,
-58,
63,
-40,
27,
-27,
34,
5,
-4,
27,
15,
-3,
-4,
6,
18,
39,
9,
29,
23,
42,
-18,
-34,
43,
-6,
63,
-29,
7,
19,
17,
19,
-44,
75,
29,
24,
-77,
-36,
-25,
31,
-21,
-4,
76,
-25,
-8,
-27,
-30,
42,
-2,
-31,
-73,
32,
-47,
-5,
26,
64,
-37,
-5,
13,
-14,
-38,
-23,
19,
36,
14,
-26,
-14,
-71,
27,
9,
-2,
-6,
29,
43,
40,
31,
-26,
19,
3,
13,
23,
-14,
-11,
-32,
-12,
-22,
19,
13,
-13,
6,
5,
-16,
-1,
-48,
44,
-65,
16,
-6,
-34,
17,
10,
-3,
-48,
-23,
12,
-17,
-39,
1,
18,
-29,
-21,
10,
68,
-60,
28,
-8,
44,
-31,
-19,
-7,
12,
-4,
-11,
-27,
-31,
31,
-11,
-32,
-26,
33,
-18,
8,
-47,
-11,
-31,
55,
13,
23,
34,
-25,
-73,
12,
-18,
0,
37,
23,
37,
-14,
-58,
-10,
-8,
-27,
-22,
26,
-17,
14,
34,
19,
-1,
-53,
-31,
30,
-1,
20,
-32,
-28,
24,
37,
33,
-70,
54,
-10,
-16,
-3,
21
] |
Per Curiam.
Defendant was convicted by a jury on July 23, 1981, of first-degree criminal sexual conduct under MCL 750.520b(l)(a); MSA 28.788(2)(l)(a) and sentenced to 5 to 20 years imprisonment. He appeals as of right.
Testimony showed that the defendant was divorced from his former wife. During their marriage defendant had lived with his wife and her daughter. The child testified that she had known the defendant all her life and was told that he was her father. When the child was 6 years old the defendant and his wife divorced; nevertheless, the child continued to see defendant until her 12th year, thinking he was her natural father.
Sometime between the 9th and 15th of . January, 1981, the defendant and the young girl had sexual contact in the pole barn behind defendant’s house. Such activity had been going on for at least a year and a half. Defendant had also begun photograph ing his exploits with the child in December, 1980 and retained the pictures. Eventually the child contacted a social worker at Protective Services about these incidents after watching a television program. The social worker later contacted a trooper at the Michigan State Police who swore out an affidavit to obtain a warrant to search defendant’s residence for photographs of the child. The trooper secured the warrant and recovered the pictures from defendant’s pole barn.
Defendant challenges the validity of the search warrant. He argues the warrant was invalid because the information contained in the trooper’s affidavit was 45 days old and was stale. The affidavit, dated February 27, 1981, does reveal that the photographs were last seen on the previous January 11th. We cannot agree, however, that this information was stale. A search warrant must be supported on probable cause existing at the time the warrant is issued. People v Chippewa Circuit Judge, 226 Mich 326; 197 NW 539 (1924); People v Gillam, 93 Mich App 548; 286 NW2d 890 (1979). Nevertheless, a lapse of time between the occurrence of the underlying facts and the issuance of the warrant does not automatically render the warrant stale. People v Gillam, supra, p 552. As a panel of this Court said in People v Gillam, supra, p 553: "the measure of a search warrant’s staleness rests not on whether there is recent information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to presume that the sought items remain on the premises”. Such probable cause is more likely to be "sufficiently fresh” when a history of criminal activity is involved. People v Gillam, supra, p 552.
In this case, defendant had been sexually exploiting his young victim for at least a year and a half before the issuance of the warrant. Indeed, the affidavit indicated that, according to the child, she had had regular sexual contact with the defendant since the age of three. The photographs were clearly not an isolated aberration but simply a variation in a long history of sexual abuse. The magistrate thus had enough information to conclude that defendant would not. quickly dispose of the pictures but would retain them for his own future perverse enjoyment. The affidavit’s allegations of a long history of sexual abuse between the child and defendant and the victim’s personal knowledge of the existence and location of the photographs in January constituted probable cause sufficiently fresh to presume that the photographs were in defendant’s residence when the warrant was issued. We must reject defendant’s contention.
Defendant next contends that the search warrant was not supported by probable cause because the affidavit contained double hearsay. The affidavit provided:
"The following facts having been sworn to by affiant in support of the issuance of this Warrant: Your affiant is a Michigan State Trooper attached to the Wayland Post. On February 27, 1981 he was contacted by Diane Parrott, Protective Services worker with the Allegan County Department of Social Services, and informed that she was investigating a case where it was alleged that sexual contact had occurred between a twelve year old girl and her natural father.
"Your affiant was informed by Ms. Parrott that she had interviewed the Complainant on this date, the complainant indicated that she had had regular sexual contact with her natural father since the age of three.
. "During the week of January 11, 1981 the complainant indicated that she was present at the home of her natural father. At that time she was taken into the outbuilding described above, there sexual contact took place and the complainant indicated that she was photographed in the nude by her father.
"Her father, William Nelson Osborne is the occupant of the above described modular home and the above described outbuilding. The complainant indicated that the photographs were taken by her father and that after the photographs were taken they remained in the possession of her father.
"It is the belief of your affiant that the complainant is a mature, now thirteen year old girl, and appears to be reliable.
"It is further the belief of your affiant that the pictures were last seen in the possession of William Nelson Osborne and that it is likely that they are contained somewhere in the above described places.”
The information here passed through two links. First, from the child complainant to the Protective Services worker and, second, from the social worker to the affiant. A magistrate may rely properly on hearsay. Jones v United States, 362 US 257; 80 S Ct 725; 4 L Ed 2d 697 (1960). Moreover, reliance on double hearsay does not itself invalidate the warrant. People v Chartrand, 73 Mich App 645; 252 NW2d 569 (1977). But as this Court said in People v Brooks, 101 Mich App 416, 419; 300 NW2d 582 (1980):
"[W]hen hearsay is used, however, the judicial officer being asked to issue the warrant must be supplied with (1) some of the underlying circumstances supporting the conclusion that the object of the search is where it is said to be and (2) some of the underlying circumstances supporting the conclusion that the person supplying the information is reliable. Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964); Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1960); People v Walker, 401 Mich 572; 259 NW2d 1 (1977).”
The affidavit satisfies the first prong of the Brooks test for the same reasons that the information in the affidavit is not stale. The long history of sexual contact between the defendant and the child and the child’s personal knowledge of the existence and location of the photographs support the conclusion that the pictures were in defendant’s possession when the warrant was issued.
The affidavit fulfills the second prong as well. Because the affidavit referred to two informants both must meet the reliability test. The affidavit supplies enough circumstances supporting the reliability of the child. It stated her long relationship with defendant. This relationship indicates that she was in an excellent position to know the truth of what she said. Cf. People v Emmert, 76 Mich App 26, 31; 255 NW2d 757 (1977); People v Chart-rand, supra. Moreover, the child stated the approximate date and location of the photographing. She also described the events leading up to the photographing. Such specificity further indicates that the child was a reliable informant.
The second informant was a Protective Services worker who had interviewed the child. What she learned from that interview she told to the affiant. Social workers cannot discharge their professional obligations unless they report accurately what they have learned. In this regard, social workers are like police officers investigating a case. See People v Peete, 113 Mich App 510, 513; 317 NW2d 666 (1982). We think a professional social worker is a reliable informant as to information acquired in his or her professional capacity. This is such a case. The Protective Services worker clearly acquired the child’s story as part of her investigation into allegations of sexual abuse. These circumstances support the reliability of her report of the information so obtained.
Defendant next argues that MCL 780.653; MSA 28.1259(3) renders the affidavit defective. That statute reads:
"The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein.”
The affidavit is defective, defendant contends, because the social worker did not know personally the facts reported by the child. We disagree.
The statute does not require that ad of the affiant’s informants allege personal knowledge of the criminal activity. People v Chartrand, supra. It requires only that the informant allege that he knows personally the facts he is reporting to the affiant. Where the facts reported by the informant are another person’s statements about certain events, the statute is satisfied even though the informant has no personal knowledge of those events so long as he alleges personal knowledge of the statements. Cf. People v Chartrand, supra. Here, the facts reported by the social worker were the child’s statements about her sexual relations with defendant. The affidavit alleged that the social worker knew personally that the child made these statements, inasmuch as it averred she interviewed the child. The affidavit, therefore, did not violate the statute.
Finally, the defendant argues that the trial court erred in admitting the photographs because their prejudicial effect substantially outweighed their probative value. The photographs depicted sexual contacts between the defendant and the child occurring before the incidents underlying the prosecution. The admission of photographic evidence is largely within the trial court’s discretion. People v Rocha, 110 Mich App 1, 13; 312 NW2d 657 (1981). The question on review is whether the photographs were substantially necessary or instructive to show a material fact or merely calculated to excite passion and prejudice. People v Falkner, 389 Mich 682; 209 NW2d 193 (1973); People v Eddington, 387 Mich 551; 198 NW2d 297 (1972).
These photographs were not introduced to excite passion and prejudice. Instead, they were offered to corroborate the child’s testimony as to her prior sexual encounters with defendant. Cf. People v Rocha, supra, p 13. In a case such as this, the defendant’s relationship with the child is a material fact since her ongoing relationship with defendant reinforced her credibility. See People v Der-Martzex, 390 Mich 410; 213 NW2d 97 (1973). Because the child was the prosecution’s chief witness, her credibility was the central issue in the case. Thus, the photographs were substantially necessary and instructive on a material issue. Pictures of this kind may, of course, arouse easily the passions and prejudices of the jury. Nevertheless, after reviewing the photographs and the circumstances of this case we cannot say that the trial court abused its discretion in finding that their probative value outweighed their prejudicial effect.
Affirmed.
M. J. Kelly, P.J., concurs in the result only. | [
38,
-12,
13,
36,
-1,
2,
-60,
0,
4,
15,
34,
-34,
11,
24,
20,
6,
13,
40,
44,
-45,
-3,
-4,
-20,
34,
3,
6,
10,
43,
-44,
-10,
-9,
-1,
3,
-38,
-8,
-9,
38,
-10,
39,
52,
6,
-10,
14,
-2,
-33,
-53,
19,
31,
-2,
-20,
30,
-46,
0,
13,
51,
11,
47,
-10,
25,
22,
-13,
45,
-7,
4,
-34,
-19,
28,
37,
10,
-25,
22,
-25,
-92,
6,
11,
2,
-12,
34,
6,
48,
9,
-3,
18,
5,
50,
-42,
-1,
-26,
-2,
-22,
-1,
-16,
-68,
-28,
-21,
-1,
-1,
-24,
29,
-33,
-11,
21,
5,
17,
10,
31,
-34,
-21,
-32,
-33,
5,
-56,
16,
-9,
9,
-35,
-26,
10,
3,
-59,
0,
24,
35,
26,
47,
-33,
9,
-1,
12,
-16,
-56,
8,
57,
-8,
30,
-1,
16,
-34,
45,
-22,
30,
-1,
40,
24,
49,
-23,
32,
-59,
7,
-2,
-34,
1,
18,
12,
36,
11,
-8,
-36,
-37,
-4,
-35,
15,
-54,
-2,
7,
-45,
13,
52,
2,
0,
5,
57,
0,
26,
33,
22,
-8,
43,
3,
-12,
-36,
-6,
19,
-25,
-15,
-13,
-15,
-33,
-13,
-42,
-27,
-8,
35,
13,
41,
38,
23,
24,
-8,
-34,
-24,
-34,
49,
34,
-6,
-53,
40,
-53,
-15,
48,
-6,
-12,
7,
-20,
-8,
-44,
-27,
3,
-11,
41,
14,
1,
7,
-41,
1,
16,
14,
5,
-10,
18,
2,
14,
27,
-30,
-30,
-4,
5,
15,
26,
30,
6,
-29,
15,
-8,
50,
41,
-24,
-32,
-14,
13,
-18,
-15,
-34,
5,
-16,
-48,
16,
-17,
19,
25,
-16,
17,
-5,
9,
-4,
13,
26,
26,
-62,
-10,
-17,
-1,
-8,
-33,
-15,
7,
-24,
24,
0,
-13,
4,
-13,
16,
20,
-6,
-11,
17,
26,
46,
25,
21,
-12,
-69,
-24,
8,
-8,
38,
-39,
-6,
14,
53,
-10,
-27,
-35,
-6,
-61,
20,
3,
1,
30,
29,
12,
-7,
65,
0,
28,
0,
-43,
15,
6,
-29,
-12,
-19,
-34,
-50,
-31,
44,
-38,
0,
-9,
-44,
-30,
-11,
46,
20,
5,
9,
-30,
-4,
30,
7,
-3,
18,
14,
-6,
12,
36,
33,
18,
-6,
38,
50,
52,
0,
-68,
-34,
-41,
-45,
-14,
-38,
1,
28,
-28,
5,
-23,
28,
-7,
-36,
22,
32,
0,
-76,
0,
45,
7,
-35,
12,
-20,
16,
30,
8,
-33,
12,
17,
-6,
24,
-15,
-52,
12,
0,
-18,
-8,
12,
-5,
-9,
-44,
36,
37,
31,
-20,
-23,
-9,
50,
20,
40,
-12,
-29,
16,
-2,
-11,
19,
58,
9,
21,
30,
9,
-1,
-39,
3,
0,
-21,
13,
-4,
-26,
10,
12,
-31,
12,
68,
-4,
30,
9,
0,
-24,
36,
-1,
-13,
0,
-14,
-7,
-32,
-6,
-3,
-8,
-5,
8,
5,
-11,
8,
-43,
4,
24,
2,
-29,
-13,
15,
72,
-6,
-41,
-33,
16,
-14,
23,
-41,
32,
-61,
-60,
-37,
5,
12,
17,
0,
-10,
-21,
-6,
22,
36,
31,
17,
-15,
9,
17,
-43,
30,
2,
9,
-48,
-39,
41,
38,
-6,
-48,
-29,
75,
-2,
23,
-27,
0,
68,
-3,
-9,
-16,
-12,
24,
45,
-18,
50,
21,
-11,
-2,
-12,
-37,
2,
-36,
-45,
-21,
48,
-11,
-5,
45,
-5,
-14,
45,
1,
2,
30,
55,
-32,
-64,
12,
10,
23,
-12,
-11,
71,
36,
-23,
-20,
-15,
0,
13,
19,
3,
-8,
28,
-22,
25,
-17,
-38,
16,
-42,
-39,
-23,
11,
-41,
25,
0,
21,
-36,
-48,
-10,
-19,
75,
-10,
40,
-41,
-66,
22,
29,
-6,
7,
-8,
37,
-20,
14,
39,
6,
49,
-22,
38,
16,
57,
-49,
28,
-40,
-26,
-13,
15,
36,
-39,
-37,
-13,
4,
-39,
-20,
-21,
-83,
-40,
-36,
-41,
22,
-12,
-18,
1,
24,
18,
9,
32,
-48,
-34,
24,
7,
33,
-44,
-8,
29,
-11,
-45,
-40,
14,
-42,
-41,
-13,
13,
0,
-13,
-15,
-6,
1,
8,
-47,
-15,
14,
30,
53,
-32,
27,
0,
2,
-37,
12,
2,
-13,
7,
24,
-16,
-3,
-46,
4,
-45,
-15,
7,
11,
7,
14,
11,
-1,
-86,
51,
27,
11,
-14,
-54,
48,
6,
15,
-7,
-12,
15,
-2,
-27,
-8,
-26,
12,
-18,
-10,
-5,
-16,
62,
-19,
-11,
24,
25,
-45,
25,
23,
12,
2,
-4,
8,
-21,
-16,
-14,
53,
-23,
-21,
-12,
7,
-5,
42,
-43,
54,
-30,
-22,
-59,
1,
22,
-19,
-22,
47,
-16,
67,
40,
35,
-74,
-25,
2,
-19,
-37,
-2,
-42,
-7,
14,
-11,
-14,
-12,
12,
-17,
-5,
-60,
51,
-10,
19,
-14,
40,
18,
-1,
35,
-29,
63,
-18,
-8,
-15,
-33,
24,
2,
64,
-39,
-40,
-2,
28,
14,
0,
27,
-35,
23,
44,
-1,
-44,
-24,
9,
-25,
27,
-29,
-31,
-3,
-20,
-42,
9,
-2,
-22,
-8,
3,
19,
-14,
35,
-27,
11,
74,
-50,
-14,
65,
-49,
25,
-22,
-12,
20,
-44,
16,
18,
39,
-12,
11,
-21,
23,
21,
12,
-19,
9,
-2,
55,
27,
12,
-35,
-57,
16,
-59,
-30,
-19,
18,
15,
41,
-27,
3,
-43,
-27,
-14,
-20,
27,
3,
38,
-49,
-34,
-13,
-15,
26,
72,
-39,
48,
-27,
19,
42,
31,
10,
-20,
-41,
-19,
-5,
8,
53,
5,
3,
12,
-52,
18,
17,
18,
0,
59,
-15,
39,
-1,
-22,
16,
10,
27,
-13,
62,
2,
-5,
-51,
26,
-20,
-36,
7,
-2,
58,
-37,
10,
-17,
0,
-31,
5,
47,
-21,
-52,
17,
7,
-25,
-12,
44,
-13,
11,
-23,
0,
24,
-6,
-6,
-17,
-36,
-38,
0,
20,
7,
-32,
52,
23,
1,
-48,
-30,
5,
49,
-11,
27,
54,
-27,
31,
-22,
-19,
-39,
21,
-26,
-7,
8,
36,
-13,
-29,
9,
-6,
-50,
36,
-4,
60,
55,
15,
-39,
-51,
-32,
-60,
22,
5,
2,
-87,
-4,
14,
-3,
24,
-52,
60,
73,
-1,
-53,
-46,
18,
-16,
66,
-27,
-2,
19,
14,
28,
-19,
27,
43,
14,
40,
-25,
18,
-23,
13,
-2,
69,
-10,
14,
3,
-8,
0,
46,
-18,
20,
0,
-21,
-19,
-12,
-41,
21,
5,
46,
7,
-26,
-31,
-22,
-5,
-23,
-24,
31,
-28,
34,
-25,
-11,
13,
-6,
15,
16,
0,
-12,
7,
-20,
-18,
44,
-23,
24,
14,
8,
6,
-15,
-45,
1,
-75,
-20,
-30,
-42,
11,
-16,
11,
-5,
-23,
6,
13,
11,
-4,
-12,
41,
34
] |
Per Curiam.
The trial court granted a motion to suppress and subsequently dismissed the charges against defendant. From that dismissal, the people appeal as of right.
The trial court suppressed the evidence because defendant had a reasonable expectation of privacy in his bedroom. The bedroom was located in such a manner that it was normally out of the public’s view. The officer had to get extremely close to the window in order to be able to see inside. The court concluded that the officer had no right to peer through the bedroom window when he only had a suspicion of an assault and battery and a mere suspicion as to the safety or welfare of a person who might have been present.
A governmental intrusion into the home, no matter how innocuous, is not to be taken lightly. Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980). The people attempt to justify the officer’s observation of the marijuana through the plain view doctrine, either by the casual observance or in response to an emergency situation. We review a trial court’s ruling on a suppression of evidence motion to determine if the decision was clearly erroneous, Le., a finding which leaves this Court with the firm conviction that a mistake was made. People v Dugan, 102 Mich App 497, 501; 302 NW2d 209 (1980), lv den 411 Mich 989 (1981). Evidence of a crime which is seen in plain view will be allowed to be used at trial if the officer’s initial intrusion is justified and the evidence is discovered inadvertently. Coolidge v New Hampshire, 403 US 443, 465-467; 91 S Ct 2022; 29 L Ed 2d 564 (1971); Dugan, supra, pp 503-504. There is no question, in the instant case, that the evidence was discovered inadvertently. The trial court found, however, that the officer was not justified in walking through defendant’s backyard and peering through the only lighted window at 3:45 a.m. This was not an area which was generally open to public use so that the view could be obtained. Lorenzana v Superior Court of Los Angeles County, 9 Cal 3d 626, 638; 511 P2d 33; 108 Cal Rptr 585 (1973).
The people rely heavily upon the case of United States v Anderson, 552 F2d 1296 (CA 8, 1977), where, as in the instant matter, investigating officers received no answer when they knocked at the front door. A light was visible inside the house and, hearing a dog barking in the back, the officers began to walk along the side of the house. Here is where the Anderson case and the present matter part ways. In Anderson the officers glanced through a basement window that they were passing. In the instant case, the police officer walked up to a bedroom window for the express purpose of looking inside. As the trial court opinion stated, "Next to a person’s lavatory/bathroom, their bedroom is probably the most private place in their home.” the people also rely upon the decision in United States v Wheeler, 641 F2d 1321 (CA 9, 1981), but in that case the officer only peered over a fence into the defendant’s backyard, which was significantly less intrusive than what occurred in the instant case. We find that the officer’s justification for the intrusion was insufficient in this case. See People v Murphy, 87 Mich App 461, 465; 274 NW2d 819 (1978), lv den 406 Mich 991 (1979); People v Hopko, 79 Mich App 611, 616-621; 262 NW2d 877 (1977), lv den 402 Mich 950o (1978); United States v Irizarry, 673 F2d 554 (CA 1, 1982).
The people also attempt to justify the officer’s position by the window as a response to his knowledge that defendant was high on drugs and the officer was only attempting to see if defendant was all right. Cf. People v Washington, 77 Mich App 598, 599; 259 NW2d 151 (1977). In the case at bar, the trial court did not believe that the officer’s reason was to see if defendant was all right and stated, "It’s interesting to note that once the officer saw the marijuana, he apparently lost all of his concern for the safety or the welfare of anyone inside the trailer.” Additionally, the court noted that the officer only had a suspicion that the person (defendant) was in any type of situation which would require emergency aid.
Finally, the people rely upon United States v Williams, 622 F2d 830, 840-846 (CA 5, 1980), cert den 449 US 1127; 101 S Ct 946; 67 L Ed 2d 114 (1981), for the proposition that the officer’s good faith action precludes the use of the exclusionary rule. However, the good faith exception has been rejected by this Court in People v David, 119 Mich App 289; 326 NW2d 485 (1982).
Affirmed. | [
-9,
-14,
19,
8,
-40,
-28,
-52,
81,
-24,
56,
27,
9,
29,
55,
3,
-5,
-14,
19,
48,
-1,
17,
58,
-20,
17,
24,
-40,
-8,
11,
-40,
29,
0,
-27,
36,
-2,
4,
-15,
56,
58,
10,
19,
37,
21,
-1,
-25,
-34,
-25,
-16,
25,
19,
23,
26,
-7,
-27,
6,
8,
-5,
-21,
5,
43,
33,
-8,
46,
-16,
-53,
17,
15,
3,
-6,
-11,
34,
5,
-14,
-58,
-10,
51,
-20,
-35,
34,
-14,
44,
-11,
-6,
28,
1,
43,
-70,
15,
-29,
3,
24,
3,
-20,
-26,
-49,
-68,
-9,
7,
-6,
48,
-2,
7,
9,
12,
-7,
49,
22,
-29,
-18,
-32,
-98,
6,
6,
5,
21,
-16,
-13,
-5,
48,
-28,
-24,
7,
19,
81,
-49,
-28,
-7,
-10,
-44,
-29,
-52,
1,
37,
3,
-36,
-15,
-16,
24,
-21,
-26,
-9,
-27,
19,
15,
-12,
10,
-2,
24,
27,
8,
12,
23,
-3,
-55,
21,
-42,
-20,
-31,
-42,
-10,
16,
1,
73,
-66,
-48,
51,
9,
-80,
0,
-10,
20,
-14,
-17,
6,
33,
54,
-7,
-34,
-21,
-3,
-34,
-18,
-19,
-9,
0,
6,
-33,
-37,
2,
-22,
2,
13,
-20,
0,
-8,
33,
11,
-33,
41,
39,
-67,
1,
-13,
-30,
-19,
11,
24,
16,
52,
40,
39,
-35,
-16,
-18,
-41,
28,
-67,
14,
-26,
8,
48,
-35,
-21,
-18,
-20,
-4,
3,
-2,
-4,
26,
32,
-19,
26,
-39,
-39,
-33,
-21,
-48,
-2,
34,
-8,
-16,
26,
-34,
-38,
46,
-27,
25,
44,
-5,
-11,
4,
3,
33,
11,
-10,
-22,
12,
5,
15,
-35,
-15,
55,
9,
27,
9,
16,
35,
15,
-30,
20,
-89,
-7,
15,
-8,
-4,
-42,
-27,
-11,
-1,
7,
-10,
0,
0,
5,
-57,
3,
5,
14,
32,
-2,
32,
-24,
-85,
15,
10,
6,
22,
40,
-23,
5,
53,
13,
-38,
4,
-20,
-15,
15,
57,
-23,
3,
23,
33,
27,
49,
4,
13,
-39,
-33,
26,
-12,
-60,
-54,
-21,
-19,
-5,
-39,
60,
-48,
17,
-15,
10,
5,
-1,
-7,
-3,
15,
-34,
-10,
3,
-3,
-26,
-21,
-24,
-17,
8,
27,
-15,
32,
4,
-20,
47,
-10,
11,
0,
15,
-55,
-86,
17,
2,
-73,
24,
-5,
0,
42,
23,
-28,
45,
-60,
-20,
24,
-27,
-48,
-14,
-27,
-19,
-2,
19,
-94,
19,
14,
-1,
-19,
46,
32,
-32,
35,
6,
-6,
54,
18,
-13,
-31,
8,
-9,
-58,
33,
48,
37,
34,
-9,
-61,
7,
-10,
-12,
-18,
-32,
16,
9,
13,
8,
-22,
50,
5,
66,
-2,
27,
-5,
-13,
70,
-31,
19,
0,
-19,
41,
-6,
-13,
-75,
0,
77,
-37,
-31,
-8,
-20,
-37,
-30,
44,
-23,
-46,
8,
45,
-64,
-22,
-41,
25,
-50,
33,
11,
-7,
-6,
13,
-18,
2,
7,
-7,
18,
28,
48,
-33,
-10,
33,
30,
-6,
-40,
-8,
-28,
-4,
-61,
-44,
8,
5,
50,
-12,
25,
-40,
-28,
12,
-22,
36,
-26,
-14,
49,
-12,
24,
-9,
-18,
34,
-6,
-34,
18,
44,
-9,
34,
41,
-24,
-18,
34,
43,
-45,
-24,
-5,
6,
1,
-37,
-23,
43,
0,
4,
80,
26,
47,
-28,
19,
-32,
0,
-25,
-3,
19,
-30,
55,
0,
24,
-43,
-11,
0,
-19,
5,
-18,
-48,
-2,
-8,
58,
1,
11,
3,
14,
42,
-26,
-15,
64,
7,
19,
-9,
25,
34,
9,
-44,
-25,
7,
-28,
19,
-5,
48,
-33,
-10,
4,
-48,
-31,
32,
4,
-22,
-67,
-50,
58,
34,
0,
-28,
-24,
11,
46,
25,
38,
12,
-21,
41,
-40,
21,
10,
35,
-18,
0,
-12,
36,
-29,
3,
-20,
-36,
-3,
0,
-1,
-44,
-49,
-34,
38,
-54,
-38,
-42,
-55,
-88,
8,
58,
-27,
9,
-20,
-11,
-18,
21,
87,
29,
-52,
-1,
66,
-24,
-4,
-36,
43,
21,
-37,
24,
1,
-14,
-39,
-37,
-43,
22,
9,
-29,
-69,
82,
2,
-2,
-70,
-19,
0,
-13,
25,
48,
48,
6,
-10,
-4,
-7,
13,
-13,
-35,
-21,
0,
25,
-32,
-11,
1,
-1,
11,
3,
5,
22,
-21,
-19,
-15,
35,
-12,
-10,
-2,
0,
3,
-21,
33,
-21,
-22,
-3,
-37,
-9,
14,
15,
64,
6,
-25,
56,
-23,
-51,
-36,
2,
16,
20,
-12,
-4,
56,
-21,
37,
-1,
38,
23,
-11,
24,
-7,
-13,
-14,
26,
-35,
22,
-1,
12,
10,
0,
-38,
-18,
-29,
13,
-18,
-26,
22,
3,
38,
5,
14,
-11,
-17,
10,
25,
15,
-1,
24,
4,
5,
15,
-44,
-28,
19,
19,
12,
-23,
25,
-34,
-8,
16,
-57,
51,
3,
19,
34,
-22,
-7,
2,
13,
-18,
49,
14,
87,
4,
9,
53,
26,
7,
25,
-1,
-46,
17,
11,
24,
-3,
-23,
62,
21,
-34,
-61,
-21,
-13,
-8,
-8,
22,
-2,
-15,
-67,
18,
-32,
-64,
64,
-49,
-19,
42,
20,
4,
6,
-17,
-6,
9,
-39,
7,
0,
-1,
16,
32,
-19,
-15,
0,
38,
-10,
13,
-74,
28,
19,
42,
10,
42,
-8,
-38,
15,
-17,
-17,
4,
-28,
29,
-36,
10,
-67,
-33,
9,
11,
-8,
7,
-27,
29,
37,
25,
-6,
-17,
66,
55,
-86,
17,
-9,
-23,
15,
25,
19,
-16,
-14,
-14,
-29,
-15,
72,
-43,
48,
-1,
48,
18,
22,
-41,
0,
62,
4,
26,
0,
16,
-21,
-16,
11,
8,
49,
22,
3,
14,
47,
8,
-45,
5,
19,
16,
21,
58,
-34,
14,
-11,
100,
15,
-54,
21,
-42,
-14,
-20,
17,
31,
-41,
-3,
-10,
39,
40,
-17,
-5,
7,
-20,
3,
52,
17,
14,
22,
55,
64,
-36,
44,
0,
-53,
-30,
-32,
40,
59,
-17,
31,
19,
-25,
-28,
11,
8,
18,
-8,
29,
40,
-22,
-18,
27,
-44,
10,
58,
49,
23,
2,
-23,
-29,
-10,
6,
45,
18,
-50,
-18,
-9,
-48,
-42,
-5,
-56,
46,
-22,
-50,
-12,
-28,
38,
11,
28,
-31,
26,
13,
-8,
-35,
27,
-50,
-27,
-26,
-29,
13,
-46,
-22,
-34,
-85,
23,
-16,
-58,
-16,
43,
10,
34,
-22,
-45,
61,
-38,
35,
-42,
-8,
-20,
-16,
36,
-15,
0,
-30,
-28,
20,
-40,
6,
-8,
54,
39,
-21,
2,
8,
-26,
-54,
46,
-60,
61,
-18,
-45,
8,
54,
-21,
39,
21,
61,
50,
-21,
-29,
-9,
-55,
-1,
-42,
-84,
91,
0,
-39,
0,
-11,
-2,
-76,
-5,
-15,
70,
-12,
30
] |
R. A. Benson, J.
Plaintiffs appeal as of right from the trial court’s order in a medical malpractice case granting defendants’ motion for accelerated judgment based on the medical malpractice arbitration act. MCL 600.5040 et seq.; MSA 27A.5040 et seq.
Plaintiffs claim that the arbitration agreement is invalid because: (1) the arbitration agreement constitutes an unenforceable contract of adhesion; (2) the agreement is unconscionable since the patient is not provided with sufficient information from which to decide whether to relinquish his right of access to a court of law; and (3) the makeup of the arbitration panel violates plaintiffs’ due process right to a fair and impartial tribunal.
Plaintiffs’ contention that the arbitration agreement constitutes an unenforceable contract of adhesion has been uniformly rejected by this Court. Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981); Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981), lv gtd 412 Mich 884 (1981).
Furthermore, we are not persuaded that either the approach taken by a panel of this Court in Moore v Fragatos, 116 Mich App 179; 321 NW2d 781 (1982), or by Judge Cynar in Gale v Providence Hospital, 118 Mich App 405; 325 NW2d 439 (1982), is correct. In our opinion, there is insufficient information before the Court concerning the issue of whether patients who sign such agreements are aware of the rights that they relinquish thereby.
The issue of whether the fact that the act requires that one of the three arbitration panel members be a physician or hospital administrator violates due process has produced a split of opinion among members of this Court. Compare Brown v Siang, supra; Morris v Metriyakool, supra; Williams v O’Connor, 108 Mich App 613; 310 NW2d 825 (1981); Cushman v Frankel, 111 Mich App 604; 314 NW2d 705 (1981); Rome v Sinai Hospital of Detroit, 112 Mich App 387; 316 NW2d 428 (1982), with Jackson v Detroit Memorial Hospital, 110 Mich App 202; 312 NW2d 212 (1981), lv gtd 412 Mich 885 (1981); Piskorski v Art Centre Hospital, 110 Mich App 22; 312 NW2d 160 (1981); Murray v Wilner, 118 Mich App 352; 325 NW2d 422 (1982).
In our opinion, the reasoning announced in Jackson, supra, and Murray, supra, is the better view, and we adopt that position.
Reversed and remanded for trial.
N. J. Kaufman, J., concurred. | [
-30,
-37,
-63,
30,
42,
-8,
-3,
-62,
-17,
59,
-14,
4,
36,
-50,
-7,
7,
20,
33,
0,
-5,
-17,
-8,
-36,
46,
-2,
-27,
67,
1,
8,
23,
-9,
26,
7,
-2,
-42,
-5,
21,
0,
2,
-31,
27,
6,
-9,
-14,
-64,
2,
20,
17,
39,
-40,
37,
27,
5,
36,
-42,
23,
-29,
24,
-44,
0,
7,
42,
9,
12,
6,
1,
6,
5,
13,
-20,
-57,
13,
27,
-19,
-39,
13,
-35,
34,
22,
8,
40,
31,
30,
0,
32,
66,
9,
18,
23,
-9,
8,
7,
-9,
-34,
-12,
34,
-33,
-28,
21,
18,
-9,
33,
-11,
24,
49,
37,
16,
10,
36,
3,
-36,
20,
-39,
-27,
15,
-12,
-6,
29,
-3,
6,
-33,
21,
27,
78,
10,
2,
93,
-44,
9,
-10,
-15,
-9,
-56,
-7,
-1,
-3,
4,
0,
101,
65,
-20,
18,
12,
-22,
4,
52,
3,
-46,
-32,
-59,
31,
5,
1,
-2,
-1,
-1,
-3,
7,
0,
40,
76,
17,
-30,
45,
20,
-4,
-5,
-17,
56,
12,
31,
0,
41,
-61,
-39,
-5,
2,
0,
-40,
38,
-40,
2,
9,
-44,
-5,
-32,
-22,
15,
1,
-46,
9,
-26,
-64,
26,
24,
-15,
-26,
43,
26,
35,
23,
-44,
-20,
54,
-10,
22,
-29,
-69,
-15,
29,
9,
2,
-28,
-54,
56,
-12,
17,
-12,
-33,
-37,
-10,
9,
-8,
1,
-29,
-40,
-16,
0,
-30,
-73,
-14,
70,
-4,
31,
52,
-5,
-56,
25,
73,
0,
-19,
74,
-22,
1,
-48,
2,
-21,
25,
-15,
-8,
23,
37,
44,
23,
-42,
-34,
12,
-26,
-77,
-12,
-33,
51,
-56,
0,
-3,
12,
-8,
-49,
47,
1,
-53,
-2,
35,
-25,
-40,
-87,
-57,
21,
12,
7,
-41,
14,
-16,
2,
-41,
3,
-13,
-5,
0,
24,
56,
-22,
-35,
-7,
57,
-6,
53,
-30,
-15,
16,
-35,
1,
60,
21,
23,
-13,
-49,
39,
8,
-48,
34,
12,
12,
-18,
1,
-27,
-49,
-53,
44,
-75,
-18,
45,
-1,
-9,
-14,
-46,
35,
-47,
-36,
13,
0,
20,
-20,
-21,
41,
-5,
2,
44,
13,
-2,
3,
40,
-36,
-16,
2,
-11,
10,
-31,
51,
27,
-25,
-31,
28,
19,
-6,
1,
-5,
-1,
-11,
-6,
-18,
23,
-33,
-22,
-27,
78,
-27,
64,
10,
46,
-14,
23,
-1,
-7,
-89,
-37,
40,
-7,
-12,
54,
-45,
-15,
36,
-1,
56,
-12,
-32,
-5,
30,
-5,
-64,
-59,
0,
19,
1,
100,
15,
-13,
0,
-38,
44,
-20,
-6,
6,
-3,
18,
82,
-34,
-39,
19,
9,
52,
-13,
21,
-9,
-34,
44,
-32,
-8,
-83,
27,
-38,
-25,
-6,
-1,
-44,
17,
9,
-18,
18,
-19,
19,
-18,
-55,
46,
-25,
-51,
-50,
-9,
-5,
-30,
9,
16,
-16,
-12,
-37,
36,
-2,
-9,
40,
10,
-1,
19,
26,
-45,
7,
-67,
0,
16,
-47,
-4,
-50,
-15,
-27,
32,
-45,
0,
16,
11,
-31,
-41,
5,
33,
60,
46,
-3,
-13,
17,
-22,
-20,
-10,
19,
-12,
-12,
-5,
47,
-20,
40,
15,
-34,
-15,
-43,
-17,
-30,
-47,
-14,
73,
-35,
-39,
-7,
-52,
15,
-38,
8,
10,
-31,
-5,
-62,
40,
-17,
-21,
-22,
7,
83,
17,
-22,
29,
-20,
-44,
23,
9,
-15,
-10,
-29,
-4,
-25,
-50,
-3,
18,
-22,
71,
16,
34,
-68,
0,
8,
-15,
-12,
-9,
-13,
-28,
32,
-20,
12,
21,
-13,
10,
-32,
51,
10,
33,
-17,
-7,
0,
16,
2,
6,
28,
-2,
-12,
-16,
47,
25,
29,
21,
2,
18,
-56,
55,
74,
-7,
45,
11,
30,
-51,
-50,
7,
32,
-25,
-3,
-15,
38,
-8,
-12,
-70,
-21,
-2,
-10,
2,
-10,
-33,
-48,
39,
-32,
27,
17,
8,
-5,
69,
40,
23,
23,
-44,
2,
-53,
6,
28,
-16,
-18,
-26,
-27,
-28,
-50,
-20,
-50,
1,
35,
67,
-10,
53,
-1,
42,
-2,
-32,
15,
-3,
11,
27,
-28,
-11,
15,
-17,
-18,
-15,
4,
22,
-26,
41,
9,
-11,
-12,
55,
25,
-50,
2,
-22,
35,
-33,
-25,
35,
-7,
58,
18,
-18,
-23,
52,
26,
4,
-40,
-8,
41,
-9,
3,
13,
-10,
48,
53,
22,
-10,
-20,
26,
61,
43,
-36,
62,
31,
48,
30,
54,
72,
-19,
-36,
11,
-17,
-22,
3,
-39,
59,
4,
51,
-27,
26,
-7,
-58,
-1,
-64,
34,
67,
-9,
12,
11,
29,
-45,
-3,
-15,
15,
-22,
24,
-9,
-24,
-21,
3,
-56,
-3,
20,
50,
-43,
41,
6,
-14,
-39,
-35,
40,
16,
44,
-24,
8,
65,
42,
-39,
-3,
-63,
40,
12,
3,
7,
-7,
-4,
-18,
18,
-8,
38,
8,
50,
-17,
-14,
-21,
23,
-8,
-22,
20,
-42,
-65,
31,
-37,
-43,
-31,
5,
-2,
-3,
-9,
-8,
-43,
-8,
-38,
-55,
4,
-33,
-53,
16,
-29,
-15,
23,
50,
15,
-26,
2,
-17,
-55,
-11,
-10,
-4,
4,
36,
-71,
-29,
32,
-32,
-30,
27,
41,
-2,
-34,
-7,
58,
13,
-16,
-17,
-48,
-52,
13,
9,
7,
-27,
-22,
16,
13,
17,
66,
47,
16,
-66,
19,
-14,
56,
-12,
-61,
-45,
2,
2,
25,
-1,
-79,
-23,
-26,
-52,
56,
-19,
41,
-4,
6,
-20,
-17,
13,
5,
6,
0,
26,
10,
8,
16,
-19,
-33,
26,
33,
14,
-6,
56,
-17,
-42,
0,
-38,
-3,
23,
44,
-37,
-9,
-72,
35,
16,
22,
22,
-40,
41,
3,
31,
1,
-39,
11,
-28,
-12,
-29,
-11,
-13,
-27,
-12,
-22,
-42,
6,
53,
1,
-27,
-54,
-12,
-26,
-12,
-21,
-13,
-62,
5,
37,
14,
48,
38,
-14,
13,
31,
-15,
21,
18,
0,
-4,
59,
-11,
-24,
35,
-30,
46,
-28,
40,
32,
14,
0,
-45,
9,
56,
-20,
-38,
-24,
-22,
24,
24,
-22,
-128,
-8,
-16,
4,
33,
-27,
11,
27,
-23,
30,
-13,
35,
-3,
28,
11,
-42,
12,
-12,
4,
40,
13,
-46,
-33,
-36,
19,
6,
37,
-24,
-14,
14,
39,
-29,
35,
54,
0,
-37,
-6,
36,
-15,
-7,
-10,
-26,
2,
8,
24,
11,
-9,
-21,
21,
1,
24,
-5,
2,
-6,
-24,
-14,
-29,
1,
-17,
-19,
36,
-14,
2,
-11,
-7,
-27,
-29,
25,
-35,
-14,
-30,
5,
21,
-5,
0,
80,
11,
-10,
25,
38,
49,
-8,
-2,
45,
-47,
51,
9,
20,
54,
71,
-21,
-14,
1,
-41,
-23,
17,
-38,
-22,
-1,
-34,
-47
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.