text:
    EARL DUBEY & SONS, INC. v MACOMB CONCRETE CORPORATION
    1. Appeal and Error — Directed Verdict — Evidence—Jury Question — Judgment—Judgment Notwithstanding Verdict— Facts and Inferences.
    The Court of Appeals must view evidence in a light most favorable to the plaintiff when reviewing a denial of a directed verdict and if, in doing so, the Court determines that there is any evidence which was competent and sufficient to support the jury’s determination, the jury’s resolution of the case should be affirmed; a motion for judgment notwithstanding the verdict is reviewed even more strictly, since the facts are viewed inferentially in favor of the non-moving party.
    2. Contracts — Signatures—Multiple Parties — Burden of Proof— Intention — Evidence—Question of Fact.
    A contract signatory who claims that the contract is void because all of the intended parties did not sign has the burden of proving that it was the intent of all the parties that none should be bound unless all signed; intention governs, and whether the signers of a contract intended to be bound by its terms even though less than all the named persons sign is a question of fact to be decided upon the evidence.
    3. Appeal and Error — Directed Verdict — Contracts—Evidence— Judgment — Judgment Notwithstanding Verdict — Facts and Inferences.
    The denial of a defendant’s motion for judgment notwithstanding the verdict is not error where the facts, viewed inferentially, are in the plaintiffs favor.
    4. Contracts — Consideration—Will of Promisor — Unenforceable Provisions.
    A promise to advance money which is dependent on the will of the promisor is unenforceable.
    References for Points in Headnotes
    [1, 3] 75 Am Jur 2d, Trial § 474.

       17 Am Jur 2d, Contracts §§ 18-22, 245.

       17 Am Jur 2d, Contracts §§ 10-13.

       17 Am Jur 2d, Contracts §§ 230, 231.

       22 Am Jur 2d, Damages § 161.

      5. Contracts — Enforceable Promises — Unenforceable Promises— Indefiniteness — Enforcement of Valid Promises.
    Unenforceable promises in a contract will not vitiate the entire contract where there are promises that are enforceable; if portions of a contract are unenforceable by the terms of the agreement, it will not affect the enforceability of other portions of the contract that are valid.
    6. Contracts — Consideration—Enforceable and Unenforceable Provisions.
    Adequate consideration in exchange for an enforceable promise in a contract having both enforceable and unenforceable provisions makes the enforceable portion of the contract binding on both sides.
    7. Damages — Contracts—Prevention of Performance — Loss of Profits — Speculative Damages — Actual Expenditures— Value of Services — Reliance Damages.
    Generally, the measure of damages from the prevention of performance of a contract would be the loss of profits to the plaintiff, but where the profits are wholly speculative and unprovable, the one who prevents performance should not go scot-free because the claimant should at least be made whole for his losses and expenditures; where profits are speculative, the measure of damages is the actual expenditures and value of services reasonably spent in an attempt to perform the contract or in reliance upon it; therefore, a plaintiff may properly seek reliance damages based on the reasonable expenses incurred in attempting to perform the contract.
    Appeal from Macomb, Robert J. Chrzanowski, J.
    Submitted January 5, 1978, at Lansing.
    (Docket No. 77-216.)
    Decided March 7, 1978.
    Leave to appeal applied for.
    Complaint by Earl Dubey & Sons, Inc., against Macomb Concrete Corporation for rescission of and seeking damages for fraud, misrepresentation and breach of contract. Sentry Insurance, Dubey’s surety, was added as a party plaintiff by stipulation of the parties. Counter-complaint by Macomb Concrete against Dubey and Sentry seeking damages for breach of contract. Judgment for plaintiff Dubey. Defendant appeals by leave granted.
    Affirmed.

      Freihofer, Oosterhouse, DeBoer, Barnhart & Cooper, P. C. (by Peter R. Tolley), for plaintiff.

      Robert P. Dank, P. C, for defendant.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. E. Holbrook, J.

Plaintiff, Earl Dubey and Sons, Inc., commenced this action for rescission of an agreement as the result of the anticipatory breach by defendant, Macomb Concrete Corporation, and for damages in excess of $300,000. Plaintiff, Sentry Insurance, sought discharge of its liability on a performance bond. Defendant Macomb counter-claimed that plaintiffs were in default under the agreement and Macomb sought damages for fulfilling the contract by other means. Following a five-week trial, plaintiffs’ equitable claims were taken from the jury and resolved adversely to plaintiffs by the trial judge. These theories were fraud, misrepresentation, mutual mistake and economic impossibility of performance. However, the trial court ruled that the breach of contract claim should be submitted to the jury. On April 26, 1976, the jury returned a verdict in plaintiff Dubey’s favor for $313,661.56. Defendant’s motion for judgment notwithstanding the verdict was denied on September 13, 1976. Thereafter, defendant claimed an appeal as of right to this Court, but on motion of plaintiffs, the claim was dismissed as not timely filed. Defendant then made application for delayed appeal and on June 1, 1977, this Court granted leave.

To have a proper understanding of this case, a complete recitation of the facts is necessary.

Plaintiff Earl Dubey and Sons, Inc. is a Michigan corporation located in Alpena, Michigan, and primarily engaged in the business of excavating, gravel crushing and sand and gravel production.

Defendant Macomb Concrete Corporation, now known as Macomb Contracting Corporation, is a Michigan corporation located in Fraser, Michigan, and is primarily engaged in highway and airport runway construction.

Plaintiff Sentry Insurance was Dubey’s surety on certain performance bonds concerning a sand and gravel production contract between Dubey and Macomb.

In 1973, the City of Houston, Texas, decided to resurface runways 14 and 32 of the Houston Intercontinental Airport. Macomb Concrete was one of four bidders for the contract, and was awarded that contract by resolution of the city commission on November 13, 1973. Macomb’s bid of $10,057,-607 was $2,000,000 less than the next lowest bidder.

In order to construct the concrete overlays for the runways and associated taxiways at the airport, Macomb was required under the city contract to locate and have available 243,000 tons of aggregate materials which were comprised of 100,000 tons of coarse aggregate (gravel) and 143,000 tons of fine aggregate (sand). The City of Houston’s contract carefully specified both the quality and size of the sand and gravel aggregates which could be used for the making of the concrete. It was the various sizes of the fine aggregate (sand) which eventually led to this entire protracted litigation. According to these specifications, with respect to the sand aggregate, out of a 100 per cent sample, a certain percentage had to fall within a certain size category. There were eight such size categories. Specifications were set out as follows:

Sieve Designation (Square Openings) Percentage by Weight Passing Sieves

3/8 inch 100

No. 4 95-100

No. 8 65-80

No. 16 45-60

No. 30 30-45

No. 50 15-30

No. 100 5-10

No. 200 0-2

The specifications also specifically proscribed against acquiring the sand aggregates from an area in Texas known as the San Jacinto River Basin which is located in close proximity to the City of Houston. This is an area known geologically to contain aggregates much too fine in size to meet the city’s contract specifications. Despite this specific proscription, Macomb selected a site near Houston called the Cle-Tex pit from which it planned to get its sand and gravel. This pit was located in the San Jacinto River Basin. Dubey testified that he saw the language in the contract, "local fine, dirty, unsound fine sand (called field sand) as produced from the San Jacinto River or the Montgomery Formation is not permissible” but that William Buck, the vice-president of Macomb Contracting, said that the materials from the Cle-Tex pit could be used and would pass for the qualities required by the City of Houston. Macomb contracted with an engineering firm known as Murillo Testing Company to do an analysis of the Cle-Tex pit. The conclusion of the firm was that the sand and gravel met all the requirements of the specifications except for gradation, but this condition could be remedied by careful quality control during production. The sieve analysis as to the gradation of the sand by the engineering firm indicates that the sand was too fine to meet contract specifications.

Sieve Size Percent Passing City Specifications

3/8 100 100

No. 4 98 95-100

No. 8 93 65-80

No. 16 87 45-60

No. 30 75 30-45

No. 50 37 15-30

No. 100 4 5-10

No. 200 0-2

Macomb contacted Dubey and negotiated a contract with Dubey to produce the sand and gravel out of the Cle-Tex pit, which then would be delivered to Macomb in Houston to make the concrete for the airport runways. This contract was executed on January 31, 1974, and required Dubey to produce the required tonnage of coarse and fine aggregates (sand) from the Cle-Tex pit for the contracted price of $543,000. Macomb required of Dubey that it supply performance bonds in such an amount, and such bonds were in fact provided by Sentry Insurance. Dubey was to produce the sand and gravel materials within 180 days or by June 3, 1974.

The contract was signed by Macomb and Dubey after extensive negotiations, including at least four preliminary drafts each containing various modifications. Prior to the execution of the contract, Macomb had advanced $20,000 to Dubey towards expenses of design and shipment of plant equipment. The contract called for further advances of $43,000 upon signing, and an additional $100,000 for plant and site preparation which was paid by Macomb before production was attempted.

Dubey took possession of the Cle-Tex site in February of 1974, and had no difficulty in producing the gravel requirements under its contract with Macomb, but soon discovered the deficiency of the sand deposits and the fact that specification sand could not be made from the Cle-Tex pit. Despite the introduction of special equipment and the development of new and novel mining devices, no specification sand could be produced without wasting up to 60 per cent of the materials being mined at Cle-Tex.

By May of 1974, no specification sand had been produced, although Dubey was producing specification gravel. Macomb then hired a specialist by the name of Finis White who was to work and consult with Dubey in an effort to produce the specification sand. It is not contested that Mr. White was considered to be the foremost authority in the southwest, if not the country, on sand and gravel production. Like Dubey, he failed to find a way to produce specification sand from the Cle-Tex pit without "blending”; that is, by mixing Cle-Tex aggregates with materials brought in from another site.

By the end of May 1974, and although Dubey had been on the production site for approximately three months, no specification sand could be produced. On May 28, 1974, Dubey and Macomb amended the original contract. This agreement acknowledged difficulties in producing the sand from the Cle-Tex pit, and provided for an extension of time within which Dubey was to complete performance, and also provided that Macomb was to advance against Dubey’s original contract price certain payments to creditors. The contract provided that Dubey was to be able to substantially perform within 14 days at the rate of 2,000 tons a day and if it could not produce 20,000 tons between the 14th and 24th day, he was to quit the premises. Macomb advanced $25,000 jointly payable to Dubey and his creditors and also agreed to advance $33,000 to Westinghouse Credit Corporation, the lienholder on Dubey’s plant.

The parties operated under the May 28 agreement until the end of June 1974, and at that time no economical way could be found to produce specification sand. Dubey left Texas and returned to Michigan in an attempt to negotiate a further extension of time and still more advances on the contract. In Michigan, Dubey was told by Jim Hicks, Macomb’s executive vice-president, that Ma-comb would not advance Dubey any further funds.

On July 12, 1974, a meeting was held at the offices of Bracewell and Patterson, Macomb’s Texas counsel. Present at the meeting were Wayne Dubey; counsel for Dubey; Orville Loos, the president of the lessor, Cle-Tex; counsel for Cle-Tex; a representative from Sentry Insurance, Dubey’s bonding company; a representative of Westinghouse Credit and representatives of Macomb. At this meeting, Cle-Tex accused Macomb of being in breach of its lease through the actions of Dubey in allowing a labor and materials lien to attach to the leased pit and threatened to evict Macomb from the leased pit. Discussions occurred about further advances of funds to Dubey and a further extension of time, but no agreement was reached. A further meeting was held sometime between July 12 and July 17. Present were the same parties with the exception of Dubey’s counsel. Cle-Tex again alleged a breach of Macomb’s lease which created a default and alleged a breach of a June 1 equipment lease by Dubey.

The parties entered into the last amendatory agreement, this one dated July 17, 1974. By this agreement Macomb agreed to further extend time for Dubey’s performance and to pay certain of Dubey’s creditors as an advance towards his original contract price. These payments to Dubey’s creditors were made optional and discretionary with Macomb. In exchange for this, Dubey agreed to perform phase one of the original contract by blending sand from the Cle-Tex pit with a coarser sand found approximately 150 miles north of Houston so as to make specification materials. Phase one would have required about 20,000 tons of specification sand. Dubey agreed to pay the cost of this blend material, although the original contract provided that Dubey was to mine, wash and stockpile materials, and Macomb was to pay the cost of raw materials. Dubey also agreed to pay the expense of the consultant, Finis White, an expense which was originally that of Macomb.

Earl Dubey and Sons also agreed to provide Macomb with a promissory note payable to Ma-comb in the amount of the original contract price of $543,000 or so much thereof as Macomb had advanced, a security agreement giving to Macomb as collateral for the promissory note all of Dubey’s equipment in Texas and a personal guarantee executed by Dubey’s principal, Wayne Dubey, personally guaranteeing the promissory note of July 17.

In addition to Dubey and Macomb, Cle-Tex, Inc., the owner of the Cle-Tex sand pit, and Sentry Insurance were to be parties to this agreement. Dubey and Macomb executed and delivered all of the agreements on July 17 without requiring Sentry or Cle-Tex to execute those documents. Sentry’s agent, at the meeting which culminated in the agreement of the 17th, gave approval to the agreements but wanted the home office to execute the documents. They were never signed by Sentry. Cle-Tex also refused to sign the contract.

Pursuant to the terms of the security agreement of July 17, on July 22, 1974, Macomb effectuated the recordation of a UCC financing statement making claim to a security interest in all of Du-bey’s assets. On July 24, pursuant to those agreements, Macomb paid one of Dubey’s creditors, CleTex, in the amount of $10,591.55.

In reliance on the agreements, Dubey began tooling up his operation and ordered the blend materials which were to be mixed with the sand at the Cle-Tex site. On July 29, 1974, Macomb, through its attorney in Houston, announced by telegram that Dubey was in default, that Macomb was taking possession of the production site and that demand was being made for payment by Dubey of the promissory note and personal guarantee of July 17, 1974. Dubey’s plant was closed and the relationship between Dubey and Macomb was ended.

On September 13, 1974, Dubey brought this action in the Alpena County Circuit Court against Macomb seeking restitution based upon fraud, misrepresentation, mutual mistake, impossibility of performance and breach by Macomb of its contractual obligations under the agreements between the parties. Macomb filed a motion for change of venue, said motion was granted by the Alpena County Circuit Court judge and venue was moved to Macomb County Circuit Court on December 9, 1974. Sentry then joined Dubey as a party-plaintiff. On March 12, 1975, Macomb filed a counterclaim against both Dubey and Sentry seeking money damages for breach of contract. The issues were joined for trial by jury which commenced in the Macomb County Circuit Court on March 2, 1976.

The defendant raises four issues on appeal that have been restated and rearranged into three issues for consideration.

The first issue is whether the July 17, 1974, agreement to extend the time of Dubey’s performance was binding on Macomb so as to give rise to a cause of action for Macomb’s breach where the agreement involved multiple parties, not all of which signed, but where Macomb took action consistent with the agreement in regards to Dubey.

The defendant maintains that the trial court should have granted its motion for a directed verdict because there was no evidence presented by Dubey that defendant Macomb, after learning of the Cle-Tex repudiation of the amended contract, did any act which evidenced an intention to be bound notwithstanding the refusal of Cle-Tex to sign the document.

In Sexton v American Aggregates, 60 Mich App 524, 530-531; 231 NW2d 449 (1975), the standard for review of a motion for a directed verdict was set out as follows:

"In reviewing a claim that a motion for directed verdict was erroneously denied, the Court must view evidence in a light most favorable to plaintiff. If, when doing so, the Court determines that there is 'any evidence which was competent and sufficient to support the jury’s determination’, the jury’s resolution of the case should be affirmed.” (Citations omitted.)

A motion for judgment notwithstanding the verdict is reviewed even more strictly, since the facts are viewed inferentially in favor of a non-moving party. Jackson v Fox, 69 Mich App 283, 285; 244 NW2d 448 (1976), lv den 399 Mich 863 (1977). With this standard in mind, we review the evidence to see whether the trial judge erred in denying the motion for a directed verdict and for a judgment notwithstanding the verdict.

The July 17, 1974, agreement was to be signed by Dubey, Macomb, Cle-Tex and Sentry Insurance. Although Sentry and Cle-Tex did not sign the agreement, both Dubey and Macomb signed it, along with a security agreement providing for Wayne Dubey’s personal guarantee, and a promissory note from Dubey to Macomb.

Where there are multiple parties to a contract, a signatory has the burden of proving that it was the intent of all of the parties that none would be bound unless all signed. Palman v Reynolds, 310 Mich 35, 39-40; 16 NW2d 657 (1944). In Wiegand v Tringali, 22 Mich App 230, 234; 177 NW2d 435 (1970), this Court indicated that intent to be bound is a question of fact:

"[T]hose who do sign the writing may have intended to be bound by its terms even though less than all the named persons sign. Their intention governs. The intention of the parties is a fact to be decided upon the evidence, not by invoking our personal, professional, or judicial experience.”

In the instant case, the agreement does not explicitly provide that it is not to be binding until all parties sign. Wiegand, supra, p 235.

Defendant claims that its actions subsequent to the signing of the July 17, 1974, agreement can be explained away and are not evidence of an intent to be bound by the agreement. While these facts might be interpreted in the light sought by defendant, this Court’s review of the judgment notwithstanding the verdict motion requires that the facts be taken inferentially in plaintiffs’ favor and not defendant’s. Jackson v Fox, supra. While defendant presents a plausible argument that the payment to Cle-Tex was to preserve Macomb’s rights under the lease, that Cle-Tex was threatening to forfeit, the payment is consistent with the agreement and must be taken inferentially to support plaintiffs’ claim that the payment was made pursuant to the July 17 agreement. The most damaging evidence showing that defendant intended to be bound by the July 17 agreement is the July 29, 1974, telegram in which Macomb claimed the benefit of the note executed pursuant to the agreement. The telegram reads as follows:

"PMS Wayne Dubey, President DLR
Earl Dubey & Sons Inc. Drawer O
Cleveland Tx 77327
"Demand is hereby made upon you for immediate payment of the full amount due under that certain promissory note dated July 17, 1974 between Earl Dubey & Sons, Inc. as maker and Macomb Concrete Corporation as payee. This indebtedness is in the PRINCIPAL AMOUNT OF $178,591.55 PLUS INTEREST THEREON AT THE RATE OF 12-1/4 PER CENT FROM JULY 17, 1974, to date. This indebtedness is payable at the OFFICES OF PAYEE, MACOMB CONCRETE CORPORATION, 33180 Kelly Road, Fraser, Michigan, immediately.
"Demand is also hereby made upon you personally FOR IMMEDIATE PAYMENT OF THIS INDEBTEDNESS UNDER THE GUARANTY MADE AND ENTERED INTO BY YOURSELF AS AN INDIVIDUAL ON JULY 17, 1974.
"Earl Dubey & Sons, Inc. has not produced conTRACT SPECIFIED QUANTITIES OF MATERIAL UNDER ITS AGREEMENTS WITH MACOMB CONCRETE CORPORATION, and Earl Dubey & Sons, Inc. is in default of its OBLIGATIONS THEREUNDER. YOUR ATTENTION IS RESPECTFULLY CALLED TO PARAGRAPH 3 OF THE SAND AND GRAVEL REMOVAL AGREEMENT AND BOND APPROVAL DATED MAY 28, 1974 ENTERED INTO BY EARL DUBEY & SONS, INC., Macomb Concrete Corporation and Sentry Insurance, A MUTUAL COMPANY. UNDER THAT PARAGRAPH, Earl Dubey & Sons, Inc. agreed that if it could not PRODUCE CONTRACT QUANTITIES OF MATERIAL, IT WOULD VOLUNTARILY QUIT THE PREMISES AND SURRENDER POSSESSION OF ALL EQUIPMENT AT OR NEAR THE SITE TO MACOMB Concrete Corporation. Macomb Concrete Corporation HAS ACCORDINGLY TAKEN POSSESSION OF THE PREMISES AND ALL EQUIPMENT AT OR NEAR THE PREMISES PREVIOUSLY OCCUPIED BY EARL DuBEY & SONS, INC. UNDER ITS AGREEMENTS WITH MACOMB. MACOMB CONCRETE Corporation will operate the facilities located THERE IN AN EFFORT TO MITIGATE THE DAMAGES SUSTAINED BY IT DUE TO EARL DuBEY & SONS, INC.’S Default.
"Charles G. King
Bracewell & Patterson
1808 First City National Bank Building
Houston, Texas 77002
Attorneys for Macomb Concrete Corporation.”

Additionally, defendant claims that there was no evidence that it took any further action in reliance on the July 17 agreement after learning that CleTex would not sign the agreement. This is not supported by the record. James Hicks, an executive vice-president of Macomb, testified as follows:

"Q. [Plaintiffs’ attorney] Now, when did you learn that Cle-Tex had refused to go through with signing the documents that were prepared on July 17th?
"A. Oh, my guess is it was within a day or two after that date.”

Therefore, Macomb knew on either July 18 or 19 that Cle-Tex was not going to sign the agreement. However, the security agreement was filed on July 22, 1974. Also, the telegram demanding payment under the July 17 note was dated July 29, 1974. Thus, defendant did take further action after it had knowledge that Cle-Tex would not sign the agreement.

Given the evidence that defendant proceeded under the advantageous portions of the July 17 agreement, this Court holds that there was sufficient evidence for the jury to make a finding of intent to be bound even though the parties other than Dubey and Macomb did not sign the agreement. Thus, there was no error in denying the motion for directed verdict. Additionally, when these facts are viewed inferentially in plaintiffs’ favor, no error can be predicated on the denial of the motion for judgment notwithstanding the verdict.

The next issue is whether the July 17 agreement was unenforceable as illusory so as to preclude a finding of defendant’s breach inasmuch as the agreement in part gave defendant the option at its sole discretion to make advance payments to plaintiff, but where the agreement also extended the time of plaintiff’s performance and was supported by consideration for the extension of time.

Defendant maintains that even assuming, arguendo, that defendant evidenced an intention to be bound by the July 17 agreement, the agreement imposed no legal duties on it, as it was completely discretionary with the defendant whether or not to make advance payments to plaintiff. Therefore, the promise was illusory and the contract lacked mutuality of obligation.

The July 17 agreement provided the following in regard to the agreements of Macomb:

"Contemporaneously herewith, Macomb has agreed to advance to Dubey certain amounts pursuant to a promissory note and security agreement of even date herewith. In addition Macomb agrees to the extension of time of performance of the Removal Agreement as set forth in this Agreement.” (Emphasis added.)

The promissory note provided in part as follows:

"Payee shall have the option at its discretion, but shall be under no obligation whatsoever, to make any advancement either on its own motion or pursuant to a written request by Maker (supported by such documentation as payee may request) that such an advancement be made to satisfy, in whole or part, a debt necessarily incurred in connection with Maker’s production of specification materials relating to Houston Intercontinental Airport Contract No. 101.”

This provision regarding advancements of money is unenforceable since it is dependent on "the will of the promisor”, Carlson v Johnson, 275 Mich 35, 37; 265 NW 517 (1936). However, this is not the sole promise made by Macomb in the July 17 agreement and it cannot be said that the entire agreement is unenforceable. In Alderton v Williams, 139 Mich 296, 298-299; 102 NW 753 (1905), the Michigan Supreme Court indicated that a portion of a contract that is unenforceable will not vitiate an entire contract where there are promises that are enforceable. The Court in Alderton stated:

"Plaintiff insists that the contract relied upon by defendants is void for indefiniteness and want of mutuality. It is true that in certain particulars the contract is indefinite. * * * We are referred to no authority, and we believe there is no authority, which holds that indefiniteness in details of this character makes an entire contract void.”

While Alderton is not completely parallel to the instant case, it is reasonable that if portions of a contract are unenforceable by its terms, it will not affect the enforceability of other portions of the contract that are valid.

Although the advance payment portion of the agreement is unenforceable, under paragraph 2.3 of the July 17 agreement, the time for Dubey’s performance was extended to September 15, 1974. The extension of time for performance was an enforceable agreement in exchange for Dubey’s promises to pay additional sums and personally guarantee the note securing the advancements. This time extension was one of the principal considerations for Dubey not only executing the agreement of July 17, but also for the execution of the promissory note payable to Macomb Concrete in the amount of $543,000 and Dubey’s personal guarantee of that note and security agreement by which Dubey gave Macomb a lien on all its equipment in Texas. This consideration was adequate to make the contract legally binding on both sides.

The final issue is whether the jury was properly allowed to award reliance damages to Dubey for defendant’s breach of the agreements between the parties.

The jury awarded Dubey $313,661.56 which represented the difference between the expenditures of Dubey which totaled $542,261,56, minus the prior advances made by Macomb which totaled $178,000 and two improperly included items in Dubey’s damage exhibit which totaled $50,600. Thus, Dubey received the amount it spent on this project minus the advance payments by Macomb.

The defendant claims that the foregoing measure of damages is improper, the proper measure being the contract price less the cost of completion. In other words, the nonbreacher is entitled to its profit. Furthermore, defendant maintains that plaintiff could not make a profit on this contract because the cost of completion would have exceeded the contract price; therefore, defendant, by preventing Dubey’s performance, kept Dubey from incurring a loss on the contract. Thus, defendant is only liable for nominal damages.

Expenses as an alternative remedy for breach of a contract are discussed in 17 CJ, Damages, § 172, pp 855-856:

"(5) Prevention of Performance. Where, without fault on his part, one party to a contract who is willing to perform it is, by the other party, prevented from doing so, the primary measure of damages is the amount of his loss, or, as it has been otherwise expressed, the value of his contract which may consist of two distinct items, the one being the party’s reasonable outlay or expenditure toward performance, and the other the anticipated profits which would have been derived from performance. Plaintiff is entitled to recover the amount which he has upon the faith of the contract fairly and in good faith laid out and expended, and the loss upon material on hand at the time defendant refused to permit him to perform his agreement, together with a fair allowance for his own time and services. Profits may be too remote and speculative to be capable of the clear and direct proof required by law, and in such a case plaintiff is confined to his loss of actual outlay and expense. Failure to prove profits, however, will not prevent a recovery for outlay and expense.” (Footnotes omitted.)

See also, 17 ALR2d 1327, § 9. This approach was adopted by the Michigan Supreme Court in Tross v H E G Clarke Co, 274 Mich 263, 265-266; 264 NW 365 (1936), wherein the Court stated:

"Generally speaking, the measure of damages would be loss of profits to plaintiff from the prevention of performance. But where the profits are wholly speculative and unprovable, the one who prevents performance may not go scot-free.
" 'Unless there is some artificial rule of law which has taken the place of natural justice in relation to the measure of damages, it would seem to be quite clear that the claimant ought at least to be made whole for his losses and expenditures.’ United States v Behan, 110 US 338, 344 (4 Sup Ct 81.)
"Where profits are speculative, the measure of damages is the actual expenditures and value of services reasonably spent in a bona fide attempt to perform the contract or reasonably expended upon the faith of the contract. United States v Behan, supra; 17 CJ p 855; Feldman v Wear-U-Well Shoe Co., 191 Mich 73 [157 NW 395 (1916)].”

Therefore, plaintiff could properly seek reliance damages based on the reasonable expenses incurred attempting to perform the contract.

Defendant claims that Dubey would have lost money if it had completed the contract. We point out that the executive vice-president of Macomb, James Hicks, testified that Dubey would have been paid additional sums beyond the $543,000 contract price had Dubey completed the contract.

Defendant’s argument that the expenses for which Dubey recovered were attributable prior to the July 17 amended agreement is generally correct. However, this does not change our decision because the agreements of January 31, May 28 and July 17 should be viewed as a whole. In fact, the July 17 agreement provides:

"Provisions of Other Agreements. All provisions of the Removal Agreement, the Amendment, and the Equipment Lease in effect immediately prior to the execution hereof shall remain in effect unless specifically amended herein. The Removal Agreement, as amended, and the Equipment Lease shall be deemed to be amended by this Agreement to the extent specifically set forth herein. In addition, Macomb and Cle-Tex, by their execution hereof, do not waive any claim, demand, action or cause of action against Dubey or Sentry arising from, out of or in any manner connected with such agreements.”

So viewed, the contractual relationship between the parties is indivisible and the reliance damages cannot be apportioned between the original and the subsequent agreement for extension of time.

Affirmed. Costs to defendant.

       The January 31, 1974, agreement,

       The May 28,1974, agreement.


source: Caselaw Access Project

author: D. E. Holbrook, J.

license: Public Domain

text:
    SMITH v MARTINDALE
    1. Workmen’s Compensation — Exclusive Remedy — Fellow Employees — Respondeat Superior.
    Workmen’s compensation is the exclusive remedy for an injured employee from his employer; however, where an employee was injured by the actions of another worker at a construction site and the other worker was employed by someone other than the injured employee’s employer, then the injured employee might recover further by suing the other worker’s employer under the respondeat superior doctrine.
    2. Master and Servant — Economic Reality Test — Actual Employer — Control of Worker — Payment of Wages — Hiring and Firing.
    The economic reality test has been adopted by Michigan courts to discern an employment situation; among the relevant factors which demonstrate an employment relationship are: (1) control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the worker’s duties as an integral part of the employer’s business towards the accomplishment of a common goal.
    3. Master and Servant — Crane Operator — Equipment Leasing Company — Actual Employer — Economic Reality Test.
    A crane operator should have been considered to be an employee of a firm in the business of renting out cranes and crane operators as an entity to construction companies and not an employee of the construction company using this service where the facts of the case indicate under the economic reality test that the leasing firm had control of the operator’s duties, that the leasing firm paid the operator’s wages and that the leasing firm had the right to hire and fire and discipline the operator, even though the fourth factor of the economic reality test indicated a possible employment situation between the crane operator and the construction company; the economic reality test views its four elements as a whole, assigning primacy to no single one.

      References for Points in Headnotes

       53 Am Jur 2d, Master and Servant § 415.
    [2 — 4] 81 Am Jur 2d, Workmen’s Compensation §§ 169, 170.

       73 Am Jur 2d, Summary Judgment § 13.

      4. Judgment — Summary Judgment — Master and Servant — Crane Operator — No Factual Dispute — Court Rules.
    A motion for summary judgment was the proper means to determine whether a defendant crane operator was an employee of a leasing company which leased cranes and operators as units or an employee of the construction company which was leasing the crane with an operator from the leasing company where the record and the agreed statement of facts showed that there was no dispute as to any of the underlying facts (GCR 1963, 117.2[3]).
    Appeal from Genesee, Harry B. McAra, J.
    Submitted January 3, 1978, at Lansing.
    (Docket No. 77-1541.)
    Decided March 7, 1978.
    Leave to appeal applied for.
    Complaint by Michael Smith and Pamela Smith against Don Martindale and R. L. White Erectors, Inc., for damages for personal injuries suffered by Michael Smith. Summary judgment for defendants. Plaintiffs appeal.
    Affirmed in part, reversed in part, and remanded.

      H. William Martin, for plaintiffs.

      Neal & Lengauer (by Paul Lazar), for defendants.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. E. Holbrook, J.

Plaintiffs appeal from an April 19, 1977, order granting the summary judgment motion of R. L. White Erectors, Inc. Plaintiffs’ amended complaint claimed damages from an injury to Michael Smith caused by Don Martin-dale’s negligence in operating a crane on a construction project. Michael Smith’s employer, Freedland Steel, was the general contractor for the project and had rented the use of a crane and operator (Don Martindale) from White. Freedland voluntarily paid workmen’s compensation benefits to plaintiff and thereafter plaintiffs commenced a third-party action against Martindale and R. L. White Erectors. Plaintiffs sought to hold R. L. White Erectors vicariously liable because of the employer-employee relationship between the corporation and Martindale. White moved for summary judgment on the grounds that, as a matter of law, at the time of the accident, Don Martindale was the employee of Freedland and hence plaintiffs’ remedy was through Freedland’s worker’s compensation: The trial court granted the summary judgment motion in an opinion dated April 14, 1977.

Michael Smith was a construction worker employed by Freedland Steel Company. General Motors contracted with Freedland Steel for construction work at the A. C. Spark Plug Plant in Flint, Michigan. On January 24, 1975, Michael Smith was working at the construction site when he was hit on the head with a steel "bracing angle” which fell from a steel trestle. The trestle was being positioned by a crane which was operated by Don Martindale and owned by R. L. White Erectors, Inc. Freedland Steel fabricated the trestle and the "bracing angle”. Michael Smith received a skull fracture and a scalp laceration.

R. L. White Erectors, Inc., is in the business of leasing cranes and persons to operate them. Don Martindale had worked for R. L. White three years as a crane operator. R. L. White paid Martindale’s wages, along with deducting his social security and income taxes from his check. Additionally, R. L. White paid Martindale’s worker’s compensation insurance. On January 23, 1975, Freedland rented the services of a crane and operator from White. White instructed Don Martindale and an "oiler”, Rick White, to report to the A. C. construction site on January 24, 1975. Don Martindale and Rick White transported the crane to the site. On their second day on the job, January 25, Don Martindale and Rick White returned to the site without further instructions from White.

Under the rental contract, Freedland paid White a set rate for the crane and an hourly rate set at the union wage for Don Martindale and Rick White.

According to plaintiffs, Don Martindale and Rick White had some discretion in operating the crane in that Martindale could refuse to operate the crane in any way he felt would harm it. However, in the actual use of the crane for placement of the trestle, Freedland’s employees by a recognized set of hand signals, directed the crane operator as to where the trestle should go.

R. L. White Erectors, Inc., chose Don Martindale as the operator of the crane. Freedland Steel Company had no power to fire him, but could have him removed from the job if it felt it was necessary to do so. Although officers of R. L. White Erectors, Inc., visited the construction site on certain occasions, R. L. White apparently exercised no control or supervision over the construction project.

After reviewing the above facts, the trial court determined that Don Martindale was actually the "loan servant” or employee of Freedland and granted White’s motion for summary judgment.

The first issue raised on appeal is whether an employee-crane operator of a company in the business of renting cranes and crane operators becomes the "loaned servant” of the company renting the crane and operator.

The determination of who employed Don Martindale is significant in that it controls plaintiffs’ ability to recover. Plaintiffs have worker’s compensation. rights with respect to Michael Smith’s employer, Freedland Steel. The worker’s compensation benefits are plaintiffs’ exclusive remedy against Freedland. Plaintiffs might recover further if Don Martindale was White’s employee, and if Don Martindale was negligent, by suing White under the respondeat superior doctrine. However, if Don Martindale was a Freedland employee, the respondeat superior doctrine is of no value to plaintiffs because of the exclusive nature of the worker’s compensation remedy. Also, if Don Martindale and Michael Smith are coemployees for Freedland, then plaintiffs are barred from recovering from Don Martindale by reason of the worker’s compensation act.

Both plaintiffs and defendants agree that the economic reality test is applicable to the case at bar. However, plaintiffs claim that the test indicates that Martindale is R. L. White’s employee whereas defendants maintain that Martindale is Freedland’s employee.

The economic reality test has been adopted by the Michigan courts to discern an employment situation. Goodchild v Erickson, 375 Mich 289, 293; 134 NW2d 191 (1965), Cronk v Chevrolet Local 659, 32 Mich App 394, 398; 189 NW2d 16 (1971), lv den, 385 Mich 784 (1971), McKissic v Bodine, 42 Mich App 203, 205-208; 201 NW2d 333 (1972), lv den, 388 Mich 780 (1972). Under the economic reality test, the Michigan Supreme Court in Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976), listed relevant factors to be used to discern an employment situation:

"(1) [C]ontrol of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.”

We review each factor as it relates to the facts in the instant case to determine whether Don Martindale was an employee of R. L. White or Freed-land Steel at the time of the accident.

(1) Control of a worker’s duties.

Prior to the economic reality test, control of the employee was the test used. Today, control is merely part of the test. Askew, supra. A case decided under the control test was White v Bye, 342 Mich 654; 70 NW2d 780 (1955), a case which was factually very similar to the case at bar. In White v Bye, the plaintiff was an employee of the J. A. Utley Company, who was the general contractor for the construction of a plant for General Motors in Flint, Michigan. Utley leased a crane and operator from Bye Excavating for work on the project. Another contractor on the project was the Wilcox Company. Wilcox borrowed from Utley the crane and operator rented from Bye for a very small job. Such borrowing was common in large construction projects. While the crane operator was using the crane, a terminal hook broke loose and struck the plaintiff. At the time the crane operator was being directed by hand signals from Wilcox’s employees. Plaintiff brought an action against Bye on the theory that their employee, the crane operator, was negligent in the operation of the crane. Bye argued that the operator was no longer their employee at the time of the accident. The Court ruled in favor of the plaintiff White therein.

Defendants and the lower court distinguished White v Bye on the grounds that Wilcox had no formal relationship with Bye, whereas R. L. White herein had a formal relationship with Freedland. Although the two cases are not totally on all fours, we hold that the Court’s reasoning and findings in White v Bye are instructive as to the question of control in the instant case. The Court in White, supra, at 660-663 stated:

"The facts pertinent to this issue are that: Bye owned the crane and hired the operator and paid his wages; the crane and operator were hired as a unit, with Bye paying the maintenance, insurance, et cetera; Bye was in the business of renting cranes with his own skilled employees to operate them; the operator was the only person who could operate the controls of the crane; Utley or Wilcox could not discharge the operator from Bye’s employ though they could apparently force Bye to put another operator in his place; Wilcox gave hand signals and directions for moving the reel of cable to indicate to the operator where the crane was to go; the operator could refuse to do any job which he felt would injure the crane; and it was customary on a building project of this kind for a lessee of a crane to accommodate other contractors by lending them his crane either for a charge or in some cases for nothing. Bye contends that the operator ceased being his servant because Wilcox or Utley 'exercised detailed on-the-spot control of the actual operation’ and it was their work that was being done at the time. We are convinced, however, that the directions and signals on the scene were not sufficiently significant, in and of themselves, to establish the master-servant relationship. The noise and the nature of the work made the directions and signals from below necessary. In Rockwell v Grand Trunk Western Railway Co, supra, [253 Mich 144; 234 NW 159 (1931)] the defendant maintained an electric crane for the unloading of heavy freight and the plaintiff trucker was unloading a car. In respect to defendant’s liability, as master, we stated (p 148):
" 'The plaintiff had no control over the crane or the operator except that by signals he could direct when and in what direction the beams should be hoisted. Beyond this he was not allowed to interfere with its operation.’
"In the landmark and oft-quoted case of Standard Oil Co v Anderson (1909), 212 US 215 (29 S Ct 252, 53 L ed 480), the court considered this problem as applied to the Standard Oil Company whose ship was being loaded by means of its own winch, operated by its own man, though the stevedoring company gave signals and directions and supplied the tackle. The court stated in holding the company liable (pp 222, 226):
" 'Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.
" 'Much stress is laid upon the fact that the winch-man obeyed the signals of the gangman, who represented the master stevedore, in timing the raising and lowering of the cases of oil. But when one large general work is undertaken by different persons, doing distinct parts of the same undertaking, there must be cooperation and coordination, or there will be chaos. The giving of signals under the circumstances of this case was not the giving of orders, but of information, and the obedience to those signals showed cooperation rather than subordination, and is not enough to show that there has been a change of masters.’
"In the instant case, Bye furnished the crane, operator and the operator’s know-how as an entity. The operator was hired by and remained under Bye’s control. Bye was in the business of lifting and transporting of objects for other persons by means of cranes. He furnished these services and not the operator and crane individually. In the Rockwell Case, supra, we said (p 148):
" 'In the instant case the defendant furnished the crane to increase its business in the carrying of heavyweight. It selected a man who had been instructed in its use to care for and operate it. * * * While operating it, he was engaged in the furtherance of the defendant’s business. He did nothing that the plaintiff was required to do. He knew the safe way and the unsafe way to operate it. He was selected by the defendant, paid by the defendant, and could be discharged whenever it pleased the defendant.’ ”

Therefore, we hold that the control of Martin-dale was by R. L. White and not Freedland.

(2) Payment of wages.

Martindale’s wages were paid to him by R. L. White. White also deducted social security and income taxes from his check. Martindale did not receive any money from Freedland Steel. Freed-land claims that it was required to pay R. L. White for the number of hours worked by Martindale at the construction site and that it was in effect paying Martindale’s wages. However, we do not agree. Martindale was paid by a check issued by R. L. White and White was responsible for the withholding taxes. We hold that the most reasonable view of this relationship is that R. L. White paid Martindale’s wages.

(3) Right to hire and ñre and discipline.

Allen Clark, a vice-president of Freedland Steel, was questioned in a deposition in part as follows:

"Q [Plaintiffs’ attorney] Do you know who directed Don Martindale to report to the A. C. Spark Plug Plant to work that job?
"A Well, I’m assuming his supervisor or someone at the company where he’s employed.
"Q Would you or Mike Davis have any authority to fire Don Martindale from the R. L. White Company?
"A Would we have authority?
"Q Yes.
"A Yes.
"Q To fire him from his own company?
"A No. No. I’m sorry. I misunderstood you. No, none whatsoever.
"Q So whether or not he worked is up to his company, not up to you?
"A That’s correct.”

Thus, Freedland had no right to fire Martindale. As to the disciplining of Martindale, by Freedland, Clark was questioned as follows:

"Q [Plaintiffs’ attorney] If you didn’t like the way Don Martindale or anybody else was running their crane, what procedures would you follow in getting them off the premises?
"A There would be various types of ways. It would be according to the circumstances. You would possibly go to the owner of the equipment you rented or if it was severe enough, why, you just politely asked him to leave the job and if not, you’d take other action accordinly [sic], ”

Thus, although Martindale could be asked to leave the job, any disciplining was up to White. We do not agree with defendants that the right of removal is equal to the right to fire, hire and discipline. The firing and disciplining of Martindale was up to R. L. White, not Freedland.

(4) The performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.

Martindale’s performance of his duties, i.e., operation of the crane, was an integral part of Freed-land’s business towards accomplishment of a common goal, i.e., construction of a building at the A. C. Spark Plug Plant. Thus, the fourth factor indicates a possible employment situation between Martindale and Freedland. However, as Justice Smith stated in Schulte v American Box Board Co, 358 Mich 21, 33; 99 NW2d 367 (1959):

"Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one.”

Also see, Askew, supra, p 220. Considering the four factors, assigning primacy to no single one, we rule that Martindale was the employee of R. L. White Erectors, Inc.

The next issue plaintiffs raise is the question of whether a person is a "borrowed servant” represents a question of fact precluding summary judgment under GCR 1963, 117.2(3).

This case is on appeal from the granting of defendants’ summary judgment motion under GCR 1963, 117.2(3). The trial judge held that as a matter of law Don Martindale was Freedland’s employee. Plaintiffs claim a question of fact existed as to whose employee Don Martindale was.

This issue was raised in Renfroe v Higgins Rack Coating & Manufacturing Co, Inc, 17 Mich App 259, 261-262; 169 NW2d 326 (1969), wherein the Court stated:

"In the case at bar, the record contains numerous interrogatories, depositions, and affidavits, which set out the underlying events and circumstances in great detail. These,, as well as the agreed statement of facts submitted for purposes of this appeal, reveal that there is no dispute as to any of the underlying facts. Plaintiffs only contention is that on the basis of the agreed facts, defendant should not be labeled an 'employer’ within the meaning of the workmen’s compensation law. This is not a question of fact for a jury to decide; it is a question of law which must ultimately be decided by the courts. As such, it is appropriately decided under a motion for summary judgment where full affidavits and depositions disclose no disputed issue of fact.”

See also, Askew, supra, at 217.

Thus, under the facts and circumstances of the instant case, the motion for summary judgment was a proper means to determine the issue as to whose employee Martindale was. However, the trial judge’s decision that Martindale was Freed-land’s employee was in error.

Affirmed in part and reversed in part. Remanded for trial in accordance with this opinion. No costs, neither party prevailing fully.


author: Danhof, C. J.

text:
    PEOPLE v RANKINS
    1. Searches and Seizures — Search Warrants — Hair Samples- — Evidence — Probable Cause — Custody—Removal by Doctor— Force — Minor Intrusions — Potential for Abuse.
    A search warrant was not required to justify the taking of hair samples from a defendant which were compared with hairs found at the scene of the crime charged and introduced into evidence at trial where there was sufficient evidence at the time the samples were taken to establish probable cause that the defendant committed the crime, the hair samples were removed by a medical doctor in a hospital environment after defendant was already in custody and at a time when he was conscious and alert, and where there was nothing to suggest that the hair samples were obtained by force; the intrusion into or upon the integrity of the defendant’s person was very minor, and the potential for abuse of this procedure by police for harassment purposes is not great.
    2. Searches and Seizures — Search Warrants — Official Intrusions —Individual’s Person — Extenuating Circumstances — Reasonableness — Minor Intrusions.
    Not all official intrusions of an individual’s person require a search warrant in order to be reasonable; some official in-custody investigative techniques designed to uncover incriminating evidence from a person’s body are such minor intrusions into or upon the "integrity of an individual’s person” that they are not, in the absence of a search warrant, unreasonable intrusions.
    Appeal from Oakland, William R. Beasley, J.
    Submitted February 15, 1978, at Lansing.
    (Docket No. 77-4185.)
    Decided March 7, 1978.
    References for Points in Headnotes
    [1, 2] 68 Am Jur 2d, Searches and Seizures §§ 29, 105.
    Physical examination or exhibition of, or tests upon, suspect or accused, as violating rights guaranteed by Federal constitution— Federal cases. 22 L Ed 2d 909.

      Glen L. Rankins was convicted of armed robbery, assault with intent to do great bodily harm less than murder, and first-degree criminal sexual conduct. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

      Adrian B. Spinks, for defendant.
    Before: Danhof, C. J., and Bronson and N. J. Lambros, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Danhof, C. J.

Defendant, Glen Lamare Rankins, was charged with two counts of armed robbery, MCLA 750.529; MSA 28.797, one count of assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279, and first-degree criminal sexual conduct, MCLA 750.520b; MSA 28.788(2). He was convicted of all four counts on November 7, 1975. Defendant’s motion for a new trial was denied and he appeals as of right.

About one hour after the crime was committed, defendant was apprehended as the result of a high speed auto chase which ended when defendant crashed into a parked car. While the defendant was in custody and at a hospital for treatment of minor injuries, the doctor clipped some hair samples from him. The defendant was conscious at the time but unresponsive to questioning. These samples were compared to hairs found at the scene of the crime and introduced into evidence. The defendant raised a Fourth Amendment objection to this evidence, but this was overruled and he appeals.

Although this exact question has never been decided in this state, this Court did address the issue in People v Cutler, 73 Mich App 313; 251 NW2d 303 (1977). In Cutler, while the defendant was in custody, the police clipped a few strands of his hair without a warrant or consent. The Court in that case referred to United States v D’Amico, 408 F2d 331 (CA 2, 1969), which held that:

"Unquestionably the clipping of the few strands of appellant’s hair by a federal agent constituted a 'seizure’ that might conceivably be subject to the 'constraints of the Fourth Amendment,’ Schmerber v California, 384 US 757, 767; 86 S Ct 1826; 16 L Ed 2d 908 (1966); but the fact that the officer failed to obtain a search warrant before cutting off the hairs does not necessarily require that we hold that this 'seizure’ was an unconstitutional one.” D’Amico, supra, at 332-333.

The Court in D’Amico, supra, also considered and rejected the lack of "exigencies of the circumstances” argument which defendant raised. Citing Schmerber v California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966), the Court rejected this argument:

"This holding does not comprehend that all official intrusions into an individual’s person require, in the absence of extenuating circumstances, a search warrant in order to be reasonable. Some official in-custody investigative technique designed to uncover incriminating evidence from a person’s body are such minor intrusions into or upon the 'integrity of an individual’s person’ (384 U.S. at 772; 86 S Ct at 1826 [16 L Ed 2d at 920]), that they are not, in the absence of a search warrant, unreasonable intrusions.
* * *
"Here there was only the slightest intrusion (if indeed there was any intrusion at all): the clipping by the officer of the few strands of hair from appellant’s head was so minor an imposition that appellant suffered no true humiliation or affront to his dignity. We hold that a search warrant was not required to justify the officer’s act. D’Amico, supra, at 333.”

Applying this law to the instant case, it is clear that a search warrant was not required to justify the taking of the hair samples from the defendant. In this case, there was sufficient evidence to establish probable cause that the defendant committed the crime. The hair samples were removed by a medical doctor in a hospital environment after defendant was already in custody, and at a time when he was conscious and alert. Also, there is nothing to suggest that the hair samples were obtained by force. The intrusion into or upon the integrity of the defendant’s person was very minor and slight. Furthermore, since only one sample is required for analysis, the potential for abuse of this procedure by police for harassment purposes is not great, see Davis v Mississippi, 394 US 721; 89 S Ct 1394; 22 L Ed 2d 676 (1969). Under these facts and circumstances, there was no violation of defendant’s Fourth Amendment rights.

Although they are not controlling, it should be noted that the same result has been reached in other states, Commonwealth v Tarver, — Mass —; 345 NE2d 671 (1975), State v Sharpe, 284 NC 157; 200 SE2d 44 (1973), State v Brierly, 109 Ariz 310; 509 P2d 203 (1973).

Affirmed.


author: Per Curiam.

text:
    PEOPLE v DUIS
    1. Criminal Law — Entrapment—Objective Test — Police Conduct.
    The objective test of entrapment, which has been adopted in this state, requires the trial judge to determine whether the police conduct was of such a nature that it would induce the commission of a crime by an otherwise unwilling or unready person; the propensity of the particular defendant to commit the crime is irrelevant.
    2. Criminal Law — Entrapment—Police Conduct — Public Policy.
    The real concern in entrapment cases is 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.
    3. Criminal Law — Drugs and Narcotics — Entrapment—Scrutiny of Facts — Court of Appeals — Police Conduct — Public Policy.
    To find out if a defendant, charged with delivery of a controlled substance, was entrapped as a matter of law, the Court of Appeals should scrutinize the facts of the particular case and determine whether the government agent pressured the defendant into selling the controlled substance; where the entire course of police conduct was sufficiently provocative to induce a normal law-abiding citizen to commit a crime, the actions are so reprehensible that the Court of Appeals should refuse, as a matter of public policy, to permit the conviction to stand.
    Appeal from Berrien, Chester J. Byrns, J.
    Submitted January 6, 1978, at Grand Rapids.
    (Docket No. 30817.)
    Decided March 7, 1978.
    References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law §§ 143-145.
    25 Am Jur 2d, Drugs, Narcotics, and Poisons § 43.
    Entrapment to commit offense with respect to narcotics law. 33 ALR2d 883.
    Modern status of the law concerning entrapment to commit narcotics offense — state cases. 62 ALR3d 110.

      Donald Duis was convicted of delivery of LSD. Defendant appeals.
    Reversed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John Smietanka, Prosecuting Attorney, and Chris W. Dunñeld, Assistant Prosecuting Attorney, for the people.

      Drew and Drew, for defendant on appeal.
    Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   Per Curiam.

A jury convicted defendant of delivery of LSD, MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). He was sentenced to 2 years probation. Defendant appeals as of right.

Defendant admitted that on July 24, 1975, he delivered LSD to police officer Jan Edwards of the Berrien County Metro Narcotics Unit at Island Park in Niles, Michigan. Pursuant to a motion to dismiss on the grounds of entrapment, a Turner hearing was held prior to trial. After listening to testimony, the trial judge ruled that as a matter of law there had been no entrapment. The case then proceeded to trial on the sole issue of entrapment.

Tim Kelly, a police undercover agent, testified that he had arranged for the purchase of the LSD from defendant. He also testified that in 1972 he had been convicted of larceny in a building. Before July 24, 1975, while he was in jail awaiting trial on another felony charge (uttering and publishing), in lieu of posting $5,000 bond, Kelly and the Metro Narcotics Unit reached an agreement whereby Kelly was released from jail on personal recognizance in order to arrange drug arrests for the police. The police told Kelly that if he could help the Metro Narcotics Unit, they would try to get the pending charges reduced to "no account check” and would see to it that Kelly received probation rather than a prison term.

Kelly and the defendant had, before July 24, 1975, worked together at U. S. Aviex where they frequently lunched together. The two worked side by side on the same job and defendant testified he thought they had become close friends. After defendant quit work to go to college, he and Kelly, except for meeting each other on the street, did not see each other until three weeks before July 24, 1975. At that time they spoke with each other at a mutual friend’s house.

On July 24, 1975, Kelly made three visits to the house where defendant was staying and called defendant twice. Kelly did not recall if the subject of mescaline came up during the first or second visit; according to defendant, the subject arose while the two were talking during Kelly’s first visit. Kelly inquired about buying some hallucinogens. Defendant replied that there were some around but that he had none for sale. When Kelly asked the defendant if he could get him some, defendant was noncommittal. Kelly returned a few hours later with the same request and defendant said no. After a third visit and two telephone calls, defendant finally agreed to procure the mescaline for Kelly as a favor.

Defendant, after locating a person who had some mescaline (which was, in fact, LSD) picked up several packets of the substance, not knowing how many Kelly wanted, and proceeded to Island Park where he was to meet Kelly.

At Island Park, Kelly introduced Officer Edwards as his cousin who wanted to buy the mescaline. Defendant received $20 from the officer, which he gave to the person from whom he obtained the drugs along with the remaining packets. He made no profit on the transaction.

Before the incident in question, defendant never sold Kelly any drugs, though he was aware that Kelly used drugs. July 24 was also the first time defendant had ever arranged the purchase of drugs for anyone, i.e., acted as a dealer.

At the close of the prosecution’s case, the defense moved for a directed verdict of acquittal on the grounds of entrapment. The court denied the motion on the same basis that the motion to dismiss at the conclusion of the Turner hearing was denied.

In People v Turner, 390 Mich 7; 210 NW2d 336 (1973), the Michigan Supreme Court adopted an objective test of entrapment, relying on the dissenting opinion of Justice Stewart in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973), which states:

"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.” 411 US at 445.

In Turner our Supreme Court stated that the real concern in entrapment cases is "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”. Id. at 22.

Through an examination of the facts of each case, the court must determine whether the police conduct was of such a nature that it would induce the commission of a crime by an otherwise unwilling or unready person. People v Fraker, 63 Mich App 29; 233 NW2d 878 (1975). The character or propensities of a particular defendant are totally irrelevant to the entrapment determination. People v Cushman, 65 Mich App 161; 237 NW2d 228 (1975).

To find out if defendant was, as a matter of law, entrapped, we scrutinize the facts of this particular case. The police agent who was instrumental in the sale was a convicted felon who arranged the drug arrest as part of a deal with police by which he would receive probation, not a prison term, and would be charged with an offense less serious than that with which he was originally charged. This factor is properly taken into consideration in our focus on police conduct. In People v Asher, 67 Mich App 174; 240 NW2d 749 (1976), the Court, in concluding that there had been entrapment, had due regard for the criminal status of the police agent.

Here we find the circumstances more reprehensible than those in Asher. There the police had focused their attention on a suspected narcotics dealer. The police agent was contacted while in jail because he was a friend of defendant. In the instant case, however, the police had not focused on a particular subject. The police approached Kelly because he was in a vulnerable position and because they assumed he knew and could contact drug dealers. The police did not investigate defendant to ascertain if he was a drug dealer. By failing to adequately supervise Kelly’s activity, the police allowed him to select any victim he wished. The employment of Kelly, a convicted felon, awaiting trial on yet another felony, to induce defendant to sell drugs offends decent standards of law enforcement. It is precisely the overreaching police conduct condemned in Turner.

In further scrutinizing the facts, we concentrate on whether the government agent pressured defendant into selling controlled substances. People v Turner, supra, People v Henley, 54 Mich App 463; 221 NW2d 218 (1974). Kelly visited defendant three times on the day of the sale and telephoned him twice. Kelly admitted he continued to "bug” defendant, who was not willing to accede to Kelly’s entreaties, until defendant agreed to sell the mescaline. The police pressure is inexcusable. It is the kind of conduct which would reasonably be expected to induce an unwilling and unready individual to commit crime. Such police methods cannot be countenanced.

It is true that the friendship between Kelly and defendant was created independent of any police involvement. But the friendship was later cultivated and kept alive solely for the purpose of inducing defendant to sell drugs. Kelly actively exploited and abused the friendship for an obvious reason: the police promised him leniency and freedom if he arranged drug arrests. Police involvement was the very reason Kelly entrapped his friend.

Moreover, only by playing on defendant’s sympathy was Kelly able to entice defendant to sell drugs. "Do it for me as a favor, brother”, was Kelly’s plea to defendant. While not as flagrant an action as that in Turner, Kelly did lie to persuade defendant to sell the drugs.

The entire course of police conduct "was sufficiently provocative to induce the normal law abiding citizen to commit a crime”. People v Fraker, supra, at 33. The actions of the police were so reprehensible that this Court must refuse, as a matter of public policy, to permit the conviction to stand. People v Turner, supra. Because we find defendant was entrapped as a matter of law, his conviction is reversed.


author: Per Curiam. R. B. Burns, J.

text:
    BIBERSTINE v WOODWORTH
    Opinion of the Court
    1. Limitation of Actions — Malpractice—State Licensed Person— Last Treatment — Discovery of Malpractice.
    An action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later (MCLA 600.5805[3], 600.5838; MSA 27A.5805[3], 27A.5838).
    2. Limitation of Actions — Malpractice—Bankruptcy—Attorney and Client — Failure to Schedule Debt — Accrual of Cause of Action.
    A cause of action by a client against his attorney for malpractice arising from inaction or delay accrues for the purpose of the statute of limitations at the time when it can be said that the attorney has had a reasonable time to act but has failed to do so; therefore, in a malpractice action by a client against his attorney based on the attorney’s failure to schedule a certain debt in a bankruptcy proceeding, the alleged malpractice occurred when the attorney failed to schedule the debt within a reasonable time after having been requested to do so by his client.
    3. Attorney and Client — Attorney Malpractice — Bankruptcy— Failure to Schedule Debt — Accrual of Action — Jury Question.
    The issues of whether an attorney’s failure to schedule a certain debt in his client’s bankruptcy action constituted malpractice and the date upon which the alleged malpractice occurred are both questions of fact to be resolved by the trier of fact.

      References for Points in Headnotes

       7 Am Jur 2d, Attorneys at Law §§ 184-187.
    What statute of limitations governs damage action against attorney for negligence in performance of professional services. 49 ALR2d 1216.
    When statute of limitations begins to run upon action against attorney for malpractice. 18 ALR3d 978.

       7 Am Jur 2d, Attorneys at Law § 189.

      Concurrence by R. B. Burns, J.
    4. Limitation of Actions — Attorney and Client — Malpractice— Bankruptcy — Failure to Schedule Debt — Accrual of Cause of Action.

      The statute of limitations for a malpractice suit based on an attorney’s failure in his client’s bankruptcy proceeding to schedule a certain debt as requested by the client should start to run at the time the client was discharged in bankruptcy, because until then the attorney could have petitioned the bankruptcy court to amend the bankruptcy petition and plaintiff would not have had a claim for malpractice.

    Appeal from Huron, Paul R. Mahinske, J.
    Submitted October 19, 1977, at Detroit.
    (Docket No. 31073.)
    Decided March 7, 1978.
    Leave to appeal applied for.
    Complaint by Crane M. Biberstine against James F. Woodworth for damages for malpractice. Accelerated judgment for defendant. Plaintiff appeals.
    Reversed and remanded.

      Keller & Katkowsky, P. C., for plaintiff.

      Woodworth & Woodworth, for defendant.
    Before: T. M. Burns, P. J., and R. B. Burns and W. R. Brown, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

This case involves a claim of attorney malpractice. The circuit court granted accelerated judgment, GCR 1963, 116.1(5), after it found that the applicable statute of limitations had run. Plaintiff appeals, we reverse.

Plaintiff retained defendant to file a personal bankruptcy in 1970. The original petition was filed in the bankruptcy court on March 17, 1971, and amended on April 19, 1971. Neither petition scheduled a debt owed by plaintiff to the Michigan Motor Vehicle Accident Claims Fund. Plaintiff attempted several times to have defendant schedule this debt, including filing a request for investigation with the State Bar Grievance Board on November 22, 1971. Plaintiff received his discharge of bankruptcy on September 25, 1972, which did not include the debt to the Michigan Motor Vehicle Accident Claims Fund. This suit was filed December 26, 1973.

Both parties agree that the applicable statute of limitations is two years, MCLA 600.5805(3); MSA 27A.5805(3), and that the accrual of the claim is governed by MCLA 600.5838; MSA 27A.5838 before its amendment by 1975 PA 142. In dealing with the statutes, the Supreme Court in Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973), held:

"an action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.”

Applying this standard, the circuit court held the last date of service to be April 19, 1971 (when the bankruptcy petition was amended) and the date of plaintiff’s knowledge of the asserted malpractice to be November 22, 1971 (the date of filing the request for investigation with the State Bar).

We deem it necessary to discuss only the second question; when did plaintiff discover, or in the exercise of reasonable diligence should he have discovered, the asserted malpractice?

In reaching the conclusion that plaintiff was aware of the possible malpractice more than two years before the complaint was filed, the circuit court relied on a portion of the request for investigation in which plaintiff stated, "I’m making payments to the state that an attorney from the state told me the bankruptcy would eliminate, or I should be able, if my attorney couldn’t figure it out to take action against the attorney for malpractice.”

To decide the issue it is necessary to determine what the asserted malpractice consisted of. Plaintiff claims it was failure to amend the petition in bankruptcy to include the debt before discharge on September 25, 1972. This would be within the applicable period of limitations. Without deciding that failure to schedule the debt was malpractice, the amendment would have required leave of the bankruptcy court under General Order 11 in effect at that time, we hold that whether plaintiff could have discovered the asserted malpractice before the two year limitations period is a question of fact to be decided by the trier of fact.

The asserted malpractice is not an action which occurred on a specific date, but rather, an omission to take an action before a certain date. In Anno: When Statute of Limitations Begins to Run Upon Action Against Attorney for Malpractice, 18 ALR3d 978, pp 1002-1003, two possible rules for handling this type of situation are analyzed. Under the first, the statute of limitations begins to run when the asserted malpractice results in injury. Here, that would be, as plaintiff argues, the date of his discharge in bankruptcy. Adoption of this rule would bring an amount of certainty and ease of application to the law.

We think the other choice presents a better balancing of the interests of all involved, however. We hold that where the negligence of the attorney consists of delay or inaction, a client’s cause of action accrues for the purpose of the statute of limitations at the time when it can be said that the attorney has had a reasonable time to act but has failed to do so.

In other words, we conclude that the malpractice, if it was malpractice, occurred when defendant failed to schedule the debt within a reasonable time after having been requested to do so by his client. Whether this was malpractice and the date upon which it occurred are both questions of fact to be resolved by the trier of fact. See, Tumey v Detroit, 316 Mich 400; 25 NW2d 571 (1947), GCR 1963, 116.3. The trial court erred in ruling that plaintiff’s claim was barred by the statute of limitations on the basis of the present record.

Reversed and remanded for proceedings not inconsistent with this opinion. Costs to plaintiff.

R. B. Burns, J.

(concurring in result). I concur in the results reached by my brothers, but write separately because in my opinion the statute of limitations should start to run at the time the plaintiff was discharged in bankruptcy. Until then the defendant could have petitioned the bankruptcy court to amend the petition and plaintiff would not have had a claim for malpraqtice.

       For recent cases dealing with the question of last date of service, see Basic Food Industries, Inc v Travis, Warren, Nayer and Burgoyne, 60 Mich App 492; 231 NW2d 466 (1975), Berry v Zisman, 70 Mich App 376; 245 NW2d 758 (1976).

       In his request for investigation, plaintiff also stated, "I want Mr. Woodworth to either file the amendments and do the job for me — or return the $335 I have paid him and let me obtain other counsel.” This seems to indicate that plaintiff was still willing to have defendant act for him if he did so within a reasonable time.


author: Per Curiam. D. E. Holbrook, J.

text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v REYNOLDS
    Opinion of the Court
    1. Insurance — Automobiles—Uninsured Motorists — Exclusions— Nonowned Automobiles.
    Uninsured motorist insurance covers all members of a named insured’s household; an exclusionary clause which limits the coverage, by requiring that if a protected individual is injured while occupying an automobile it must be the vehicle listed in the policy declaration or a "nonowned” vehicle as defined in the policy, is valid and does not violate public policy.
    Dissent by D. E. Holbrook, J.
    2. Insurance — Automobiles—Uninsured Motorists — Exclusions.

      An automobile insurer’s offer■ of uninsured motorist coverage must apply to whoever is insured under the liability coverage of the policy; therefore, a clause in an insurance policy is invalid where it excludes uninsured motorist coverage to the daughter of a named insured, who with her husband is living in the named insured’s household, and who is injured while a passenger in an uninsured automobile owned and driven by her husband.

    Appeal from Wayne, Neal Fitzgerald, J.
    Submitted December 12, 1977, at Detroit.
    (Docket No. 77-541.)
    Decided March 7, 1978.
    Leave to appeal applied for.
    Complaint by the Detroit Automobile Inter-Insurance Exchange against Robert Reynolds and Jacqueline Reynolds for a declaratory judgment that Jacqueline Reynolds was not entitled to uninsured motorist coverage under a policy of insurance issued by plaintiff to Jacqueline Reynolds’ father. Summary judgment for plaintiff. Defendant Jacqueline Reynolds appeals.

      •References for Points in Headnotes
    [1, 2] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 301, 302.
    New Topic Service, No-fault Insurance § 20.
    7 Am Jur 2d, Automobile Insurance §§ 135-138.
    Rights and liabilities under "uninsured motorists” coverage. 79 ALR2d 1252.

      Affirmed.

      Selby, Dickinson, Pike, Mourad & Brandt (by Michael B. Haber), for plaintiff.

      Weizenthal, Mindell & Panzer, for defendants.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   Per Curiam.

Defendant, Jacqueline Reynolds, was injured in an automobile accident while riding as a passenger in her husband’s uninsured automobile. The other car involved was also uninsured. Defendant made a claim for uninsured motorist benefits under her father’s automobile insurance policy because the defendant and her husband resided with her father. The plaintiff filed an action for a declaratory judgment asking that the court find that defendant was not entitled to uninsured motorist coverage under the terms of the contract. The plaintiff then made a motion for summary judgment which was granted. Defendant appeals.

The exclusion clause in the insurance contract between the plaintiff and defendant’s father excludes uninsured motorist coverage unless the insured party was occupying a nonowned automobile. A nonowned automobile is defined as follows:

" 'non-owned automobile’ means any automobile or trailer * * * not owned by, furnished or available for the frequent or regular use of the named insured, relative or other resident of the same household of such named insured * * *

It is undisputed that the automobile defendant was occupying at the time of the accident was owned by her husband. Thus, although the "exclusions clause” would not limit liability when the protected individual was injured while a pedestrian or a passenger of a car belonging to a nonrelative or a member of another household, under these facts defendant is excluded from benefits under the terms of the contract. Burch v Wargo, 378 Mich 200; 144 NW2d 342 (1966). The distinguishing feature is the fact that her father’s automobile insurance contract contains a provision which specifically excludes liability if the vehicle in which she was riding is not a "non-owned” automobile.

Uninsured motorist insurance coverage protects against bodily injury caused by someone who has no insurance. Thus, uninsured motorist insurance covers the individual and follows wherever the individual goes. When purchased, it covers all members of a named insured’s household. As such, one member of a household which had numerous automobiles could purchase uninsured motorist coverage in an insurance contract on one of the automobiles and provide protection for all the other members of the household under all circumstances. To limit this risk, the insurers have inserted an "exclusions clause” in each contract. This limits liability by requiring that if the protected individual is injured while occupying an automobile, it must be the vehicle listed in the declaration of the policy or a nonowned vehicle as defined in the contract.

Finally, we note that this section of the exclusion clause does not violate public policy. Rice v Detroit Automobile Inter-Insurance Exchange, 66 Mich App 600; 239 NW2d 675 (1976), lv den, 396 Mich 858 (1976), Priestly v Secretary of State, 67 Mich App 96; 240 NW2d 282 (1976), lv den 396 Mich 859 (1976). Therefore, we affirm.

Affirmed. Costs to appellee.

D. E. Holbrook, J.

(dissenting). The majority opinion upholds plaintiffs argument that defendant is not entitled to coverage under her father’s insurance contract for injuries sustained while she was occupying an uninsured automobile titled to her husband. This writer respectfully disagrees.

The Michigan Supreme Court in Pappas v Central National Insurance Group of Omaha, 400 Mich 475; 255 NW2d 629 (1977), and this Court in the cases of Hickman v Community Service Insurance Co, 78 Mich App 1; 259 NW2d 367 (1977), Bradley v Mid-Century Insurance Co, 78 Mich App 67; 259 NW2d 378 (1977), and Ellis v State Farm Insurance Co, 78 Mich App 189; 259 NW2d 421 (1977), held that MCLA 500.3010; MSA 24.13010 requires that the offer of coverage apply to whomever is insured under the liability coverage of the policy. In the instant case, the policy provided insured status on Jacqueline Reynolds by virtue of her being a resident relative of Adam Zeller. Any self-insured policy limitation which would deny uninsured motorist coverage to her while a resident relative of Adam Zeller is invalid.

This writer is in complete agreement with Judge Danhof when he wrote in Hickman, supra, at pp 6-7:

"We are not unmindful of the fact that Nunley v Turner, 57 Mich App 473; 226 NW2d 528 (1975), Rice v Detroit Automobile Inter-Insurance Exchange, 66 Mich App 600; 239 NW2d 675 (1976), and Priestly v Secretary of State, 67 Mich App 96; 240 NW2d 282 (1976), all appear to reach results contrary to the decision in the instant case. We read those cases as allowing the insurer and the insured to ná’rrowly define the class of persons protected by the uninsured motorist coverage, but we read Pappas, supra, as rejecting such narrow definitions. We further read Nunley, Rice, and Priestly as attempting to circumscribe the' factual situation in which the insured party, injured by an uninsured motorist, may recover under a policy providing the statutorily required coverage. Pappas, supra, allows no such circumscription:
" 'The legislative policy expressed in the statute is not affected by circumstances peculiar to the situation of a particular plaintiff.’ 400 Mich at 481.
"In the instant case, and its two companion cases, Ellis v State Farm Insurance, 78 Mich App 189; 259 NW2d 421 (1977), and Bradley v Mid-Century Insurance Co, 78 Mich App 67; 259 NW2d 378 (1977), the plaintiff is an 'insured’ under the liability section definition of the insurance policy in question. Once having been afforded this status, and so long as it exists, MCLA 500.3010; MSA 24.13010 requires that an offer of uninsured motorist coverage must be extended for protection from injuries caused by uninsured motorists wherever the 'insured’ happens to be and whatever the 'insured’ happens to be doing at the time of the injury.”

Also see, Bradley, supra, at pp 71-72, and Ellis, supra, at pp 193-194.

This writer would hold that the judgment of the trial court be reversed and that a judgment be entered that Jacqueline Reynolds is covered under the insurance policy of her father for uninsured motorist benefits.

       MCLA 500.3010; MSA 24.13010 was repealed by 1972 PA 345, effective October 1, 1973.