author: Bashara, J. T. M. Burns, P.J.

text:
    PEOPLE v TURNER
    Docket No. 77-1975.
    Submitted April 14, 1978, at Detroit.
    Decided October 2, 1978.
    Byron Turner, also known as Michael Whitmore, was convicted of delivery of heroin and of conspiracy to deliver heroin, Recorder’s Court of Detroit, Patricia J. Boyle, J. The defendant appeals, alleging (1) that the trial court acted improperly in linking the instruction to the jury on the defense of alibi to the instruction on identification and in refusing to give the entire standard instruction on identification, and (2) that the conviction on the conspiracy count must be set aside because the conspiracy charge against a sole co-conspirator was dismissed as part of a plea bargain. Held:

    1. It was not improper for the trial court to tie together the instructions on alibi and identification and limit its instruction on identification because both defenses were employed by the defendant at trial and the instructions, as given, were consistent with the defense theory.
    2. The conspiracy conviction is valid. The plea bargain reached between the co-conspirator and the prosecution, wherein the conspiracy charge was dismissed as to the co-conspirator, was not an adjudication of either party’s participation in the conspiracy and must be treated differently than if the sole co-conspirator had been tried and acquitted.
    Affirmed.
    T. M. Burns, P.J., concurred in part and dissented in part. He would agree that the instructions to the jury were proper. However, he would hold that once the conspiracy charge was dismissed against the sole co-conspirator, the defendant could no longer be charged with conspiracy.

      References for Points in Headnotes
    [1, 3] 21 Am Jur 2d, Criminal Law § 136.
    75 Am Jur 2d, Trial §§ 729-737.
    [2] 75 Am Jur 2d, Tiral § 610.
    [4] 16 Am Jur 2d, Conspiracy §§ 14, 33.
    21 Am Jur 2d, Criminal Law § 132.
    [5] 16 Am Jur 2d, Conspiracy §§ 1,14, 33.
    [6] 16 Am Jur 2d, Conspiracy § 33.
    21 Am Jur 2d, Criminal Law § 132.

      Opinion of the Court
    1. Criminal Law — Instructions to Jury — Alibi—Misidentification.
    It is not error, in a criminal trial where a defendant raises both an alibi defense and a misidentification defense, for the trial court to link the alibi instruction with the instruction on identification because the alibi testimony, if believed, may serve two purposes: it forms a "perfect defense” because the defendant could not have been where the prosecution claimed he was and, alternatively, it may serve to raise a reasonable doubt in the identification even if the defendant’s presence at another place is not adequately established.
    2. Criminal Law — Instructions to Jury — Criminal Jury Instructions.
    Use of the Criminal Jury Instructions presently is not mandatory, although their use is encouraged.
    3. Criminal Law — Instructions to Jury — Identification Instruction — Alibi—Criminal Jury Instructions.
    An instruction to the jury on identification which is more limited than an instruction requested by a defendant was not erroneous where the trial court relied on the note to the applicable Criminal Jury Instruction on identification and made an evaluation of the strength of the identification testimony and correctly decided that the identification instruction was necessary only as a companion to an alibi instruction (CJI 7:7:01).
    4. Conspiracy — Criminal Law — One Man Conspiracy — Plea Bargain — Delivery of Heroin.
    There can be no crime of a "one man conspiracy”; if one defendant is acquitted by a fact finder of the crime of conspiracy, the charge cannot be sustained against one other alleged co-conspirator; however, where one of two co-defendants pleads guilty to a charge of delivery of heroin in exchange for a dismissal of a charge of conspiracy to deliver heroin, there has been no adjudication of either party’s participation in the conspiracy.
    Partial Dissent, Partial Concurrence by T. M. Burns, P.J.
    5. Conspiracy — Criminal Law — One Man Conspiracy — Acquittal of All But One Co-conspirator.

      A conspiracy is a partnership for a criminal purpose; therefore, there can be no such thing as a one man conspiracy and,

      because of the joint nature of the offense, an acquittal of all but one conspirator is, in effect, an acquittal of all.

    6. Conspiracy — Criminal Law — Conspirator Not Subject to Liability — Plea Bargains.

      A conspiracy count against a defendant cannot stand where the only other person the proofs would support a conspiracy charge against is not subject to liability on the conspiracy charge because of a plea bargain whereby the prosecutor has agreed that the conspiracy charge be dismissed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

      Rose Mary C. Robinson, for defendant on appeal.
    Before: T.M. Burns, P.J., and N.J. Kaufman and Bashara, JJ.
   Bashara, J.

Defendant was tried and convicted in a jury trial in Detroit Recorder’s Court for one count of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and one count of conspiracy to deliver heroin, MCL 750.157a; MSA 28.354(1). This appeal by right challenges the trial court’s instructions on identification and alibi, and the validity of the conspiracy conviction.

Both counts arose out of a single incident on March 24, 1976. An undercover narcotics officer went to an address on American Street in the City of Detroit for the purpose of purchasing narcotics. Prior purchases had been made at this address from an individual known as "Dog”. Dog did not have anything to sell on this occasion.

Dog and two other unidentified males escorted the undercover officer to a house on Dalrymple, also in the City of Detroit, to make a purchase. The group was admitted at this address and the officer was introduced to an individual called "Red”. No conversation occurred between Red and the officer.

Before any sale could be made, Red required the officer to sample the product. Under Dog’s guidance, the officer simulated snorting the drug. Convinced the officer was "cool”, Dog took money from the officer and went into another room with Red. When they returned, the officer saw Red pass a shiny object to Dog. This object, a tinfoil packet, was given to the officer, with $5 change, when they returned to the American address. The packet was shown to contain heroin.

A search warrant and several arrest warrants based on this incident were executed on April 8, 1976. Dog was arrested at the American address and identified as Donald Byars. When the search warrant was executed at the Dalrymple address, the undercover officer identified the present defendant as Red. Both were charged with delivery of heroin and conspiracy to deliver heroin based on the March 24 incident described above in a single complaint and information. Byars pled guilty to delivery before trial and was placed on three years probation. The conspiracy count, as to him, was dismissed. No evidence that defendant conspired with any person other than Byars was presented at trial.

The defendant called several of his family members as alibi witnesses. Each testified that defendant was working at the family store on March 24 until around 9:30 p.m. The narcotics sale was shown to have occurred sometime after 8 p.m. The defense also called the former codefendant Byars to testify that defendant was not the "Red” involved in this case.

Defendant testified in his own behalf and confirmed the alibi given by his family. He denied being at the Dalrymple address on March 24. He admitted being arrested there on April 8, but claimed he went there to see a friend named "Reggie” or "Reg”. The defense attempted to show that the officer had misidentified defendant and that "Reg” was the individual involved in the sale. Reggie did not testify at trial.

In instructing the jury, the trial court gave CJI 7:2:01, the standard instruction on alibi, and tied to it an instruction on identification based on the first paragraph of CJI 7:7:01. Defendant now claims it was error to tie the alibi and misidentification "defenses” together and to refuse to give the entire standard instruction on identification.

It was not error for the trial court to link the alibi instruction to the instruction on identification. Michigan has long recognized that alibi testimony may serve two purposes; if believed, it forms a "perfect defense” because the defendant could not have been where the prosecution claimed he was and, alternatively, it may serve to raise a reasonable doubt in the identification even if defendant’s presence at another place is not adequately established. People v Burden, 395 Mich 462; 236 NW2d 505 (1975), People v Erb, 48 Mich App 622; 211 NW2d 51 (1973). Defendant employed both theories at trial and the instructions as given were consistent with the defense theory.

Nor was it error for the trial court to limit its instruction on identification, as noted above, over defendant’s objection that the entire instruction should have been given. The trial court relied on the note to CJI 7:7:01 which provides:

"The identification instruction should be given only when the identifying witness was not in a position which would permit him to observe clearly the person committing the crime, when the witness is not positive as to identity, when his positive statements as to identity are weakened by qualification, by failure to identify the defendant on one or more other occasions or by a prior inconsistent identification or when his identification testimony otherwise appears to be doubtful. No instruction on identification testimony should be given when the identifying witness had a good opportunity for positive identification, he is positive in his identification and his identification is not weakened by prior inconsistent identification or by prior failure to identify, but remains, even after cross-examination, positive and unqualified. To give an instruction on identification under these circumstances would serve only to confuse the jury.” (Emphasis in original.)

At the present time, the CJI are not mandatory, although their use is encouraged. The instruction under consideration requires the trial court to make a preliminary evaluation of the strength of the identification testimony. The trial court did so here and decided the instruction was necessary only as a companion to the alibi instruction. We do not disagree with the trial court’s evaluation of the facts or the manner in which the instruction was limited. See, United States v Telfaire, 152 US App DC 146; 469 F2d 552 (1972).

Defendant’s final claim is that where the conspiracy charge against a sole co-conspirator is dismissed, defendant’s conviction for conspiracy must be set aside. We initially note that this issue does not appear to be properly preserved for appeal. Nonetheless, the mandates of People v Le Blanc, 399 Mich 31, 49; 248 NW2d 199 (1976), seem to allow this Court to address the question. Clearly, there can be no "one man conspiracy”. If one defendant is acquitted by a fact finder of the crime of conspiracy, the charge cannot be sustained against the other alleged co-conspirator, People v Frye, 248 Mich 678; 227 NW 748 (1929).

However, where the codefendant pleads guilty to delivery of heroin in exchange for a dismissal of the conspiracy charge, it can hardly be said that there has been any adjudication of either party’s participation in the conspiracy.

Judge Burns cites Feder v United States, 257 F 694; 5 ALR 370 (CA 2, 1919), and Miller v United States, 277 F 721 (CA 4, 1921), for the proposition that once a charge against a codefendant is dismissed and he is no longer subject to conspiratorial liability, the conspiracy count as to the principal defendant can no longer stand. These cases can be distinguished as the co-conspirators were tried and acquitted.

Rather, we would not only rely on Feder and Miller, but specifically on United States v Coppola, 526 F2d 764, 776 (CA 10, 1975), where the Court observed:

"Nor do we see any merit to the contention that the dismissal of the conspiracy charges as to Baca and Molina automatically bars the conviction of appellant. This dismissal is not equivalent to a judgment of acquittal. It is merely a compromise and not a finding that the evidence was insufficient to convict Molina and Baca of conspiracy. We find no substantial merit to any of this. Hence we see no inconsistency. (Emphasis supplied.)”

See also Romontio v United States, 400 F2d 618 (CA 10, 1968), United States v Fleming, 504 F2d 1045 (CA 7, 1974), and People v Berry, 84 Mich App 604; 269 NW2d 694 (1978).

Affirmed.

N.J. Kaufman, J., concurred.

T. M. Burns, P.J.

(dissenting in part, concurring in part). I agree with the majority’s conclusion as to the first issue but cannot agree that defendant may be convicted on the conspiracy count. Defendant claims that where the conspiracy charge against a sole co-conspirator is dismissed, defendant’s conviction for conspiracy must also be dismissed.

The information charged that defendant conspired with Donald Byars and diverse other people. The evidence at trial, however, would support only a conspiracy with Byars. The conspiracy count against Byars was dropped when he pled guilty to delivery before this trial. Defense counsel moved to quash the information on this basis before trial but the court rejected the motion, ruling it was premature.

A conspiracy is a partnership for a criminal purpose. Therefore, there can be no such thing as a one man conspiracy. People v Heidt, 312 Mich 629; 20 NW2d 751 (1945). Because of the joint nature of the offense, an acquittal of all but one conspirator is, in effect, an acquittal of all. See, People v Frye, 248 Mich 678, 682; 227 NW 748 (1929), People v Alexander, 35 Mich App 281; 192 NW2d 371 (1971).

Byars was not acquitted on the merits after trial, but the dismissal of the conspiracy count in exchange for his plea to the substantive offense had the same effect. Byars could not thereafter be convicted of the conspiracy charge. Since the only person the proofs would support a conspiracy charge against is not subject to conspiratorial liability, the conspiracy count against defendant cannot stand. State v Jackson, 7 SC 283; 24 Am Rep 476 (1876), Feder v United States, 257 F 694; 5 ALR 370 (CA 2, 1919), Miller v United States, 277 F 721 (CA 4, 1921).

This holding should not be misunderstood. I would hold that where the proofs show that only two persons are involved in the alleged conspiracy and the charges against one are disposed of without a finding of his involvement in the conspiracy, the conspiracy count against the other cannot stand. Had the proofs shown an agreement with others, the dismissal of the conspiracy count against Byars would be irrelevant.

      "In conjunction with the alibi defense in this case, one of the questions is the identification of the defendant, Mr. Turner, as the person who committed the crimes. Again, identification is an element, and just as all other elements, the Prosecution has the burden of proving beyond a reasonable doubt not only that the crime was committed, but that the defendant, Mr. Turner, was the person who committed it.”


source: Caselaw Access Project

author: Bashara, P.J.

license: Public Domain

text:
    MOYER v LOTT
    Docket No. 77-2073.
    Submitted June 6, 1978, at Detroit.
    Decided October 2, 1978.
    Marlin Moyer filed suit against Robert L. Lott for damages arising from an automobile accident. Plaintiff alleged that personal service of process failed because the defendant had moved from his last known address and that attempted service at an address in Iowa was also unsuccessful. Plaintiff obtained an order from the Wayne Circuit Court allowing service to be made on the defendant’s insurance company in Iowa by certified mail, return receipt requested. The insurer answered and contested the jurisdiction of the court. The Wayne Circuit Court, Richard N. Loughrin, J., denied a motion by plaintiff for default judgment and granted the insurance company’s motion to quash service. Plaintiff appeals, alleging that the insurer waived any defects in service by failing timely to raise the issue and that the original order for substitute service was valid. Held:

    1. Consideration of the motion to quash service was not an abuse of discretion because the defendant’s insurer did, in its pleadings, put the plaintiff on notice that jurisdiction was an issue, even though the insurer did not specify the grounds for its jurisdictional defense.
    2. The order for substitute service on the insurer was not reasonably calculated to give the defendant actual notice in accordance with requirements of due process; therefore, the motion to quash was properly granted.
    Affirmed.
    1. Pleading — Courts—Jurisdiction—Defenses—Lack of Jurisdiction — Court Rules.
    A defendant waives the defense of lack of jurisdiction unless the defense is raised in the first responsive pleading or motion filed not later than the first responsive pleading; it is sufficient that the plaintiff be put on notice that jurisdiction is an issue even though the defendant does not specify in its initial pleading upon which ground it is basing its jurisdictional defense (GCR 1963, 116.1,116.2).

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Courts § 95.
    61 Am Jur 2d, Pleading § 130.
    [2, 3] 62 Am Jur 2d, Process § 65 et seq.

      2. Process — Courts—Discretion op Courts — Personal Service — Alternative Service — Court Rules.
    A trial court has discretion to permit an alternative means of service where personal service of process cannot be effectuated; such an alternative method must be reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard (GCR 1963,105.8).
    3. Process — Service op Process — Substitute Service — Certified Mail — Dependant’s Insurer — Due Process.
    Substitute service of process by certified mail upon a defendant’s out-of-state insurer, after attempted personal service had failed because the defendant had moved from his last known address, was properly quashed because such substitute service cannot be construed so as to give notice reasonably calculated to reach the defendant in accordance with due process requirements.

      Silber, Katz, Bocknek & Schreier, P.C. (by Sue Ellen Singer), for plaintiff.

      Joselyn, Rowe, Jamieson & Grinnan, P.C. (by William J. Liedel), for defendant.
    Before: Bashara, P.J., and Bronson and C. W. Simon, Jr., JJ.

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

   Bashara, P.J.

This is an appeal from the Wayne Circuit Court granting defendant’s motion to quash service.

Suit for alleged damages from an auto accident was commenced in April of 1976. In August of that year, plaintiff filed a motion for substituted service, alleging that defendant had moved from his last known address so that attempted personal service had failed. Plaintiff further alleged that attempted service on an address in Iowa had been returned unserved. An order for substituted service was obtained from the Wayne County Circuit Court, ordering that service could be made on defendant by serving defendant’s insurance company in Iowa, by certified mail, return receipt requested.

An answer was filed which stated inter alia that defendant contested the jurisdiction of the court. Plaintiff moved to strike defendant’s answer and enter a default for failure to answer certain interrogatories. In return, a motion was filed by counsel for defendant’s insurance company to set aside the earlier order for substituted service and to quash service of process.

Counsel for the insurance company argued that the defendant had not been reached and that the substituted service was not reasonably calculated to give actual notice as required by due process. The trial court denied plaintiffs motion for default judgment and granted defendant’s motion to quash service, thereby vacating the court’s original order.

Plaintiff first contends that defendant’s insurance company waived any defects in the service of process by failing to raise the issue in its first responsive pleading.

GCR 1963, 116.1 and 116.2 state that the defense of lack of jurisdiction is waived unless made in the first responsive pleading or motion first filed. A review of the pleadings reveals that while defendant’s insurance company did not specify the grounds for its jurisdictional defense, it did put plaintiff on notice that jurisdiction was an issue. Clearly, the plaintiff was not prejudiced or misled. We conclude that the trial court did not abuse its discretion in considering the motion to quash service. Manufacturers Construction Co v Covenant Investment Co, 43 Mich App 123; 204 NW2d 54 (1972), lv den, 388 Mich 810 (1972).

Plaintiff also argues that the original order for substituted service was valid and should not have been disturbed by subsequent court action.

Our court rules provide that service of process upon an individual is to be effectuated byf leaving the summons and complaint with him personally or, in certain other instances, with his agent or guardian. GCR 1963, 105. However, occasions arise where the person to be served has relocated from his last known address and, after a reásonably diligent effort, cannot be found. Whether such a maneuver is intentionally designed to avoid litigation is immaterial; the result is the same. The right of an aggrieved party to litigate his claims before tíie judiciary is placed in conflict with the right of his opponent to notice of the proceeding and an opportunity to present a defense.

Reconciliation of those rights under such circumstances, consistent with procedural due process of law, entailed a recognition of alternative means to personal service for giving an adversary notice of the pendency of an action against him. See, e.g., Milliken v Meyer, 311 US 457; 61 S Ct 339; 85 L Ed 278 (1940), reh den, 312 US 712; 61 S Ct 548; 85 L Ed 1143 (1941), Wuchter v Pizzutti, 276 US 13; 48 S Ct 259; 72 L Ed 446 (1928); Hess v Pawloski, 274 US 352; 47 S Ct 632; 71 L Ed 1091 (1927). Consequently, it is now acknowledged that "within the limits of practicability notice must be such as is reasonably calculated to reach interested parties”. Mullane v Central Hanover Bank & Trust Co, 339 US 306, 318; 70 S Ct 652; 94 L Ed 865 (1950). See also Krueger v Williams (On Rehearing), 75 Mich App 1; 254 NW2d 625 (1977).

Under our court rules, when personal service of process cannot be effectuated, the trial court is endowed with discretion to permit an alternative means of service to be utilized. GCR 1963, 105.8. By the express language of that rule, the alternative method must be such as "is reasonably calculated to give him [defendant] actual notice of the proceedings and an opportunity to be heard * * * »

The fact that the substituted means of service do not, in fact, convey actual notice to the opposing party does not necessarily result in a violation of due process. The criteria for compliance with due process were succinctly summarized by the Court as follows:

"The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” Mullane, supra, at 315; 70 S Ct at 657-658; 94 L Ed at 874 (citations omitted).

In Mullane, the Court also recognized the role of notice by publication as a legitimate means of substitute service:

"This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.” Id. at 317; 70 S Ct at 658; 94 L Ed at 875 (citations omitted).

We therefore conclude that the trial court does have discretion to effectuate substitute service in civil actions. However, we must affirm the circuit court’s order quashing service in the instant case. The order for substituted service could in no way be construed so as to give notice reasonably calculated to reach the defendant in accordance with due process requirements.

Affirmed, costs to defendants.


author: D. E. Holbrook, Jr., P.J.

text:
    STATE HIGHWAY COMMISSION v KOEPNICK
    Docket No. 77-2366.
    Submitted May 3, 1978, at Grand Rapids.
    Decided October 2, 1978.
    The State Highway Commission petitioned the Kent Circuit Court for condemnation of private property for use in a highway project. Russell G. Koepnick owned a one-half interest in the subject property. Koepnick contested the offered compensation award, and the matter proceeded to a jury trial, in which the Kent Circuit Court, Stuart Hofflus, J., entered a judgment on the jury verdict fixing the amount of compensation. Koepnick appeals, alleging that the trial court erred in precluding him from subpoenaing a highway department appraiser in order to question him regarding his appraisal of the property, as an admission against the interest of the state. Held:

    The trial court did not err. A landowner may not use a condemning authority’s statement of estimated compensation as an admission against interest against the condemning authority.
    Affirmed.
    Eminent Domain — Condemnation—Evidence—Statement of Estimated Compensation — Admission Against Interest.
    A landowner in a condemnation proceeding may not use the condemning authority’s statement of estimated compensation or related appraisals as admissions against interest by the condemning authority as to the value of the property; the estimated compensation offered by the condemning authority is merely an estimated statement of value which may reflect intangibles as well as the actual value of the property.
    Reference for Points in Headnote
    27 Am Jur 2d, Eminent Domain § 423.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Louis J. Caruso and Janis Meija, Assistants Attorney General, and Roger D. Anderson, Special Assistant Attorney General, for plaintiff.

      Rhoades, McKee & Boer (by Dale W. Rhoades and Timothy Hillegonds), for defendant.
    Before: D. E. Holbrook, Jr., P.J., and Bashara and R. M. Maher, JJ.
   D. E. Holbrook, Jr., P.J.

Defendant appeals a jury award of $19,950 as just compensation for his property taken by plaintiff Highway Commission. Defendant landowner’s sole argument on appeal is that the trial court erred in precluding defendant from subpoenaing a State of Michigan employee and highway department appraiser so as to question him about his appraisal set forth in the statement of estimated compensation filed with the court for the sole purpose of using same as an admission against interest against the state.

The question of what use can be made of the statement of estimated compensation and its related appraisals is one of first impression in this state. Michigan’s "quick-take” condemnation law, MCL 213.361 et seq.; MSA 8.261(1) et seq., is similar to the Federal Declaration of Taking Act, 46 Stat 1421 (1931); 40 USC 258a-258e. State Hwy Comm’n v Davis, 38 Mich App 674, 678; 197 NW2d 71 (1972), lv den, 387 Mich 786 (1972). Thus, it is possible to look to the Federal courts for guidance in this area.

The Federal courts have uniformly held that a landowner may not use the condemning authority’s statement of estimated compensation, or related appraisals, as admissions by the authority of the value of the property. See e.g., United States v 2,187.43 Acres of Land, 461 F2d 938, 940 (CA 8, 1972); United States v Two Tracts of Land, 412 F2d 347, 350 (CA 2, 1969), cert den, 396 US 906; 90 S Ct 222; 24 L Ed 2d 183 (1969), United States v 9.85 Acres of Land, 183 F Supp 402, 404 (ED Va, 1959), aff'd sub nom, Tidewater Development & Sales Corp v United States, 279 F2d 890 (CA 4, 1960) .

This conclusion is based on the purpose behind the quick-take statute. In Davis, the Court quoted extensively from United States v Miller, 317 US 369, 381; 63 S Ct 276; 87 L Ed 336; 147 ALR 55 (1943), to illustrate the purpose of the Federal act.

"When the declaration is filed the amount of estimated compensation is to be deposited with the court, to be paid as the court may order 'for or on account’ of the just compensation to be awarded the owners. Thus the acquisition by the Government of title and immediate right to possession, and the deposit of the estimated compensation, occur as steps in the main proceeding.
"The purpose of the statute is two-fold. First, to give the Government immediate possession of the property and to relieve it of the burden of interest accruing on the sum deposited from the date of taking to the date of judgment in the eminent domain proceeding. Secondly, to give the former owner, if his title is clear, immediate cash compensation to the extent of the Government’s estimate of the value of the property. The Act recognizes that there may be an error in the estimate and appropriately provides that, if the judgment ultimately awarded shall be in excess of the amount deposited, the owner shall recover the excess with interest. But there is no correlative provision for repayment of any excess by the owner to the United States. The necessary result is, so the respondents say, that any sum paid them in excess of the jury’s award is their property, which the United States may not recover.
"All the provisions of the Act taken together require a contrary conclusion. The payment is of estimated compensation; it is intended as a provisional and not a final settlement with the owner; it is a payment 'on account of compensation and not a final settlement of the amount due. To hold otherwise would defeat the policy of the statute and work injustice; would be to encourage federal officials to underestimate the value of the property with the result that the Government would be saddled with interest on a larger sum from date of taking to final award, and would be to deny the owner the immediate use of cash approximating the value of his land.”

In United States v Two Tracts of Land, supra, Circuit Judge Friendly explained the rationale behind the rule excluding evidence of the estimated compensation.

"It is altogether clear, indeed claimants concede, that the 'estimated compensation’ paid into court by the United States is not admissible to contradict a lower value to which a Government witness testifies at trial. United States v 9.85 Acres of Land, etc., Hampton, Va., 183 F Supp 402, 404-405 (E.D. Va 1959), aff'd, 279 F 2d 890 (4 Cir 1960); Evans v United States, 326 F 2d 827, 829-830 (8 Cir 1964). Yet the amounts paid into court would often reflect appraisals previously obtained, as seems likely to have been true here, and if policy forbids admission of the result, it likewise forbids admission of the source. Moreover, while federal agencies have a duty to give Congress as accurate a notion of the cost of a project as they feasibly can, certainty is impossible and the agencies doubtless recognize it to be better to err on the high side rather than the low. While an error on the high side will mean only that some of the appropriation will not be used, one on the low side may involve the Government in a project that Congress would not have authorized if properly apprised of the facts. In submitting an appraisal to the appropriation committees of the Congress, the executive branch should not have to run the risk of having this used against the Government if subsequent investigation shows it to have been too high. To consider such submission an adoption sufficient to render the appraisal admissible against the United States would thus be counter to governmental policy.” 412 F2d at 350.

The estimated compensation offered by the condemning authority is merely an estimated statement of value. It may reflect not only the actual value of the property but also such intangibles as the avoidance of litigation.

Allowing such estimates to be used against the defendant in court would ultimately harm both landowners and taxpayers. The condemning authority would be forced to always underestimate the value of the land so the estimate could never be used to impeach or contradict the appraisals at trial. Such deliberate underestimation would result in the landowner getting less money initially and would result in more contested cases, thus increasing costs and delays due to litigation.

We specifically wish to point out that we do not address the issue of whether appellant could have subpoenaed the witness as his own witness to ask if he was familiar with the subject property and had an opinion as to its value. We merely hold that the witness could not be subpoenaed for the purpose of using his statement of estimated compensation as an admission against interest against the state.

Affirmed. No costs. A public question.


author: C. W. Simon, J.

text:
    STAFFORD v E.W. BLISS COMPANY
    Docket No. 77-2632.
    Submitted June 10, 1978, at Detroit.
    Decided October 2, 1978.
    Leave to appeal applied for.
    Ruth Stafford was injured in the course of her employment when a press which she was operating malfunctioned. She filed for workmen’s compensation benefits and her employer’s insurer, Liberty Mutual Insurance Company, voluntarily paid the claim. Liberty Mutual, joining Stafford as a party plaintiff, then sued the manufacturer of the press, E.W. Bliss Company, alleging negligence and breach of warranty. Bliss moved to amend its answer to assert the contributory negligence of Stafford and that Liberty Mutual was also contributorily negligent in not discovering a defect in a safety mechanism during a safety inspection. The Wayne Circuit Court, Joseph Moynihan, J., granted the motion and the plaintiffs appeal by leave granted. Held:.

    The negligence of the insurer is not a bar to its recovery of compensation payments from the third-party tortfeasor. However, where the insurer is itself negligent, the third party may seek contribution.
    Reversed.
    Workmen’s Compensation — Third-Party Tortfeasors — Recovery of Compensation — Contribution—Statutes.
    A workmen’s compensation insurer has a right to recover from a negligent third-party tortfeasor compensation payments which the insurer has made to an injured employee; where the insurer itself has been negligent, the third party may properly seek contribution from the insurer (MCL 418.827, 600.2925a, b and c; MSA 17.237[827], 27A.2925[1], [2] and [3]).
    Reference for Points in Headnote
    82 Am Jur 2d, Workmen’s Compensation §§ 429-432, 436 et seq.

      Carrón & Carrón, for Ruth Stafford.

      Johnson, Campbell & Moesta, P.C., for Liberty Mutual Insurance Company.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. (by Ivin E. Kerr and Mark D. Willmarth), for E. W. Bliss Company.
    Before: Bashara, P.J., and Bronson and C. W. Simon, JJ.

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

   C. W. Simon, J.

This appeal raises but one issue for consideration: whether, where a workmen’s compensation carrier has been called upon to pay benefits and joins the injured employee to bring an action for negligence against a third party, its contributory negligence may be asserted as a bar to recovery.

Plaintiff Ms. Stafford, at the time of her injury, was a press operator with United Metal Products. She operated a press designed and manufactured by the E.W. Bliss Company. On May 18, 1971, Ms. Stafford’s press allegedly malfunctioned, causing the majority of her left hand to be severed. Ms. Stafford filed for workmen’s compensation benefits and Liberty Mutual Insurance Company, the compensation carrier for United Metal Products, voluntarily paid her claim. Upon payment, under MCL 418.827; MSA 17.237(827), Liberty Mutual became subrogated to an equivalent portion of any cause of action Ms. Stafford had against E.W. Bliss Company arising out of the accident. Together they filed suit in the Wayne County Circuit Court alleging both negligence and breach of warranty.

Defendant, E.W. Bliss Company, denied plaintiffs’ allegations and moved to assert the affirmative defense of contributory negligence. It contended that a safety inspection conducted by Liberty Mutual on the premises of United Metal Products should have revealed a foreign body lodged in the safety mechanism of the press, and that such negligence, failing to discover the hazard, was a proximate cause of the injury. Defendant’s motion was granted and we granted plaintiffs leave to appeal.

Prior to its amendment in 1952, MCL 413.15; MSA 17.189 (repealed 1969) provided an employee who suffered an injury under circumstances which created liability in some person other than his employer with an election between proceeding against the third person at law for damages or against the employer for workman’s compensation. If the employee chose the latter, his employer could then proceed against the third party, and any contributory negligence of the employer would not be assertable by the third party as a bar to recovery. Utley v Taylor & Gaskin, Inc, 305 Mich 561; 9 NW2d 842 (1943). The purpose of the section "was to provide a method whereby the employer could reimburse himself or his insurer for workmen’s compensation benefits paid to an injured employee, where such injury resulted from the negligence of some other person”, and therefore the statute placed the employer "in the shoes of his injured employee”. Utley v Taylor & Gaskin, Inc, supra at 575. Since the employer’s contributory negligence could not have been asserted against the employee had he brought suit, neither could it be asserted against the employer.

1952 PA 155 amended MCL 413.15; MSA 17.189 (repealed 1969) to include the employer’s compensation insurance carrier as a subrogee of the employee’s claim against the third party, and provided that "the taking of proceedings to enforce compensation payments shall not act as an election of remedies”.

Currently, MCL 418.827(1); MSA 17.237(827X1) (formerly MCL 413.15; MSA 17.189) in pertinent part reads as follows:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee * * * may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person.”

Thus, assuming as we must that the allegations of the parties are correct, plaintiff Ms. Stafford, after obtaining her compensation award, still had two third parties against whom she could have proceeded. As eventually she did, she could have sued E.W. Bliss Company on a theory of negligence or product liability, e.g., Byrnes v Economic Machinery Co, 41 Mich App 192; 200 NW2d 104 (1972), lv den, 388 Mich 765 (1972), and, since her action arose before the enactment of 1972 PA 285, MCL 418.827(8); MSA 17.237(827)(8), which under these circumstances abolished liability for negligent safety inspection, she could have sued Liberty Mutual Insurance Company on a theory of negligence, e.g, Megge v Lumbermens Mutual Casualty Co, 45 Mich App 119; 206 NW2d 245 (1973).

In the case at bar, however, suit was prompted by the insurance carrier, Liberty Mutual, which, naturally, would not seek to proceed against itself. Since concurrent tortfeasors are jointly and severally liable, this exposed defendant to liability for the entire injury, Sexton v American Aggregates, 60 Mich App 524; 231 NW2d 449 (1975), a position of seemingly obvious inequity. But, the defense of contributory negligence, if proven, would completely bar recovery by Liberty Mutual, Baader v Detroit, Jackson & Chicago R Co, 228 Mich 104; 199 NW 630 (1924), and this we feel would also be unjust, see Prosser, Comparative Negligence, 51 Mich L Rev 465, 469 (1953).

Had Ms. Stafford chosen to sue Liberty Mutual it would have been exposed to liability for the entire injury, it could have sought contribution from defendant pursuant to 1961 PA 236, § 2925, repealed by 1974 PA 318, § 2, currently found at MCL 600.2925a, b, c; MSA 27A.2925 (1) (2) (3), and contributory negligence could not have been raised as a bar to recovery. Similarly, had Ms. Stafford alone brought suit against defendant, it could not assert Liberty Mutual’s negligence as a defense and would have been forced to seek contribution from it. To hold here that because of the mere fortuity that the insurer rather than the employee chose to bring the action the third party tortfeasor should be absolved from liability would certainly be anomalous. This is especially true since MCL 418.827; MSA 17.237(827) in no way extends the applicable statute of limitation or otherwise prejudices defendant.

The supplantation of cumulative remedies for election of remedies has not changed the purpose of the third party tortfeasor provision of the Worker’s Disability Compensation Act. As in Utley, it still seeks to provide a method whereby the employer or insurer can be reimbursed for compensation benefits paid to an injured employee, where such injury resulted from the negligence of some third person other than a co-employee. Therefore, we hold that an insurer, whether negligent or not, has a right to recover, under MCL 418.827; MSA 17.237(827), compensation payments which it has made to an injured employee. Where the insurer itself has been negligent the third party may properly seek contribution under 1961 PA 236, § 2925, repealed by 1974 PA 318, § 2, currently found at MCL 600.2925a, b, c; MSA 27A.2925 (1), (2), (3).

Reversed.


author: Allen, P.J. Cynar, J.

text:
    AFFILIATED FM INSURANCE COMPANY v DEPARTMENT OF STATE HIGHWAYS AND TRANSPORTATION
    Docket No. 77-2633.
    Submitted June 5, 1978, at Lansing.
    Decided October 2, 1978.
    Leave to appeal applied for.
    Affiliated FM Insurance Company, Citizens Insurance Company of America and West American Insurance Company, as subrogees of insured property owners who were damaged as a result of an apartment house fire, brought an action in the Court of Claims against the Department of State Highways and Transportation for negligence, gross negligence, nuisance, trespass and deprivation of useful possession of property. An accelerated judgment on the basis of immunity from tort liability was entered for defendant, Martin E. Clements, J. Plaintiffs appeal. The question presented on appeal is whether the state can escape liability under governmental immunity when, during excavation of a state highway right-of-way, it disconnects a 12-inch water main on the right-of-way and either fails to reconnect it at all or replaces it with an 8-inch main, thereby cutting off or reducing the water supply necessary to combat a fire occurring on nearby private property. Held:

    The defense of governmental immunity may be invoked in a nuisance action unless there is a showing that a nuisance which was intentionally created in fact exists. Here, there were no allegations of an intentional act of negligence or showing of a deliberately created nuisance. Accelerated judgment was proper.
    Affirmed.
    Cynar, J., concurs with the majority’s analysis of the govemmental immunity issue up to the point of the disposition of the case but would remand to the trial court to give plaintiffs an opportunity to amend their pleadings to conform with the Supreme Court’s recent pronouncements regarding the nuisance exception to governmental immunity.

      References for Points in Headnotes
    [1, 8] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 103, 341-348.
    [2] 39 Am Jur 2d, Highways, Streets, and Bridges § 371.
    57 Am Jur 2d, Municipal, School, and State Tort Liability § 301.
    [3] 58 Am Jur 2d, Nuisances §§ 5-13.
    [4, 7, 8] 57 Am Jur 2d, Municipal, School, and State Tort Liability §301.
    58 Am Jur 2d, Nuisances § 12.
    58 Am Jur 2d, Nuisances §§ 12,13.
    [6] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 199-201, 204.

      Opinion of the Court
    1. Torts — Highway Maintenance — Governmental Functions— Governmental Immunity-Exceptions.
    State conduct which occurs in the course of the maintenance or improvement of a highway is clearly a governmental function and unless such activity falls within one of the several exceptions to the governmental immunity rule, it is conduct for which the defense of governmental immunity is available.
    2. Torts — Governmental Immunity — Trespass—Nuisance.
    The defense of governmental immunity is inapplicable, in addition to the statutory exceptions, where damage to private property is caused by direct trespass of an instrumentality from government owned land onto private property and where the government maintains a nuisance per se.
    3. Nuisance — Classification of Nuisances — Nuisance Per Se — Nuisance in Fact — Negligent Nuisances.
    Nuisances are classified as (1) nuisances created by illegal conduct (nuisances per se), (2) nuisances created by conduct intended to bring about conditions which, in fact, constituted a nuisance (intentional nuisances), and (3) nuisances created by negligent conduct (negligent nuisances); when placed within the general nuisance categories of nuisance per se and nuisance in fact, the last two categories, intentional nuisance and negligent nuisance, are nuisances in fact requiring factual resolution by the trier of fact.
    4. Torts — Governmental Immunity — Nuisance.
    The defense of governmental immunity is not a bar to actions for intentionally created nuisances in fact.
    5. Nuisance — Nuisance Per Se — Negligence—Definition.
    A nuisance per se is a nuisance which obviously exposes another to probable injury, the substance of the wrong in respect of which is not negligence; it is a distinct civil wrong arising or resulting from the invasion of a legally protected interest.
    6. Highways — State Highway Commission — Plenary Power — Statutes.
    The State Highway Commission has plenary power over highways and utilities lying in their rights-of-way (Const 1963, art 5, §28, MCL 247.184, 247.185, 247.801 et seq.; MSA 9.264, 9.265, 9.216[1] et seq.).

    7. Torts — Nuisance—Governmental Immunity.
    The defense of governmental immunity may be invoked in a nuisance action unless there is showing that a nuisance in fact exists and that it was intentionally created.
    Concurrence in Part, Dissent in Part by Cynar, J.
    8. Torts — Nuisance—Governmental Immunity — New Rules — Remand.

      The Supreme Court has recently ruled that governmental immunity may be invoked unless there is a showing that a nuisance in fact exists which was intentionally created; therefore, where a nuisance action was commenced prior to that pronouncement and disposed of by accelerated judgment based on governmental immunity, the Court of Appeals should remand the matter to the trial court to give plaintiffs an opportunity to amend their pleadings to conform with the new rule regarding the nuisance exception to governmental immunity.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso and Myron A. McMillan, Assistants Attorney General, for defendant.

      Ross, Soloy & Kochansky, for plaintiffs.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   Allen, P.J.

Can the state escape liability under governmental immunity when, during excavation of a state highway right-of-way, it disconnects a 12-inch water main on the right-of-way and either fails to reconnect it at all or replaces it with an 8-inch main, thereby cutting off or reducing the water supply necessary to combat a fire occurring on nearby private property? On May 20, 1977, the Court of Claims held yes and plaintiffs appeal of right.

On January 14, 1976, a fire severely damaged the Lemontree Apartment complex located just off of 1-94 in Van Burén Township, Wayne County. As a result of the fire, the three plaintiff insurance companies paid their policyholders some $670,430.36, taking subrogation agreements under which complaint was filed in the Court of Claims. Plaintiffs’ complaint, taken as true for purposes of this appeal, alleges that prior to the fire a 12-inch pipe which supplied water to the apartment complex was disconnected when the Department of Highways and Transportation was excavating or otherwise working on the 1-94 highway. Plaintiffs allege that the 12-inch pipe was replaced with an 8-inch pipe, thereby reducing available water supply with which to fight the fire at the insured premises. Defendant’s first responsive pleading, a motion for accelerated judgment on the basis of immunity from tort liability under 1964 PA 170, MCL 691.1407; MSA 3.996(107), was granted by the trial judge sitting in the Court of Claims.

Whether the damage was caused by insufficient water pressure or by lack of any water at all, the offensive state conduct occurred in the course of the maintenance or improvement of a highway. Such activity is clearly a governmental function. Thomas v Dep’t of State Highways, 398 Mich 1, 11, 12; 247 NW2d 530 (1976). Unless such activity falls within one of the exceptions to the immunity rule, it is conduct for which the defense of governmental immunity is available to the highway department. Thomas, supra.

Plaintiffs pled negligence and nuisance and argue that the state’s conduct falls within two of the exceptions to governmental immunity recognized by this Court in Gerzeski v Dep’t of State Highways, 68 Mich App 91, 95; 241 NW2d 771 (1976).

"In addition to the statutory exceptions, governmental immunity has been held inapplicable in two other, related instances. The first is where damage is caused by 'direct trespasses’ of an instrumentality from government owned land onto private property. See e.g. Ferris v Detroit Board of Education, 122 Mich 315; 81 NW 98 (1899), Herro v Chippewa County Road Commissioners, 368 Mich 263; 118 NW2d 271 (1962), Pound v Garden City School District, 372 Mich 499; 127 NW2d 390 (1964). In such cases, the governmental action which caused plaintiffs injuries or property damage has been considered nearly an intentional tort. The Ferris, Herró and Pound cases all involved damage caused by water escaping from government land, a traditional strict liability tort. Prosser, Torts (4th ed), § 78 p 505, 508-516. See also Robinson v Township of Wyoming, 312 Mich 14; 19 NW2d 469 (1945).
"The second non-statutory exception is the maintenance of a per se nuisance.”

We quickly reject the claim that this case falls within the direct trespass exception as in cases where accumulated ice and snow falls from the roof of a public building onto plaintiffs lands or person or where a public pond or lake is negligently constructed causing water to be discharged upon plaintiffs lands. Here, the situation is just the reverse, it being the absence or insufficiency of water discharge which causes the injury. Nor is this case similar to Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630, 643; 178 NW2d 476 (1970), where fire originating on state owned lands spreads to neighboring properties causing their loss for which plaintiffs’ insurers paid and sued the state. In the instant case the fire did not start on state property. In no way may it be said that an instrumentality (fire) spread from state land to private property. Instead, the alleged offending conduct occurred within the right-of-way of state highway property and in no way can be considered a trespass. Buckeye, supra, is also distinguishable for the reason that repeated trespasses or repeated nontrespassory invasions existed. In the instant case we do not have a Buckeye type situation of repeated trespasses or repeated nontrespassory invasions. Instead we have a single act of negligence, viz: failure to replace a water pipe or replacement with a smaller gauge pipe.

For reasons occurring subsequent to oral argument in this case, plaintiffs’ argument, i.e., that defendant’s conduct is a nuisance against which the defense of immunity cannot be raised, is of first impression. We refer to the Supreme Court’s opinions, released July 24, 1978, in Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978) and Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978). Prior to the Supreme Court’s decision in these cases our Court had consistently held that "nuisances in fact do not survive an otherwise proper claim of governmental immunity”. Buddy v Dep’t of Natural Resources, 59 Mich App 598, 606; 229 NW2d 865 (1975), Rosario v Lansing, 66 Mich App 597; 239 NW2d 428 (1976). See also dissenting opinion of Justice Ryan in Rosario, supra. However, this Court’s interpretation of the law was reversed on appeal of Rosario to the Supreme Court. Five justices concluded that when properly pled, a nuisance in fact condition was not subject to defeat by reason of governmental immunity. However, the justices divided on the question of whether the nuisance must be created intentionally.

In Gerzeski, five justices agreed with the classification of "nuisance” as set forth in Justice Moody’s opinion:

"1. nuisances created by illegal conduct (nuisances per se);
"2. nuisances created by conduct intended to bring about conditions which, in fact, constituted a nuisance (intentional nuisances); and
"3. nuisances created by negligent conduct (negligent nuisances).
"As noted, when placed within the general nuisance categories of nuisance per se and nuisance in fact, the last two categories, intentional nuisance and negligent nuisance, are nuisances in fact requiring factual resolution by the trier of fact.”

but, as in Rosario, split 3-2 as to whether the bar of governmental immunity is inapplicable when the alleged nuisance is not intentionally created. In short, Gerzeski-Rosario hold that the defense of governmental immunity is no longer a bar to intentionally created nuisances in fact. In both cases Justice Ryan, joined by Justice Coleman, dissented on grounds that case-made exceptions to governmental immunity extend only to per se and direct trespass nuisances.

What effect do the Rosario-Gerzeski decisions have on our decision in the instant case? Before answering this question we note that in Gerzeski, a case involving a large pond created by the highway department in which three persons drowned while walking on the ice covering the pond, trial had been held in circuit court and the court had made findings of fact that the pond was an intentionally created nuisance. In Rosario, a 19-month-old child drowned when she fell into a drain whose covering was improperly secured. No trial was held since the trial court granted the city’s motion for summary judgment on grounds of governmental immunity but plaintiff’s amended complaint set forth in some detail that notice of the defect had frequently been called to the city’s attention but the city had failed to secure the covering or provide a heavier covering which could not be removed by children. In the case before us plaintiffs’ complaint on the nuisance allegation is skeletal at best.

Under no circumstances was the defective pipe in this case a nuisance per se, nor could it be made so by amendment to the complaint. A nuisance per se is defined as

"An 'absolute’ nuisance, sometimes referred to as being the same as a 'nuisance per se,’ has been defined as a nuisance, the substance of the wrong in respect of which is not negligence, which obviously exposes another to probable injury. It is a distinct civil wrong arising or resulting from the invasion of a legally protected interest * * * .” 66 CJS, Nuisances, § 1b, p 729. (Emphasis supplied.)

Here, no illegal act was committed. As defendant points out, Const 1963, art 5, § 28 and MCL 247.184, 247.185; MSA 9.264, 9.265 and MCL 247.801 et seq.; MSA 9.216(1) et seq., give defendant plenary power over highways and utilities lying in their rights of way. In Anderson v Iron Mountain Water Works, 225 Mich 574, 577; 196 NW 357 (1923), it was held that liability could not be imposed on defendant water works for fire damage to plaintiff’s property caused when water could not be furnished because one hydrant was frozen and another was covered with snow. Since plaintiffs’ insureds had no right to water for fire protection, and since the highway department’s action was not illegal, no nuisance per se existed here.

If plaintiffs are to prevail, Rosario-Gerzeski hold they must do so on a showing of a nuisance in fact which is intentionally created. Otherwise, four members of the Supreme Court hold that the defense of governmental immunity may be invoked. In the instant case, plaintiffs have not alleged an intentional act of negligence. Unlike Rosario-Gerzeski, no notice of the potential hazard is alleged. In effect, plaintiffs merely aver that a single act of negligence — failure to reconnect a hydrant or reconnection with a smaller gauge pipe —was committed. This is hardly a nuisance, much less a deliberately created nuisance. We do not read Rosario-Gerzeski as going so far as to hold that single acts of negligence may escape the defense of governmental immunity by the expedient of calling them a nuisance. Plaintiffs’ allegations are negligence pure and simple and, as such, were properly subject to the motion for summary judgment.

Affirmed, no costs, a public question being involved.

D. R. Freeman, J., concurred.

Cynar, J.

(concurring in part, dissenting in part). I concur in the majority’s analysis of the governmental immunity issue up to the point of the disposition of the case. I would remand this matter to the trial court to give plaintiffs an opportunity to amend their pleadings to conform with the Supreme Court’s recent pronouncements regarding the nuisance exception to governmental immunity. See Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). At the time the complaint was filed there was no way for these plaintiffs to predict that the nature of the alleged nuisance was at all relevant. After plaintiffs are given the opportunity to so amend, defendant could then file a motion for summary judgment to test the sufficiency of the complaint against the standards set forth in Gerzeski and Rosario.

       At oral argument, plaintiffs stated that subsequent investigation disclosed that the 12-inch pipe was not in fact replaced with an 8-inch pipe but was never reconnected at all and thus no water was available from the disconnected main.

       The Buckeye Court quoted a portion of the decision in Thornburg v Port of Portland, 233 Or 178; 376 P2d 100 (1962), as follows:
      "In summary, a taking occurs whenever government acts in such a way as substantially to deprive an owner of the useful ppssession of that which he owns, either by repeated trespasses or by repeated nontrespassory invasions called 'nuisance’.’’ (Emphasis supplied.)

       The Gerzeski opinion also included Fouchia v Dep’t of State Highways. Oral argument in the case before us was held June 5, 1978.

       "In conclusion, plaintiff has sufficiently pled a claim grounded upon nuisance in fact. Governmental immunity does not bar the claim. Whether or not the open drain was a nuisance was a question for the jury. Therefore, the granting of the summary judgment for the City of Lansing was improper.” Justices Fitzgerald, Kavanagh and Levin. 403 Mich at 138.
      "If the trier of fact finds the existence of a nuisance in fact, the trier of fact must then determine whether the nuisance in fact was created negligently or intentionally. When the trier of fact determines that the alleged nuisance was intentional, governmental immunity is not a bar.” Justices Moody and Williams, concurring. 403 Mich at 142.

       "15. That by its actions, Defendant, State of Michigan, Department of Highways and Transportation breached said duty by reducing the supply of water available to combat or otherwise contain the aforementioned fire.
      "16. That said breach and actions or inactions were not only negligent but were also of such nature to render them gross and wanton misconduct, and such actions damaged Plaintiffs’ subrogors.
      "17. That said breach and actions or inactions constituted a nuisance, and such nuisance damaged Plaintiffs subrogors.”

       "The courts have almost uniformly held that municipalities are not bound to furnish water for fire protection.” Id. at 577.


author:
.Cynar, J.
      T. M. Burns, J.

text:
    SLEBODNIK v THE GREAT ATLANTIC AND PACIFIC TEA COMPANY
    Docket Nos. 77-2847, 77-2892.
    Submitted May 10, 1978, at Detroit.
    Decided October 2, 1978.
    Leave to appeal applied for.
    Phyllis Slebodnik was injured on June 20, 1964, during the course of her employment with the Great Atlantic and Pacific Tea Company when she lifted a tray of chickens from under a counter. Shortly thereafter she felt pain in her back and legs, which eventually led to back surgery. A & P voluntarily commenced payment of worker’s disability compensation benefits on June 21, 1964, and terminated these benefits on April 6, 1974. Phyllis Slebodnik has not worked since the date of her back injury.
    On April 22, 1974, Phyllis Slebodnik brought a claim against A & P and the Second Injury Fund for further benefits, alleging that she suffered a total and permanent disability by reason of incurable insanity and the loss of the industrial use of both legs. After a hearing, an administrative law judge ruled that the claimant was permanently and totally disabled by reason of insanity and that she had not lost the industrial use of both legs on an organic basis. The Workmen’s Compensation Appeal Board affirmed that ruling. A & P and the Second Injury Fund appeal, urging that the Court of Appeals re-evaluate the definition of "incurable insanity” as established in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574 (1971), and as used by the administrative law judge and the appeal board, and that the Court of Appeals adopt a more stringent test. Held:

    The Michigan Supreme Court has already examined the Sprute test and has rejected any requirement that the mental impairment have any effect upon the employee’s wage earning capacity. Instead it is required that the mental impairment have a significant effect upon the employee’s personal nonvocational life. The improper test was applied to the instant case.
    The decision of the appeal board is vacated and the matter is remanded for further proceedings.
    T. M. Burns, J., concurred. He suggests that on remand the appeal board focus on whether the claimant’s mental illness is insanity as provided in the Worker’s Disability Compensation Act.

      References for Points in Headnotes
    [1-4] 82 Am Jur 2d, Workmen’s Compensation §§ 301, 302.
    [4] 82 Am Jur 2d, Workmen’s Compensation § 340.

      Opinion op the Court
    1. Workmen’s Compensation — Incurable Insanity — Work-Related Disability — Disability Benefits — Statutes.
    A person who can prove the existence of work-related incurable insanity is entitled to recover worker’s disability benefits for a total and permanent disability (MCL 418.361; MSA 17.237[361]).
    2. Workmen’s Compensation — Total Disability — Mental Dysfunction — Insanity—Imbecility—Words and Phrases.
    A worker’s mental illness is "insanity” under the Worker’s Disability Compensation Act if he suffers severe social dysfunction, and his intellectual impairment is "imbecility” if he suffers severe cognitive dysfunction (MCL 418.361[2]; MSA 17.237[361][2]).
    3. Workmen’s Compensation — Total Disability — Mental Dysfunction — Incurability—Words and Phrases.
    A mental dysfunction is "incurable” under the Worker’s Disability Compensation Act if it is unlikely that normal functioning can be restored (MCL 418.361[2]; MSA 17.237[361][2]).
    Concurrence by T. M. Burns, J.
    4. Workmen’s Compensation — Incurable Insanity — Disability Benefits — Test—Focus of Test — Case Precedent.

      The test for determining whether a worker’s disability compensation claimant is entitled to beneñts for a total and permanent disability for incurable insanity requires the Workmen’s Compensation Appeal Board to find, before granting an award, (1) that the worker has a mental or emotional illness, (2) that the illness is work related, and (3) that the illness is expected to be of long duration; focusing on the effect of a work-related mental illness on a worker’s employment rather than focusing on whether this illness resulted in a severe social dysfunction is improper in light of recent Supreme Court precedent.

      Kelman, Loria, Downing, Schneider & Simpson (by Ann Curry Thompson), for plaintiff.

      Lacey & Jones (by John L. Salter), for defendant A & P Co.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Morrison Zack, Assistant Attorney General, for defendant Second Injury Fund.
    Before: Cynar, P.J., and T.M. Burns and D.C. Riley, JJ.
   .Cynar, J.

Defendants appeal separately as of right from a decision of the Workmen’s Compensation Appeal Board granting plaintiffs application for worker’s compensation benefits for a total and permanent disability. Since the two appeals share common issues and arise out of the same fact situation, they will be disposed of in one opinion at this time.

Plaintiff was injured during the course of her employment on June 20, 1964, when she lifted a tray of chickens from under a counter. Shortly thereafter she felt pain in her back and legs, which eventually led to back surgery. Defendant A & P voluntarily commenced the payment of worker’s compensation benefits on June 21, 1964, and terminated these on April 6, 1974. Plaintiff has not worked at all since the date of her back injury.

On April 22, 1974, plaintiff brought the present claim. She alleged that she suffered a total and permanent disability by reason of incurable insanity and the loss of industrial use of both legs. A hearing was held on January 15, 1975, and consisted of plaintiffs testimony and the depositions of five doctors. Plaintiff testified that she continues to feel pain in her back and legs. She added that she also suffers from a nervous condition which arose at the time of the back injury and which has worsened with age. She testified that she had been treated by psychiatrists for some time.

On February 18, 1975, the administrative law judge ruled that plaintiff was permanently and totally disabled by reason of insanity. In so concluding, he placed heavy reliance upon this Court’s decision in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971). He further ruled that plaintiff had not lost the industrial use of both legs "on an organic basis”. The appeal board, also relying on Sprute, affirmed in a 3 to 2 decision, holding that:

"Plaintiff herein has an employment-related emotional condition which impairs her mental processes, is totally disabling as to gainful employment, has already been of long duration, and appears likely to extend into the indefinite future.”

Defendants now appeal from the board’s determination, attacking both Sprute and the findings of fact of the appeal board.

MCL 418.361; MSA 17.237(361) provides in part:

"(2) Total and permanent disability compensation for which is provided in section 351 means:
"(a) Total and permanent loss of sight of both eyes.
"(b) Loss of both legs or both feet at or above the ankle.
"(c) Loss of both arms or both hands at or above the wrist.
"(d) Loss of any 2 of the members of faculties enumerated in (a), (b) or (c).
"(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.
"(f) Incurable insanity or imbecility.
"(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury.” (Emphasis added.)

Thus, a person who can prove the existence of work-related "incurable insanity” is entitled to recover benefits for a total and permanent disability. In Sprute v Herlihy Mid-Continent Co, 32 Mich App 574, 579; 189 NW2d 89 (1971), the Court held that one suffers from such insanity "if the occupationally-related mental or emotional illness which impairs the employee’s mental processes is of totally disabling proportions and is likely to be of long and indefinite duration, thus making gainful employment impossible”.

Defendants presently urge that we re-evaluate this definition of "incurable insanity” and adopt a more stringent test. However, in Redfern v SparksWithington Co, 403 Mich 63; 268 NW2d 28 (1978), the Supreme Court has undertaken this task for us. There, the Court re-examined the Sprute test and modified it in part. The Court rejected the requirements of Sprute that the impairment of mental processes be totally disabling, rendering gainful employment impossible. Indeed, the Court totally rejected any requirement that the mental impairment have any effect upon the employee’s wage earning capacity. Instead, the Court required that the mental impairment have a significant effect upon the employee’s personal, nonvocational life. The Court stated:

"We conclude that a worker’s mental illness is 'insanity’ if he suffers severe social dysfunction and that a worker’s intellectual impairment is 'imbecility’ if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is 'severe’ if it affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.” Red fern, at 85.

This test was not applied by the appeal board in this case. Rather, the board applied the Sprute "wage-earning capacity test” in reaching its decision. Although the appeal board’s opinion strongly suggests that the Redfern test has been satisfied in the present case, no specific findings of fact have been made as to whether plaintiff suffers from a "severe social dysfunction”. Therefore, we find it necessary to reverse the decision of the appeal board and to remand this matter to the appeal board for further findings and, if necessary, for the admission of additional evidence, pursuant to MCL 418.859; MSA 17.237(859). Since further findings of fact are presently required, we decline at this time to review those factual findings previously made by the appeal board.

The decision of the board is vacated and the matter remanded for proceedings consistent with this opinion. Costs to the prevailing party.

D. C. Riley, J., concurred.

T. M. Burns, J.

(concurring). I agree with the majority that the board’s application of the now rejected Sprute test requires a remand for supplementary fact-finding by the WCAB under the standard announced in Redfern v Sparks-Withington Co, 403 Mich 63; 268 NW2d 28 (1978). I write separately to emphasize certain points.

The majority of the board found that:

"Plaintiff herein has an employment-related emotional condition which impairs her mental processes, is totally disabling as to gainful employment, has already been of long duration, and appears likely to extend into the indefinite future. She is permanently and totally disabled under Section 361(2)(f), formerly Section 10(b)(6).”

The Redfern test requires the board to find, before granting an award, that a worker has a mental or emotional illness, that the illness is work related, and that the illness is expected to be of long duration. 403 Mich at 79. The board erred in this case by focusing on the effect (of the work-related mental illness which it found) on plaintiff’s employment, rather than focusing on whether this illness resulted in a "severe social dysfunction”, the new definition of insanity. The proper focus is not on the ability to work, but the ability to function outside the work setting.

In my view, the board has already made sufficient findings on several of the key points. The board, on remand, should focus on whether plaintiff’s mental illness is "insanity” as used in MCL 418.361(2X0; MSA 17.237(361X2X0. The change in focus from the work setting to the social setting should not be difficult in this case. I would fully expect, as the majority apparently does, that the board will find that plaintiff is suffering from a severe social dysfunction and is, therefore, entitled to benefits under the insanity provision.

       However, the following comment is noteworthy:
      “While evidence of dysfunction in employment is not determinative of eligibility for total and permanent disability benefits it may supplement evidence of nonemployment dysfunction.” Redfern, at 82, n 15.

       The following testimony is quoted in the board’s opinion:
      " 'Q Doctor, did you obtain a history from her, generally speaking?
      " 'A Yes, I did.
      " 'Q Would you tell us what that history was.
      " 'A This woman was lifting some box or checking or something at the A & P in 1964, June of ’64 and experienced a sharp pain down her back and into her left buttock and left leg and since that time has had surgery for a ruptured disc which was subsequent to that experience. And the surgery was, I think, a year later, 1965. And since that tirrfe she’s been totally unable to do anything which takes the use of her back muscles; has pain; is very anxious and depressed about the pain that she’s suffered since that time; has been withdrawn, asocial, irritable and severely anxious and her anxiety, I think, has crystalized into a chronic anxiety state at this time.
      " 'Q Is that your diagnosis?
      " 'A Yes.
      " 'Q Chronic anxiety state?
      " 'A Yes.’ ” (Emphasis added.)

        Sprute v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971).


author: T. M. Burns, J.

text:
    PRIES v TRAVELERS INSURANCE COMPANY
    Docket No. 77-2916.
    Submitted June 14, 1978, at Grand Rapids.
    Decided October 2, 1978.
    Leave to appeal applied for.
    Charles M. Pries was injured in an automobile accident and filed a claim with Travelers Insurance Company for benefits under a policy of no-fault automobile insurance. Pries claimed that he was entitled to $1,000 per month for lost wages and reimbursement for expenses up to $20 per day for replacement services. Travelers claimed that the $20 per day for replacement services was to be included in the wage loss figure, and that therefore Pries was limited to a total recovery of $1,000 per month. Pries filed a complaint for a declaratory judgment as to the amount due him under the insurance contract and for the monies due, and the Berrien Circuit Court, Chester Byrns, J., denied Travelers’ motion for partial summary judgment on this issue. Travelers appeals by leave granted. Held:

    The statutory language providing payment of wage loss benefits and replacement services loss benefits allows payment of these two types of benefits separately, each subject to its own stated limit. Replacement services loss benefits are not to be included within wage loss benefits.
    Affirmed.
    Automobiles — Insurance—Statutes—Work Loss Benefits — Replacement Services Benefits.
    The section of the no-fault automobile insurance act that provides for payment of work loss benefits and for replacement services loss benefits is to be interpreted to mean that the payment for replacement services is not to be included within the maximum payment for work loss; rather, each category is subject to its own stated limit (MCL 500.3107[b]; MSA 24.13107[b]).
    Reference for Points in Headnote
    New Topic Service, No-Fault Insurance § 29.

      Seymour, Seymour, Conybeare & Straub (by Colin H. John, Jr. and Bruce C. Conybeare), for plaintiff.

      Fisher, Troff & Fisher, for defendant.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   T. M. Burns, J.

We granted defendant Travelers Insurance Company’s delayed application for leave to appeal from the trial court’s denial of its motion for partial summary judgment to consider a question relating to the payment of no-fault insurance benefits under MCL 500.3107(b); MSA 24.13107(b).

From the settled record it appears that plaintiff was injured in an automobile accident on October 30, 1974. The injuries received in the accident included a broken leg. Because of this injury, plaintiff was unable to work from October 30, 1974, until April 30, 1975, and again from December 14, 1975, until February 14, 1976. Plaintiff claimed he was entitled to $1,000 per month for wages lost and reimbursement for expenses up to $20 per day for replacement services which he had actually obtained. Defendant urged in its motion for partial summary judgment that plaintiff’s total recovery in any 30-day. period for lost wages and replacement services combined was limited to $1,-000.

This difference in interpretation of § 3107(b) of the no-fault automobile insurance act presents the issue we must decide: does the maximum monthly benefit allowance under the no-fault act for "work loss” include the daily allowance for expenses incurred in obtaining ordinary and necessary services? We answer no and affirm Judge Chester Byrns’ denial of summary judgment.

Section 3107(b), which provides for the benefits and sets the limits in question, states that personal protection insurance "benefits are payable” for:

"(b) 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 benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss.” (Emphasis added.)

The concepts of "work loss” and "replacement services loss” are both drawn from the Uniform Motor Vehicle Accident Reparations Act (UMVARA), 13 ULA (Master ed), p 349 et seq. Sections 1(a)(5)(h) and (iii) of the UMVARA provide:

"(ii) 'Work loss’ means loss of income from work the injured person would have performed if he had not been injured, and expenses reasoanbly incurred by him in obtaining services in lieu of those he would have performed for income, reduced by any income from substitute work actually performed by him or by income he would have earned in available appropriate substitute work he was capable of performing but unreasonably failed to undertake.
"(iii) 'Replacement services loss’ means expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the injured person would have performed, not for income but for the benefit of himself or his family, if he had not been injured.”

The Legislature, in adopting § 3107(b), did not enact the second part of the UMVARA work loss concept, that is, "services in lieu of those he would have performed for income”, but only the wage, or "income from work”, component. However, we do not conclude from that fact, as does the defendant, that the reimbursement for loss of income and replacement services is subject to a single limit of $1,000 per month, i.e., that "replacement services loss” is a mere component of work loss.

As we read the act, it provides that benefits are payable for two things, work loss and replacement services, and each is subject to its own separately stated limit. We reach that conclusion based on the language of the section itself and what we perceive to be the purposes of the act.

First, the "and” in the first sentence of § 3107(b) does not relate back to the "consisting of’ and "work loss” language, but to the word "payable” which appears before the colon. Second, is the manner in which the limits are stated. The $20 per day limit is stated in the sentence granting recovery for replacement services. The $1,000 per month limit appears in a later sentence which requires that the benefits for work loss, wages or earned income from services under our construction, and actual income earned not exceed the limit. There is no mention of replacement services or comparable language in this sentence. The defendant’s interpretation would discourage, rather than encourage, an injured person’s incentive to return to work.

The Supreme Court read the statute in the same manner, i.e., two benefits payable each with its own limit, in Shavers v Attorney General, 402 Mich 554, 620; 267 NW2d 72 (1978). This reading is consistent with the purposes of the act which include speedy delivery of benefits and reduced litigation. If the defendant’s construction were accepted, lower first party benefits would be paid and more injured motorists would be required to seek redress under the residual liability section, MCL 500.3135(2)(c); MSA 24.13135(2)(c). Such an interpretation would be counterproductive to the goals of the act.

The trial court is affirmed and the matter remanded for further proceedings not inconsistent with this opinion. No costs, construction of a statute being involved.

       The case has not been tried below to determine the extent of plaintiffs work loss and replacement services loss. For purposes of this appeal, the parties have stipulated that this loss will exceed the statutory maximum.

       The second period of disability resulted from the surgical removal of a pin which had been inserted to aid in the healing of the broken leg.

       Throughout the opinion we use 'the $1,000 and $20 limits which appeared in the original act. The benefit level had been raised by the Commissioner of Insurance for the year of this accident. We use the figures which appeared in the original act only for purposes of clarity.

       Defendant is certainly not alone in its interpretation of this particular section. The Insurance Commissioner and some writers have reached the same conclusion. See, e.g., Forkosch, 1973 Annual Survey of Michigan Law, Torts, 20 Wayne L Rev 647, 652.

       We also consider the fact that the act mentions "daily” and "monthly” limits in the residual liability section, MCL 500.3135(2)(c); MSA 24.13135(2)(c), significant and supportive of our interpretation.


author: M. J. Kelly, J.

text:
    PEOPLE v MORGAN
    Docket No. 77-2958.
    Submitted June 15, 1978, at Lansing.
    Decided October 2, 1978.
    Sherman D. Morgan was convicted of breaking and entering a building with intent to commit larceny, Washtenaw Circuit Court, William F. Ager, Jr., J. The defendant appeals. Held:

    The defendant’s conviction must be reversed because during the trial the prosecutor engaged in a course of conduct which demonstrated a deliberate and concerted effort to introduce highly prejudicial but totally irrelevant material for the sole purpose of gaining a conviction at any cost.
    Reversed.
    Criminal Law — Duty of Prosecutor — Justice.
    A prosecutor has a duty to do justice; a course of conduct by a prosecutor which is for the sole purpose of gaining a conviction at any cost is offensive to our judicial system.
    Reference for Points in Headnote
    63 Am Jur 2d, Prosecuting Attorneys § 27.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Brian Mackie, Assistant Prosecuting Attorney, for the people.

      Josephson & Fink, for defendant on appeal.
    Before: D. E. Holbrook, P.J., and M. J. Kelly and P.J. Marutiak, JJ.

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

   M. J. Kelly, J.

Defendant appeals his conviction of breaking and entering a building with intent to commit larceny, contrary to MCL 750.110; MSA 28.305. A review of the record in this case indicates that defendant’s conviction must be reversed due to the misconduct of the prosecutor at trial. The course of conduct adopted demonstrates a deliberate and concerted effort to introduce highly prejudicial but totally irrelevant material at trial for the sole purpose of gaining a conviction at any cost. Such a course of conduct is offensive to our judicial system, which places upon the prosecutor not the duty to gain a conviction, but the obligation to do justice. As this Court said in People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969):

" 'It is as much his [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ ” Brocato, supra, at 304, quoting Berger v United States, 295 US 78, 88; 55 S Ct 629; 79 L Ed 1314 (1935).

Upon retrial, the prosecutor may not, upon pain of personal discipline as well as further reversal, question defendant about his drug habits, the narcotics paraphernalia found on him at the time of his arrest, People v Mullins, 79 Mich App 515; 261 NW2d 67 (1977), People v Lorenzo Williams, 63 Mich App 389; 234 NW2d 537 (1975), or ask that he waive his privilege regarding his notes or communications with his attorney. People v Brocato, supra, at 303. The prosecutor must also not question defendant’s character witnesses, who testify only about defendant’s reputation for truth and veracity, concerning their knowledge of defendant’s arrest record. People v Lewis Robinson, 70 Mich App 606; 247 NW2d 308 (1976), People v McClow, 40 Mich App 185; 198 NW2d 707 (1972).

Finally, the prosecution shall not ask anyone whether there have been previous breakings and enterings at the courthouse in order to determine that there was money kept at the courthouse.

This Court suggests that this reprimand will alert the trial court to keep inferences of misconduct, as well as instances, from recurring at a new trial.

Reversed.

D.E. Holbrook, P.J., concurs in the result only.

       One issue pertains to the scope of the prosecutor’s cross-examination of a proposed character witness. Át first the prosecutor had a favorable ruling from the trial judge but after recess the trial court, having referred to the cases cited by defense counsel, People v Lewis Robinson, 70 Mich App 606; 247 NW2d 308 (1976), and People v McClow, 40 Mich App 185; 198 NW2d 707 (1972), indicated a change of perspective but did not reverse his ruling. We would not base our reversal on this aspect alone because the prosecutorial misconduct here was nurtured by the trial court’s failure to rule unequivocally.

       The prosecutor persisted in trying to get into evidence narcotics paraphernalia clearly having been ruled inadmissible as being irrelevant in a prosecution for breaking and entering. The prosecutor succeeded in showing the jury that defendant was apparently a drug addict thus circumventing the trial court’s order.

       The prosecutor persisted in forcing defendant to exercise his attorney-client privilege concerning notes written to his attorney during the trial for the ostensible purpose of leading the jury to believe that incriminating information was being suppressed.

       Arrests for which convictions were not obtained.