author: K. B. Glaser, Jr., J.

text:
    HAMBURGER v HENRY FORD HOSPITAL
    Docket No. 78-3138.
    Submitted May 14, 1979, at Detroit.
    Decided August 6, 1979.
    Leave to appeal applied for.
    Albert C. Hamburger, M.D., entered Henry Ford Hospital having symptoms consistent with a mild stroke. During an x-ray procedure he collapsed, became unconscious and started urinating. Rita McKinney, a student trainee and functioning as the x-ray technician, called for help and four other hospital employees arrived. Ms. McKinney and the four employees lifted Dr. Hamburger onto a stretcher. They failed to support his head and it struck a metal guard rail. Dr. Hamburger and his wife, Ruth Hamburger, brought an action in Wayne Circuit Court alleging that the blow on the head caused neurological deterioration. Defendant claims the blow was not the cause. Verdicts of $192,500 for Dr. Hamburger and $7,500 for his wife were returned by the jury. Judgment on the verdicts was entered, Thomas J. Foley, J. Defendant appeals raising two issues: (1) whether the trial court should have granted defendant’s motion for a new trial based on its trial objection to the misconduct of a plaintiff and of plaintiffs’ counsel who allegedly made verbal and facial responses while defense witnesses were on the witness stand, and (2) whether defendant was entitled to an instruction on gross negligence based on the good Samaritan statute. Held:

    1. The grant or denial of a new trial is within the sound discretion of the trial court. The trial judge was in a position to see the facial responses and verbal conduct and assess their impact on the jury and there is nothing in the record which would indicate an abuse of discretion.
    2. The good Samaritan statute excuses only physicians, nurses and specified hospital personnel from civil liability where volunteer assistance is performed in an emergency situation, without gross negligence or wilful and wanton misconduct. A hospital, due to the high standard of care it is required to provide patients, may be held liable for ordinary negligence in the treatment of a patient by employees where a hospital-patient relationship exists at the time of a negligent act. A hospital in Michigan is unable to claim derivative immunity from the acts of its employees. Henry Ford Hospital, whether Ms. McKinney and the four employees who assisted her are liable or not, is not entitled to immunity for ordinary negligence because a hospital-patient relationship existed between the hospital and Dr. Hamburger at the time of the allegedly negligent acts of the hospital employees. The trial judge properly refused to give defendant’s requested instruction on gross negligence concerning the actions of Ms. McKinney and the other hospital employees. Ordinary negligence, not gross negligence, was sufficient to establish hospital liability.

      References for Points in Headnotes

       58 Am Jur 2d, New Trial §§ 212, 213.

       57 Am Jur 2d, Negligence §§ 33 et seq., 74.
    61 Am Jur 2d, Physicians and Surgeons § 160.

       40 Am Jur 2d, Hospitals § 14 et seq.

       40 Am Jur 2d, Hospitals §§ 14, 24, 28.
    Hospital’s liability for negligence in selection or appointment of staff physician or surgeon. 51 ALR3d 981.

      Affirmed.
    1. Trial — Motions — New Trial — Discretion — Abuse of Discretion — Appeal and Error.
    Denial of a motion for a new trial is within the sound discretion of the trial judge and his decision will not be reversed on appeal unless there is an abuse of that discretion.
    2. Negligence — Malpractice — Good Samaritan Statute — Hospitals — Emergency Care — Physicians — Nurses — Hospital Personnel — Gross Negligence — Wilful Misconduct — Statutes.
    The good Samaritan statute provides that a physician or registered nurse who in good faith renders emergency care at the scene of an emergency, where no doctor-patient or nurse-patient relationship existed prior to such emergency, is not liable for civil damages for acts or omissions in rendering emergency care, except acts or omissions amounting to gross negligence or wilful and wanton misconduct; a second section of the statute provides that certain specified hospital personnel shall not be liable for civil damages for acts or omissions in rendering emergency care except acts or omissions amounting to gross negligence or wilful and wanton misconduct (MCL 691.1501, 691.1502; MSA 14.563, 14.563[12]).
    3. Hospitals — Emergency Facilities — Responsibility — Statutes.
    A hospital has the responsibility of reasonably and adequately staffing hospital emergency facilities where the hospital maintains or holds out to the general public that it maintains such emergency room facilities (MCL 691.1502; MSA 14.563[12j).
    4. Hospitals — Standard of Care — Negligence — Breach of Duty — Hospital-Patient Relationship — Civil Liability.
    Hospitals have certain standards of care, similar to those of physicians and nurses, that they are required to provide to patients; these standards may be breached through ordinary negligence in the treatment of a patient; therefore, hospitals are not protected from civil liability where a hospital-patient relationship exists at the time of an injury to a patient through a negligent act of the hospital or one of its employees.
    5. Hospitals — Employees — Master and Servant — Respondeat Superior — Derivative Liability — Negligence — Derivative Immunity — Employee Immunity.
    Hospitals have derivative liability for the negligence of their employees where the employees are dealing with patients within the scope of their authority; a hospital has no derivative immunity and is responsible for the negligent acts of its employees even though the employees may be immune from liability.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Kitch & Suhrheinrich, P.C. (by Anthony G. Ar-none), for defendant.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, Jr., JJ.

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

   K. B. Glaser, Jr., J.

Plaintiff Albert D. Hamburger, M.D., entered Henry Ford Hospital as a patient on December 31, 1975, having symptoms consistent with a mild stroke. He was sent to an x-ray room attended by Ms. Rita McKinney who was a student trainee and functioning as an x-ray technician but was not certified. The patient was placed on a stool with a low back during the x-ray procedure. Immediately after the procedure was completed the patient collapsed while still on the stool, became unconscious and started urinating. Ms. McKinney put a tongue depressor in his mouth and called to a passing fellow employee to call the "blue alert” team. This team consists of hospital personnel especially trained to respond to life-threatening emergencies. Before the blue alert team arrived, other hospital employees responded to her call for help. Five of them, including Ms. McKinney, lifted the patient onto a stretcher. The names and specific hospital functions of the other four hospital employees are not known. They failed to support the patient’s head and it struck a metal guard rail, apparently resulting in the patient regaining consciousness. When the blue alert team arrived they did nothing further but send the patient back to his room. Plaintiffs claim the blow on the head caused the neurological deterioration thereafter experienced by Dr. Hamburger. Defendant claims the blow was not a cause of that deterioration. The jury returned a verdict of $192,-500 in favor of Dr. Hamburger and $7,500 for his wife Ruth Hamburger.

During the course of the trial, while defense witnesses were on the witness stand, a plaintiff and the attorney for the plaintiffs made verbal and facial responses to which defendant objected and moved for a mistrial. The court denied the motion. Defendant raised the issue again in a motion for new trial which the court again denied, on the ground that the conduct had no influence on the outcome of the trial.

Defendant also requested an instruction that unless the actions of Ms. McKinney and the other hospital employees in placing the patient on the stretcher was gross negligence plaintiffs could not recover. Defendant based its request on the "good Samaritan” statute, MCL 691.1502; MSA 14.563(12). The trial judge denied the request.

Defendant hospital appeals by right pursuant to GCR 1963, 806.1 raising two issues.

1) Whether the trial court should have granted a new trial based on the misconduct of a plaintiff and the plaintiffs’ counsel.

2) Whether defendant was entitled to the requested instruction on gross negligence.

I

Misconduct of plaintiffs and counsel

Denial of a motion for new trial is within the sound discretion of the trial judge and will only be reversed on appeal where there is an abuse of discretion. Willett v Ford Motor Co 400 Mich 65, 70-71; 253 NW2d 111 (1977). The trial court was in a position to see the facial responses and verbal conduct and assess their impact on the jury. There is nothing in the record from which we could conclude there was an abuse of discretion. The trial court’s decision on the motion must be affirmed.

II

Defendant hospital’s requested instruction on the good Samaritan statute

The common-law doctrine with respect to persons, especially doctors, rendering voluntary aid in an emergency may have made many doctors reluctant to render voluntary emergency care for fear of malpractice suits. Many states with the public welfare in mind have enacted "good Samaritan” statutes to encourage prompt treatment of accident victims by excusing from civil liability those who render care in an emergency. Some states have extended this protection to nurses and some even to anyone assisting in an emergency. See Anno: Construction of "Good Samaritan” statute excusing from civil liability one rendering care in emergency, 39 ALR3d 222.

Michigan originally enacted such a statute providing immunity for physicians for ordinary negligence at the scene of an emergency. By 1964 PA 60; MCL 691.1501; MSA 14.563, this immunity was extended to registered nurses.

That is now § 1 and reads as follows:

"Sec. 1. A physician or registered nurse who in good faith renders emergency care at the scene of an emergency, where a physician-patient or registered nurse-patient relationship did not exist prior to the advent of such emergency, shall not be liable for any civil damages as a result of acts or omissions by the physician or registered nurse in rendering the emergency care, except acts or omissions amounting to gross negligence or wilful and wanton misconduct.”

We particularly emphasize that the statute excepted cases where a professional relationship had already been established with the patient.

1975 PA 123; MCL 691.1502; MSA 14.563(12) became effective on July 1, 1975, extending such protection to certain named persons in hospital settings who were under no duty to respond. It is this addition under which defendant claims that Ms. McKinney and the other four hospital employees who lifted Dr. Hamburger onto the stretcher were immune from liability for ordinary negligence. Defendant further claims that because they were immune the hospital is also immune. The 1975 addition to the statute (§ 2) reads as follows:

"Sec. 2. (1) In instances where the actual hospital duty of that person did not require a response to that emergency situation, a physician, dentist, podiatrist, intern, resident, registered nurse, licensed practical nurse, registered physical therapist, clinical laboratory technologist, inhalation therapist, certified registered nurse anesthetis, x-ray technician, or paramedical person, who in good faith responds to a life threatening emergency or responds to a request for emergency assistance in a life threatening emergency within a hospital or other licensed medical care facility, shall not be liable for any civil damages as a result of an act or omission in the rendering of emergency care, except an act or omission amounting to gross negligence or wilful and wanton misconduct. (2) The exemption from liability under subsection (1) shall not apply to a physician where a physician-patient relationship existed prior to the advent of the emergency nor to a licensed nurse where a nurse-patient relationship existed prior to the advent of the emergency. (3) Nothing in this act shall diminish a hospital’s responsibility to reasonably and adequately staff hospital emergency facilities when the hospital maintains or holds out to the general public that it maintains such emergency room facilities.” MCL 691.1502; MSA 14.563(12).

There is no case law in Michigan and very little elsewhere construing good Samaritan statutes. 39 ALR3d 222, supra. This issue is one of first impression.

The Court must resolve the issue by construing the statute to determine the intent of the Legislature as to who is entitled to its protection. Flint Board of Education v Williams, 88 Mich App 8, 15; 276 NW2d 499 (1979).

At the outset we are aware that there is a dispute as to whether Ms. McKinney was an x-ray technician, within the meaning of the statute, and whether she had a duty to respond within the meaning of the statute. There is even greater doubt as to whether there was any evidence from which the jury could find that the other four employees who lifted Dr. Hamburger were within the protection of the statute, an issue on which we believe, and defendant admits, that defendant has the burden of proof. However, these are questions of fact, and are not necessary to a resolution of the issue. We therefore assume, for purposes of this opinion, that all five employees were entitled to the immunity of the statute at the time Dr. Hamburger was lifted and struck his head.

First it is of great significance that there was a hospital-patient relationship between defendant Henry Ford Hospital and Dr. Hamburger at the time of the injury. We note that in enacting the first section of the statute (MCL 691.1501; MSA 14.563) the Legislature carefully excepted situations where a physician-patient, or registered nurse-patient, relationship existed. This philosophy was in fact carried over into the second section of the 1975 act. Also the original statute is in pari materia to the 1975 enactment and therefore we must assume the Legislature’s impressions derived from it influenced its understanding of the 1975 addition. The Court, in construing that addition (MCL 691.1502; MSA 14.563[12]) should therefore also allow its understanding of it to be influenced by impressions derived from the first section of the statute. Flint Board of Education v Williams, supra. Hospitals have certain standards of care, similar to those of physicians and nurses, that they must meet with their patients. Ordinary negligence in treatment of the patient is a breach of that standard. Bivens v Detroit Osteopathic Hospital, 77 Mich App 487, 478; 258 NW2d 527 (1977).

It is unreasonable to conclude, in the absence of express language, given: (1) the clear thrust of § 1 to volunteers only where no professional relationship was established, and (2) the exception of persons having a physician-patient relationship or having a duty to respond, in the 1975 addition, and (3) the history of good Samaritan legislation applying to volunteers only, that the Legislature intended to protect hospitals in situations where a hospital-patient relationship existed at the time of the negligent act.

It is of course significant that no mention of a hospital’s right to the protection was stated in the statute. It would have been easy to do so if the Legislature so intended.

Section 3 of the statute apparently confused the issue in the trial court. It is reasonable to assume that § 3 was included because people who are brought to an emergency room are not yet protected by a hospital-patient relationship. Therefore a hospital perhaps could, by the simple expedient of not assigning staff to the emergency room, make everyone who responds to an emergency there a volunteer for purposes of this statute. There is, of course, no question of the hospital’s duty to adequately staff the hospital to care for its patients. Non-emergency admissions have careful, even exhaustive, admissions procedures, clearly establishing the hospital-patient relationship before the patient enters the hospital. Section 3 makes it clear that this statute does not change that duty where there is an emergency room regardless of the hospital-patient relationship. We find no indication that the statute is to be applied to emergency rooms any differently than in the other hospital departments.

Lastly, we address the question as to whether the Legislature might have intended the hospital to have derivative immunity for negligent acts of its employees through the doctrine of respondeat superior.

In Michigan, hospitals clearly have derivative liability for negligence of their employees in dealing with their patients within the scope of their authority and sometimes even for non-employees. Grewe v Mt Clemens General Hospital 404 Mich 240, 252; 273 NW2d 429 (1978). Again, there is no caselaw in Michigan and very little elsewhere as to a master’s derivative immunity for acts of his servant. What there is, however, uniformly holds that there is no such derivative immunity. See Steward v Borough of Magnolia 134 NJ Super 312; 340 A2d 678 (1975). See also Seavey, Law of Agency, § 93, p 167, Prosser, Torts (4th ed), § 123, p 869. Harper & James, The Law of Torts, § 8.10, p 643, Schubert v August Schubert Wagon Co, 249 NY 253, 256; 164 NE 42; 64 ALR 293 (1928). We therefore hold there is no derivative immunity of the master from the servant in the absence of a statute to the contrary.

We conclude that defendant hospital was not entitled to immunity for ordinary negligence under 1975 PA 123 regardless of the immunity of any of its allegedly negligent employees, because a hospital-patient relationship existed between defendant hospital and plaintiff at the time of the allegedly negligent act. The trial judge therefore properly refused the defendant’s requested instruction.

Affirmed. Costs to plaintiff.


source: Caselaw Access Project

author: D. C. Riley, J.

license: Public Domain

text:
    PETITPREN v WAYNE-WESTLAND COMMUNITY SCHOOLS
    Docket No. 78-3483.
    Submitted June 20, 1979, at Detroit.
    Decided August 6, 1979.
    Plaintiff, Vincent J. Petitpren, was a member of the board of education of the Wayne-Westland Community Schools when he accepted an appointment as superintendent of the Taylor public schools. Subsequently, the Wayne-Westland Community School Board, after requesting an opinion from the Attorney General’s office, adopted a resolution declaring plaintiff’s seat vacant due to the incompatibility of the two positions.
    The plaintiff brought an action in Wayne Circuit Court against Wayne-Westland Community Schools and the individual members of the Wayne-Westland Community School Board contesting the action of the Wayne-Westland School Board. The defendants’ motion for summary judgment was granted, Thomas Roumell, J. The trial court held that the plaintiff could not hold both positions as a matter of law because of the common-law doctrine of incompatibility. The plaintiff appeals. Held:

    The two positions here in issue are not incompatible as a matter of law. There is no indication in either the trial court opinion or the briefs that a subordination issue exists between a board member of one school district and a superintendent of another. Nor can it be said that the two offices are inherently inconsistent and repugnant. Though there may be some potential for conflict, this resolution properly belongs within the realm of lower court proceedings in conjunction with a complete factual exploration of the duties and responsibilities imposed by law upon the two positions.
    Reversed and remanded for trial.
    1. Officers — Public Offices — Incompatibility — Test of Incompatibility.
    It has uniformly been held that the same person cannot hold both offices in cases involving two public offices which are incompatible with each other; the test of incompatibility is the character and relation of the offices; where one office is subordinate to and is subject in some degree to the revisory power of a second office or where the functions of the two offices are inherently inconsistent and repugnant, the two offices are incompatible.

      References for Points in Headnotes

       63 Am Jur 2d, Public Officers and Employees §§ 73, 74.

       68 Am Jur 2d, Schools § 40.

      2. Officers — Schools and School Districts — Public Offices — Incompatibility — Appeal and Error.
    The Court of Appeals is unable to conclude that the position of board member of one school district and the position of superintendent of another school district are incompatible as a matter of law where there is no indication in either the trial court opinion or the briefs of the parties that a subordination issue exists between the positions and where it cannot be said that the two offices are inherently inconsistent and repugnant.

      Harris, Lax & Greg, for plaintiff.

      Clark, Hardy, Lewis, Fine & Ashen, P.C. (by Dennis R. Pollard and William G. Albertson), for defendants.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   D. C. Riley, J.

The issue is whether an individual elected to membership on one city’s board of education can accept a full-time paid position as superintendent of schools for another city and still retain his first position.

Plaintiff was elected to a vacancy on the board of education of the Wayne-Westland schools in 1974, and two years later was elected to an additional four-year term. In January, 1978, he was appointed superintendent of the Taylor public schools. Subsequently, the Wayne-Westland School Board, after requesting an opinion from the State Attorney General’s office, adopted a resolution declaring plaintiffs seat vacant due to the incompatibility of the two positions.

Plaintiff filed his complaint on . July 21, 1978, contesting the board’s action. Defendants moved for summary judgment, alleging that plaintiff had failed to state a claim upon which relief could be given, GCR 1963, 117.2(1). Defendants’ motion was granted by the lower court and plaintiff appeals that determination.

The trial court held plaintiffs claim unenforceable as a matter of law based upon the common-law doctrine of incompatibility. A review of Michigan authority discloses only two cases which have dealt with the doctrine at length. In Attorney General ex rel Moreland v Detroit Common Council, 112 Mich 145; 70 NW 450 (1897), the question raised was whether the mayor of Detroit could also serve as the governor of Michigan. The Court found the two offices to be incompatible, and that, by occupying the second office, a person ipso facto vacated his holding of the first.

The rule of incompatibility was discussed as follows:

"The authorities are in substantial agreement as to the rule of incompatibility, and Mechem states it as follows: 'This incompatibility which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both.’ Mechem, Pub. Off. § 422. In State v Goff the test is thus stated:
"'The test of incompatibility is the character and relation of the offices; as where one is subordinate to the other, and subject in some degree to its revisory power, or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices. ’
"In State v Thompson, 20 N.J. Law, 689 [1846], it is said:
" 'Where there is no express provision, the true test is whether the two offices are incompatible in their natures, in the rights, duties, or obligations connected with or flowing out of them. Offices, says Bacon, are incompatible or inconsistent when they cannot be executed by the same person; or when they cannot be executed with care and ability; or where one is subordinate to or interferes with another ([Bacon’s Abridgement, title] "Office” K); or where one office is under the control of another ([Comyn’s Digest, title] "Office”). ‡ *
"The sole difficulty lies in the application of the rule, and in every case the question must be determined from an ascertainment of the duties imposed by law upon the two officers. If one has supervision over the other, or if one has the removal of the other, the incongruity of one person holding both offices is apparent, and the incompatibility must be held to exist so that the acceptance of the latter vacates the former.
"The remoteness of the necessity for the removal of a mayor by the governor is urged by counsel for the respondent as a reason why a legal incompatibility does not exist at the common law. The question, however, is one of the existence of the power, and not the remoteness of its exercise.
"The power of removal is ever present, ready for use when its exercise is required. The argument that the contingency for its use is very remote is without force. We have been unable to find a decision which holds that one person may hold two offices, in one of which he is clothed with power to remove the person holding the other. It follows that the offices of mayor and governor are incompatible.” (Emphasis supplied.) 112 Mich at 168-169, 172-173.

As is readily apparent, the Court premised a finding of incompatibility upon a showing that (1) one office is subordinate, or subject to review or revision, by the second, or (2) the functions of the two offices are inherently inconsistent and repugnant.

Weza v Auditor General, 297 Mich 686; 298 NW 368 (1941), did not deviate from these considerations. In addition to citing the quoted language from Moreland, the opinion also stated that:

" 'It is extremely difficult to lay down any clear and comprehensive rule as to what constitutes incompatibility of offices. * * * Sometimes it is said that incompatibility exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to retain both. * * * It is not an essential element of incompatibility at common law that a clash of duty should exist in all, or in the greater part, of the official functions.
" 'One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would result in the attempt by one person to discharge the duties of both.’ ” 297 Mich at 689-690.

The Weza Court focused upon the problem of subordination when it held that a legislator could not be appointed to fill a vacancy for county school commissioner:

"Clearly the office of county school commissioner is subordinate to that of a member of the legislature. The former owes its creation and continuation to legislative enactment and is completely subject to legislative control. Further, as a matter of sound public policy, these two offices should be held incompatible. If a controlling faction in the legislature was composed of county school commissioners, it is conceivable that the legislature might materially increase salaries of county school commissioners, enlarge their powers, or diminish their duties.” 297 Mich at 688.

Based upon these decisions, we are unable to conclude, as did the lower court, that the two positions here in issue are incompatible as a matter of law. There is no indication in either the trial court opinion or the briefs that a subordination issue exists between a board member of one district and a superintendent of another. Nor can we say that the two offices are inherently "inconsistent and repugnant”. Though there may be some potential for conflict, this resolution properly belongs within the realm of lower court proceedings in conjunction with a complete factual exploration of the duties and responsibilities imposed by law upon the two positions. Moreland, supra, at 169.

Reversed and remanded for trial.

       Although not dispositive of the present case, we note that 1978 PA 566, effective December 29, 1978, provides standards of conduct for public officers. Section 2 of that act prohibits the holding of incompatible offices. MCL 15.181 et seq.; MSA 15.1120(121) et seq. Section 1 defines incompatible offices:
      "(b) 'Incompatible offices’ means public offices held by a public official which, when the official is performing the duties of any of the public offices held by the official, results in any of the following with respect to those offices held:
      "(i) The subordination of 1 public office to another.
      "(ii) The supervision of 1 public office by another.
      "(iii) A breach of duty of public office.” MCL 15.181(b); MSA 15.1120(121)(b).
      Section 3 provides that the act

        "shall not be construed to prohibit a member of a school board of 1 school district from being a superintendent of schools of another school district." MCL 15.183(2); MSA 15.1120(123X2). (Emphasis supplied.)


text:
    PEOPLE v STANGE
    Docket No. 78-4544.
    Submitted June 22, 1979, at Detroit.
    Decided August 6, 1979.
    Kevin J. Stange was convicted, on his plea of guilty, of assault with intent to commit armed robbery. The Genesee Circuit Court, Harry B. McAra, J., ordered him to a drug rehabilitation center and delayed sentencing until such time as the defendant graduated from the center or was allowed to leave by the probation officer. The defendant left the center 12 days earlier than ordered and was arrested and jailed the following day. He was then sentenced for the assault, without crédit for time spent in the rehabilitation center. Defendant appeals, alleging that he should have been given credit for 170 days spent at the center. Held:

    The defendant was at the rehabilitation center in circumstances that amounted to confinement. He therefore comes within the statute which requires that a defendant be given credit for time served in jail before sentence, and is entitled to credit for the 170 days spent at the center.
    Reversed and remanded for resentencing.
    1. Criminal Law — Sentencing — Credit Against Sentence — Statutes.
    The statute which provides that a defendant is to be credited with jail time served prior to sentencing is remedial in nature and is to be construed liberally (MCL 769.11b; MSA 28.1083[2]).
    2. Criminal Law — Sentencing — Credit Against Sentence — Statutes.
    A defendant must be given credit against his sentence for time spent in confinement pursuant to governmental authority, regardless of the place of confinement; therefore, a defendant must be given credit for time spent in a drug rehabilitation center, where he was sent to the center prior to sentencing under circumstances in which he was incarcerated before being transported to the center and, once there, not allowed to leave, and was arrested when he left earlier than ordered by the court (MCL 769.11b; MSA 28.1083[2]).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 545, 545.5 (supp).
    73 Am Jur 2d, Statutes § 278.
    Right to credit for time spent in custody prior to trial or sentence. 77 ALR3d 182.

       21 Am Jur 2d, Criminal Law §§ 545, 545.5 (supp).
    Right to credit for time spent in custody prior to trial or sentence. 77 ALR3d 182.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

      Peter Anastor, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   D. C. Riley, J.

We answer a question of first impression: whether a defendant, ordered by the trial court to a drug rehabilitation center pursuant to the delayed sentencing statute, MCL 771.1; MSA 28.1131, is entitled to credit against his ultimate sentence for time expended therein?

Defendant pled guilty on September 19, 1977, to assault with intent to commit armed robbery, MCL 750.89; MSA 28.284. He remained incarcerated until December 15, 1977, at which time the lower court invoked the delayed sentencing statute, see infra, and directed defendant to the Odyssey-Rubicon House, a drug rehabilitation center. Sentencing would occur on June 21, 1978. Defendant was placed in the custody of the Genesee County jail until the probation department transported him to the center.

On June 9, 1978, the defendant left the center without permission. He was picked up by the police a day later and put in the Genesee County jail. On June 21, 1978, the lower court sentenced defendant to 6 to 15 years in prison with credit for 302 days served in jail awaiting sentence. This credit did not include the 170 days spent at the center. Defendant stated that he left the center with only a few days left because of a strenuous 36-hour marathon session where no one was permitted to sleep. Defendant now appeals this denial of credit.

In pertinent part, MCL 771.1; MSA 28.1131 provides as follows:

"* * * in an action in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. * * * The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.”

MCL 769.11b; MSA 28.1083(2) allows credit for pre-sentence incarceration under certain circumstances:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”

The prosecution seeks to analogize the present case to decisions which hold that time spent in jail as part of a sentence of probation should not be credited in the event that probation is revoked. People v Lacy, 54 Mich App 471; 221 NW2d 199 (1974), People v Westman, 53 Mich App 662, 666; 220 NW2d 169 (1974), People v Jaynes, 23 Mich App 360; 178 NW2d 558 (1970). For two reasons, we do not agree.

First, the probation statute at issue evinces a legislative intent to permit, upon revocation of probation, the imposition of full punishment absent consideration of any previously imposed penalty. Second, under the probation statute, a defendant has been already sentenced at the time of his initial imprisonment, whereas, under the delayed sentencing statute, a defendant is not originally sentenced until a later date. Significantly, the crediting statute applies to the time spent in jail prior to sentencing, MCL 769.11b. However, jail time served as part of probation is subsequent to sentencing and, therefore, not entitled to any legislatively mandated credit upon revocation.

In the case at bar, the transcript reveals that defendant was not allowed bond and was ordered to the Odyssey-Rubicon House until graduation or express permission of the probation officer. The trial court delayed sentence until that time. As defendant comes, in this respect, within the ambit of the crediting statute, we must decide whether his term at the drug rehabilitation center is equivalent to time served in a "jail”.

Although no cases precisely decide the present issue, this Court has created an exiguous patchwork of other factual circumstances to which the crediting statute has been held to apply.

In People v Gravlin, 52 Mich App 467; 217 NW2d 404 (1974), defendant was adjudicated incompetent to stand trial and committed to the Ionia State Hospital. Three years later, he was tried and convicted for the crime. The lower court refused to give him credit against the eventual sentence. This Court reversed, holding that under a different statute, defendant was entitled to credit for time spent in the hospital. However, the Court further noted that the crediting statute here in issue dictated the same result.

Similarly, People v Ervin Thomas, 58 Mich App 9; 226 NW2d 734 (1975), held that defendant deserved credit for time spent in custody in a juvenile detention facility.

The crediting statute is remedial in nature, and as such deserves liberal construction in order to effectuate the legislative purpose. Brinson v Genesee Circuit Judge, 403 Mich 676, 686; 272 NW2d 513 (1978), People v Lyles, 76 Mich App 688, 690; 257 NW2d 220 (1977), People v Groeneveld, 54 Mich App 424, 427; 221 NW2d 254 (1974). Gravlin, supra, at 469 stated that:

"[a] 'jail’ means a place of confinement * * *. A defendant must be given credit against his sentence for time spent in confinement pursuant to governmental authority, regardless of the place of confinement.”

Here, we believe that the'circumstances under which defendant was ordered to the rehabilitation center amounts to a confinement analogous to jail. Defendant was placed in the Genesee County jail until he was transported to the center. Once there he was not permitted to leave except for one day of family visitation. When defendant left the center 12 days earlier than ordered by the lower court, he was arrested.

Hence, we conclude, for all the above reasons, that defendant must be given credit against sentence for the 170 days spent at the Odyssey-Rubicon House.

Reversed and remanded for resentencing.

       MCL 771.4; MSA 28.1134 provides that:
      "In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.” (Emphasis supplied.)

       MCL 767.27a(9); MSA 28.966(H)(9), since repealed. See MCL 330.2042; MSA 14.800(1042).


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

text:
    STEWART v STEWART
    Docket No. 78-4637.
    Submitted May 3, 1979, at Grand Rapids.
    Decided August 6, 1979.
    Michael Stewart brought a complaint for divorce against Lynn Stewart on March 24, 1975. The complaint stated that Kimberly Ann Stewart, born July 23, 1973, was the one child born of the marriage. In his motion for temporary support, custody and interim property settlement, his consent to the entry of an order granting this motion and a modification thereof and in his consent to a judgment of divorce, he named Kimberly Ann Stewart as a child of the parties. On June 30, 1978, plaintiff petitioned the court for an order determining the paternity and/or terminating support of the child on the grounds that he believed the child was not born of the marriage for the reason of his nonaccess to defendant during the time of conception and admissions as to his nonpaternity by defendant to plaintiff and to third parties. Muskegon Circuit Court, Frederick A. Grimm, J., dismissed plaintiff’s petition because plaintiff had referred to the child as a child of the parties in all of his pleadings in the divorce proceeding and because case precedent on the abrogation of Lord Mansfield’s rule should not be applied retroactively. Plaintiff appeals. Held:

    Reliance on Lord Mansfield’s rule, under which parties to a marriage may not testify concerning nonaccess when the issue is the paternity of a child born during the marriage, has been the rule in Michigan for nearly 100 years and the possible devastating effect of retroactivity on the administration of justice discourage the Court of Appeals from applying the abrogation of the rule (Serafin v Serafin, 401 Mich 629 [1977]) retroactively. Furthermore, plaintiffs own actions and conduct in acknowledging the child as his own throughout the entire divorce proceedings bar him from proceedings to disestablish his paternity because of res judicata and the doctrine of estoppel.

      References for Points in Headnotes

       10 Am Jur 2d, Bastards §§ 33-36.
    Rule as regards competency of husband or wife to testify as to nonaccess. 49 ALR3d 212.
    Who may dispute presumption of legitimacy of child conceived or born during wedlock. 80 ALR3d 1032.

       20 Am Jur 2d, Courts § 85.

       10 Am Jur 2d, Bastards §§ 7, 29.
    Determination of paternity, legitimacy, or illegitimacy in action for divorce, separation, or annulment. 65 ALR2d 1381.

      Affirmed.
    1. Bastards — Evidence — Lord Mansfield’s Rule — Presumptions — Legitimacy.
    The Lord Mansfield rule, under which parties to a marriage may not testify concerning nonaccess when the issue is the paternity of a child born during their marriage, has been abolished in Michigan; however, the Supreme Court has held that a child is guarded by the still viable and strong, though rebuttable, presumption of legitimacy.
    2. Courts — Rules of Law — Prospective Application — Retroactive Application.
    The key factors which determine whether a new rule of law should be applied retroactively or prospectively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice.
    3. Bastards — Marriage — Paternity — Res Judicata — Estoppel.
    Res judicata and estoppel may bar a party from proceedings to disestablish his paternity where the issue is the paternity of a child born during a marriage and the party acknowledged the child as his own throughout the entire divorce litigation which preceded a subsequent proceeding to disestablish paternity.

      Landman, Hathaway, Latimer, Clink & Robb (by Alvin D. Treado), for plaintiff.

      Mark C. Meyer, Legal Aid of Western Michigan, for defendant.
    Before: Mackenzie, P.J., and D. E. Holbrook, Jr. and Cynar, JJ.
   D. E. Holbrook, Jr., J.

Plaintiff appeals by right the trial court’s October 23, 1978, dismissal of plaintiff’s petition for termination of paternity and/or child support.

The parties were married in Michigan on February 19, 1972. Plaintiff filed for divorce on March 24, 1975, and in the complaint for divorce plaintiff stated that Kimberly Ann Stewart, born July 23, 1973, was the one child born of the marriage. In his motion for temporary support, custody and interim property settlement, filed on March 24, 1975, plaintiff alleged that Kimberly Ann Stewart was a child of the parties. Plaintiff consented to the entry of a March 24, 1975, order for temporary support, custody and interim property settlement, and a modification thereof, dated July 17, 1975, which stated that Kimberly Ann Stewart was the minor child of the parties. Plaintiff also petitioned for and consented to a September 29, 1975, judgment of divorce which named Kimberly Ann Stewart as a child of the parties.

On June 30, 1978, plaintiff petitioned the court for an order determining paternity and/or terminating support, and in support thereof stated that plaintiff believed that the child was not born of the marriage for the reason of his nonaccess to defendant during the time of conception, admissions as to his nonpaternity by defendant to plaintiff, and admissions by defendant to third parties as to plaintiff’s nonpaternity. Plaintiff requested a hearing be set to determine plaintiff’s nonpaternity of the child. The trial court dismissed plaintiff’s petition because of plaintiff’s reference to the child as the child of the parties in the motion for temporary support, the order for temporary support, and the ultimate judgment of divorce, and because plaintiff sought to make Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), retroactive.

Lord Mansfield’s Rule was judicially incorporated into Michigan law in Egbert v Greenwalt, 44 Mich 245; 6 NW 654 (1880). The rule was first uttered by Lord Mansfield in Goodright v Moss, 2 Cowp 591-594; 98 Eng Rep 1257-1258 (1777), which was a rule of evidence that parties to a marriage could not testify concerning nonaccess when the issue is paternity of a child born during their marriage. This rule was abolished in Michigan in Serafin v Serafin, although the Supreme Court held that a child is guarded by the still viable and strong, though rebuttable, presumption of legitimacy.

There are a number of reasons for this Court to affirm the trial court’s dismissal of plaintiff’s petition. First, we decline to make Serafín retroactive. Key factors which determine whether a new rule of law should be applied retroactively or prospectively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. The reliance on Lord Mansfield’s Rule in Michigan for nearly 100 years and the possible devastating effect of retroactivity on the administration of justice discourage this Court from applying the abolishment of the rule retroactively.

Second, res judicata bars plaintiff from disestablishing his paternity. Baum v Baum, 20 Mich App 68; 173 NW2d 744 (1969). Moreover by plaintiff’s own actions and conduct, in acknowledigng the child as his own throughout the entire divorce litigation, we hold his present claim to be barred by the doctrine of estoppel.

Accordingly, the trial court is affirmed.

Affirmed. Costs to appellee.


author: V. J. Brennan, J.

text:
    STATE APPELLATE DEFENDER v SAGINAW CIRCUIT JUDGE (PEOPLE v TATE)
    Docket No. 78-4683.
    Submitted June 6, 1979, at Lansing.
    Decided August 6, 1979.
    Jessie Tate and his twin brother, James, were charged with first-degree murder. Jessie was convicted, on his plea of guilty, of second-degree murder. James was convicted, after a jury trial. Both requested appointment of counsel for appellate review, and the trial court, Saginaw Circuit Court, Joseph R. McDonald, J., appointed the State Appellate Defender to represent both. The State Appellate Defender later moved to withdraw as appellate counsel in the case of Jessie Tate. At the hearing it was disclosed that: 1) the entire State Appellate Defender staff has input in each case; 2) Jessie Tate may, on appeal, attack the voluntariness of his plea and recant his testimony exonerating his brother; and 3) James’s appeal could very well emphasize the fact that his brother admitted the crime. Judge McDonald directed the State Appellate Defender to continue representing both. The State Appellate Defender filed a complaint for superintending control in the Court of Appeals. Held:

    The Code of Professional Responsibility and Disciplinary Rules governing conflict of interest contemplate a great deal of self-government by the practitioner in the realm of exercising independent judgment. The practitioner’s own judgment and mode of operation play a key role in any decision to accept or reject employment. While conflict of interest of counsel warranting a reversal of a defendant’s conviction must be actual and not merely speculative, the standard for conflict of interest relating to an attorney’s withdrawal from representation is not so severe.
    Denial of the motion to withdraw vacated. Lower court instructed to appoint new counsel for Jessie Tate.
    References for Points in Headnote
    7 Am Jur 2d, Attorneys at Law §§ 154, 159. Circumstances giving rise to conflict of interest between or among criminal codefendants precluding representation by same counsel. 34 ALR3d 470.
    Propriety and effect of attorney representing interest adverse to that of former client. 52 ALR2d 1243.

      Criminal Law — Attorney and Client — Conflict of Interest — Withdrawal of Counsel.
    Conflict of interest of counsel warranting the reversal of a defendant’s conviction is actual, not merely speculative; however, from the standpoint of an attorney preparing an appeal prior to actual prejudice to a defendant, the standard for determining a conflict of interest relating to that attorney’s withdrawing from the appeal is not as severe and the attorney’s own perception of the existence of a conflict is a very important consideration.

      Rolf E. Berg, Assistant State Appellate Defender, for plaintiff.

      Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Assistant Prosecuting Attorney, for defendant Saginaw Circuit Judge.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   V. J. Brennan, J.

The present case requires our review of the lower court’s order denying the State Appellate Defender’s motion to withdraw from its representation of Jessie Tate on appeal.

The facts giving rise to this controversy follow. Both Jessie Tate and his twin brother James were bound over to Saginaw County Circuit Court on charges of first-degree murder for the killing of Gregory Greer on June 30, 1977. Prior to trial, the lower court granted counsel’s request for separate counsel to represent each defendant.

On January 31, 1978, Jessie Tate pled guilty to the charge of second-degree murder. His brother proceeded to trial and was convicted by a jury on February 8, 1978. Both defendants below were sentenced to life imprisonment.

James Tate and Jessie Tate requested appointment of counsel for appellate review. On April 3, 1978, the trial court appointed the State Appellate Defender Office to represent James Tate. On April 7, 1978, the trial court appointed the State Appellate Defender Office to represent Jessie Tate.

On August 4, 1978, the State Appellate Defender Office moved to withdraw as appellate counsel in the case of Jessie Tate, alleging a conflict of interest. This motion was formally heard on October 3, 1978. Rather than withdrawing the appointment, the trial court directed the State Appellate Defender to continue representing each defendant with separate attorneys within the office representing each case. On or about November 3, 1978, a complaint for superintending control challenging this trial court order was filed in this Court. On December 1, 1978, this Court granted defendant Jessie Tate’s motion to show cause why superintending control should not be granted. In accordance with GCR 1963, 816.2(d), the parties filed briefs in this matter.

The defendant herein argues that the State Appellate Defender has not demonstrated any conflict of interest beyond "mere speculation”, and thus its order denying withdrawal is proper. In support defendant cites People v Jones, 64 Mich App 659; 236 NW2d 531 (1975), People v Osborn, 63 Mich App 719; 234 NW2d 767 (1975), People v Marshall, 53 Mich App 181; 218 NW2d 847 (1974).

The line of authority deals with conflict of interest insofar as it relates to ineffective assistance of counsel. We agree that any conflict warranting reversal of a defendant’s conviction must be actual not merely speculative. However from the standpoint of an attorney preparing an appeal prior to any actual prejudice to the defendant, the standard for conflict of interest relating to that attorney’s withdrawal is not as severe.

The attorney’s professional practice is governed by the Code of Professional Responsibility and the Disciplinary Rules. Canon 5 and DR 5-105 provide:

"A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client
"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
"(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”

These rules contemplate a great measure of self-government by the practitioner in the realm of providing independent judgment. The practitioner’s own judgment and mode of operation play a key role in any decision regarding the acceptance of employment.

In the present case the State Appellate Defender perceives the strong possibility of a conflict on appeal regarding the trial-by-jury conviction and the guilty-plea conviction. Our review leaves us in agreement therewith.

At the hearing below it was disclosed that the entire State Appellate Defender staff has input in each case. On appeal Jessie Tate may attack the voluntariness of his plea and attempt to recant his testimony exonerating his brother James. James’s appeal could very well emphasize the fact that his brother admitted the crime. Needless to say the possibility for conflict places the State Appellate Defender staff in a very delicate position which under the facts of this case is unnecessary. The staff which normally works in concert may develop a division which both impairs communication and preparation of the appeals.

The lower court’s denial of the motion to withdraw is vacated. New counsel is to be appointed for Jessie Tate on appeal.


author: Per Curiam.

text:
    McDILL v McDONALD COOPERATIVE DAIRY COMPANY JACKSON v McDONALD COOPERATIVE DAIRY COMPANY BONE v McDONALD COOPERATIVE DAIRY COMPANY
    Docket Nos. 77-2871, 77-2872, 77-2873.
    Submitted May 3, 1979, at Lansing.
    Decided August 7, 1979.
    Leave to appeal applied for.
    Plaintiffs, Duane H. McDill, Richard L. Jackson and Everett W. Bone, are haulers of milk from producers’ farms to dairies. Defendant, McDonald Cooperative Dairy Company, is a cooperative dairy owned by the producers who sell to it. Plaintiffs own their own trucks and are independent contractors vis-á-vis defendant, collecting and hauling milk over fixed routes on a regular schedule. Plaintiffs’ routes are regarded as assets by the haulers and were acquired by purchase by each hauler. Plaintiffs each sued defendant for damages alleging that the routes were contractually exclusive and that defendant breached the contract by accepting milk produced within the plaintiffs’ exclusive territories and hauled by outside haulers without insisting that the outside haulers negotiate settlements with plaintiffs. The cases were consolidated for trial. The jury found for the plaintiffs and awarded damages, but the Genesee Circuit Court, Philip C. Elliott, J., granted a judgment n.o.v. for defendant, holding that the contract upon which plaintiffs relied was an illegal restraint of transportation of goods in trade. The court further held that, in the event its holding was overturned on appeal, defendant would be entitled to retry the issue of damages because the verdicts were not supported by the evidence and were influenced by anticorporation prejudice. Plaintiffs appeal. Held:

    1. The contract should be judged for illegality by the rule of reason and is reasonable, not in violation of the Michigan antitrust statutes.
    2. While the amount of the verdicts was improper, the record contained a prima facie showing of loss in an identifiable amount. In such a situation the claimants should have the choice to accept the damages as determined by the jury, less remittiturs, or retry the issue.

      References for Points in Headnotes

       54 Monopolies, Restraints of Trade and Unfair Trade Practices §§ 196, 488.

       5 Am Jur 2d, Appeal And Error § 940. 22 Am Jur 2d, Damages § 366.

      Reversed and remanded.
    1. Monopolies — Statutes — Illegal Contract — Rule of Reason.
    A contract between milk haulers and a cooperative dairy, owned by the milk producers, whereby the cooperative granted each hauler an exclusive right to haul to its plant milk from producers in the geographical area defined by his route must be judged, for illegality under the antitrust act, by the rule of reason (MCL 445.701; MSA 28.31).
    2. Monopolies — Restraint of Trade.
    A contract between milk haulers and a cooperative dairy, owned by the milk producers, whereby the cooperative granted each hauler an exclusive right to haul to its plant milk from producers in the geographical area defined by his route does not violate the Michigan statutes relating to monopolies and restraint where the exclusivity of territories has not been manipulated to extract inflated fees from producers and is, in fact, the most economical means of organizing milk hauling.
    3. Appeal and Error — Excessive Damages — Remittitur — Court Rules.
    To the end that litigation may be expeditiously terminated and retrials avoided it is desirable, when the only ground for reversal of an action for damages is that an excessive amount was awarded by the jury, that the plaintiff be afforded an opportunity for affirmance upon remittitur of a specified amount (GCR 1963, 820.1[7]).

      Dean A. Polzin Law Offices (by Robert A. Kaminski), for plaintiffs.

      Cline, Cline & Griffin, for defendant.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

The plaintiffs in this action are haulers who transport raw milk from producers’ farms to dairies for processing and distribution. The defendant is a cooperative dairy. Each producer who sells milk to the defendant enters a "marketing agreement” and acquires one share of the defendant’s stock at a nominal price. The defendant corporation is operated by elected directors and officers and a professional staff.

The haulers own their trucks and are independent contractors vis-á-vis the defendant. They collect and haul milk over fixed routes on a regular schedule and regard their routes as valuable assets capable of barter and sale like franchises; each of the plaintiffs acquired his route, in whole or piecemeal, for a substantial price.

The haulers’ routes may be viewed in at least two ways. While each route consists minimally of a series of stops at producers’ farms, the routes seldom if ever overlap and may alternatively be regarded as covering distinct geographical areas. The routes are separated only from the routes of other haulers servicing the defendant’s plants; the haulers (and presumably the defendant) compete vigorously with other haulers (and with other dairies) for the business of producers within the haulers’ geographical ranges. The haulers’ charges are paid with funds deducted from the price paid the member producers by the defendant for their milk.

The marketing agreement and the defendant’s by-laws outline the procedures by which the member producers participate in the fixing of the rate at which the haulers are paid.

It was the plaintiffs’ claim that by conduct, oral expressions and reliance over a number of years there had come into existence a contract between the plaintiffs and the defendant by which the defendant granted each hauler an exclusive right to haul to its plants milk from producers in the geographical area defined by his route.

The defendant expanded its operations during the 1950’s and 1960’s by acquiring smaller dairies but the affected producers and haulers apparently were incorporated into the existing supply system without significant difficulty. Around 1973 the Miller Road Dairy, a local Flint operation, went out of business. Most of the milk that had been going to Miller Road was diverted to Detroit. However, one of the Miller Road haulers, Joe Glass, began hauling the milk collected from the producers on his Miller Road route to defendant’s plants. Glass’s producers were located in plaintiff McDill’s territory, their farms interspersed with those served by McDill. McDill asked the defendnat to enforce his exclusive hauling rights in that area, and the defendant refused.

At about the same time, a similar situation developed in plaintiff Bone’s territory. Independent Dairyman’s Cooperative of Imlay City marketed milk produced by its members to a number of different dairies. Eventually, the last of Independent’s usual customers, Twin Pines Dairy, stopped buying Independent’s milk. When defendant agreed to accept the milk formerly delivered to Twin Pines, Independent’s milk haulers kept their already existing routes; only the final destination was different. Six of these haulers operated routes lying within the area that Bone regarded as his territory. Bone’s insistence that these new haulers were violating his territorial rights prompted defendant’s president to announce at a milk haulers’ meeting that the haulers did not have exclusive territories. From the plaintiffs’ point of view, this announcement capped a breach of contract which had begun when the defendant had agreed to accept milk from these "outside” haulers without at least insisting that the interlopers negotiate some sort of settlement with the plaintiffs.

To the plaintiffs’ claim of breach of contract, the defendant raised as an affirmative defense the contention that the exclusive territory contract alleged by the plaintiffs constituted an illegal restraint of trade and was therefore unenforceable. The parties agreed to submit the illegality defense to the trial court rather than to the jury. The jury found for the plaintiffs and awarded damages to each.

The trial court granted the defendant’s motion for judgment n.o.v., holding that the contract upon which the plaintiffs had recovered was an "illegal [restraint] of transportation of goods in trade”. The court also held that, in the event its holding was overturned on appeal, the defendant was entitled to retry the issue of damages because the verdicts were not supported by the evidence and were influenced by anticorporation prejudice.

We address first the holding that the contract in question constituted an illegal restraint of trade.

The defense of illegality is based upon MCL 445.701; MSA 28.31, which declares in pertinent part:

"Sec. 1. That a trust is a combination of capital, skill or arts by two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them, for either, any or all of the following purposes:
"1. To create or carry out restrictions in trade or commerce;
* * *
"3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodity;
"5. * * * Every such trust as is defined herein is declared to be unlawful, against public policy and void * * * »

The defendant also enlists the assistance of MCL 445.762; MSA 28.62:

"All combinations of persons, co-partnerships, or corporations made and entered into for the purpose and with the intent of establishing and maintaining or of attempting to establish and maintain a monopoly of any trade, pursuit, avocation, profession or business, are hereby declared to be against public policy and illegal and void.”

Antitrust legislation began in the late 19th century as a response to the ingenuity and ruthlessness which some entrepreneurs exhibited in controlling markets and eliminating competition. Leading the way was the Sherman Antitrust Act, 15 USC 1 et seq., which prohibited certain combinations in restraint of trade. The Michigan statutes are patterned after that act.

The potentially devastating impact these new statutes could have made on legitimate business practices was avoided when the Supreme Court of the United States, in Standard Oil Co of New Jersey v United States, 221 US 1; 31 S Ct 502; 55 L Ed 619 (1911), adopted that which has come to be known as the "rule of reason”. One of the best known explanations of this rule can be found in Board of Trade of Chicago v United States, 246 US 231, 238; 38 S Ct 242; 62 L Ed 683 (1918):

"Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.”

This rule was adopted by the Michigan Supreme Court in People ex rel Attorney General v Detroit Asphalt Paving Co, 244 Mich 119; 221 NW 122 (1928).

Further, that Court in Staebler-Kempf Oil Co v Mac’s Auto Mart, Inc, 329 Mich 351, 356-357; 45 NW2d 316 (1951), said, "[i]t has long been held that a contract would not be construed as in restraint of trade unless the restraint was unreasonable”. See also Barrows v Grand Rapids Real Estate Board, 51 Mich App 75; 214 NW2d 532 (1974).

Some business practices create such a great probability of injury to free competition that the rule of reason need not be applied on a case by case basis. In United States v Topco Associates, Inc, 405 US 596, 608; 92 S Ct 1126; 31 L Ed 2d 515 (1972), the Court stated:

"One of the classic examples of a per se violation * * * is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a 'horizontal’ restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed 'vertical’ restraints. This Court has reiterated time and time again that '[h]orizontal territorial limitations * * * are naked restraints of trade with no purpose except stifling of competition.’ ”

It was held in United States v Arnold, Schwinn & Co, 388 US 365; 87 S Ct 1856; 18 L Ed 2d 1249 (1967), that vertically imposed territorial restraints were per se violations unless the manufacturer retained such title and dominion with respect to the product that the dealer was in effect only an agent or salesman of the manufacturer. However, this rule was abandoned in Continental TV, Inc v GTE Sylvania Inc, 433 US 36; 97 S Ct 2549; 53 L Ed 2d 568 (1977).

It thus appears that while "horizontal” territorial restrictions are per se illegal, "vertical” agreements to the same end are to be subjected to the review of the rule of reason. We apply that rule to the contract at issue in this appeal.

Under the antitrust laws, market conduct is measured by its effect upon competition. The rule of reason compares the condition of the market before and after the claimed restraint and attempts to measure its probable effect upon the functioning of the otherwise free market.

The market in which the plaintiffs and defendant participate remains a competitive one; one of the defendant’s witnesses stated,

"In this type of business, you have got to understand that you have got competition and you want to keep the farmers in the business. A lot of farmers are dropping by the wayside.”

The evidence shows substantial interbrand (processor) competition. This implies competition between haulers as well.

The haulers receive for their services only a few cents more per hundredweight than they did in 1957, when bulk hauling was introduced. Thus, the exclusivity of territories involved in the case at bar has not been manipulated to extract inflated fees from producers.

The fact that the defendant is a cooperative is itself a guard against market abuse. The majority of the defendant’s board of directors is comprised of member producers; it is unlikely that such a "consumer” controlled entity would subject the "consumer” producers to ill treatment through the device of exclusive territories.

The president of the defendant testified that the exclusive territory arrangement was the most economical means of organizing milk hauling. We also note that a stable supply system is extremely important in the economical operation of the dairy. Any device which promotes that goal and is at the same time the most economical means available to transport the milk from the producer to the dairy seems eminently reasonable.

Our review of the market effects of the arrangement between the plaintiffs and the defendant convinces us that it was a reasonable agreement, not destructive of competition but effectively controlled by it. As this Court has noted, our statutes are aimed at agreements of such characteristics and scale as to pose legitimate and serious threats of monopoly. Bobenal Investment, Inc v Giant Supermarkets, Inc, 79 Mich App 31, 47; 260 NW2d 915 (1977).

We next address the determination of the trial court that the amounts of the verdicts were not supported by the evidence adduced at trial.

The jury was instructed that if it found that the defendant had breached the territorial agreement, the plaintiffs could recover both lost profits and the reduction in the value of their routes. The record must be examined to determine whether the evidence can support the amount awarded each plaintiff without resort to undue speculation. The verdicts must stand if the evidence is adequate.

Plaintiff McDill presented no evidence concerning lost profits; his verdict of $48,000 must be supported solely with evidence of injury to the present value of his route. $48,000 is the price he paid for his route and his testimony was that, in the absence of the exclusive territory agreement, the value of the route had decreased by $38,000. Thus, the verdict is $10,000 greater than the figure supported by the evidence most favorable to McDill.

Plaintiff Jackson stated that he feared that the defendant’s repudiation of the territorial arrangement would induce other haulers to invade his territory. At the time of trial, however, this danger had not materialized; a judgment on such vague apprehension would be unduly speculative. Like the verdict for plaintiff McDill, the verdict for plaintiff Jackson must be found to be supported by the evidence showing a reduction in the value of Jackson’s route.

Plaintiff Jackson bargained for and purchased part of his route in 1974, after the defendant rejected the territorial arrangement. Thus only the loss of value of the first portion of the route, purchased in 1969, may be calculated in support of the verdict for this plaintiff. The jury awarded Jackson $29,000, an amount apparently intended to equal the $29,038.20 he paid for the 1969 route. The evidence does not show a total loss of value; rather, Jackson’s testimony as to the size of the two parts of his routes and their present combined value supports a maximum loss of only $15,038.20, 13,961.80 less than the jury’s award.

The evidence supporting the $76,000 award to plaintiff Bone is the most troublesome. As did the evidence presented on behalf of the other plaintiffs, the evidence adduced to illustrate lost profits fails to reach that level of certainty upon which an acceptable verdict may be based. The jury’s verdict was apparently intended to equal the $76,500 Bone paid for his four routes. However, despite the many factors which could influence the present value of the route, the evidence most favorable to Bone shows not a total loss of value but a reduction of value to $10,000. Thus, the verdict exceeds the evidentiary support by $9,500.

The trial court correctly found fault with the amounts of the jury’s verdicts. However, the record was not so devoid of support for damage awards as the court believed. Each plaintiff made a prima facie showing of loss of the value of his route as a result of the defendant’s abandonment of the system of exclusive territories, but the verdicts exceeded the amounts shown by the evidence. The case thus presents a situation appropriate for remittitur. GCR 1963, 820.1(7); Hartough v Safeway Lines, Inc (On Rehearing), 288 Mich 703; 288 NW 307 (1939).

Accordingly, the plaintiffs shall have the choice of participating in a new trial limited to the amount of their damages or remitting the following amounts: McDill, $10,000; Jackson, $13,961.80; Bone, $9,500.

Reversed and remanded for proceedings not inconsistent with this opinion.

       At trial and on appeal the parties have referred to the contractual undertakings involved in the action in both the singular and the plural. Rather than bringing that ambiguity into this opinion, we elect to employ the singular.

       The defendant, while tacitly insisting in its brief that there was no contract between the plaintiffs and itself, has not preserved for appeal any claim to this effect. Indeed, the defendant admits that the existence of the contract alleged by the plaintiffs was a properly framed question of fact for the jury. See Groth v DeGrandchamp, 71 Mich App 439; 248 NW2d 576 (1976).

       The research of the parties and this Court has disclosed no case in which there has been alleged a vertically imposed restraint in the supply of raw materials to a manufacturer; in this case the usual "vertical” distribution agreement stands on its head. However, there is no indication that the economics of this situation are not susceptible to analysis under the rule of reason.

       The defendant urges in its brief that the only agreement presented by this case is a "horizontal” one among the plaintiffs and other haulers and is therefore per se illegal. If this were true, the defendant would not be a party to this action and the jury would not have found for the plaintiffs on their asserted contract with the defendant. The contract the defendant claims to be illegal is the "vertical” one between itself and the plaintiffs.

       A concededly horizontal agreement to divide territories among milk haulers was upheld under a statute similar to the Michigan act. In Okerberg v Crable, 185 Kan 211; 341 P2d 966 (1959), the Kansas Supreme Court emphasized the fairness of the agreement to producers and the existence of competition with haulers for other processors. Both of these situations obtain in the case at bar.

       Plaintiff Jackson’s 1969 purchase allotted $29,038.20 to the route and the rest of the price to equipment. At the time of trial, Jackson stated, his two routes had a value equal to approximately $24,000 or $26,000 less than their combined purchase price of $50,000. The 1969 route produced 35,000 pounds of haulage per day; the daily volume of the 1974 route was 25,000 pounds. Thus 35,000 60,000 or 7/12, of the volume and, logically, the value of the multiple route was attributable to that portion purchased in 1969. Seven twelfths of the minimum retained value supported by the testimony ($24,000) is $14,000. This amount subtracted from the price of $29,038.20 yields the largest loss allowable under the evidence.

       Plaintiff Bone purchased four routes between 1951 and 1970, for which he paid a total of $76,500, exclusive of equipment. His daily haulage of 70,000 pounds had fallen to 30,000 pounds at the time of trial; however, a significant factor in this drop was new Federal regulatory activity which encouraged producers to ship via other haulers to Detroit. The addition of the Twin Pines supplies to the defendant’s operation brought some "interlopers” into Bone’s territory. He was negotiating with them, apparently with success, to restore his daily volume of 70,000 pounds when the defendant’s rejection of the exclusive territory principle caused the others to break off. His testimony that his route was presently worth $10,000 may reasonably be interpreted to refer to the route at its prior volume, the volume which he apparently would have reattained through negotiation with the former Twin Pines haulers. Thus, the residual value of $10,000 must be subtracted from the prior value in assessing Bone’s injury.


text:
    PEOPLE v BROOKS
    Docket No. 78-2865.
    Submitted June 5, 1979, at Detroit.
    Decided August 7, 1979.
    Howard Brooks was convicted of carrying a concealed weapon and placed on probation. The Recorder’s Court of Detroit, Clarence J. Laster, J., subsequently revoked the defendant’s probation, on the defendant’s failure to report to his probation officer. The defendant appeals, alleging that he had not been advised of his due process right to a contested hearing on the probation revocation charge. Held:

    While the rights of a defendant at a probation revocation hearing are limited, they do include the right to a contested hearing. The record in this case is totally silent as to whether the defendant was aware of his right to a contested hearing. Since the Court of Appeals cannot say that the defendant made a knowing and voluntary waiver of the right, the order revoking probation is reversed and the matter is remanded for a revocation hearing.
    Reversed and remanded.
    1. Criminal Law — Probation — Hearing — Revocation.
    The rights of a defendant at a probation revocation hearing are limited; however, they do include the right to a contested hearing.
    2. Criminal Law — Probation — Revocation — Hearings — Right ■ to Hearing — Waiver.
    A probationer charged with violation of his probation must be informed of his right to a contested hearing on the charge before he can knowingly and voluntarily waive this right by pleading guilty; this does not mean that the defendant must be directly informed by the court of his right to a contested hearing; it is sufficient that the defendant is in some manner made aware of the right.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.

       21 Am Jur 2d, Criminal Law §§ 487-489, 495.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

      3. Criminal Law — Violation of Probation — Right to Hearing — Waiver.
    It cannot be assumed from a silent record that a defendant knew that he or she had a right to a probation revocation hearing and intelligently and voluntarily waived that right; therefore, when the trial court has not personally informed a defendant of this right to a hearing and there is no indication anywhere in the record that the defendant had read any other notice of the right or had otherwise been made aware of the right, the probation revocation should be reversed and the case remanded for a revocation hearing.
    4. Criminal Law — Probation — Revocation — Hearing — Waiver.
    The fact that a probationer charged with violation of probation admits violating his probation does not relieve the court of the duty to ensure that the waiver of his right to a contested hearing is knowing and voluntary.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Jerome Steven O’Connor, Assistant Prosecuting Attorney, for the people.

      Angela R. Sims, for defendant on appeal.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

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

   Per Curiam.

Defendant appeals as of right an order revoking his probation and sentencing him to a prison term of from two to five years.

Defendant argues that reversal is required because he was not advised of his due process right to a contested hearing before he pled guilty. While the rights of a defendant at a revocation hearing are limited, they do include the right to a contested hearing. Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). This Court has held that before a defendant may knowingly and voluntarily waive this right by pleading guilty, he must be informed of the right. People v Radney, 81 Mich App 303; 265 NW2d 128 (1978), People v Hardin, 70 Mich App 204; 245 NW2d 566 (1976). This does not mean that the defendant must be directly informed by the court of his right to a contested hearing; it is sufficient that the defendant is in some manner made aware of the right. See People v Rial, 399 Mich 431, 440-441; 249 NW2d 114 (1976) (Levin, J., concurring), People v Hooks, 89 Mich App 124; 279 NW2d 598 (1979), People v Darrell, 72 Mich App 710; 250 NW2d 751 (1976). The record must disclose, however, that defendant was indeed aware of the right. The fact that the notice of probation violation or the bench warrant charging the defendant refers to the fact that a hearing will be held, or that the defendant may present witnesses, or have an attorney present is not sufficient unless the record also discloses that the defendant has received and read the notice and was aware of the right to a contested hearing and understood what the right entailed. People v Hooks, supra, 133 (Bronson, J., dissenting)

In the present case, th record includes a written "Notice of Probation Violation”. The notice is addressed to the court from the probation officer, and informs the court that the defendant is believed to have violated his probation. Near the bottom of the form, the following language appears:

"Wherefore this court is requested to issue a warrant for probationer’s apprehension and detention pending a hearing and to set a date for a hearing on said alleged violation.
"Defendant to be notified by a service of a copy of the petition and of this order, to present witnesses if he desires.”

The back of the form contains a section to be filled in by the person who served the notice on the defendant, and a section where defendant can acknowledge service. Neither of these sections is completed. The back of the form also contains the following language, apparently addressed to the defendant:

"The Probation Officer has informed me I am entitled to an attorney at the violation hearing. He also informed me that if I cannot afford my own attorney the Court will appoint one for me, and that I am not required to make a statement without counsel being present.”

This passage is followed by a blank, apparently to be filled with defendant’s signature. The blank is not signed. The transcript of the revocation hearing makes no reference to the notice, nor does it in any other fashion reflect that defendant knew of his right to a contested hearing. Instead, it reveals that immediately after the charge was stated by an officer of the probation department, the court requested a plea and the defendant’s attorney offered a plea of "guilty with extenuating circumstances”.

The record in this case is totally silent as to whether defendant was aware of his right to a contested hearing. There is no indication that he ever received the notice, much less that he had read and understood it. The transcript does not reflect that he had knowledge of this right from any other source. Since we cannot say that defendant made a knowing and voluntary waiver of the right, we reverse the order revoking probation and remand for a revocation hearing. The fact that defendant admitted violating his probation does not relieve the court of the duty to ensure that the waiver is knowing and voluntary. People v Hardin, supra, People v Michael Brown, 72 Mich App 7; 248 NW2d 695 (1976).

The problem of ascertaining whether defendants have knowingly and voluntarily waived the minimal rights that due process affords them in probation revocation hearings has confronted this Court on several occasions. We have avoided requiring the sort of "check list” format that is involved when guilty pleas are taken in normal criminal proceedings, and we do not deviate from that position today. See People v Rial, 399 Mich 431; 249 NW2d 114 (1976), People v Hooks, supra, 130, People v Darrell, supra, 715 (Bronson, J., dissenting), People v Michael Brown, supra, 14-15, People v Hardin, supra, 208. Prosecutors, probation officers, and courts would be well-advised, however, to insure that the record in some manner adequately reflects that the defendant knew of his or her due process rights, and made a knowing and voluntary waiver before pleading guilty.

Defendant’s other assignment of error is not properly before the Court at this time. At defendant’s revocation hearing, he may present his confrontation claim if necessary.

Reversed and remanded for proceedings not inconsistent with this opinion.

       This Court has at times found that statements in the notice of probation violation or in the bench warrant referring to a "pending violation hearing” may provide sufficient notice to the defendant of his or her right to a contested hearing, even without support in the record that the papers were received, read, or understood by the defendant. People v Hooks, supra, People v Darrell, supra. Other cases have rejected this rationale. People v Gaudett, 77 Mich App 496, 500-501; 258 NW2d 535 (1977). In appropriate circumstances, we may infer that the defendant read and understood the rights outlined in these writings sufficiently to knowingly and voluntarily waive them. Where the record does not even disclose that the writings were received, however, we cannot infer that the writings supplied the notice that Hardin, supra, requires.


text:
    ATTORNEY GENERAL v CLINTON COUNTY DRAIN COMMISSIONER
    Docket No. 78-3116.
    Submitted May 8, 1979, at Lansing.
    Decided August 7, 1979.
    Leave to appeal applied for.
    The Attorney General and the Department of Natural Resources brought an action against the Clinton County Drain Commissioner seeking an injunction in connection with a drain project. The plaintiffs alleged that the project violated certain provisions of the Environmental Protection Act. The Clinton Circuit Court, James L. Banks, J., dismissed the complaint for lack of jurisdiction. Plaintiffs appeal. Held:

    The plaintiffs may properly bring an action in circuit court under the Environmental Protection Act. It is not necessary that they first exhaust their remedies under the Drain Code or the Soil Erosion and Sedimentation Control Act.
    Reversed and remanded.
    Drains — Health and Environment —• Environmental Protection Act — Statutes — Exhaustion of Remedies.
    An action against a drain commissioner seeking injunctive relief for alleged violations of the Michigan Environmental Protection Act may be brought in circuit court without first exhausting the remedies which are provided in the Drain Code and the Soil Erosion and Sedimentation Control Act (MCL 691.1202[1], 691.1204[1]; MSA 14.528[202][1], 14.528[294][1]).
    Reference for Points in Headnote
    61 Am Jur 2d, Pollution Control § 155.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank J. Pipp and Terrence P. Grady, Assistants Attorney General, for plaintiffs.

      Drillock, Atkins, Schrope & Marcus, for defendant.

      Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

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

   Per Curiam.

Plaintiffs appeal by right from the Clinton County Circuit Court’s order of July 20, 1978, dismissing, on jurisdictional grounds, plaintiffs’ complaint for injunctive relief. Plaintiffs’ complaint alleges that a drain project undertaken by defendant in Stoney Creek in Clinton County violates certain provisions of the Environmental Protection Act of 1970, MCL 691.1201 et seq.; MSA 14.528(201) et seq. (hereinafter referred to as the EPA).

The defendant contends that plaintiffs must exhaust the remedies provided in the special drain enactments before the court can take jurisdiction under the EPA. This legislation consists of the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq., and the Soil Erosion and Sedimentation Control Act of 1972, MCL 282.101 et seq.; MSA 13.1820(1) et seq.

Section 2 of the EPA allows plaintiffs in the instant case to bring an action in the circuit court "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction”. MCL 691.1202(1); MSA 14.528(202)(1). Section 4, paragraph 1 of the act specifically provides that the circuit court "may grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment or destruction”. MCL 691.1204(1); MSA 14.528(204X1).

In Ray v Mason County Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975), our Supreme Court considered the kind of findings of fact required from a trial judge in deciding an action brought under the EPA. That suit involved a drainage project that had been approved under the Michigan Drain Code, supra. In its opinion, the Court considered the purpose of the EPA. The Court stated:

"But the EPA does more than give standing to the public and grant equitable powers to the circuit courts, it also imposes a duty on individuals and organizations both in the public and private sectors to prevent or minimize degradation of the environment which is caused or is likely to be caused by their activities.” Ray, supra, at 306.

We conclude that plaintiffs are authorized to proceed in the circuit court under the express provisions of the EPA and, accordingly, we reverse and remand.

       It was disclosed in oral argument that while this drainage project has been completed, nevertheless, other similar ones are in planning stages. It can be argued that the work having been completed, the question is now moot. However, we consider this issue of sufficient importance that the question will be addressed. Lafayette Dramatic Productions, Inc v Ferentz, 305 Mich 193, 218; 9 NW2d 57 (1943), Wayne County Republican Committee v Wayne County Board of Comm’rs, 70 Mich App 620, 624; 247 NW2d 571 (1976).


text:
    PEOPLE v DUBOSE
    Docket No. 27190.
    Submitted February 3, 1977, at Lansing.
    Decided February 25, 1977.
    David Dubose was convicted of delivery of heroin, Washtenaw Circuit Court, William F. Ager, J. Defendant appeals, alleging that 1) he was entrapped, 2) the trial court should have suppressed a tape recording of the transaction in question, 3) proper foundations were not laid for admitting the tape recording and the heroin into evidence, and 4) it was error for a court officer, at the view of the crime site, to make an assertion of fact to the jury regarding the location of the vehicles when the delivery allegedly took place. Held:

    1. The defendant was not entrapped into committing the offense. A mere offer of an opportunity to commit a crime is insufficient to establish entrapment.
    2. The trial court did not err in refusing to suppress a tape recording of the transaction which took place with a police informant who was carrying a tape recorder.
    3. Proper foundations were laid for the admission of the tape recording and the heroin into evidence.
    4. It was error for a court officer, at the view of the crime site, to make an assertion of fact to the jury regarding the location of vehicles. However, this error was harmless.
    Affirmed.
    Criminal Law — Entrapment.
    A mere offer of an opportunity to commit a crime is insufficient to establish entrapment.
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 143, 144.

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

      Raymond G. Mullins, for defendant on appeal.
    Before: D. C. Riley, P.J., and T. M. Burns and Beasley, JJ.
   Per Curiam.

Defendant was jury convicted of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). He was sentenced to three to ten years in prison and appeals as of right.

A police informant purchased heroin from the defendant. The purchase was made with police money and the informant was fitted by the police with a tape recorder and monitoring device during the transaction.

Defendant argues that several errors were made by the trial court.

We find no error in the. trial court’s conclusion that defendant was not entrapped into committing the offense. GCR 1963, 517.1. A mere offer of an opportunity to commit a crime is insufficient to establish entrapment. People v Lassen, 65 Mich App 720; 238 NW2d 384 (1975).

The trial court did not err in refusing to suppress the tape recording of the transaction. The argument extending the warrant requirement to the facts of this case stretches credulity. Otherwise, sufficient exigent circumstances existed to justify the warrantless "search and seizure”. See People v Pulley, 66 Mich App 321, 328-329; 239 NW2d 366 (1976).

We find no error or abuse of discretion on the part of the trial court in admitting the tape and the heroin into evidence. Proper foundations were laid and questions of the probative quality of the evidence were properly left to the jury. See People v Kremko, 52 Mich App 565, 573; 218 NW2d 112 (1974).

It was error for the court officer to make an assertion of fact to a juror regarding the location of vehicles at the view of the crime site. Defendant does not explain and we cannot envision how the error was prejudicial. If there was prejudice, it was cured by the trial court’s instructions.

Affirmed.