author: Mackenzie, P.J.

text:
    BOYER v VANDENBRINK
    Docket No. 78-2245.
    Submitted May 1, 1979, at Grand Rapids.
    Decided April 21, 1980.
    Leave to appeal applied for.
    Paul L. Vandenbrink, M.D., performed a bilateral partial vasectomy on John E. Boyer on March 17, 1972. Vandenbrink told Boyer he and his wife, Sharon Boyer, could proceed with normal sexual relations without fear of pregnancy. John and Sharon became aware that she was pregnant on August 3, 1975. They brought a medical malpractice action against Dr. Vandenbrink on February 13, 1976. Defendant’s answer denied the allegations in plaintiffs’ complaint and he subsequently moved to amend his answer to raise the affirmative defense of the statute of limitations and asked for accelerated judgment based upon this defense. Kalamazoo Circuit Court, Patrick H. McCauley, J., granted defendant’s motion for leave to amend and for accelerated judgment. Plaintiffs appeal. Held:

    1. The question raised is whether the cause of action is considered to have arisen at the time the malpractice was discovered or at the time the act alleged to constitute malpractice occurred. The date of the alleged malpractice was March 17, 1972, when the vasectomy was performed. The date the plaintiff discovered the alleged malpractice was early August, 1975, when they learned that Sharon was pregnant and that John was not sterile. The two-year discovery rule was in effect at this time and when plaintiffs commenced their action six and one-half months after discovery of the pregnancy their claim was not barred by the statute of limitations because plaintiffs had two years after discovery in which to file suit.
    2. Plaintiffs’ action is not barred; therefore, there is no need to reach plaintiffs’ contention that the trial court erroneously permitted the defendant to amend his answer.
    Reversed and remanded.
    References for Points in Headnote
    [1] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 181 et seq.

    When statute of limitations begins to run against malpractice action in connection with sterilization or birth control procedures. 93 ALR3d 218.

      Physicians and Surgeons — Malpractice — Limitation op Actions.
    The statute of limitations applicable to a malpractice action, including the rules governing the time from which the statute runs, is that statute in effect on the date the alleged act of malpractice occurred.

      Randolph McCarthy, Jr., P.C., for plaintiff.

      Bennett, Palmer, Lewis, LaParl, Hollander & Stevens, P.C. (by Richard A. Milligan), for defendant.
    Before: Mackenzie, P.J., and D. E. Holbrook, Jr., and Cynar, JJ.
   Mackenzie, P.J.

On May 17, 1978, the Kalamazoo County Circuit Court entered an order granting defendant leave, to amend his answer to raise the statute of limitations as an affirmative defense in this medical malpractice action. The trial court then granted accelerated judgment in favor of defendant on the ground that plaintiffs’ claim was barred by the two-year statute of limitations applicable to such actions. Plaintiffs appeal.

Plaintiffs, a married couple with five children, consulted defendant about possible vasectomy surgery in February, 1972. Defendant performed a bilateral partial vasectomy upon plaintiff John E. Boyer on March 17, 1972. Plaintiff submitted semen samples on April 3, 1972, and April 28, 1972; testing results showed no sperm present. According to plaintiff, he was then told that he and his wife could proceed with normal sexual relations without fear of pregnancy; he was not advised to submit further samples. Defendant claims that plaintiff was requested to provide another semen sample in three months, but failed to do so.

On August 3, 1975, plaintiffs became aware that Mrs. Boyer was pregnant. Plaintiffs’ complaint identifies August 3, 1975, as the date the plaintiffs discovered defendant’s malpractice. Plaintiff John E. Boyer immediately contacted defendant’s office. A test performed August 5, 1975, showed sperm present in plaintiff’s semen.

Plaintiffs filed a complaint for medical malpractice against defendant on February 13, 1976. Defendant answered on March 3, 1976, denying the complaint’s allegations. On March 28, 1977, defendant moved to amend his answer to raise the affirmative defense of the statute of limitations and asked accelerated judgment based upon this defense. The circuit judge, Patrick H. McCauley, issued an opinion on May 3, 1978, granting defendant’s motions for leave to amend and for accelerated judgment.

The period of limitations for claims alleging malpractice is two years. MCL 600.5805; MSA 27A.5805. The accrual of a malpractice claim against a state-licensed professional is dealt with in MCL 600.5838; MSA 27A.5838. Prior to July, 1975, the statute stated:

"A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.”

In Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973), the Michigan Supreme Court interpreted § 5838 to mean that an action based on malpractice by a state-licensed professional must be brought within two years of last treatment or within two years of the time the asserted malpractice is discovered, or in the exercise of reasonable diligence, should have been discovered.

Effective July 9, 1975, § 5838 was amended to allow a plaintiff only six months to bring a malpractice action after the plaintiff discovers or should have discovered the existence of the claim. This Court has held that this truncation of the period of limitations was intended to be applied prospectively, Le., only to causes of action which accrue after its effective date. Farris v Beecher, 85 Mich App 208; 270 NW2d 658 (1978). Also, in Weiss v Bigman, 84 Mich App 487; 270 NW2d 5 (1978), this Court held that the statute of limitations in effect at the time the cause of action arose governs. The question exists whether the cause of action is considered to have arisen at the time the malpractice is discovered, which is the time the running of the statutory period commences, or at the time the act alleged to constitute malpractice occurred. It was the trial court’s opinion that the cause of action arose, for purposes of determining which law is applicable, when the malpractice was discovered. We disagree.

In Quinlan v Gudes, 2 Mich App 506; 140 NW2d 782 (1966), cited by the Weiss Court, the plaintiffs alleged malpractice in the giving of x-ray treatments by the defendant in the early 1950’s. In January, 1963, the plaintiff underwent a cancer operation and was informed at that time the cause of the cancer was the x-ray treatments. As of January 1, 1963, the Revised Judicature Act became effective which adopted the "last treatment” rule, declaring that malpractice actions accrue as soon as the plaintiff discontinues treatments or service from the accused professional. Under this provision, the plaintiff’s claim would have been barred by the statute of limitations, as the last treatment by the defendant occurred in 1954. The Court, however, ruled that § 5838 was inapplicable to the Quinlan case because the cause of action arose years earlier when the x-ray treatments were given. The Court thus applied the discovery rule, the applicable rule at the time of the treatments, and held that since the plaintiffs instituted their action within two years of discovery, their suit was not barred by the statute of limitations.

The Quinlan decision was cited by the Michigan Supreme Court in Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969). The Court concluded that since the plaintiff’s claim arose out of an act done prior to January 1, 1963, the effective date of § 5838, this provision was inapplicable. The discovery rule, applicable prior to January 1, 1963, was instead considered controlling. Since the plaintiff instituted her action within two years of the discovery date of June 17, 1965, her action was not barred.

In the instant case, the date of the alleged malpractice was March 17, 1972, when the vasectomy was performed. The two-year discovery rule was in effect at this time. The date the plaintiffs discovered the alleged malpractice was early August, 1975, when they learned that Mrs. Boyer was pregnant and that Mr. Boyer was not sterile. Suit was commenced six and one-half months after discovery. Since the plaintiffs had two years after discovery in which to file suit, their claim is not barred.

Because we have concluded that their action was not barred by the statute of limitations, we need not reach the plaintiffs’ contention that the lower court erroneously permitted the defendant to amend his answer.

Reversed and remanded. Costs to plaintiffs-appellants.

       The Court based its ruling upon § 9905 of the Revised Judicature Act, which provides:
      "Except as specifically stated or reasonably inferred from the provisions of this act, this act shall not impair or affect any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as if the act had not been passed.” (Emphasis supplied.)

       The discovery rule was set forth in Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963), as the rule governing malpractice cases prior to the enactment of § 5838.


source: Caselaw Access Project

author: D. F. Walsh, J.

license: Public Domain

text:
    KUKOWSKI v PISKIN
    Docket No. 44045.
    Submitted June 12, 1980, at Grand Rapids.
    Decided July 23, 1980.
    Leave to appeal applied for.
    Jacqualine Kukowski, upon admission to St. Mary’s Hospital, signed an arbitration agreement. During her hospital stay, Mrs. Kukowski was prescribed certain medical treatment by M. S. Piskin, M.D., hereinafter defendant. After her release from St. Mary’s Hospital, Mrs. Kukowski continued under the defendant’s care as an out-patient of the Kent County Hospital and executed a second arbitration agreement. Both arbitration agreements were hospital-patient agreements. The defendant entered into separate agreements with both hospitals under which he agreed to arbitrate all claims with patients who elected arbitration.
    Subsequently, Mrs. Kukowski, and Clement Kukowski, her husband, filed a malpractice suit against the defendant. The Kent Circuit Court, George R. Cook, J., denied a motion by the defendant to dismiss or to compel arbitration. The defendant appeals from the denial of the motion. Held:

    There is a strong public policy in Michigan favoring arbitration and arbitration clauses are to be liberally construed, with all doubts about the arbitrability of an issue resolved in favor of arbitration. A fundamental rule of construction when interpreting an agreement is that the language of an agreement, where not ambiguous, must be given its plain meaning. Arbitration agreements are not rendered invalid because they do not contain verbatim recitation of the statutory provision concerning hospital treatment.
    Reversed and remanded.
    1. Arbitration — Construction — Public Policy.
    There is a strong public policy in Michigan favoring arbitration and arbitration clauses are to be liberally construed, with all doubts about the arbitrability of an issue resolved in favor of arbitration.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Arbitration and Award § 7.
    [2] 17 Am Jur 2d, Contracts § 241.
    [3] 5 Am Jur 2d, Arbitration and Award § 14.
    Arbitration of medical malpractice claims. 84 ALR3d 375.

      2. Contracts — Interpretation — Ambiguity.
    A fundamental rule of construction when interpreting an agreement is that the language of an agreement, where not ambiguous, must be given its plain meaning.
    3. Arbitration — Medical Malpractice — Validity — Language — Statutes.
    Arbitration agreements under the Medical Malpractice Arbitration Act are not rendered invalid because they do not contain verbatim recitation of the statutory provision concerning hospital treatments (MCL 600.5042[5]; MSA 27A.5042[5]).

      Sommers, Schwartz, Silver & Schwartz, P.C. (by Stanley S. Schwartz and Richard D. Toth), for plaintiffs.

      Cholette, Perkins & Buchanan (by John C. Buchanan and Robert J. Riley), for defendant.
    Before: Allen, P.J., and D. F. Walsh and G. R. McDonald, JJ.

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

   D. F. Walsh, J.

This is a malpractice action. Defendant appeals the circuit court denial of a motion to dismiss or to compel arbitration.

Upon admission to St. Mary’s Hospital on September 20, 1976, plaintiff Jacqualine Kukowski (hereinafter plaintiff) executed an arbitration agreement. During her hospital stay, Dr. Piskin, an independent staff consultant, prescribed certain medical treatment for plaintiff. After her release from the hospital one week later, she continued under defendant’s care as an out-patient of the Kent County Hospital and executed a second arbitration agreement. Both arbitration agreements signed by plaintiff were hospital-patient agreements. Dr. Piskin entered into separate agreements with both hospitals under which he agreed to arbitrate all claims with patients who elected arbitration.

In September, 1978, plaintiff filed a malpractice suit against Dr. Piskin, who moved to dismiss or to compel arbitration. The trial court’s denial of this motion is the subject of this appeal.

There is a strong public policy in this state favoring arbitration. Arbitration clauses are to be liberally construed, with all doubts about the arbitrability of an issue resolved in favor of arbitration. Detroit Automobile Inter-Ins Exchange v Reck, 90 Mich App 286, 289-290; 282 NW2d 292 (1979). The instant controversy involves the medical Malpractice Arbitration Act, MCL 600.5040 et seq.; MSA 27A.5040 et seq.

The arbitration agreements signed by plaintiff read, in part, as follows:

"I understand that this hospital and I by signing this document agree to arbitrate any claims or disputes (except for disputes over charges for services rendered) which may arise in the future out of or in connection with the health care rendered to me during this hospital stay and/or emergency room visit by this hospital, its employees and those of its independent staff doctors and consultants who have agreed to arbitrate.
"I understand that this agreement to arbitrate is binding on me and all my agents, representatives and heirs and assigns as well as on this hospital, its employees and those of its independent staff doctors, and consultants who have agreed to arbitrate.”

Plaintiff argues that since the arbitration agreements were entered into between only the hospitals and herself, they were not applicable to claims instituted against an independent staff doctor. We disagree.

When interpreting an agreement, a fundamental rule of construction is that the language of an agreement, where not ambiguous, must be given its plain meaning. New Amsterdam Casualty Co v Sokolowski, 374 Mich 340; 132 NW2d 66 (1965). We find the agreements in question to be unambiguous.

Plaintiff agreed to arbitrate any dispute which arose out of or in connection with the health care rendered by the hospital, its employees and the independent staff doctors who had agreed to arbitrate. By signing these documents, plaintiff clearly agreed to arbitrate claims involving parties other than the hospitals alone. Dr. Piskin was an independent staff doctor who had executed an agreement to arbitrate. The dispute, which is the subject of this litigation, arose out of the health care prescribed by defendant. The plain meaning of the arbitration agreement is that both plaintiff and defendant agreed to arbitrate claims arising out of or in connection with the health care rendered to plaintiff during the course of her treatment at the hospitals by defendant in his capacity as an independent staff doctor. We conclude, therefore, that the trial court erred in denying defendant’s motion to compel arbitration.

The fact that plaintiff was unaware of defendant’s agreement to arbitrate is not fatal here because plaintiff agreed to arbitrate any disputes arising from the health care rendered by any doctor who had executed an agreement to arbitrate.

Plaintiff also attacks the validity of the arbitration agreements on the ground that they were not drafted in conformity with the statute. Specifically, plaintiff argues that the agreements did not apprise her of the fact that they encompassed all surgical and medical procedures performed by a health care provider in the hospital, as stated in MCL 600.5042(5); MSA 27A.5042(5).

We are not persuaded that the agreements were rendered invalid simply because they did not contain a verbatim recitation of the specific statutory provision. The statute does not require a word-for-word recitation of this provision in an arbitration agreement. Since the substance of MCL 600.5042(5); MSA 27A.5042(5), was contained in the two previously quoted provisions in the arbitration agreements signed by the plaintiff, they sufficiently complied with the statute.

Plaintiff’s argument that the defendant’s alleged acts of malpractice (prescription of a drug) do not fit within the provisions of the arbitration agreement is without merit. The prescription of drugs certainly falls within the category of "health care rendered” to the plaintiff.

Finally, defendant contends that because plaintiff also filed a demand for arbitration, that is the only relief available. We are unaware of any authority which would support that proposition and none is cited by the defendant.

Reversed and remanded for proceedings consistent with this opinion. Costs to appellant.


author: Cynar, J.

text:
    THE INDEMNITY MARINE ASSURANCE COMPANY, LTD v LIPIN ROBINSON WAREHOUSE CORPORATION
    Docket No. 44268.
    Submitted March 4, 1980, at Detroit.
    Decided July 23, 1980.
    The Indemnity Marine Assurance Company, Ltd., as subrogee of Combi-Camp of America, Inc., and Combi-Camp of America, Inc., brought suit against defendant Lipin Robinson Warehouse Corp., for damages for its improper storage and handling of plaintiff Combi-Camp’s goods. Wayne Circuit Court, Roland L. Olzark, J., awarded damages of $4,761.85. Plaintiffs appeal the court’s determination of damages. Held:

    1. The trial court did not err in refusing to award damages for lost profits, since plaintiffs failed to establish with reasonable certainty their entitlement to such an award.
    2. The trial court’s finding that insufficient evidence was adduced to hold defendants liable for damages concerning units sold to certain individuals was not clearly erroneous, and, thus, shall not be set aside.
    3. The trial court’s findings that insufficient evidence was adduced to hold defendants responsible for costs of repair of certain units was clearly erroneous, and plaintiffs are entitled to additional damages of $1,851.30.
    Judgment modified.
    1. Bailments — Delivery of Goods — Disposal of Goods — Title.
    Goods delivered to a party without passing title to be disposed of in accordance with the orders of the title holder constitute a paradigm of a bailment.
    2. Statutes — Warehouse Receipts — Uniform Commercial Code — Scope.
    The scope of Article 7 of the Uniform Commercial Code can be said to be determined by its individual provisions since it does not include one basic provision outlining its scope (MCL 440.7101 etseq.; MSA 19.7101 etseq.).

      References for Points in Headnotes
    [1] 8 Am Jur 2d, Bailments § 2.
    [2] 15 Am Jur 2d, Commercial Code § 17 et seq. 73 Am Jur 2d, Statutes § 94.
    [3] 78 Am Jur 2d, Warehouses § 267.
    [4] 8 Am Jur 2d, Bailments § 346.
    [5] 5 Am Jur 2d, Appeal and Error § 882.

      3. Statutes — Warehousemen — Lost Profits — Consequential Damages.
    Pursuant to statute, warehousemen may be liable for lost profits as an element of consequential damages in appropriate cases (MCL 440.7204[1]; MSA 19.7204[1]).
    4. Bailments — Breach of Contract — Notice to Bailee — Nature of Items Entrusted — Lost Profits — Damages.
    A bailee must be fully apprised of the fact that the items entrusted to his care are for resale and could not otherwise be procured in the market for projected profits to be included as a loss item in a suit for a breach of a bailment contract, and such profits must be reasonably certain and not unduly speculative.
    5. Evidence — Standard of Review — Appeal — Sufficiency — Plain Error — Mistake.
    The standard of review on appeal from a trial court’s verdict, wherein the sufficiency of evidence in support thereof is challenged, is that findings of fact shall not be set aside unless clearly erroneous; i.e., that although there is evidence to support the finding, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.

      Bushnell, Gage, Reizen & Byington (by William A. Roy), for plaintiffs.

      Goldsmith, Yaker & Goldsmith, for defendants.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   Cynar, J.

On Ju.ne 19, 1974, The Indemnity Marine Assurance Company, Ltd., as subrogee of Combi-Camp of America, and Combi-Camp' of America sued defendant Lipin Robinson Warehouse Corporation for damages arising out of the latter’s improper storage and handling of CombiCamp’s goods. Following a bench trial, plaintiffs were awarded $4,761.85 in damages. Plaintiffs appeal as of right the trial court’s determination of damages.

James O’Brien was the first witness to testify. He stated that he was a self-employed manufacturing agent. While in the course of his employment he represented Tilley Manufacturing Company. In May, 1973, he sold 14 and 16 foot canoes manufactured by Tilley to Combi-Camp. Said canoes were improperly shipped and were damaged. Thus O’Brien went to inspect the canoes at Lipin Robinson Warehouse. The canoes were randomly stacked on campers which were stored on end, in an upright position. Approximately 112 canoes were being stored. Mr. Lipin, of defendant company, allocated space behind the Combi campers as a work area. The canoes were brought down from the campers with the aid of a forklift truck. People from Tilley Manufacturing walked across the campers to put the canoes on the forklift. The workmen wore shoes with high heels. Later, a third person told Mr. Lipin and Mr. O’Brien that the guys walking on the campers would damage them. However, Mr. Lipin indicated that somebody from Combi-Camp told him it was all right.

Samuel Goldfarb, former president of CombiCamp of America, also testified. Combi-Camp was a wholesaler for Danish Camping Trailers. Mr. Goldfarb stated that each unit was shipped in a "seatrained” container to the United States. These are large, watertight storage boxes. There were three different Combi-Camp models. Two models, the regular and deluxe, were sold to dealers for $695. A stripped down model sold to dealers for $575 east of the Mississipppi and $495 west of the Mississippi. Distributors paid $550 and $570 for the regular and deluxe models and $350 or $370 for the stripped down model.

Mr. Goldfarb indicated that Lipin Robinson Warehouse charged him a higher rate for storage because the campers required careful handling and because no products could be stored on top of the campers. Mr. Goldfarb then identified a series of photos showing improper storage or damage to Combi-Camp units. Some units were stacked on top of each other instead of vertically. The Lipin Robinson Warehouse employees unloaded the campers and charged for this service.

There was a proper procedure for unloading the crates which Mr. Goldfarb had discussed with Bob Lipin. Nothing could be stored on top of the campers because the front ends were made of fiberglass. This had been discussed with warehouse employees.

Customers had begun to complain about front end damage to the campers. The front end of the camper was the part which pointed toward the ceiling of the warehouse. Center panels and corners were reported crushed. Mr. Goldfarb did not give permission to Bob Lipin to store damaged canoes on the campers. He was never informed that this was being done, although he ultimately saw them so stored during a periodic check of the warehouse. Mr. Goldfarb vigorously protested this storing method to defendant. The witness personally observed two men with high-heeled shoes walking on the campers. Mr. Goldfarb complained, "ranted, raved, and armwaved”, about this situation. Mr. Lipin did nothing. Even after the canoes were removed from the warehouse, the men continued to walk on the campers. Campers were removed from the warehouse to be sold to a customer in Toronto. At this time, many damaged units were uncovered. When Mr. Goldfarb complained to Mr. Robinson, the latter stated that "he was going to throw them in the center of the expressway and forget the whole damned mess”.

Robert Lipin was called as an adverse witness by the plaintiff. He stated that he was vice-president and general manager of Lipin Robinson Warehouse. When the deal with Combi-Camp was in effect, Mr. Lipin was the warehouse manager. He was responsible for the daily handling of the Combi campers. Mr. Lipin admitted that he had seen his warehouse employees walking on top of the Combi campers. However, almost every shipment of Combi campers had some kind of damage done to the units. Lipin stated that there was a spot on the Combi campers where a person could step without damáging them. However, he also admitted that even being careful in the right spot a person’s foot would probably be on some fiberglass. Mr. Lipin denied that he had ever given any instructions concerning where to walk on the campers to the repairmen from Tilley Manufacturing who came to work on the canoes. Mr. Lipin stated that when Mr. Goldfarb protested the repairmen’s walking on the campers, he ordered them down. Mr. Lipin further disputed that Mr. Goldfarb had complained that the canoes were being stored on the campers. Furthermore, another agent of Combi-Camp, George Nickerson, told Mr. Lipin that it was alright to walk on the campers. However, Mr. Nickerson never said it was okay to walk on the fiberglass.

George Nickerson also testified on behalf of plaintiff Combi-Camp and stated that when he worked for Combi-Camp he delivered and repaired campers. Mr. Nickerson also saw two workmen at the warehouse walking on the campers. He told them not to walk there, but the workers ignored him. The witness repaired and picked up campers with damaged front and side panels in Columbus, Ohio, and in Texas.

On cross-examination, Mr. Nickerson stated that he knew that the damaged campers he repaired in Texas were from the Lipin Robinson Warehouse. Mr. Nickerson showed Robert Lipin how to "walk” across the campers. However, he stated that he never gave anybody permission to walk on them. To check serial numbers, however, some stepping on the campers was necessary. Mr. Nickerson further contended that he told Mr. Lipin to crawl across the trailers. Finally, he stated that trailers with front panel damage still had value and were not abandoned.

Plaintiffs appeal by right the above-noted award of damages, raising three questions for this Court to review.

I. Did the trial court err in refusing to award damages for lost proñts on the original sale of the campers, irrespective of whether the units were later resold?

Both parties’ arguments are predicated on the premise that Article 2 of the Uniform Commercial Code (UCC) applies to this case. In fact, this premise is faulty. Article 2 is concerned with transactions in goods. The Article 2 statutory provision cited by both parties, MCL 440.2708; MSA 19.2708, pertains to a seller’s damages for nonacceptance or repudiation by a buyer. In the instant case, the defendants are simply not buyers. There was no contract of sale between Combi-Camp and Lipin Robinson Warehouse. Combi-Camp was not selling campers to Lipin Robinson nor was Lipin Robinson a buyer of campers. See MCL 440.2103(1); MSA 19.2103(1).

In actuality, a bailment was created between Combi-Camp and Lipin Robinson. Combi-Camp delivered goods to defendant, without passing title, to be disposed of in accordance with Combi-Camp’s orders, the paradigm of a bailment. In re George L Nadell & Co, Inc, 294 Mich 150, 154; 292 NW 684 (1940), 4 Michigan Law & Practice, Bailments, § 1, p 38. The question to be decided, then, is what is the measure of damages where a bailee has negligently stored and handled the bailor’s goods which are intended for ultimate resale at a profit.

First, it must be decided whether this question should be answered with reference to Article 7 of the UCC or under the common law of bailments. The title appended to Article 7 is "Warehouse Receipts, Bills of Lading and Other Documents of Title”. In the instant case, the record is unclear whether warehouse receipts or other documents were issued by Lipin Robinson Warehouse indicating ownership of the goods. Mr. Goldfarb’s testimony suggests, however, that Lipin Robinson Warehouse Corporation did issue warehouse receipts as defined in MCL 440.1201(45); MSA 19.1201(45). Since Lipin Robinson was in the warehousing business, one would expect the issuance of such documents. Certainly Combi-Camp received some documents from Lipin Robinson.

The issuance of warehouse receipts or other documents of title by Lipin Robinson is not, in any event, critical to a finding that Article 7 of the UCC applies. While most of the provisions of Article 7 specifically deal with such documents, they are not mentioned in every provision. It is undeniable that Lipin Robinson is a "warehouseman” as defined by MCL 440.71Q2(l)(h); MSA 19.7102(l)(h). Unlike other major articles of the code, Article 7 does not include one basic provision outlining its scope. Thus, its scope can be said to be determined by its individual provisions. MCL 440.7204(1); MSA 19.7204(1) provides:

"A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care.”

It would seem that whether or not warehouse receipts were issued by Lipin Robinson, this provision would be applicable in the instant case. It has already been noted that Lipin Robinson is a "warehouseman” as that term is defined in Article 7. Thus, we conclude that the above article applies in the instant case.

MCL 440.7204(1); MSA 19.7204(1) speaks of a warehouseman’s liability for "damages for loss of or injury to goods”. This language does not expressly allow for the recovery of lost profits in the form of consequential damages. Since other remedy provisions in the code specifically allow for lost profits (Le., MCL 440.2708; MSA 19.2708) or consequential damages (Le., MCL 440.2714; MSA 19.2714), this fact cuts against finding that lost profits are properly included as an item in the plaintiff’s recovery under Article 7. This, in part, accounts for plaintiff’s reliance on the Article 2 damage provisions in seeking an award of lost profits, the argument being that an award for lost profits is necessary here to make plaintiff whole and is not recoverable under Article 7, therefore necessitating resort to Article 2 remedies to afford plaintiff complete relief. Such a restrictive view of the nature of damages recoverable under Article 7 is not, in our view, the correct one.

Uniform Commercial Code authorities James J. White and Robert S. Summers argue that in appropriate cases UCC § 7-204(1) should be construed to cover lost profits as consequential damages. White and Summers, Uniform Commercial Code (1st ed), §20-3, pp 676-677. We agree with this proposition.

However, the example presented in their treatise is premised on the ability of the plaintiff to prove that only an award of lost profits can make him whole. In this respect, an award of lost profits in a bailment context is no different under the common law or the code.

No Michigan cases exist which are precisely on point with the instant situation. However, case law from other jurisdictions suggests the lost profits are rarely an appropriate item of damages in a bailment situation. The cases indicate that, for profits to be included as a loss item in a bailment contract, the bailee must have been fully apprised of the fact that the items were for resale and that the goods could not otherwise be procured in the market. Furthermore, the projected lost profits must be reasonably certain and not unduly speculative. See Groendyke Transport, Inc v Merchant, 380 P2d 682 (Okla, 1962), Lowes Glove Co, Inc v Acme Fast Freight, Inc, 54 Misc 2d 429; 282 NYS2d 869 (1967), California Eastern Airways, Inc v Alaska Airlines, Inc, 38 Wash 2d 378; 229 P2d 540 (1951), Greenberg Bothers, Inc v Ernest W Hahn, Inc, 246 Cal App 2d 529; 54 Cal Rptr 770 (1966). Only in Groendyke, supra, were lost profits actually upheld as a loss item in the judgment.

In other contractual situations, Michigan follows the general rule regarding reasonable certainty and no undue speculation in projections of lost profits. Fera v Village Plaza, Inc, 396 Mich 639; 242 NW2d 372 (1976), Fabbrini Family Foods, Inc v United Canning Corp, 90 Mich App 80; 280 NW2d 877 (1979), lv den 407 Mich 956 (1980). Under this general rule, we are constrained to conclude that the trial court properly refused to make an award for lost profits, specifically finding that lost profits were highly speculative in this action.

The evidence showed that Combi-Camp had never been particularly profitable. In its first year of business Combi-Camp sustained a loss of some $4,500. In its second year of operation, an unaudited profit of approximately $55,000 was obtained. There was no showing by Combi-Camp that it could have sold more trailers had the damages not occurred. At no time did any Combi-Camp representative state that its supply of campers was inadequate to meet demand because of Lipin Robinson Warehouse’s negligence. Nor was there any evidence concerning fixed overhead expenses submitted by the plaintiffs. The "lost” profits were determined solely by subtracting unit cost to Combi-Camp from unit selling price by CombiCamp.

Assuming that the common law analysis regarding lost profits, engaged in above, is equally applicable to an Article 7 claim for lost profits, we hold that plaintiffs have failed to establish with reasonable certainty their entitlement to such an award under Article 7.

Similarly, since plaintiffs are unable to show which variable overhead costs are attributable to which particular trailer unit, they are not entitled to an award for such variable overhead costs, even granting that such recovery is envisioned by MCL 440.7204(1); MSA 19.7204(1),*

II. Was the trial court’s ñnding that insufficient evidence was adduced to hold the defendants liable for damages concerning the units sold to Kay Penson and Werk Motors erroneous?

Plaintiffs contend that the trial court erred in not awarding damages for seven Combi-Camp trailers — six which were returned by Werk Motors and one which was not sold to Kay Penson.

The standard of review on appeal from a trial court’s verdict, wherein the sufficiency of the evidence in support thereof is challenged, is set forth in GCR 1963, 517.1, which provides in relevant part:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the fact specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. * * * Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”

A finding of fact is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).

With respect to the six Werk Motors units, we find that the court was in error in finding that no testimony was heard as to the nature of the damage. Testimony was given which established front panel damage to these units. However, the court’s later finding that sufficient proof that defendant caused the panel damage was not adduced was not clearly erroneous. There was no testimony establishing a causal nexus between the damage and acts or omissions of defendant, either directly or inferentially. This latter conclusion is equally applicable to the Kay Penson unit. Accordingly, the trial court’s denial of an award relative to these units is affirmed.

III. Were the trial court’s ñndings that insufficient evidence was adduced to hold the defendants responsible for repair costs with respect to certain Combi-Camp units erroneous?

The standard of review when considering claims concerning the trial court’s factual findings is discussed in Issue II, supra.

Plaintiffs first contend that they are entitled to $544.50, representing a repair cost of $54.45 per unit for ten units shipped to Southwest CombiCamp for replacement of damaged front panels. The trial court found that there was no proof indicating that plaintiff Combi-Camp actually paid for the repairs.

We disagree. There was testimony from Mr. Goldfarb which indicated that Combi-Camp supplied the ten needed replacement panels to Southwest Combi-Camp, which performed the labor required for installation thereof. The cost per panel, absorbed by plaintiff Combi-Camp, was $54.45. Thus, with respect to these ten units, plaintiffs are entitled to an additional $544.50 in damages.

We also find to be clearly erroneous the trial court’s finding that there was insufficient proof of damage with respect to 12 units sold to Rolling Homes, a finding that is curious in that the court found that defendant caused front panel damage to these units, yet denied recovery of any amount therefor. Again, uncontroverted testimony established that Combi-Camp supplied replacement panels for each of these units at a cost to it of $54.45 per panel, the labor being performed without charge by Southwest Combi-Camp. Accordingly, plaintiffs are entitled to an additional $653.40 in damages relative to these damaged units.

Finally, plaintiffs seek an additional $653.40 in damages in respect to twelve units sold to Southwest Combi-Camp. Again, the trial court found that defendant caused the damage, yet found that there was no showing that plaintiff paid for the costs of repair. This latter finding was clearly erroneous, for Mr. Goldfarb testified that plaintiff supplied twelve panels to Southwest for repairs at a cost to it of $54.45 per panel. Therefore, plaintiffs were entitled to the $653.40 additional damages they seek in this instance.

In summary, we find that plaintiffs are entitled to an additional $1,851.30 in damages. Thus, we conclude that the judgment of the trial court should be modified to reflect this increased award and order entry of judgment in accordance with this opinion pursuant to GCR 1963, 820.1(7).

       Such an award is arguably permissible under MCL 440.2708(2); MSA 19.2708(2). See Childres & Burgess, Sellers' Remedies: The Primacy of UCC 2-708(2), 48 NYU L Rev 833 (1973). Whether MCL 440.7204(1) also allows for such recovery is a question we need not answer at this time, given plaintiffs’ failure to surmount the threshold obstacle of attributing variable costs to specific units.


author: E. E. Borradaile, J.

text:
    PEOPLE v TAIT
    Docket No. 40564.
    Submitted April 2, 1980, at Grand Rapids.
    Decided July 23, 1980.
    William R. Tait was charged with assault with intent to commit murder. At the preliminary examination, a police officer testified that defendant approached him, raised a pistol and twice threatened to blow his head off, that he repeatedly ordered defendant to stop, that he did not see defendant fire or attempt to fire and that, when defendant continued to approach, he shot the defendant. The examining magistrate bound the defendant over to the Mason Circuit Court for trial on the lesser charge of felonious assault. The prosecutor filed an appeal with the circuit court and an application for an order of superintending control. The Mason Circuit Court, Richard I. Cooper, J., ruled that the issue is properly raised by appeal, found that the examining magistrate abused his discretion and reinstated the charge of assault with intent to commit murder. At trial, the police officer testified that, just before he shot at defendant, he saw the defendant move his hand to the top of the gun. Defense counsel impeached the officer’s testimony by use of the preliminary examination transcript and a written statement of the officer made a few days after the incident. At the end of the first day’s testimony, defense counsel moved for a mistrial, stating that after the officer had testified he learned that the officer’s recollection had been refreshed through hypnosis. The officer, upon being recalled, testified that no one had told him what to say at the hypnotic session and that his testimony was from his own recollections. The trial judge denied the motion, and refused to allow the jury to be informed that the witness’s recollection had been refreshed through hypnosis. The record did not reveal the identity of the hypnotist or the circumstances of the hypnosis. Defendant was convicted of assault with intent to commit murder and appeals. At oral argument, the Court of Appeals was informed that the prosecutor, an amateur hypnotist, conducted the hypnosis of the officer and that the session was on tape. Held:

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 449. 29 Am Jur 2d, Evidence §§ 123-132.
    [2] 40 Am Jur 2d, Homicide § 569 et seq.

    [3] 21 Am Jur 2d, Criminal Law § 443.
    [4, 5] 5 Am Jur.2d, Appeal and Review §§ 772-775.
    [6] 29 Am Jur 2d, Evidence § 831.
    Physiological or psychological truth and deception tests. 23 ALR2d 1306.
    Admissibility of hypnotic evidence at criminal trial. 92 ALR3d 442.

      1. An examining magistrate should not refuse to bind a defendant over for trial when the evidence adduced raises a reasonable doubt as to the defendant’s guilt. That question is properly one for the jury. The magistrate abused his discretion in refusing to bind the defendant over on the charge of assault with intent to murder, and the circuit court correctly ruled that the issue is properly raised by appeal rather than by application for superintending control.
    2. The prosecutor’s misconduct has damaged the officer’s testimony to the extent that none of it may be used upon retrial.
    Reversed and remanded with instructions.
    1. Criminal Law — Preliminary Examination — Burden of Proof.
    The prosecutor at a preliminary examination must produce evidence to establish each element of the charged offense or evidence from which those elements may be inferred.
    2. Assault and Battery — Elements of Assault with Intent to Commit Murder.
    The two elements of assault with intent to commit murder are 1) that the defendant assaulted the complainant, and 2) that at the time of the assault the defendant intended to murder the complainant.
    3. Criminal Law — Preliminary Examination — Examining Magistrate.
    The examining magistrate at a preliminary examination must conclude that a felony has been committed and that probable cause exists to find the defendant committed it in order to bind the defendant over for trial; the magistrate should not refuse to bind over where the evidence raises a reasonable doubt as to a defendant’s guilt, that question properly being one for the jury to determine.
    4. Appeal — Preliminary Examination — Abuse of Discretion.
    The issue of whether an examining magistrate abused his discretion in refusing to bind over a defendant on a charge is properly raised by appeal rather than by an application for superintending control.
    5. Assault and Battery — Preliminary Examination — Assault with Intent to Commit Murder — Sufficiency of Evidence.
    There was evidence at a preliminary examination to support the binding over of a defendant on the charge of assault with intent to commit murder where a police officer testified that defendant approached him, raised a pistol and twice threatened to blow his head off, that he repeatedly ordered defendant to stop, that he did not see defendant fire or attempt to fire and that, when defendant continued to approach, he shot the defendant; a magistrate’s binding over on the charge of felonious assault was a clear abuse of discretion.
    6. Evidence — Hypnotic Mind-Jogging — Lie Detectors — Voicewriter Evidence.
    The same requirements as those for the admissibility of lie detector or voicewriter evidence or evidence influenced by them are applicable to evidence influenced by the effects of hypnosis.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Martin M. Holmes, Prosecuting Attorney (by Mary C. Smith, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Thomas A. Carlson, for defendant.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and E. E. Borradaile, JJ.

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

   E. E. Borradaile, J.

This case arises from an incident in Mason County, Michigan, where a deputy sheriff, dispatched to the scene of an automobile accident, claims that defendant approached him, raised a gun, pointed it at the deputy and stated he was going to blow the deputy’s head off.

Defendant was charged with the crime of assault with intent to commit murder, bound over by the examining magistrate on the lesser offense of felonious assault and convicted by a jury on the original charge after the trial judge concluded the magistrate had clearly abused his discretion by reducing the charge. This Court denied the pretrial application for leave to appeal filed by defendant in 1978, and he now appeals of right.

Only two questions require our attention: (1) did the trial court err in reversing the magistrate’s finding, and (2) was hypnotically refreshed testimony properly admitted in the case.

I

At a preliminary examination, the prosecution must produce evidence to establish each element of the offense or evidence from which those elements may be inferred. People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979), People v Oster, 67 Mich App 490, 495; 241 NW2d 260 (1976). The two elements of assault with intent to commit murder are (1) that the defendant assaulted the complainant, and (2) that at the time of the assault the defendant intended to murder the complainant.

The examining magistrate must conclude at the preliminary examination that a felony has been committed and probable cause exists to find the defendant committed it in order to bind the defendant over for trial._

At the preliminary examination in this case, deputy sheriff Kirk Myers testified that defendant approached him, raised a pistol and twice threatened to blow his head off. Myers said that three times he ordered defendant to stop. He did not see defendant fire the gun or attempt to do so. When defendant continued to walk nearer, Myers shot him.

The magistrate concluded there was insufficient evidence produced to bind over on the assault with intent to murder charge and instead bound defendant over on a charge of felonious assault. The prosecution then filed an appeal with the circuit court and also sought an order of superintending control. The circuit judge correctly ruled that abuse of discretion is properly raised by appeal and not by application for an order of superintending control. People v McCoy, 75 Mich App 164; 254 NW2d 829 (1977). The circuit judge found a clear abuse of discretion, holding that the threat to "blow your head off” was sufficient to indicate intent to kill, which is enough to distinguish assault with intent to murder as opposed to felonious assault.

The judge ruled that the magistrate relied solely on conjecture in presuming that defendant did not intend to kill the deputy when he had the opportunity to shoot but did not. The court said the question of intent under the circumstances should properly be left to the jury.

The question of whether a defendant should be bound over is a matter to be determined by the examining magistrate, People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933), and a reviewing court should only substitute its judgment in a case of clear abuse of discretion, People v Doss, supra, People v Flint Municipal Judge, 41 Mich App 766, 770; 201 NW2d 111 (1972). The magistrate should not, however, refuse to bind over when the evidence raises a reasonable doubt as to a defendant’s guilt, that question properly being one for the jury to determine. People v Doss, supra, Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 119, 123; 284 NW2d 507 (1979). Where credible evidence is presented to both support and negate a necessary element, the question of fact should be left for the jury to decide. Wayne County Prosecutor v Recorder’s Court Judge, supra.

In an earlier case, where a defendant was intoxicated and his intent to kill was at issue, the Supreme Court in People v Medley, 339 Mich 486; 64 NW2d 708 (1954), found intent established where a shooting victim testified that the defendant could see him when the shot was fired, and the victim called out to the defendant.

The circuit court properly found a clear abuse of discretion in this case.

II

The problem of hypnotically refreshed testimony raises a more difficult question.

The deputy testified at the preliminary examination that he had been too far from defendant to see if defendant pulled the trigger of his gun. At trial, however, he testified that, just before he fired at defendant, he saw defendant move his hand to the top of the gun.

Defense counsel impeached the deputy’s testimony both from a written statement made a few days after the incident and with the preliminary examination transcript, where the officer had not mentioned observing defendant’s hand move to the top of the gun.

At the conclusion of the first day’s testimony counsel for defendant moved for a mistrial, stating he had not learned of the hypnotic refreshing of the deputy sheriffs memory until after his testimony, and the deputy, on being recalled, said no one told him what to say at the hypnotic session and that his trial testimony was from his own recollection of the incident.

The trial record fails to disclose who the hypnotist was, although at oral argument this Court was informed that the prosecuting attorney is an amateur hypnotist and conducted the session with the deputy, allegedly taping the entire session.

The trial judge took the motion under advisement but denied the motion the next day. The jury was never informed that the witness’s memory had been refreshed through hypnosis, although defense counsel sought to examine the witness in the presence of the jury. The trial court ordered both counsel not to refer to hypnosis in the jury’s presence and refused to give defendant’s requested instructions on the unreliability of hypnosis and the capability of a witness to fantasize while under hypnosis.

The only case in Michigan which seems to have dealt with the admissibility of evidence obtained while under hypnosis is People v Hangsleben, 86 Mich App 718; 273 NW2d 539 (1978). In that case the defendant sought to introduce a psychiatrist’s testimony where hypnosis had been used on defendant. Defendant wanted to utilize the statements obtained while under hypnosis to establish the truth of the statements he made while in a hypnotic trance and also to bolster credibility of his story at trial by claiming the hypnosis had a mind-jogging effect to explain his earlier inconsistent admissions to the police. It was held that evidence of a subject’s responses under hypnosis was inadmissible for either purpose. Hangsleben, supra, 728.

Although hypnosis has been a source of interest in the psychological and psychiatric communities for a number of years, the courts which have dealt with admissibility of hypnotically induced testimony are hopelessly split. More often where its use was permitted, it was introduced to bolster a physician’s conclusions when testing a defendant rather than to usurp a jury’s factfinding prerogatives. See Anno: Admissibility of hypnotic evidence at criminal trial, 92 ALR3d 442, and Anno: Admissibility of physiological or psychological truth and deception test or its results to support physician’s testimony, 41 ALR3d 1369. Also see Anno: Physiological or psychological truth and deception tests, 23 ALR2d 1306 and footnote 1 therein on the many articles and writings discussing the subject.S

The prosecutor in the instant case argues that the test required by People v Tobey, 401 Mich 141; 257 NW2d 537 (1977), reaffirming People v Barbara, 400 Mich 352; 255 NW2d 171 (1977), is not applicable in this case because the deputy’s memory was merely refreshed consistent with the provisions of MRE 612(b) relative to using an object to refresh memory. If such circumstances were applicable here, notice should have been given in advance of trial and not kept as a surprise to spring the day of trial.

Even in those jurisdictions where testimony refreshed by hypnosis has been allowed in evidence, reversal has been predicated on failure to disclose the fact of hypnosis. United States v Miller, 411 F2d 825 (CA 2, 1969), Emmett v Ricketts, 397 F Supp 1025 (ND Ga, 1975).

Investigatory use of hypnosis on persons who are later called on to testify in court carries a dangerous potential for abuse. The United States Court of Appeals for the Ninth Circuit in United States v Adams, 581 F2d 193 (CA 9, 1978), noting that the Ninth Circuit accepts such testimony both in criminal and civil cases, said its concern about the possibility of abuse requires at a minimum that complete stenographic records of interviews of hypnotized persons who later testify should be maintained and the judge, jury and the opponent know who was present, the questions that were asked and the witness’s responses. The court further suggested that an audio or video recording of the interview would be helpful.

Another jurisdiction which has accepted hypnotically refreshed testimony indicated that the use of hypnosis bears upon credibility, not admissibility. State v McQueen, 295 NC 96; 244 SE2d 414 (1978).

If no People v Tobey, supra, problem were present in this case, the trial court still committed reversible error by denying defense counsel the opportunity to make the jury fully aware of all the underlying facts of the key witness’s changed testimony at trial.

Very clearly Tobey, in its reaffirmation of People v Barbara, supra, was applicable to the instant case, trial being had in March, 1979, much later than the 1977 determination of Barbara and Tobey. Hypnosis has not "achieved that degree of general scientific acceptance” which will permit its introduction. People v Tobey, supra, 146, citing People v Kelly, 17 Cal 3d 24, 28; 130 Cal Rptr 144; 549 P2d 1240 (1976), ruling on voicewriter identification. Barbara required that general scientific recognition be established by testimony of disinterested and impartial experts or disinterested scientists whose livelihood was not intimately connected with the technique.

In the instant case the technique is not new, but we believe the same requirements must be met as are required for the introduction of lie detector or voicewriter evidence or evidence influenced by them.

Ill

Inasmuch as error has been found, the question of its effect must be dealt with. In People v Morris, 77 Mich App 561; 258 NW2d 559 (1977), the Court dealt with police misconduct, but not prosecutorial misconduct, and upheld dismissal on due process grounds.

In the case at bar, we have prosecutorial misconduct. In United States v Pollock, 417 F Supp 1332, 1349 (D Mass, 1976), the court found that government misconduct involved a bad faith attempt to "tamper with evidence material to a defendant’s guilt or innocence”. A dismissal of the prosecution was ordered because all other alternative remedies were considered by the court to be inadequate and therefore a trial would be fundamentally unfair and a denial of due process. Clearly such a remedy is rarely justified. People v Morris, supra, 563-564.

By virtue of the prosecutor’s improper actions in this case, deputy sheriff Kirk Myers’ testimony has been damaged to the extent that it cannot be used on retrial of the case. In lieu of discharge, the case is remanded for retrial, but the prosecution shall be absolutely prohibited from in any way using any testimony of deputy sheriff Myers. The trial court is adjured to permit no testimony of any kind as to what Myers may have seen or heard.

Reversed and remanded for new trial.

       MCL 750.83; MSA 28.278.

       MCL 750.82; MSA 28.277.

       See proposed Michigan Criminal Jury Instructions (CJI) 17:6:01.

         MCL 766.13; MSA 28.931 provides:
      "If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other court having jurisdiction of the cause, for trial.”

       See United States v Awkard, 597 F2d 667, 670 (CA 9, 1979), which states:
      "[SJeveral important considerations limit the discretion of the trial judge when the expert testimony concerns only the ability of a witness to recall details of past experience. In analogous areas, the Federal Rules of Evidence carefully restrict the bolstering of a witness’s testimony when the credibility of that witness has not been attacked. For example, prior consistent statements by a witness may not be introduced until an adverse party has charged the witness with recent fabrication or improper influence or motive. See Fed R Evid 801(d)(1), and Advisory Committee note (C) thereto. Evidence of turthful character may be introduced only in the forms of opinion or reputation evidence, and only when the character of the witness for truthfulness has been attacked. See Fed R Evid 608(a).”

       See Comment: The Prosecutor’s Constitutional Duty to Reveal Evidence to the Defendant, 74 Yale L J 136 (1964).

       See United States v Awkard, supra, 669, fn 2, as follows:
      "We have suggested procedures to be followed during hypnosis to ensure that posthypnosis statements are truly the subject’s own recollections. United States v Adams, 581 F2d at 198-99 and n 12. Objections to the subject testimony on the ground that such procedures were not followed should be heard by the district judge before trial, or out of the presence of the jury on voir dire of the witness. If the trial court overrules the objection and permits the subject to testify, the adverse party may, if it wishes, expose the details of the hypnosis to the jury.”


author: V. J. Brennan, P.J.

text:
    GRAYBIEL v GRAYBIEL
    Docket No. 45457.
    Submitted April 23, 1980, at Detroit.
    Decided July 23, 1980.
    Allan C. Graybiel, plaintiff, and Yvonne L. Graybiel, defendant, were divorced on March 6, 1978. Subsequently, defendant filed a motion to modify the divorce judgment, requesting an increase in alimony, payment for her prescriptions for orthopedic stockings, deletion of marriage as a condition for termination of alimony, and a modification of the property settlement to include an interest in the plaintiff’s pension fund.
    The Lenawee Circuit Court, Kenneth B. Glaser, Jr., J., denied the request to modify the property settlement but did increase alimony, deleted the word remarriage as a condition for terminating alimony, and ordered the plaintiff to pay the defendant’s optical expenses and prescription orthopedic stockings in addition to other medical expenses. The plaintiff appeals from this modification. Held:

    1. Modification of a divorce judgment may only rest on new facts, or changed circumstances arising since the judgment, which justify the revision.
    2. Prior to modifying a divorce judgment, all relevant circumstances of the parties must be considered by the judgfe, including full financial disclosure of both parties.
    3. The burden of proving changed circumstances, including a deteriorating mental condition, is on the party seeking the alimony modification and evidence supporting a finding of changed circumstances must appear in the record.
    4. The property settlement provisions of a final divorce decree may not be modified except for fraud or for other such causes as any other decree may be modified.
    The standard for review of divorce judgment modifications is de novo, and an appellate court must exercise its independent judgment in reviewing the evidence. However, this does not preclude the Court of Appeals from giving "grave consideration” to findings made by the trial court. Once a trial court has modified a divorce judgment, the Court of Appeals will not disturb such a decision unless it is convinced it would have reached a different conclusion if it were in the trial judge’s place.

      References for Points in Headnotes
    [1-5] 24 Am Jur 2d, Divorce and Separation §§ 423, 909.
    46 Am Jur 2d, Judgments §§ 679, 699.
    [2] 24 Am Jur 2d, Divorce and Separation §§ 620, 631-633.
    [3] 24 Am Jur 2d, Divorce and Separation § 676 et seq.

    [5] 4 Am Jur 2d, Appeal and Error § 135.

      6. The sole changed circumstance here is plaintiff’s $4,700 salary increase, which is not sufficient ground for the substantial increase of defendant’s alimony award under the circumstances presented to the court.
    Reversed and the original judgment reinstated.
    1. Divorce — Modification of Judgments — New Facts.
    Modification of a divorce judgment may only rest on new facts or changed circumstances arising since the judgment which justify the revision.
    2. Divorce — Modification of Judgments — Financial Disclosure.
    Prior to modifying a divorce judgment all relevant circumstances of the parties must be considered by the judge, including full financial disclosure of both parties.
    3. Divorce — Modification of Judgments — Alimony — Changed Circumstances — Burden of Proof.
    The burden of proving changed circumstances, including a deteriorating mental condition, is on the party seeking an alimony modification, and evidence supporting a finding of changed circumstances must appear in the record.
    4. Divorce — Property Settlement — Modification — Fraud.
    The property settlement provisions of a final divorce decree may not be modified except for fraud or for other such causes as any other decree may be modified.
    5. Divorce — Modification of Judgments — Appeal — Standard of Review.
    The standard for review of divorce judgment modifications is de novo and an appellate court must exercise its independent judgment in reviewing the evidence; however, this does not preclude the Court of Appeals from giving "grave consideration” to findings made by the trial court, and once a court has modified a divorce judgment, the Court of Appeals will not disturb such a decision unless it is convinced it would have reached a different conclusion if it were in the trial judge’s place.

      Norman N Robbins, for plaintiff.

      Koselka & Koselka, for defendant.
    Before: V. J. Brennan, P.J., and S. J. Bronson and H. E. Deming, JJ.

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

   V. J. Brennan, P.J.

After 40 years of marriage the parties were divorced on March 6, 1978, following a trial in Lenawee County Circuit Court. The parties entered into a written property settlement on February 15, 1978, which provided that plaintiff was to pay monthly alimony to the defendant in the amount of $1,575. In addition, plaintiff was required to pay the defendant’s "reasonable necessary hospital, medical, dental, psychological, psychiatric or counselling bills”. Finally, these expenses were contingent on the defendant’s not remarrying.

Defendant filed a motion to modify the judgment requesting an increase in alimony, payment for defendant’s prescriptions for orthopedic stockings, deletion of marriage as a condition for termination of alimony, and a modification of the property settlement requesting an interest in the plaintiff’s pension fund. Following a full day of hearing, the trial court took the matter under advisement. In his subsequent decision, the trial court denied the request to modify the property settlement but did increase alimony from $18,900 to $30,000 per year; deleted the word remarriage as a condition for terminating alimony; and ordered plaintiff to pay defendant’s optical expenses and prescription orthopedic stockings in addition to other medical expenses. Plaintiff appeals from this modification.

The authority of a trial court to modify the provisions of a previously issued divorce judgment is provided in MCL 552.28; MSA 25.106 which states:

"After a judgment for alimony or other allowance, for either party and children, or any of them, and also after a judgment for the appointment of trustees, to receive and hold any property for the use of either party or children as before provided the court may, from time to time, on the petition of either of the parties, revise and alter such judgment, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the matters which such court might have made in the original suit.”

The standard for review of divorce judgment modifications is de novo, Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977), and an appellate court must exercise its independent judgment in reviewing the evidence. Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975). However, this standard does not preclude this Court from giving "grave consideration” to findings made by the trial court. Hensley v Hensley, 357 Mich 3, 5; 97 NW2d 615 (1959), McCarthy v McCarthy, 74 Mich App 105; 253 NW2d 672 (1977). Once a trial court has modified a divorce judgment, this Court will not disturb such a decision unless it is convinced it would have reached a different conclusion if it were in the trial judge’s place. Cullimore v Laureto, 66 Mich App 463; 239 NW2d 409 (1976), Andris v Andris, 77 Mich App 715, 719; 259 NW2d 203 (1977). In addition, the party moving for modification has the burden of showing sufficiently changed circumstances to warrant modification. Hentz v Hentz, 371 Mich 335; 123 NW2d 757 (1963), Andris v Andris, supra. In evaluating a petition to modify a divorce judgment, all pertinent factors surrounding the petition must be considered. McCarthy v McCarthy, supra, Cymbal v Cymbal, 43 Mich App 566; 204 NW2d 235 (1972). Finally, the evidence showing changed circumstances must appear in the record. Weller v Weller, 363 Mich 363; 109 NW2d 800 (1961), Meeker v Harrington, 15 Mich App 125; 166 NW2d 276 (1968).

Plaintiff argues that the trial court erroneously modified the judgment in six areas. We agree as to five.

First, plaintiff points to the trial court’s approximately 58 per cent increase in alimony awarded defendant based on plaintiff’s seven per cent raise. The trial court found plaintiff’s gross income to be $64,200 with an additional $3,000 in appraisal fees. This total of $67,200 represented a $4,700 increase from plaintiff’s total gross income of $62,-500 at the time of the divorce. The trial court, however, concluded that plaintiff’s "real income is [was] $70,000 to $80,000 not counting his retirement”. The trial court apparently relied upon the rental value of plaintiff’s car, $321.55 per month or $3,857.50 per year, plus other benefits in computing plaintiff’s "real” income.

Modification of a divorce judgment may only rest on new facts or changed circumstances arising since the judgment which justify the revision. Hettiger v Hettiger, 37 Mich App 431; 195 NW2d 10 (1971). The rental value of plaintiff’s automobile was an economic benefit which existed at the time of the original divorce judgment and thus does not constitute a new fact or changed circumstance. Accordingly, the trial court’s modification of alimony based upon its finding that plaintiffs "real" income was between $70,000 and $80,000 was also clear error where this new figure did not represent a new fact or changed circumstance but rather a different method of calculating plaintiffs income at the time of the judgment. The sole changed circumstance was plaintiffs $4,700 salary increase. This salary increase alone, however, is not under the circumstances presented sufficient ground for the substantial increase of defendant’s alimony award. See Burr v Burr, 313 Mich 330, 333; 21 NW2d 150 (1946).

Plaintiff also claims as error the lower court’s failure to consider the interest value of the property settlement awarded defendant as bearing on her actual need. As part of the negotiated property settlement, the defendant received $50,579.43 in cash and interest; $2,592.58 representing a one-half interest in a promissory note executed to the plaintiff; two insurance policies with a cash value totalling $25,745.84; and a bank account with a balance of $661.35.

In Esslinger v Esslinger, 9 Mich App 11, 21; 155 NW2d 702 (1967), this Court found interest on a $30,000 share of property could be used to determine a wife’s need for alimony. In Cymbal v Cymbal, supra, the trial court improperly modified a judgment of divorce without requiring full financial disclosure. A review of the transcript and the record in the instant case discloses no information as to the investment or interest income from the defendant’s property settlement. A clear error was thus committed here where the Cymbal Court’s requirement that "all relevant circumstances” be considered was not met.

Plaintiff also correctly contends that the lower court erred when it used a $600 monthly rental fee as a justification for modifying alimony. We agree.

Mrs. Graybiel purchased her home from the $38,663 which she received from the proceeds of the sale of the marital home awarded her in the original property settlement. Thus, the defendant has no rental or mortgage payments for which the plaintiff should be liable. Also, the required maintenance, tax, utility and redecoration costs necessary to make defendant’s home equivalent to the marital home were specifically provided for in the lower court’s judgment. Where these costs were separately allocated to the plaintiff and the defendant’s home is fully paid for, the trial court incorrectly ordered the plaintiff to pay alimony covering rental value.

Plaintiff also claims that a $2,388 annual allowance to cover defendant’s car payments constitutes an adjustment of the parties’ property settlement. Since the rental cost of a car was included as part of the original alimony award, and testimony indicated that defendant had a continuing need for automobile transportation, the trial court committed no abuse of discretion in basing a portion of its modified award on the need for a car._

Plaintiff further claims that the trial court abused its discretion when, without a showing of changed circumstances, it struck from the original divorce judgment the clause terminating defendant’s alimony if she remarried.

The trial court gave the following explanation for its decision modifying this clause of the judgment of divorce:

"As to the provision for the Alimony to automatically terminate upon re-marriage, the Court is unable to recall why the different decision was reached in the Opinion, from the prior conferences, as noted in Page 2 of Defendant’s Trial Brief. In any case, the deterioration of Defendant’s emotional condition appears to make it even more important for Defendant to remarry if possible and she should not be deterred by monetary considerations. Therefore, the automatic termination on remarriage in the alimony provision will be eliminated and the Court will decide that, on Motion of Plaintiff, if and when a remarriage of Defendant occurs.”

The burden of proving changed circumstances, including a deteriorating mental condition, is on the party seeking the alimony modification. Hentz v Hentz, supra. And evidence supporting a finding of changed circumstances must appear in the record. Slater v Slater, 327 Mich 569; 42 NW2d 742 (1950).

Our review of the record does not indicate that defendant’s medical state has worsened. The lower court’s original finding as to the defendant’s depressed emotional state which accompanied the judgment of divorce was made in part based upon deposition testimony by the defendant’s physician. However, no medical testimony was presented at the modification hearing. In the absence of medical or other qualified opinion, we find that defendant failed to sustain her burden. Also, the courts are reluctant to require the divorced spouse, here the husband, to support the wife’s new husband and himself.

Finally, defendant, as cross-appellant, contends that the lower court erred reversibly when it refused to modify the parties’ property settlement. Defendant claims that since she only entered into the settlement after the lower court stated its intent to make an approximately equal division of property if no outside agreement was reached, she was prohibited from gaining her rightful share of plaintiff’s vested pension right.

It has become a settled rule of law that a divorce decree which has become final may not have its property settlement provisions modified except for fraud or for other such causes as any other decree may be modified. Pierson v Pierson, 351 Mich 637, 645; 88 NW2d 500 (1958). Zamfir v Zamfir, 92 Mich App 170; 284 NW2d 517 (1979). In this case plaintiff does not claim fraud but rather lack of actual consent. Defendant suggests that the trial court’s expressed "basic philosophy”, an approximate equal division of property if no outside agreement were reached, "handcuffed” her in the negotiation process because of the trial judge’s articulated position that plaintiff should retain his full pension interest.

Our review of the statements made after the original trial ***and at conference indicate that the parties were free to negotiate an alternative property settlement. No coercion was applied by the trial court and the parties remained free at all times to agree on a disposition of property differing from the court’s articulated view. Defendant’s allegation is without merit and the trial court’s implementation of the agreement was not an abuse of discretion as defined in Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959).

The order appealed from is reversed and the original judgment is reinstated._

       Defendant also received $38,663 in cash as her share of the proceeds from the sale of the marital home in addition to the $25,016 which she had in her personal savings account at the time of the divorce.

       If defendant invested her $79,579.20 share in a regular savings account with interest accruing at an annual rate of 5%, her yearly interest rate would be $3,978.96.

       Plaintiff would actually pay less alimony for defendant’s automobile needs under the modified judgment. In the original opinion defendant was entitled to $321.55 per month for automobile rental totalling $3,858.60 yearly. The total automobile expense and allocation of the modified award indicated a yearly total of $3,813.

       Defendant’s attorney summarized the in-chambers discussion as follows:
      "Q. THE COURT: Okay Mr. Koselka, anything you want to add to that or change on that?
      "MR. KOSELKA: Yes, your Honor. I think we should go into some of the reasons and I think we should make it clear that as I understood it the Court said that we were getting the Court’s thinking at this time which is a basic philosophy that will be applied but as to particulars that any of these particulars could be changed.
      "The Court wasn’t affixed on the particulars.
      "The Court considers, for example, that it was a long marriage of thirty-seven (37) years that the parties had humbled beginning things and had accumulated these things together and the Court was going to give a 50-50 property settlement based on those figures.”

       The trial court made the following statements at conference:
      "MR. MACK: Am I correct in assuming this will be a part of the record?
      "THE COURT: Yes this will be transcribed and it will be put in the file and if I change my mind on that which I don’t think I will I have thought about it enough so I think I am to where I am now. I don’t care, you know, if they make an agreement they can go anyway they want to. I don’t care. That doesn’t mean that she has to have the cabin upnorth [sic] for me to approve it or something or anything else if she agrees to something else and signs her name to it why that’s okay with me.”


author: Danhof, C.J.

text:
    PEOPLE v HORTON
    Docket No. 45666.
    Submitted April 7, 1980, at Detroit.
    Decided July 23, 1980.
    Leave to appeal applied for.
    Charles E. Horton was convicted of felony murder, but acquitted of first-degree criminal sexual conduct, Recorder’s Court of Detroit, George T. Martin, J. He appeals alleging 1) his conviction of felony murder is inconsistent with his acquittal of first-degree criminal sexual conduct and must be reversed, and 2) evidence of blood deposits and other identifiable bodily substances was improperly admitted. Held:

    1. The conviction of first-degree felony murder is vacated since the jury was not instructed in the law of attempt to commit first-degree criminal sexual conduct, and, thus, the underlying crime must be removed from the jury’s consideration, and no murder conviction may be based thereon.
    2. The trial court gave proper instructions on the crime of second-degree murder, and, on remand, judgment of guilty of second-degree murder shall be entered and defendant resentenced.
    3. Deposits of blood and other identifiable bodily substances do not differ from other pieces of physical evidence or other observations that show possible connections between the defendant and the criminal acts and were properly admitted.
    Reversed and remanded.
    1. Criminal Law — Inconsistent Verdicts — Rational Basis.
    Inconsistent verdicts in criminal cases that cannot be reconciled on any rational basis cannot stand.
    References for Points in Headnotes
    [1, 2] 76 Am Jur 2d, Trial § 1155 et seq.

    Inconsistency of criminal verdict as between different counts of indictment or information. 18 ALR3d 259.
    [3] 21 Am Jur 2d, Criminal Law §§ 13,17.
    40 Am Jur 2d, Homicide § 72.
    73 Am Jur 2d, Statutes § 293.
    [4] 75 Am Jur 2d, Trial § 713.
    [5] 29 Am Jur 2d, Evidence §§ 769, 775.
    75 Am Jur 2d, Trial § 346 et seq.

      2. Criminal Law — Felony Murder Conviction — Criminal Sexual Conduct — Inconsistent Verdicts.
    A felony murder conviction based on a completed act of criminal sexual conduct cannot stand together with a verdict of not guilty of the same criminal sexual conduct charged in another count.
    3. Criminal Law — Felony Murder Statute — Construction — Attempted Felonies — Definition — Juries — Instruction.
    Criminal statutes are to be narrowly construed, and the felony murder statute, which provides for a conviction of first-degree murder where murder arises out of an attempt to commit one of the listed felonies, must be construed to mean a legally culpable "attempt” defined by statute and case law and not what any single jury may consider "attempt” to mean in the absence of instructions by the trial court (MCL 750.316; MSA 28.548).
    4. Criminal Law — Felony Murder Statute — Juries — Instructions — Attempt.
    A jury must be properly instructed with regard to the elements which constitute an attempt to commit a crime to allow a felony murder conviction upon a finding of an attempt to commit one of the felonies enumerated in the felony murder statute (MCL 750.316; MSA 28.548).
    5. Criminal Law — Phsyical Evidence — Bodily Substances — Weight — Juries.
    Deposits of blood and other identifiable bodily substances do not differ from other pieces of physical evidence or other observations that show possible connections between a defendant and criminal acts and may be properly admitted, the weight of the evidence being left for the jury’s determination.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Gail Rodwan, Assistant State Appellate Defender, for defendant on appeal.

      Before: Danhof, C.J., and Cynar and Mackenzie, JJ.
   Danhof, C.J.

The defendant was tried before a jury on charges of felony murder and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), arising out of the death of one Ms. Smith on October 5, 1978. Convicted of felony murder but acquitted of criminal sexual conduct, he brings this appeal as of right.

The testimony indicated that the defendant lived with the victim and a Ms. Jones and her three children in Ms. Jones’ apartment. When Ms. Jones left her apartment on the afternoon of October 5, the defendant, the victim, and the Jones children were present. When she returned between 12:30 and 1:30 a.m., she found only the defendant there. Blood stained the defendant’s white trousers and a sheet and pillow case on the couch Ms. Jones used for her bed. The defendant told Ms. Jones that a friend had told him that the victim and Ms. Jones’ brother "must have been fighting again”.

At approximately 3 a.m., Ms. Jones and the defendant searched an alley behind the apartment building, finding nothing. At 7 a.m., others found Ms. Smith’s body in the alley near a shed or blockhouse in the area Ms. Jones and the defendant had searched earlier. Searching Ms. Jones’ apartment, the police found a pair of tennis shoes belonging to the defendant. There were blood spots on them, with fresh paint laid over the spots.

Mr. Nash, an acquaintance of the defendant and Ms. Jones, testified that he had visited the apartment on the evening of the 5th of October and had left at 9 or 10 p.m., with the defendant, the victim, and the children there.

Another acquaintance of the defendant stated that at 11:30 p.m. she had heard screams in the alley behind the apartment building and saw a man resembling Nash struggling with a woman. Standing nearby was a second man who stood in a manner resembling the defendant and who wore a hat like the one she knew the defendant to have. An automobile she recognized as belonging to Nash was near by, its lights on. She recognized the woman’s voice as that of Ms. Smith.

A neighbor testified that at approximately 1:50 a.m., he heard a car pull into the alley and leave a few minutes later. Soon thereafter, he heard a female quarreling in the alley with a man whose voice he recognized as that of the defendant.

The body of the victim was bloody and showed signs of a beating. It was dressed only in a blouse; in the nearby blockhouse was a large quantity of blood together with slacks, underwear, and one shoe belonging to the victim. The cause of death was multiple blunt wounds to the head.

The defendant is one of that 20% of the population who are "nonsecretors”, whose blood type cannot be discovered from analysis of other bodily fluids. The victim’s blood type was B; that of the defendant is O. Seminal fluid found on the bloodied bed sheet in the Jones’ apartment was found to be that of a nonsecretor. The blood found on the sheet, the pillow case, the defendant’s trousers and shoes, on the victim’s jacket, on a newspaper from the blockhouse, and on a vaginal swab taken from the victim was found to be type B. Microsperm found on the swab were apparently not tested for secretor grouping.

A Mr. Jones, a companion of the victim, testified that he had had sexual intercourse with the victim one or two days before her death. The testimony suggested that the microsperm found in the vietim’s body had been present for no more than 36 hours.

The defendant testified that on the evening of October 5th, he had gone drinking and gambling and, after delivering Ms. Jones’ children to their grandmother’s home, had become involved in a "struggle” with another gambler, suffering scratches on his knees, arms, and wrists. He stated that Ms. Smith had had a nose bleed on the night of October 5, soiling the apartment and his clothing with blood. Later in the evening, he said, he had painted the number on the apartment door, deliberately painting his shoes in the process because that was a "habit” he had in his trade as a painter.

The defendant’s first claim on appeal asserts that his conviction of felony murder is inconsistent with his acquittal of first-degree criminal sexual conduct and, so, must be reversed.

As a general proposition, courts do not interfere with a jury’s power to believe or disbelieve any part of the evidence presented to it. People v Fuller, 395 Mich 451; 236 NW2d 58 (1975). However, inconsistent verdicts raise a special and difficult problem for they evidence either a significant misunderstanding of the law set forth in jury instructions or an unresolved matter of fact and perhaps a lack of the unanimity required of jury verdicts. Thus, this Court has repeatedly held in criminal cases that verdicts that cannot be reconciled on any rational basis cannot stand. People v Hager, 72 Mich App 664; 250 NW2d 754 (1976), People v Goodchild, 68 Mich App 226; 242 NW2d 465 (1976).

We agree that a felony murder conviction based on a completed act of criminal sexual conduct cannot stand together with a verdict of not guilty of the same criminal sexual conduct charged in another count. The prosecution, however, posits a jury finding in this case that the defendant never completed the charged criminal sexual conduct and claims that this possibility is sufficient to reconcile the verdicts. The felony murder statute, MCL 750.316; MSA 28.548, provides for conviction of first-degree murder where murder arises out of an attempt to commit one of the felonies listed therein.

We find that one insurmountable obstacle stands in the way of the prosecution’s reasoning. While the jury in this case was instructed that an attempt to commit the charged criminal sexual conduct could support a verdict of guilty of first-degree murder, it was never instructed in the law of attempt. If the jury indeed concluded that the defendant merely attempted to commit a sexual assault on the victim, it did so improperly, for to do so it necessarily had to generate its own definition of a criminal attempt. In keeping with the principle that criminal statutes are to be narrowly construed, the "attempt” to which the felony murder statute refers cannot consist of what any single jury may consider to be a sincere try, but must be a legally culpable attempt, defined by statute and case law. See MCL 750.92; MSA 28.287, People v Gardner, 13 Mich App 16; 163 NW2d 668 (1968).

To allow a felony murder conviction upon a finding of an attempt to commit one of the enumerated felonies, an instruction in the nature of CJI 9:1:01 must be given. Without such an instruction, the underlying crime of attempted criminal sexual conduct is removed from the jury’s consideration, see People v Henry, 395 Mich 367, 373; 236 NW2d 489 (1975), and no murder conviction may be based thereon. The conviction of first-degree felony murder must, therefore, be vacated.

The trial court gave proper instructions on the crime of second-degree murder. Thus, whatever misunderstanding afflicted the jury as to the criminal sexual conduct charges, it necessarily found the defendant guilty of this offense. On remand, judgment of guilty of second-degree murder shall be entered, and the defendant resentenced. The prosecutor has the option to retry the defendant on the first-degree murder charge, if he should determine that justice would be better served thereby. People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971). Of course, the defendant may not be retried on the charge of criminal sexual conduct in the first degree.

Throughout the preceding discussion, we have treated as proper the trial court’s assumption that criminal sexual conduct in the first degree is the equivalent of rape for purposes of felony murder prosecution. As this might be the case if the prosecutor decides to retry the defendant, some comment is in order. In its charge to the jury, the trial court set out a partially reduced definition of the crime of criminal sexual conduct in the first degree:

"First of all, in regard to Felony Murder, the Defendant is charged with the crime of Murder of the First Degree. The law, as it applies to this case, states that all murder which shall be committed during and as a result of the committing or attempting to commit rape shall be Murder of the First Degree. The Defendant pleads not guilty.
"There are two kinds of murder, first degree and second degree, and you will be instructed as to both. Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the Defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or lessen the crime.
"First Degree and Second Degree Murder are the same crime, except that First Degree Murder has one more element. The additional element is that the death must have occurred as a direct result of the commission of the crime of rape.
"You will first be instructed on Murder of the Second Degree. Keep in mind that all of the elements of Second Degree Murder are necessary to prove First Degree Murder.
"To establish Second Degree Murder, the Prosecution must prove each of the following elements beyond a reasonable doubt:
"First, that the deceased died on or about October the 6th, 1978 within the County of Wayne in the City of Detroit.
"Second, that her death was caused by an act of the Defendant or because the Defendant consciously created a very high degree of risk of death to another with the knowledge that it probably would cause death.
"Third, if you find that the death was caused by the Defendant, you must determine whether the Defendant is guilty of any crimes. The killing of one human being by another may be entirely innocent. It is not the act of killing in itself which makes it a crime, but the state of mind with which it is done.
"You must — fourth, for murder you must find the Defendant consciously and knowingly performed the act which caused death. The Defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.
"The degree of risk for murder must be so reckless and wrong[f]ul as to amount to a criminal purpose aimed against a person’s life, and the Defendant must have been conscious of that risk.
"For Murder of the First Degree, the Prosecutor must prove beyond a reasonable doubt the four elements of Second Degree Murder which have been described to you. In addition, he must prove beyond a reasonable doubt the fifth element, which raises the crime to First Degree Murder.
"Fifth, that at the time of the act which caused the death of Etta Mae Smith, the Defendant was committing or attempting to commit or assisting another in the commission of the crime of rape, as it should be known, as Criminal Sexual Conduct in the First Degree. For the crime of Criminal Sexual Conduct in the First Degree, the Prosecution must prove each of the following elements beyond a reasonable doubt:
"First, that the Defendant engaged in a sexual act which involved some actual entry into the genital or anal openings of the complainant’s body. It is alleged in this case that the sexual act was committed by a penetration of the complainant’s body by the Defendant’s penis. Any such entry into the anal or genital openings is enough. It is not necessary that there be a completed sexual act or the emission of semen.
"Second, that the Defendant caused personal injury to the complainant.
"Personal injury means bodily injury. It also includes any disfigurement, chronic pain, pregnancy, disease, loss or impairment of the sexual or reproductive organ, or mental anguish. Mental anguish means suffering which occurs at the time of the alleged act.
"Third, that the Defendant used force or coercion to commit the sexual act. The term "force or coercion” means the use of actual physical force by the Defendant or any action or threat sufficient to create a reasonable fear of dangerous consequences.
"It is sufficient force if the Defendant overcame the complainant through the actual application of physical force or physical violence.
"If you find the Defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of Murder of the First Degree or guilty of the lesser offense of Murder of the Second Degree.”

The difference between the possible crimes falling within this instruction and the common law crime of rape is apparent.

At the time of the offense, criminal sexual conduct in the first degree was not one of the felonies upon which a felony murder conviction could be built. In People v McDonald, 86 Mich App 5; 272 NW2d 179 (1978), this Court described the distinction between the common law offense of rape and the range of offenses punishable as criminal sexual conduct in the first degree, maintaining that the Legislature did not intend to eliminate the offense of murder in the perpetration of rape by enacting the more comprehensive scheme and holding that murder in the perpetration of a common law rape remained a viable crime. We agree with that conclusion. However, we cannot hold that the criminal sexual conduct statute, standing alone, broadened the class of crimes that can support a felony murder conviction. Thus, in offenses committed before the effective date of 1980 PA 28, only instructions on the common law crime of rape may be given when a felony murder charge is built upon a sexual assault.

Among the circumstantial evidence connecting the defendant to the death of Ms. Smith was seminal fluid found on the bloodied bed sheet in the Jones apartment. Analysis proved this material to be the product of a "nonsecretor” male. The defendant, like 20% of the population at large, is a nonsecretor. The defendant urges us to follow the lead of People v Sturdivant, 91 Mich App 128; 283 NW2d 669 (1979), in which such evidence was held to be improper. We decline to do so._

The overwhelming majority of courts allow the use of blood grouping evidence in criminal trials, both to connect victims with defendants and, of interest here, to show that defendants could have left blood stains on crime scenes. See, e.g., People v Vallez, 80 Cal App 3d 46; 143 Cal Rptr 914 (1978), People v Gillespie, 24 Ill App 3d 567; 321 NE2d 398 (1974), State v Thomas, 78 Ariz 52; 275 P2d 408 (1954), Commonwealth v Statti, 166 Pa Super 577; 73 A2d 688 (1950), and Shanks v State, 185 Md 437; 45 A2d 85 (1945). See also Anno: Blood grouping tests, 46 ALR2d 1000. New York has adopted the position that such evidence is without probative value and is, thus, inadmissible. People v Robinson, 27 NY2d 864; 317 NYS2d 19; 265 NE2d 543 (1970).

Sturdivant based its decision on the provisions of the paternity act, MCL 722.716; MSA 25.496, banning the use of this sort of evidence in paternity proceedings except to protect a putative father. We do not find this reasoning persuasive. Whatever legislative policies and considerations might have led to this rule do not affect the practices of our Court in criminal proceedings. The Legislature might have sought to suppress blood grouping evidence in all litigation but did not do so, indicating that the focus of this rule is the type of proceedings involved rather than blood group evidence generally. As the California court remarked in Vallez, supra, the restriction on blood group evidence in paternity proceedings must be viewed as "unique”.

Neither are we persuaded by the Sturdivant opinion’s attempt to distinguish Gillespie, supra, from its own case which, like the case at bar, involved a showing that one of the population of "nonsecretors” was connected with a crime. In Gillespie, evidence was admitted to show that a burglary was committed by a person having blood characteristics occurring in only 2.7% of the black population. The panel in Sturdivant considered that the great "specificity” of the evidence in Gillespie distinguished it from the 80%/20% grouping shown by the secretor characteristic.

If established data such as this is to be used at all, we believe that the statistics themselves are of no significance. As the population group connected with a crime grows larger, the probative force of that connection will decrease accordingly. As observed in Thomas, supra:

"To exclude evidence merely because it tends to establish a possibility, rather than a probability, would produce curious results not heretofore thought of.” 78 Ariz 52, 64.

We conclude that deposits of blood and other identifiable bodily substances do not differ from other pieces of physical evidence such as clothing, hair styles, physical stature, or other observations that show possible connections between defendants and criminal acts. The weight of such evidence is for the jury’s determination.

The conviction of first-degree murder is reversed, and the cause remanded for proceedings not inconsistent with this opinion.

       The Legislature has acted to bring criminal sexual conduct in the first and third degrees within the ambit of the felony murder statute. 1980 PA 28, MCL 750.316; MSA 28.548, effective March 7, 1980. That amendment does not affect the case at bar.