author: Cynar, P.J.

text:
    PEOPLE v PETERSON
    Docket No. 78-2244.
    Submitted February 15, 1979, at Detroit.
    Decided May 22, 1979.
    Defendant, Gary R. Peterson, having been bound over to the Macomb Circuit Court, pled nolo contendere to the crime of manslaughter and, after an evidentiary hearing, was found guilty, Charles A. Wilkens, J. Defendant appeals alleging an insufficiency of evidence of the corpus delicti. Held:

    Defendant has waiyed the issue.
    Affirmed.
    Criminal Law — Court Rules — Nolo Contendere — Evidence — Corpus Delicti — Waiver.
    A criminal defendant who waived preliminary examination and subsequently pled nolo contendere waived the sufficiency of proof of the corpus delicti at the evidentiary hearing required by court rule and held to establish support for a finding that the defendant is guilty of the offense to which he is pleading (GCR 1963, 785.7[3][b][ii]).
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law § 501.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Martin M. Holmes, Prosecuting Attorney, and Keith D. Roberts, Assistant Attorney General, for the people.

      Terry L. Shaw, for defendant on appeal.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   Cynar, P.J.

On December 21, 1977, defendant pled nolo contendere to a charge of manslaughter, a violation of MCL 750.321; MSA 28.553. On May 2, 1978, he was sentenced to a term of 3 to 15 years imprisonment and now appeals as of right.

As preliminary examination in this case had been waived, an evidentiary hearing was held, in conformance with GCR 1963, 785.7(3)(b)(ii), to establish support for a finding that defendant had committed the charged offense. Medical testimony established that there was morphine in the deceased’s blood and that she died from "acute narcotism”. Dr. Irick, the county medical examiner, testified that he noticed a puncture mark on the deceased’s right arm and concluded that if she were right-handed it would have been very difficult for her to have administered the injection by herself.

Defendant’s connection to the offense was provided solely by the testimony of Terry Lee Scott, a friend of defendant. He testified that in November of 1977, over a year after the deceased’s death, defendant told him that he had been watching television with the deceased when she suggested they "get high”. The witness further alleged that defendant admitted injecting her with heroin, which caused her to pass out and die.

On appeal, defendant contends that there was insufficient evidence, independent of his alleged extrajudicial statement, to establish the corpus delicti of the offense of manslaughter. As a general rule, the prosecution is required to prove the corpus delicti of an offense without relying upon the extrajudicial confession of the defendant. People v Barron, 381 Mich 421, 424; 163 NW2d 219 (1968). Proof of the corpus delicti of any offense requires evidence in support of all the elements of the offense. People v Allen, 390 Mich 383; 212 NW2d 21 (1973). It is well-accepted that the corpus delicti rule applies to preliminary examinations as well as trials. People v White, 276 Mich 29, 31; 267 NW 777 (1936), People v Randall, 42 Mich App 187, 190; 201 NW2d 292 (1972), and People v Sparks, 53 Mich App 452, 456; 220 NW2d 153 (1974).

In the present case, defendant waived preliminary examination and never raised this issue be-]ow. In People v McIntyre, 74 Mich App 661, 665; 254 NW2d 603 (1977), a panel of this Court held that a defendant’s failure to proceed on a motion to quash the information acts as a waiver of the issue of the sufficiency of the evidence to bind over. Similarly, in People v Hill, 86 Mich App 706, 712-713; 273 NW2d 532 (1978), another panel of this Court concluded that the defendant’s failure to move to suppress certain evidence used in support of the bindover waived the issue of whether the evidence was illegally seized.

We conclude that a similar result is warranted here. In order to bind a defendant over for trial, the prosecution must establish that (1) a crime has been committed and (2) that there is a probable cause to believe that defendant committed it. MCL 766.13; MSA 28.931, People v Duncan, 388 Mich 489, 499; 201 NW2d 629 (1972). The first prong of this test is the requirement that the corpus delicti of the offense be established. See People v Asta, 337 Mich 590, 608-610; 60 NW2d 472 (1953). Since McIntyre, supra, and Hill, supra, establish that the issue of the sufficiency of the evidence to bind over is waived by failure to raise it below, it naturally follows that the issue of the sufficiency of the proof of the corpus delicti is similarly waived, as the latter issue is merely part of the former.

Such a holding is sound practically as well as theoretically. As noted in McIntyre, supra, 665, any contrary rule would require this Court to perform the function of the circuit court in ruling on such issues. We think it is a wiser policy to require defendant to raise the issue by means of a pretrial motion. Such a rule imposes a very light burden upon a defendant and, when the issue is meritorious, avoids unnecessary appeals.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    COBB v MID-CONTINENT TELEPHONE SERVICE CORPORATION
    Docket No. 78-2360.
    Submitted March 12, 1979, at Lansing.
    Decided May 22, 1979.
    Roland Cobb brought an action against Mid-Continent Telephone Service Corporation, alleging that he had been wrongfully terminated from employment and seeking damages for mental distress, for damage to reputation and for embarrassment. During his period of employment there had been a corporate merger and change of name, so at the time the plaintiff brought his action there was some uncertainty as to which of various corporations was the proper defendant. Some time after filing the complaint, plaintiff moved to amend his complaint to name as defendants Mid-Continent Telephone Corporation and Mid-Michigan Telephone Company and to dismiss Mid-Continent Telephone Service Corporation. The Ingham Circuit Court, Jack W. Warren, J., denied the motion to amend, holding that the statute of limitations barred the action against the additional defendants. Summary judgment was granted to the defendant. Plaintiff appeals, alleging the trial court erred in applying a 3-year statute of limitations and in concluding that the statute was not tolled by virtue of the service of the complaint on the defendant. Held:

    1. The three-year statute of limitations was the proper limitation period to apply. Even though the plaintiffs action is grounded on a theory of breach of contract, he is seeking damages for mental distress, damage to reputation and for embarrassment which are injuries to persons and property.
    2. Resolution of whether the statute of limitations is tolled as to prospective defendants is dependent upon the circumstances of each case. Here, in the case of Mid-Continent Telephone Corporation the plaintiff did not present evidence from which it could be inferred that the officers of the prospective defendant were informed of the facts surrounding the litigation by virtue of service upon the named defendant’s agent. Additionally, the plaintiff was at fault in not initially bringing suit against MidContinent Telephone Corporation, as its name was on his paychecks. As to Mid-Michigan Telephone Company, its officers were clearly informed of facts indicating that Mid-Michigaii was a party that the plaintiff intended to sue.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 99.

       61 Am Jur 2d, Pleadings § 305 et seq.

       61 Am Jur 2d, Pleading § 311.

       51 Am Jur 2d, Limitation of Actions §§ 89, 91, 102 et seq.

       19 Am Jur 2d, Corporations §§ 1194, 1195, 1454.
    51 Am Jur 2d, Limitation of Actions §§ 153, 158, 161-166, 169.

      Affirmed as to Mid-Continent Telephone Corporation. Reversed as to Mid-Michigan Telephone Company, and remanded for entry of an order granting plaintiffs motion for leave to add Mid-Michigan Telephone Company as a defendant.
    1. Pleading — Amendment of Pleadings — Appeal and Error.
    Generally, the grant or denial of a motion to amend pleadings will not be disturbed on appeal absent an abuse of discretion.
    2. Pleading — Amendment of Pleadings — Judge’s Discretion.
    A trial judge, in ruling on a motion to amend the pleadings, should exercise his discretion liberally and should deny amendment only when justice would not be served thereby.
    3. Pleading — Amendment of Pleadings — Denial of Motion to Amend.
    Denial of a motion to amend pleadings is properly ordered where the moving party has exhibited undue delay, bad faith or a dilatory motive, or when such an amendment would be futile.
    4. Limitation of Actions — Injury to Persons and Property — Mental Distress — Damage to Reputation — Embarrassment.
    The three-year statute of limitations pertaining to actions alleging injuries to persons and property is properly applied to an action for damages resulting from a termination of employment in which the plaintiff, although grounding his action upon a theory of breach of contract, is seeking damages for mental distress, damage to reputation and for embarrassment (MCL 600.5805[7]; MSA 27A.5805[7]).
    5. Limitation of Actions — Tolling of Statute — Corporate Defendants — Service of Process — Factors Considered.
    Factors to be considered in determining whether service Of proc* ess on one corporate defendant is sufficient to toll the statute of limitations as to another prospective corporate defendant include whether: (1) service was had upon one who Was a proper representative of both corporations, (2) the corporations share the same legal address, (3) the corporations are in the same general business, (4) the corporations have most of the same officers, (5) the corporations are represented by the same law firm, and (6) the officers of the corporation which plaintiff is seeking to add were clearly informed of facts which would indicate which entity the plaintiff intended to sue.

      Mitchell, Vilella & Houk, P.C., for plaintiff.

      Foster, Swift, Collins & Coey, P.C. (by John L. Collins and John W. Cotner), for defendant.
    Before: Cynar, P.J., and J. H. Gillis and N. A. Baguley, JJ.

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

       MCL 600.5805(7); MSA 27A.5805(7) provides for a three-year statute of limitations for all but specified actions "to recover damages for injuries to persons and property”. MCL 600.5807(8); MSA 27A.5807(8) provides for a 6-year statute of limitations for all but specified actions "to recover damages or sums due for breach of contract”.

   Cynar, P.J.

Plaintiff appeals as of right from an April 5, 1978, order denying plaintiff’s motion to amend his complaint to add additional defendants and granting defendant’s motion for summary judgment.

On August 26, 1975, plaintiff filed a complaint alleging that he had been wrongfully terminated by defendant. The complaint alleged that in March of 1958 he entered into an employment contract with the Rural Telephone Company and that he continued to work for this company until it was sold to defendant some time prior to June of 1969. According to plaintiff’s complaint, defendant assumed all the contractual obligations of Rural Telephone Company, including the retention of all employees and their pension plan. Plaintiff further alleged that in September of 1972, two months prior to the vesting of a stock option plan, he was wrongfully terminated from employment with defendant. On August 29, 1975, the complaint was served upon Charles M. Stark, defendant’s designated agent for service of process.

On October 10, 1975, defendant answered, denying all of plaintiffs allegations. Defendant claimed that plaintiff’s contract with Rural Telephone Company was acquired by an entity other than defendant. For the next year-and-a-half, plaintiff unsuccessfully attempted to discover the relationship between Rural Telephone Company and various other entities. Although plaintiff testified at a February 17, 1976, deposition that he believed that Mid-Continent Telephone Corporation (hereinafter Mid-Continent) had actually been his employer and that this corporation’s name appeared on his paychecks, no motion to amend the complaint to add Mid-Continent as a defendant was made at that time.

On May 5, 1977, plaintiff filed a motion for leave to amend his complaint. In the motion he alleged that, as a result of discovery, he had determined that Mid-Michigan Telephone Company (hereinafter Mid-Michigan) and Mid-Continent were actually the proper defendants in this case. Defendant chose to oppose this motion, even though plaintiff was also seeking to dismiss it as a party.

On June 27, 1977, plaintiff’s motion to amend was denied. The court held that the statute of limitations had run as to the additional defendants. The court concluded that, in the absence of proof of a relationship between defendant and the proposed additional parties, service upon defendant was insufficient to toll the statute as to the other parties. A subsequent similar motion, supported by numerous corporate documents, was also denied. An order granting a defense motion for summary judgment was granted on June 7, 1978.

On appeal, plaintiffs sole contention is that the trial judge erred in denying his motion for leave to amend his complaint. Review of this issue involves consideration of the interplay between the rules governing the amendment of pleadings and those concerned with the statute of limitations.

In general, the grant or denial of a motion to amend pleadings will not be disturbed absent an abuse of discretion. Grove v Story Oldsmobile, Inc, 31 Mich App 613, 617; 187 NW2d 923 (1971). In ruling on a motion to amend, a trial judge should exercise his discretion liberally and should deny amendment only when justice would not be served thereby. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 658; 213 NW2d 134 (1973). Denial of a motion to amend pleadings is properly ordered where the moving party has exhibited undue delay, bad faith or a dilatory motive, or when such an amendment would be futile. Ben P Fyke & Sons v Gunter Co, supra, at 659.

In the present case the trial judge determined that the statute of limitations had run against the additional prospective defendants and that amendment would therefore be futile. Plaintiff contends that the trial judge erred both in applying a three-year statute of limitations and in concluding that the statute was not tolled as to the prospective defendants by virtue of the service of the complaint upon defendant.

We agree with the trial judge’s determination that that the three-year, rather than six-year, statute of limitations applies to plaintiffs claim. Although plaintiffs cause of action is grounded upon a theory of breach of contract, the damages sought are for mental distress, damage to reputation and embarrassment. Under these circumstances, plaintiff is alleging "injuries to persons and property”, MCL 600.5805(7); MSA 27A.5805(7), and the 3-year statute of limitations was correctly applied. Stringer v Bd of Trustees of Edward W Sparrow Hospital, 62 Mich App 696, 701-702; 233 NW2d 698 (1975).

The question of whether the statute of limitations was tolled as to the prospective defendants is not as easily disposed of. In Wells v The Detroit News, Inc, 360 Mich 634, 639; 104 NW2d 767 (I960), the Court focused upon several factors in determining whether service of process upon one corporate defendant is sufficient to toll the statute of limitations as to another prospective corporate defendant. These include: (1) whether service was had upon one who was a proper representative of both corporations; (2) whether the corporations share the same legal address; (3) whether the corporations are in the same general business; (4) whether the corporations have most of the same officers; (5) whether the corporations are represented by the same law firm; and (6) whether the officers of the corporations which plaintiff is seeking to add were clearly informed of facts which would indicate which entity plaintiff intended to sue. Furthermore, courts generally have also considered the extent of plaintiff’s fault in bringing an action against the wrong entity. See Anno: Change in party after statute of limitations has run, 8 ALR2d 6, § 72, pp 144-148, and Amer v Clarence A Durbin Associates, 87 Mich App 62, 67; 273 NW2d 588 (1978).

In cases decided subsequent to Wells, supra, these factors have been applied with varying results. Compare Bensinger v Reid, 17 Mich App 219; 169 NW2d 361 (1969), and Arnold v Schecter, 58 Mich App 680; 228 NW2d 517 (1975) (statute of limitations bars suit), with Apple v Solomon, 12 Mich App 393; 163 NW2d 20 (1968), and Forest v Parmalee (On Rehearing), 60 Mich App 401; 231 NW2d 378 (1975), aff'd 402 Mich 348; 262 NW2d 653 (1978) (statute of limitations does not bar suit). The resolution of the issue thus turns on the particular circumstances of each case. Charpentier v Young, 83 Mich App 145, 149-150; 268 NW2d 322 (1978), Amer v Clarence A Durbin Associates, supra, 67.

Prior to applying the factors noted in Wells, supra, to the present case, it is necessary to describe the corporate web in which plaintiff had become intertwined.

On May 30, 1974, Rural Telephone Company, plaintiff’s previous employer, and six other telephone companies filed a merger agreement with the Michigan Department of Commerce. This agreement was signed by Charles M. Stark, as president of each of the seven companies, and by Lawrence B. Lindemer as secretary of the seven companies. Each of the seven companies was a subsidiary of Mid-Continent. Pursuant to the merger agreement, the seven companies were merged into the New Lawrence Telephone Company, which name was then changed to the Mid-Michigan Telephone Company.

Mid-Continent Telephone Service Corporation, the original defendant, is an Ohio corporation doing business in this state. Its secretary, George C. McConnaughey, is also the secretary of Mid-Continent. On July 16, 1973, Charles M. Stark was named as defendant’s resident agent succeeding Charles M. Wiley. The location of defendant’s registered office was also changed at this time to 202 N. Clinton in the City of Stockbridge. This location was also the registered office of the New Lawrence Telephone Company. Furthermore, on March 1, 1973, Charles M. Stark was designated as resident agent of New Lawrence Telephone Company, replacing Charles Wiley.

Applying the Wells factors to the facts of this case, we conclude that the trial judge properly ruled that the statute of limitations barred the claim against Mid-Continent. It is true that Mid-Continent and defendant are in the same general business, are represented by the same law firm and have one common corporate officer. However, plaintiff was unable to establish that the two corporations have the same designated agent or the same legal address. Nor did plaintiff introduce any further evidence of identity of corporate officers or other evidence from which we can infer that the officers of Mid-Continent were informed of the facts surrounding this litigation by virtue of service upon defendant’s designated agent. Furthermore, plaintiff was at fault in failing to bring suit against Mid-Continent, as its name appeared on his paychecks. Therefore, we do not disturb the trial court’s ruling, insofar as Mid-Continent is concerned.

However, we conclude that the trial court erred in denying plaintiffs motion for leave to add Mid-Michigan as a defendant. Mid-Michigan and defendant are in the same general business, share a common legal address, have the same legal counsel and have designated the same agent for service of process. That agent, Charles M. Stark, is also the president of Mid-Michigan. Therefore, we conclude that the officers of Mid-Michigan were clearly informed, by virtue of the service of the complaint upon Mr. Stark, of facts indicating that Mid-Michigan was the party plaintiff intended to sue. We find no negligence on plaintiffs part in his inability to initially sort out the corporate network of which Mid-Michigan was a part. Nor has Mid-Michigan shown any prejudice that would result from their being added as a defendant at this time.

The decision of the circuit court is affirmed as to Mid-Continent Telephone Corporation. The decision of the circuit court is reversed as to Mid-Michigan Telephone Company and the case remanded for entry of an order granting plaintiffs motion for leave to add Mid-Michigan Telephone Company as a defendant in this action. No costs, neither party prevailing in full.

       The information describing this corporate web was submitted below in support of plaintiffs second motion for leave to amend.

       In this regard, we note that the attorneys for defendant have both below and on appeal vigorously argued in behalf of Mid-Michigan and Mid-Continent. Defendant, however, was dismissed from the case below. Based upon this evidence we can only conclude that the three corporations are represented by the same firm.

       See note 3, supra.

       We note that the proofs submitted by plaintiff do not include any documents expressly designating Charles M. Stark as agent for Mid-Michigan. However, the proofs do indicate that Mr. Stark was the designated agent for the New Lawrence Telephone Company and that the name of the latter entity was subsequently changed to Mid-Michigan Telephone Company. Therefore, we conclude that, after the name change, Mr. Stark became the designated agent for Mid-Michigan.


author: J. H. Gillis, J.

text:
    LYNCH v SIGN OF THE BEEFEATER, INC.
    Docket No. 78-2643.
    Submitted April 17, 1979, at Detroit.
    Decided May 22, 1979.
    In lieu of leave to appeal, reversed and remanded to the trial court for further proceedings, 407 Mich 866.
    Marguerite Lynch injured her hip when she slipped and fell in the parking lot of a restaurant operated by the Sign of the Beefeater, Incorporated. That injury required the surgical replacement of the head of her right femur with a prosthesis. Subsequently she allegedly aggravated her hip injury in a work-related accident for which she received workers’ compensation benefits. Plaintiff brought suit against Montgomery Ward claiming Montgomery Ward was negligent in failing to keep its parking lot safe and clear for customers. Montgomery Ward moved for summary judgment on the basis that it had no duty to remove natural accumulations of snow. The motion for summary judgment was granted. Plaintiff filed an application for leave to appeal in the Court of Appeals, which was denied. Docket No. 24383, order of August 26, 1975. Plaintiff sought leave to appeal in the Supreme Court. The Supreme Court ordered that the summary judgment be reversed and the matter be remanded for trial. 395 Mich 821 (1975). After remand, Sign of the Beefeater, Incorporated, a wholly owned subsidiary of Montgomery Ward, was substituted as defendant: At the trial in Macomb Circuit Court, Robert J. Chrzanowski, J., judgment of no cause of action was entered. Plaintiff appeals and alleges that evidence which was inconsistent with the position taken by defendant in its motion for summary judgment was improperly admitted; that during plaintiffs counsel’s questioning of plaintiff concerning her financial condition the trial court improperly sua sponte admonished counsel as to the relevancy of the line of questioning; and that evidence of plaintiffs workmen’s compensation award was improperly admitted and the jury was improperly instructed that damages, if any, arising out of the subsequent injury and attributable to defendant should be reduced by the workmen’s compensation award. Held:

      References for Points in Headnotes

       28 Am Jur 2d, Estoppel and Waiver § 74.

       81 Am Jur 2d, Witnesses § 507.

       22 Am Jur 2d, Damages §§ 209, 346.

       5 Am Jur 2d, Appeal and Error § 891.

      1. Defendant was not estopped from presenting proofs at trial that the parking lot was plowed, those proofs not being inconsistent with the "natural accumulation” position taken in the motion for summary judgment, since the proofs at trial showed that snow had fallen between the time of plowing and the time of the accident.
    2. The sua sponte action by the trial court in terminating plaintiffs line of questioning was not improper. That action did not evidence bias on the part of the trial court, particularly' since the jury was instructed that the court did not intend to indicate any opinion concerning the merits of the case by the rulings, conduct or remarks made during trial.
    3. The admission into evidence of the amount of plaintiffs workmen’s compensation award and the instruction to the jury that damages, if any, attributable to defendant should be reduced by the compensation award was erroneous; however, it did not result in reversible error, since it is clear that the jury did not reach the question of damages in returning its verdict in favor of defendant.
    4. No error resulted from the refusal of the trial court to give a jury instruction in the exact language requested by the plaintiff where the instruction by the court accurately stated the law and embodied the substance of the requested instruction.
    Affirmed.
    1. Evidence — Inconsistent Positions — Motion for Summary Judgment — Trial Proofs — Plowing of Snow — Natural Accumulation of Snow.
    A defendant is not estopped, on the basis that the position asserted at trial was inconsistent with the position taken in a motion for summary judgment that snow in a parking lot was a natural accumulation, from presenting proofs at trial that the parking lot was plowed where the proofs at trial show that snow had been falling between the time the lot was plowed and the time at which plaintiff was injured.
    2. Evidence — Relevancy — Termination by Court — Bias.
    The termination of a line of questioning by a trial court on its own motion on the ground of relevancy may be proper and such sua sponte action by the court need not be evidence of bias by the court, particularly where the jury is instructed that the court did not intend to indicate any opinion concerning the merits of the case by the rulings, conduct or remarks made during trial.
    3. Evidence — Jury Instructions — Workmen’s Compensation — Benefits — Damages — Harmless Error — Appeal and Error.
    It is error to admit into evidence in a third party negligence case the amount of a plaintiff’s workmen’s compensation award and to instruct the jury that damages, if any, attributable to the third party defendant should be reduced by the workmen’s compensation award; however, no reversible error occurred where it is clear that the jury never reached the issue of damages in returning its verdict in favor of the defendant.
    4. Appeal and Error — Jury Instructions — Requested Instruction — Instruction of the Court.
    No error results from the refusal of a trial court to give a jury instruction in the exact language requested by a party where the instruction by the court accurately states the law and embodies the substance of the requested instruction.

      Harry D. Hirsch, Jr. (E. R. Whinham, of counsel), for plaintiff.

      James A. Brescoll, for defendant.
    Before: Danhof, C.J., and J. H. Gillis and N. J. Kaufman, JJ.
   J. H. Gillis, J.

Plaintiff appeals from a judgment rendered in favor of defendant upon a jury verdict of no cause of action.

Plaintiff, an elderly woman, was walking across defendant’s parking lot on February 22, 1973, when she slipped and injured her right hip. She underwent surgery and the head of the femur was replaced with an Austin-Moore prosthesis. After recovering, she returned to work as a sales person. On January 13, 1975, her foot was caught under a swinging door. In attempting to extricate it she allegedly aggravated her hip injury and was unable to continue working.

Plaintiff brought suit claiming defendant was negligent in failing to keep its parking lot safe and clear for customers. Defendant was initially granted summary judgment on the theory that defendant had no duty to remove natural accumulations of snow. Ultimately, the Supreme Court reversed and remanded the case for trial on the basis of Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), which ended the "natural accumulation” rule.

The trial resulted in a verdict in favor of defendant and plaintiff now seeks a second trial, raising five issues for our consideration.

I

Plaintiff first argues that the trial court erred in allowing defendant to introduce evidence that the parking lot had been plowed on the morning of February 22, 1973. It is plaintiff’s contention that this is inconsistent with the position taken by defendant when moving for summary judgment. It is true that litigants who take one position will be estopped from subsequently taking an inconsistent position. Central Holding Co v Bushman, 238 Mich 261, 268; 213 NW 120 (1927). However, defendant’s contention that the snow present in its parking lot at the time plaintiff fell was a natural accumulation is in no way inconsistent with its subsequent claim that the lot was plowed on the morning of February 22, 1973. Plaintiff’s testimony on deposition was that snow began falling around the middle of the day and she fell in the early evening. Defendant never claimed that the parking lot was plowed after 9 a.m. on that day. Thus, defendant could consistently state that snow present in its parking lot at the time plaintiff fell was a natural accumulation and that the lot had been plowed on the morning of February 22, 1973. We find no error in the admission of the evidence.

II

Plaintiff next contends that the trial judge showed bias against the plaintiff when he sua sponte objected to the relevancy of a line of questioning. Plaintiff’s counsel was questioning his client concerning her poor financial status when the following exchange took place:

"The Court: (Interposing) Mr. Hirsch, there’s been no objection by counsel, but how is this relevant to this case? This testimony only tends to appeal to the sympathy of the jury.
’’The Witness: Oh, my goodness.
”Mr. Hirsch: Well, if an accident creates a situation of hardship on a person, they can be compensated for that hardship in total. If it deprives you of the ability to earn a livelihood to keep your bed and bones together, it’s relevant, it is very relevant.
’’The Court: I feel it’s highly improper. Go ahead, you may continue.”

The rejection of irrelevant evidence upon the court’s own motion is not error. Detroit v Porath, 271 Mich 42; 260 NW 114 (1935). Here the trial court did not evidence bias against plaintiff, but merely explained the reason for its rejection of the evidence. Moreover, the jury was subsequently instructed that the court had not intended to indicate any opinion concerning the facts of the case by its rulings, conduct or remarks during the trial.

Ill

As noted above, following plaintiff’s initial injury she was hurt a second time at work. It was plaintiffs theory that a normal person would have recovered from the latter injury within a short time but that because of her physical condition and prosthesis she was rendered permanently disabled. Assuming the jury accepted this theory, defendant would have been liable not only for the initial injury but also for its aggravation. Stahl v Southern M R Co, 211 Mich 350, 355; 178 NW 710 (1920).

Plaintiff received a total of $3,401.76 in weekly workers’ compensation benefits because of the second injury and eventually entered into a redemption agreement whereby she received an additional $20,000.

Plaintiff moved to exclude reference to this sum from the evidence but the trial court denied plaintiffs motion. In addition, the court instructed the jury that if the second injury were proximately caused by defendant’s negligence, then the damages awarded for loss of wage-earning capacity due to those injuries should be reduced by $23,401.76, the amount received as workers’ compensation.

Plaintiff contends that it was error to admit this sum into evidence and to instruct the jury as the court did.

The collateral source rule provides that compensation due an injured person from an independent source other than another tortfeasor does not operate to lessen damages recoverable from the wrongdoer. Blacha v Gagnon, 47 Mich App 168; 209 NW2d 292 (1973), Bourdon v Read, 30 Mich App 681; 186 NW2d 737 (1971). More specifically it has been held that evidence concerning receipt of workers’ compensation benefits should not be admitted in the trial of a negligence case against a third party. Hill v Harbor Steel & Supply Corp, 374 Mich 194, 214; 132 NW2d 54 (1965).

Defendant attempts to distinguish Hill because it involved but a single injury. We see no merit in that argument. Assuming the plaintiffs aggravation theory was correct, defendant was still a tortfeasor as to the second injury. Hence, plaintiffs employer could seek reimbursement from a recovery for this injury. MCL 418.827; MSA 17.237(827).

The trial court may have confused the instant situation with one involving two tortfeasors. See, e.g., Stitt v Mahaney, 72 Mich App 120; 249 NW2d 319 (1976), Sobotta v Vogel, 37 Mich App 59; 194 NW2d 564 (1971). Where that is the case, any' recovery against one operates to reduce, pro tanto, the amount of damages recoverable against any other tortfeasor, whether joint or independent, responsible for the injuries. Cooper v Christensen, 29 Mich App 181, 183-184; 185 NW2d 97 (1970).

An employer has a statutory duty to pay workers’ compensation benefits if disability occurs due to an injury arising out of and in the course of employment. Negligence is irrelevant. Hence, the rule involving multiple tortfeasors has no application.

We conclude that the trial court erred in admitting this evidence and instructing that it operated to reduce plaintiffs damages. However, we conclude this error does not mandate reversal. The instructions to the jury separated the issues of liability and damages:

"Your verdict will be for the plaintiff if she was injured and the defendant was negligent, and such negligence was a proximate cause of her injuries.
"Your verdict will be for the defendant if plaintiff was not injured, or if the defendant was not negligent, . or, if negligent, such negligence was not a proximate ' cause of the injuries to the plaintiff.
"If you decide the plaintiff is entitled to damages, it is your duty to determine the amount of money which reasonably, fairly and adequately compensates her for each of the elements of damage which you decide has resulted from the negligence of the defendant, taking into account the nature and extent of the injury.”

The jury came back with a verdict "in favor of the defendant”. Therefore, it is evident that the jury never reached the issue of damages. Since the improper admission of the amount received for workers’ compensation went only to the damages, this error does not require reversal.

IV

Plaintiff’s final two claims on appeal concern additional instructions by the court. The instruction on the duty of care owed by the defendant was taken from Quinlivan v Great Atlantic & Pacific Tea Co, Inc, supra. This instruction properly conveyed the controlling law to the jury.

Similarly it was not error for the trial court to refuse plaintiff’s requested instruction concerning defendant’s liability for the later injury. The trial court’s instruction was taken from Stahl v Southern M R Co, supra. The trial court is under no obligation to give a requested instruction in the exact language submitted by a party. Schattilly v Yonker, 347 Mich 660; 81 NW2d 343 (1957), Clingerman v Bruce, 11 Mich App 3; 160 NW2d 614 (1968). Here the trial court’s instruction accurately stated the law and embodied the substance of the requested instruction.

Affirmed. Costs to appellee.


author: Beasley, P.J.

text:
    PEOPLE v SWEJKOWSKI
    Docket No. 78-2657.
    Submitted April 9, 1979, at Detroit.
    Decided May 22, 1979.
    Defendant, Mark Swejkowski, was convicted of breaking and entering with intent to commit larceny in Recorder’s Court of Detroit, Susan D. Borman, J. At trial prior to closing argument, defense counsel requested the court to instruct the jury on circumstantial evidence and the court indicated that it would. Defense counsel relied on this in arguing circumstantial evidence to the jury in closing argument. The court then refused to give the instruction on the ground that the evidence presented included sufficient direct evidence so that an instruction on circumstantial evidence was not warranted. Defendant appeals. Held:

    The refusal was fundamentally unfair to defendant, violated a court rule and requires reversal.
    Reversed.
    1. Criminal Law — Instructions to Jury — Court Rules — Failure to Instruct.
    Failure of a trial judge to give an instruction on circumstantial evidence after indicating she would do so is fundamentally unfair and violates a court rule and, where the party requesting it relied on it in closing argument, requires reversal of a conviction (GCR 1963, 516.1).
    2. Criminal Law — Closing Argument — Prosecutorial Comment — Other Crimes.
    A prosecutor, in a trial for breaking and entering, in his closing argument must refrain from references to testimony during the trial regarding other possible breaking and enterings that have nothing to do with the case being tried.
    References for Points in Headnotes

       75 Am Jur 2d, Trial § 615.

       75 Am Jur 2d, Trial §§ 251, 269.

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

      Samuel F. Galici, for defendant.
    Before: Beasley, P.J. and Allen and D. C. Riley, JJ.
   Beasley, P.J.

A jury found defendant guilty of breaking and entering a building with intent to commit larceny contrary to MCL 750.110; MSA 28.305. He was sentenced to a prison term of not less than two nor more than ten years in prison. Defendant’s motion for a new trial was denied. He appeals as of right.

Defendant first claims that the trial judge erred in refusing to give a requested jury instruction on circumstantial evidence after the court had agreed to give that instruction.

The case against the defendant was based on circumstantial evidence. The complainant testified that she left the bar which she owned at 9:30 p.m. and that everything was in order. After going out to eat, she arrived home and found that her home had been robbed. Because of the condition of her home, she had a premonition that something might also be wrong at her bar, so she sent three men friends back to check on its condition.

One of the men, George Sanford, testified that upon entering the bar he noticed plaster on the floor. He proceeded to the rear of the bar to check the doors.

Sanford and another prosecution witness testified to hearing someone within the bar say, "Freeze!” Sanford testified that defendant identified himself. However, at a previous meeting with a police officer, Sanford did not mention this identification. Sanford and one of the other witnesses testified that the voice they heard within the bar was that of defendant. Sanford said his identification of defendant was based not only on his voice, but the figure’s height, which he determined to be the same as defendant’s.

The third witness testified that he had opened the bar door for the other two men. He heard a voice from within which he could not identify. Upon hearing Sanford holler, he closed the door and called the police.

Complainant returned to the bar herself sometime after midnight. She observed plaster on the floor, a hole in the roof and the door to the cigarette machine open with all the cigarettes out of it. Her testimony indicated that she knew defendant; he had been coming to her bar for six years, and she was able to identify him in court. Complainant said that defendant was in the bar the day before it was broken into and, because she would not serve him, he shook his finger at her and said: "You better watch yourself’.

Defendant did not take the stand. All of the testimony referred to above came from prosecution witnesses. The prosecutor attempted to show that defendant harbored a grudge against the complainant and that this was his motive for breaking into her home and bar. None of the parties actually saw defendant’s face at the time of the alleged incident.

Prior to closing arguments, defense counsel submitted various requests to charge to the trial court. In one of them, he requested that the proposed Criminal Jury Instruction 3:1:10 be given in regards to circumstantial evidence. The trial judge specifically inquired concerning the circumstantial evidence instruction and defense counsel responded that it was submitted primarily with reference to the alleged animosity that complainant, in her testimony, claimed to exist between defendant and herself. The trial judge indicated that she had no problems with the instructions submitted by defense counsel and said she would give all of them.

In defense counsel’s closing argument, he told the jury it would receive an instruction on circumstantial evidence from the court. He read part of the requested instruction to the jury that he had reason to believe would be given and argued its applicability to the evidence.

The trial court failed to give the instruction on circumstantial evidence even though defense counsel objected to the omission.

Defendant contends that the trial court’s failure to give the instruction was fundamentally unfair and violated GCR 1963, 516.1. Defense counsel claims he relied on the giving of such instruction and based his closing arguments on it.

The trial judge addressed this issue in her denial of defendant’s motion for a new trial. She would support her failure to give the instruction she said she would give on the basis that the evidence presented included sufficient direct evidence in and of itself so that an instruction on circumstantial evidence was not warranted. The prosecution further argues that sufficient reasonable doubt instructions were given to preclude a necessity for a special instruction on circumstantial evidence.

GCR 1963, 516.1 reads:

"At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall, file written requests that the Court instruct the jury on the law as set forth in the request. A copy of such requested instructions shall be served on the adverse parties in accordance with Rule 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury, and, subject to the provision of sub-rule 516.3, shall instruct the jury after the arguments are completed. The court may make such comments on the evidence, the testimony, and the character of the witnesses as in its discretion the interests of justice require.”

Defendant complied with this part of the court rule. In 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), Comments, p 565, it is stated:

"The court is required to inform counsel of its proposed action on the requests prior to their arguments to the jury. Sub-rule 516.1. The obvious purpose of this provision is to enable counsel to know which requests will be granted or denied, in order to argue the facts in the light of the law as the court will charge the jury.”

In People v Patskan, the trial judge stated that he would give an instruction on attempted assault with intent to rob being armed and then failed to do so. The Supreme Court, in holding this to be reversible error, stated:

"We agree with defendant that the trial judge stated he would give an instruction of attempted assault with intent to rob being armed. His failure to do so violated GCR 1963, 516.1.
"As the people point out, defendant’s basic defense was that he was not a participant in the crime. However, this does not lessen the prejudice to him where the court has agreed to give a specific charge and then fails to do so. His counsel forcefully argued that if any crime was committed it was attempted assault with intent to rob being armed. The failure of the trial judge to give the instruction after indicating he would do so, was fundamentally unfair, violated GCR 1963, 516.1 and, also, defendant’s right to due process of law. Therefore, the conviction must be reversed and a new trial held.” (Footnote omitted.)

The prosecution attempts to distinguish Patskan on the basis that the failure of the trial court to instruct in that case removed the ultimate determination of guilt or innocence of that charge from the jury’s consideration and, therefore, was more prejudicial than in the instant case.

The language in Patskan appears to be unequivocal that where the court fails to give an instruction that it previously agreed to give, and the party requesting it relies on it in closing argument, it is reversible error.

Although there may be instances where the failure of a trial judge to give a promised instruction is harmless error, this is not one. In the instant case, where the evidence is far from overwhelming, and where the instruction related to complainant’s effort to show defendant had a motive and, thus, to tie him to the crime, the failure to give the instruction was fundamentally unfair and requires reversal.

Since another issue raised by defendant might arise upon retrial, we treat it in this opinion. Defendant contends that the remarks of the prosecutor in his closing argument constituted reversible error.

During the direct examination of complainant, the following remarks were made:

"Q [The Prosecutor] Did there come a time when you came back to the bar?
"A [Complainant] I came back the next day, but * * * but that day, that I closed at nine-thirty, I went out to eat and I got home and my home was robbed that night, too. So I had a feeling that somebody * * *.
"MR. GALICI [Defense Counsel]: Your Honor * * * Your Honor * * *.
"THE WITNESS: That somebody was in that bar.
"THE COURT: One minute. One minute.
"MR. GALICI: I am going to * * *.
"THE COURT: Would you address your questions specifically?
"MR. GALICI: I would also ask the Court to strike the statement that her home was robbed as well. It has nothing to do with this case.
"THE WITNESS: Well, I had a feeling that night that somebody was in the bar, too.
"THE COURT: Alright. Just a minute, just a minute, just address your questions specifically.
"MR. RESNICK: Okay.
"Q (By Mr. Resnick) Now, when you left the bar, on the fifth of October of ’76, you said you went out to dinner?
"A Yes.
"Q Did you come home after dinner?
"A Yes.
"Q About what time did you arrive home?
"A About eleven o’clock.
"Q That would be eleven o’clock in the evening?
"A Yes.
"Q Did you do anything when you came home?
"A I just saw that the house was all disturbed.
"THE COURT: Wait a minute, are we talking about her home?
"MR. RESNICK: Her home.
"THE COURT: Does that have anything to do with this case?
"MR. RESNICK: No, it doesn’t Your Honor.
"THE WITNESS: No. But I had a feeling.
"THE COURT: You can’t testify to your feelings. Just answer his question. This case doesn’t involved [sic] your home.
"THE WITNESS: Well, that is why I think * * *.
"MR. RESNICK: Just take it easy and just answer the questions.”

In spite of this ruling by the court, during the prosecutor’s rebuttal closing argument reference was made to the breaking and entering of complainant’s home. This was improper; it was irrelevant to the issues in this trial and highly prejudicial to defendant. On retrial, the prosecutor must refrain from such references.

Reversed.

       387 Mich 701; 199 NW2d 458 (1972).

       Id., pp 709-710.


text:
    HENAL REALTY COMPANY v BROWNSTOWN TOWNSHIP
    Docket No. 78-2717.
    Submitted February 13, 1979, at Detroit.
    Decided May 22, 1979.
    Petitioner, Henal Realty Company, was the owner of a parcel of property which was divided into three parts, one of which was donated to a school district and is not at issue. The remaining parcels were sold to Winchester Commons Properties, 6.642 acres in fee simple and 28.56 acres on land contract. Winchester developed the 6.642-acre parcel with a condominium project which failed and the financing bank foreclosed. Petitioner also foreclosed on its land contract and regained ownership of the 28.56-acre parcel. At some point in the course of these transactions the assessed value of the original parcel was "split” among the three resulting parcels. Henal Realty filed a petition with the Michigan Tax Tribunal alleging that the split was made without notice or hearing and that it was unfair in that it allocated too much value to the 28.56-acre parcel and not enough to the 6.642-acre parcel and naming Brownstown Township as respondent. Wayne County successfully moved to intervene and for accelerated judgment, which was granted for the reasons that petitioner has failed to protest the tax split before the board of review and that the appeal was not timely filed. Petitioner appeals. Held:

    1. The dispute is an assessment dispute subject to the requirement that it be protested before the township board of review before the tax tribunal acquires jurisdiction.
    2. Since the record below fails to show the operative facts to determine if notice was required to be sent to petitioner, accelerated judgment was premature.
    Judgment vacated and case remanded for further proceeding.
    1. Taxation — Statutes — Michigan Tax Tribunal — Jurisdiction.
    By statute the Michigan Tax Tribunal, which has original and exclusive jurisdiction over all agency decisions relating to assessment, does not acquire jurisdiction in an assessment dispute unless the assessment is first protested before the board of review (MCL 205.731, 205.735; MSA 7.650[31], 7.650[35]).

      References for Points in Headnotes

       72 Am Jur 2d, State and Local Taxation §§ 782-787.

      2. Appeal and Error — Taxation — Assessment "Split” — Notice.
    The Court of Appeals will remand to the Michigan Tax Tribunal a case involving a dispute over the fairness of a "split” in the assessed value of a parcel of land where the tax tribunal granted accelerated judgment for failure to protest the split before the board of review, where the petitioner claims a lack of notice of the split and where the record is inadequate to determine if notice of the tax split was required.

      Schiff, Levine & Goodstein, for petitioner.

      Aloysius J. Suchy, Corporation Counsel, and John K. Godre, Assistant Corporation Counsel, for intervening respondent-appellee.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   Cynar, P.J.

Petitioner appeals as of right from a June 20, 1978, order of the Michigan Tax Tribunal, granting the intervening appellee’s motion for accelerated judgment on the grounds that petitioner had failed to exhaust its administrative remedies and had failed to file a timely petition.

On November 8, 1977, petitioner filed an action in the Michigan Tax Tribunal alleging that the assessed value of a 28.56-acre parcel of land owned by it was too high. Specifically the petition alleged that at one time it had owned a 44.888-acre parcel of which the parcel in question was a part. Petitioner alleged that in 1972 or 1973 the 44.888-acre parcel was divided into three parts: 9.686 acres were donated to the school district and are not at issue here; 6.642 acres were conveyed in fee to Winchester Commons Properties; and the 28.56-acre parcel was sold to Winchester Commons Properties on a land contract.

The petition further alleged that condominium models were built upon the 6.642-acre parcel and that the 28.56-acre parcel was left undeveloped. The construction on the smaller parcel was financed by the Chemical Bank of New York. However, the condominium project failed and the Chemical Bank foreclosed its mortgage on the 6.642-acre parcel. Petitioner also foreclosed upon the land contract and regained ownership of the 28.56-acre parcel.

At some time in the course of these transactions, the assessed value of the entire 44.888-acre parcel was "split” between the various parcels. This split was allegedly applied to the years 1974, 1975, and 1976. Petitioner contended that the split was unfair, as it allocated too much of the value to its undeveloped property. Petitioner also claimed the split was made without notice to it or a hearing.

Respondent never filed an answer to this petition. However, the County of Wayne successfully moved to intervene and filed a motion for accelerated judgment. This was granted on two grounds: that petitioner had failed to protest the tax split before the board of review and that the appeal was not timely filed.

Petitioner initially contends that the present case is not an assessment dispute as it does not dispute the assessment for the entire 44.888-acre parcel. Accordingly it contends that protest before the board of review was unnecessary.

Under MCL 205.731; MSA 7.650(31) the Tax Tribunal has original and exclusive jurisdiction over all agency decisions relating to assessment. However, under MCL 205.735; MSA 7.650(35) the tribunal does not acquire jurisdiction in an assessment dispute unless the assessment is first protested before the township board of review. See also Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 158; 265 NW2d 182 (1978).

We conclude that the above provisions are applicable in this case. We find no merit in petitioner’s claim that the case does not relate to assessment. The gravamen of his complaint is that the 28.68-acre parcel was assessed at too high a value and that the 6.642-acre parcel was assessed too low. As part of its relief petitioner requests that the "split” be set aside and recomputed and part of the money previously paid be refunded. We therefore conclude that this is an assessment dispute, which requires protest before the township board of review.

Petitioner next claims that the requirement of protest before the board of review is inapplicable in this case because it did not receive notice of the tax split. Petitioner further alleges that the lack of notice also excuses its nontimely filing of the petition in this case.

In W & E Burnside, Inc v Bangor Twp, 77 Mich App 618; 259 NW2d 160 (1977), this Court was confronted with a similar situation. There plaintiffs contended that they had not received timely notice of an assessment increase, as required by statute. As a result, plaintiffs were not present to protest this increase at the meeting of the township board of review. This Court ordered the case remanded to the circuit court for a determination of whether plaintiffs were required to receive notice under the statute.

On appeal to the Michigan Supreme Court, the decision of the Court of Appeals was reversed. In a brief order the Court stated:

"Leave to appeal is considered May 31, 1978 and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals is reversed and the case is remanded to the Tax Tribunal. If the tribunal determines a notice should have been sent, the assessment increase is invalid and plaintiff is entitled to a refund. If the tribunal determines no notice was required, the tribunal must still determine whether or not the assessment increase was excessive, and that there is no other bar to granting relief.” W & E Burnside, Inc v Bangor Twp, 402 Mich 950 (1978).

We conclude that a remand is also required in the present case, although in part for a different reason. We are unable to determine from the record below when and under what circumstances the tax "split” occurred. As a result we have none of the operative facts before us to determine if notice of the tax split was required to be sent to plaintiff. Since these same facts or lack thereof were also before the Tax Tribunal, we must therefore conclude that accelerated judgment was prematurely granted. On the record before it, the Tax Tribunal could not have determined if petitioner’s failure to exhaust administrative remedies or timely file a petition in the Tax Tribunal warranted granting accelerated judgment.

Therefore, following the Supreme Court’s lead in Burnside, supra, we vacate the accelerated judgment and remand the case to the Tax Tribunal for further proceedings. At these proceedings, the tribunal should take testimony and make findings as to the relevant facts, including the following:

1) The date upon which the tax split was ordered;

2) Who requested and was a party to the split;

3) Who had notice of the split;

4) Who ordered the split;

5) The date and terms of the sale or sales to Winchester Commons Properties;

6) The date upon which Chemical Bank obtained title to the 6.642-acre parcel;

7) The date upon which petitioner regained title to the 28.56-acre parcel;

8) The taxes assesed for each of the two parcels for the years 1974, 1975, and 1976;

9) Who, if anyone, has paid the taxes for 1974, 1975, and 1976;

10) Whether petitioner was entitled to notice of the tax split;

11) Whether petitioner received notice of the tax split; and

12) Whether, on the basis of this additional information, accelerated judgment is warranted in this case.

The accelerated judgment entered against petitioner is vacated and the case remanded for further proceedings consistent with this opinion. We retain no further jurisdiction. No costs, neither party prevailing in full.

       The petition is very vague as to the dates of the various occurrences.

       This type of "split” can be made by the State Tax Commission under MCL 211.152; MSA 7.210. See Detroit v State Tax Comm, 369 Mich 508, 513; 120 NW2d 258 (1963). In the present case, it is alleged that the split was made by Brownstown Township, Conceivably, this could have been done pursuant to MCL 211.24; MSA 7.24 which requires the assessor to assess as one parcel "[a]ll contiguous subdivisions of any section that are owned by 1 person, firm or corporation * * * unless demand in writing is made by the owner or occupant to have each subdivision of the section or each lot assessed separately”.

       In its brief on appeal, the intervening respondent claims that on March 19, 1976, the Chemical Bank requested a tax split for the year 1975. The brief further claims that on April 15, 1977, petitioner requested a similar tax split for the year 1974. These facts were not raised below and will not be considered on appeal. Spartan Asphalt Paving Co v Tri-Cities Construction, Inc, 68 Mich App 305, 309; 242 NW2d 565 (1976).

       MCL 205.731; MSA 7.650(31) reads: "The tribunal’s exclusive and original jurisdiction shall be:
      "(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.
      "(b) A proceeding for refund or redetermination of a tax under the property tax laws.”

       MCL 205.735(1); MSA 7.650(35X1) reads in pertinent part:
      "In the case of an assessment dispute as to the valuation of the property or where an exemption is claimed, the assessment must be protested before the board of review before the tribunal may acquire jurisdiction of the dispute.”
      MCL 211.29; MSA 7.29 requires that the board of review of each township meet at the office of the supervisor on the Tuesday next following the first Monday in March.

       MCL 205.735(2); MSA 7.650(35)(2) reads:
      "(2) The jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which he seeks to review or within 30 days after the receipt of a bill for a tax he seeks to contest. The unit of government shall be named as respondent. Service of the petition on the respondent shall be by certified mail.”
      If, as petitioner alleges, it never received notice of the tax split, then the 30-day period has not yet begun to run.

       The statute involved in that case was MCL 211.24c; MSA 7.24(3), which was subsequently amended on December 23,1976.


text:
    DADY v ROCHESTER SCHOOL BOARD
    Docket No. 78-3168.
    Submitted April 10, 1979, at Detroit.
    Decided May 22, 1979.
    Staci Dady, a student in the Pontiac school system, required catheterization at four-hour intervals in order to stay in school. Janice E. Dady, as next friend of Staci Dady, filed a complaint against the School Board for the City of Rochester, the Pontiac School Board, its director of special education and a special education instructor alleging that if the Pontiac schools, in providing special education service pursuant to a contract with the Rochester Community Schools, did not provide for the periodic catheterization of Staci by providing a nurse to perform these services, Staci would suffer discrimination because of her use of adaptive devices or aids and would lose her right to an education which the plaintiff contends is insured to her under the Michigan Handicappers’ Civil Rights Act (HCRA). The school undertook this treatment for several months and then ceased to do so. Staci’s mother then came to the school to perform the service until the term was completed. Defendants contend that the statute imposes no affirmative duty to assist Staci in coping with her special needs and, while other statutes may provide such relief to plaintiff, the handicappers’ statute does not. Oakland Circuit Court, Frederick C. Ziem, J., granted defendants’ motion for summary judgment. Plaintiffs appeal. The question on appeal is whether HCRA requires the special education program of a public school district to render medical services to a handicapped child when such care is a condition of the child’s ability to attend the program. Held:

    The Michigan Handicappers’ Civil Rights Act does not require a special education program to administer periodic catheterization during school hours to a child who requires such treatment as a condition to attending school; the act applies when a person’s handicap is unrelated to his ability to utilize and benefit from an educational institution or its services. If the person is unable to utilize a school program because of his handicap, the Michigan Handicappers’ Civil Rights Act does not apply.

      References for Points in Headnotes

       68 Am Jur 2d, Schools § 5.
    [3, 5, 8, 10] 68 Am Jur 2d, Schools §§ 5, 215, 219.

       [No Reference].

       68 Am Jur 2d, Schools §§ 275, 276.

       15 Am Jur 2d, Civil Rights § 61.

       [No Reference],

      Affirmed.
    1. Schools and School Districts — Public Education — Handicapped Children.
    A state that has undertaken to provide public education is required to make it available to all, including handicapped children, on equal terms.
    2. Schools and School Districts — Public Education — Handicapped Children — Discrimination — Civil Rights — Statutes.
    The opportunity to obtain full and equal utilization of public educational facilities without discrimination because of a handicap is guaranteed and is a civil right (MCL 37.1102; MSA 3.550[102]).
    3. Schools and School Districts — Educational Institutions — Handicapped Persons — Discrimination — Statutes.
    Educational institutions are prohibited from discrimination in any manner against an individual in the full utilization of or benefit from these institutions and shall not exclude, expel, limit or otherwise discriminate against an individual seeking admission as a student or an enrolled student because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution or its services, or because of the use by an individual of adaptive devices or aids' (MCL 37.1402; MSA 3.550[402]).
    4. Schools and School Districts — Educational Institutions — Handicapped Persons — Definitions — Statutes.
    A handicap is defined by the Handicappers’ Civil Rights Act as a determinable physical or mental characteristic of an individual or the history of the characteristic which may result from disease, injury, congenital conditions of birth, or functional disorder, which characteristic is unrelated to the individual’s ability to utilize and benefit from educational opportunities, programs and facilities at an educational institution (MCL 37.1103; MSA 3.550[103]).
    5. Constitutional Law — Education — Handicapped Persons.
    Education of the handicapped should always be fostered and supported (Const 1963, art 8, § 8).

      6. Schools and School Districts — Teachers and Administrators — Students — Administration of Medication — Liability — Gross Negligence — Wilful Misconduct — Statutes.
    A school administrator or teacher who administers medication to a student must do it in the presence of another adult pursuant to written permission of the student’s parents or guardian and in compliance with the instructions of a physician; this statutory procedure, where followed properly, protects the teacher or administrator from liability except in cases of gross negligence or wilful and wanton misconduct (MCL 380.1178; MSA 15.41178).
    7. Schools and School Districts — Public Education — Handicapped Children — Medical Treatment — School’s Responsibility — Statutes.
    The Michigan Handicappers’ Civil Rights Act does not require a special education program to administer periodic catheterization during school hours to a child who requires such treatment as a condition to attending school (MCL 37.1101 et seq.; MSA 3.550[101] et seq.).

      8. Schools and School Districts — Civil Rights Act — Handicappers’ Rights Discrimination — Legislative Intent — Statutes.
    The Legislature in enacting the Michigan Civil Rights Act and its companion act, the Michigan Handicappers’ Civil Rights Act, intended to give handicappers a general civil right to nondiscrimination in education; it did not impose greater duties of nondiscrimination with regard to the handicapped than it did with regard to religion, race, color, national origin or sex (MCL 37.1402, 37.2402; MSA 3.550[402], 3.548[402]).
    9. Statutes — Handicapped Persons — Right to Work — Right to Public Places.
    The Michigan Handicappers’ Civil Rights Act is aimed at eradicating the old assumptions that handicappers cannot work Or should be kept out of public places (MCL 37.1101 et seq.; MSA 3.550(101] et seq.).

    10. Schools and School Districts — Handicapped Persons — Right to Education — Inability to Attend — Statutes.
    The Michigan Handicappers’ Civil Rights Act applies when a person’s handicap is unrelated to his ability to utilize and benefit fróm an educational institution or its services; if the person is unable to utilize the school because of his handicap, the handicappers’ act does not apply (MCL 37.1101 et seq.; MSA 3.550[101] et seq.).

      Roy, Cardamone, Watson & Hewson, for plaintiff.

      Dudley, Patterson, Maxwell, Smith & Kelly, for defendants Pontiac School Board, William White and Marlene Calderwood.

      Thrun, Maatsch & Nordberg (by Harry J. Zeliff), for City of Rochester School Board.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Beasley, P.J.

The question we are asked to decide is whether the Michigan Handicappers’ Civil Rights Act (HCRA) requires the special education program of a public school district to render "medical” services to a handicapped child when such care is a condition of the child’s ability to attend the program.

The trial court decided in the negative, and defendants’ motion for summary judgment was granted pursuant to GCR 1963, 117.2(1).

Challenges by the handicapped to their exclusion from public education are recognized in the proposition set forth in Brown v Board of Education:

"* * * [education] is a principal instrument in awakening the child to cultural values, in preparing him for later * * * training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. * * * [W]here the state has undertaken to provide it [education], [it] is a right which must be made available to all on equal terms.” (Emphasis added; footnote omitted.)

Plaintiff contends that if Pontiac schools, in providing special education services pursuant to a contract with Rochester Community Schools, does not provide for the periodic catheterization of Staci Dady, she will lose her right to an education, a right which plaintiff contends is insured to her under the HCRA. The act states, in pertinent part:

"Sec. 102. The opportunity to obtain employment, housing and other real estate and full and equal utilization of public accommodations, public services, and educational facilities without discrimination because of a handicap is guaranteed by this act and is a civil right.”
"Sec. 402. An educational institution shall not:
"(a) Discriminate in any manner in the full utilization of or benefit from the institution, or the services provided and rendered thereby to an individual because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution or its services, or because of the use by an individual of adaptive devices or aids.
"(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, and privileges of the institution, because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution, or because of the use by an individual of adaptive devices or aids.”
"Sec. 103. As used in this act:
"(b) 'Handicap’ means a determinable physical or mental characteristic of an individual or the history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic:
"(iii) for purposes of article 4, is unrelated to the individual’s ability to utilize and benefit from educational opportunities, programs, and facilities at an educational institution.”
"Sec. 401. As used in this article, 'educational institution’ means a public or private institution and includes an academy, college, elementary or secondary school, extension course, kindergarten, nursery, school system, school district, or university, and a business, nursing, professional, secretarial, technical, or vocational school; and includes an agent of an educational institution.”

The claim alleges discrimination by the school district in not providing for a nurse to perform these services and states that Staci has suffered "discrimination] * * * because of [a requirement for] the use by [the plaintiff] of adaptive devices or aids”. The school undertook the catheterization for several months and then ceased to do so. Staci’s mother then came to the school to perform the service until the term was completed. Failure to provide this medical procedure at four-hour intervals could result in serious medical problems for Staci.

Defendants respond that plaintiff’s request for an injunction under the statute to refrain from discrimination against handicapped persons generally imposes no affirmative duty to assist plaintiff in coping with her special needs. Defendants claim that other statutes may provide such relief to plaintiff, but that the HCRA does not.

The trial court, in rendering its decision, stated:

"* * * the Plaintiff has failed to state a cause of action upon which this Court can grant relief, because the Michigan Handicappers Civil Rights Act neither requires nor authorizes the Defendants to assume Plaintiff’s parents’ responsibility to provide such medical procedures for their child as they deem appropriate.
"Both the Federal and the State legislative bodies have mandated that certain affirmative action be taken by educational institutions, as well as other entities, to alleviate the difficulties by which handicapped individuals may function in our society.
"In the legislation, which is referred to in the Briefs, they have not seen fit to mandate that catheterization be provided.
"The Michigan Handicappers Civil Rights Act was obviously designed to do exactly what it says it is designed to do, to wit: prohibit denial of educational programs on the basis of the existence of a handicap.
"Other legislation is designed to establish affirmative programs in this regard.”

This decision appears to be based on three grounds:

(1) If plaintiffs interpretation were to prevail, the effect would be to direct places of public accommodation to provide affirmative acts such as plaintiff contends she is entitled to.

(2) If the Legislature’s intention was to establish "additional affirmative programs”, it would have specifically done so, but it has not.

(3) Plaintiff has not been discriminated against because no other child is receiving such a service and no person is attempting to prevent plaintiff from receiving such medical service.

In analyzing the language of the statute in question, we look to both the Michigan Constitution, other sections of the HCRA and to § 402 of the Michigan Civil Rights Act, which had the same effective date as the HCRA and which provides some guidance in interpreting the language at issue.

Article 8, § 8 of the 1963 Michigan Constitution declares education of the handicapped should "always be fostered and supported”. The dispositive issue at bar is whether this constitutional policy has been implemented by legislation which affords plaintiff the affirmative right to have the services she seeks.

Defendant Pontiac notes that MCL 37.1302; MSA 3.550(302) of the HCRA states that a person shall not:

"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the goods, services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids.”

This statutory provision relates to places of accommodation. The language is identical to that used in MCL 37.1402; MSA 3.550(402). If plaintiffs interpretation of the statutory language is correct, places of public accommodation would also have to provide affirmative services. Such an interpretation would involve the judiciary in a course of plainly impractical case-by-case assessments of the relative rights and burdens of plaintiffs and owners of public facilities; hotels, restaurants, or, as the trial judge noted, a football stadium would have to offer medical services similar to those to which plaintiff claims she is entitled.

Further, MCL 380.1178; MSA 15.41178 is specific in providing that for a school administrator or teacher to administer medication to a student, it must be "in the presence of another adult pursuant to written permission of the pupil’s parents or guardian and in compliance with the instructions of a physician”. This section, which protects the teacher from liability except in cases of gross negligence or wantonness, sets forth a rigid procedure for a school to follow. We cannot assume that the Legislature meant to extend, by implication only, a school district’s duty to provide medical services when it has been so careful to restrict that authority explicitly by statute.

We find plaintiff’s argument that she is being discriminated against because she uses an adaptive device misleading. Plaintiff’s dilemma is not in her use of such an adaptive device, but rather, that she is not able to use the aid when her condition requires it. The trial judge was of the opinion that it is the "parents’ responsibility to provide such medical procedures” and that the HCRA neither requires nor authorizes the defendants to assume such responsibility. With this, we must agree.

Looking to § 402 of the Michigan Civil Rights Act gives no credence to plaintiff’s argument that MCL 37.2402; MSA 3.548(402) imposes greater affirmative duties of nondiscrimination with regard to the handicapped than it did with regard to religion, race, color, national origin or sex. The applicable section of the HCRA reads:

"Sec. 402. An educational institution shall not:
"(a) Discriminate in any manner in the full utilization of or benefit from the institution, or the services provided and rendered thereby to an individual because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution or its services, or because of the use by an individual of adaptive devices or aids.”

This section can be compared with § 402 of the Michigan Civil Rights Act:

"Sec. 402. An educational institution shall not:
"(a) Discriminate against an individual in the full utilization of or benefit from the institution, or the services, activities, or programs provided by the institution because of religion, race, color, national origin, or sex.”

The similarity between subsections 402(a), as well as the organization of the two acts, indicates an intent by the Legislature to give handicappers a general civil right to nondiscrimination in employment (Article 2), public accommodation (Article 3), education (Article 4), and housing (Article 5). The Legislature chose to deal with the handicapped in a separate, companion act to the Michigan Civil Rights Act. In none of the terms of the HCRA do we find more duties imposed in regard to a handicapped person than to one who may be discriminated against due to religion, race, color, national origin or sex.

The handicappers statute is aimed at eradicating the old assumptions that handicappers cannot work or should be kept out of public places. We direct plaintiff to other Michigan statutes which may place affirmative duties to accommodate the handicapped. However, plaintiff’s claim is brought exclusively under the HCRA.

Although this opinion precludes plaintiff’s claim under the HCRA, we do not suggest that we view plaintiff’s request for relief as unmeritorious. Further, our opinion should not be interpreted as giving school districts a carte blanche to limit special education programs to benefit those children who may be accommodated most conveniently and economically. The Michigan Constitution declares that the state is to encourage those in Staci’s position to receive the education she is entitled to under law. Our opinion merely indicates that plaintiff’s remedy is not to be found within the act under which she seeks relief.

The HCRA applies when the handicap is "unrelated to the individual’s ability to utilize and benefit from the institution or its services”. If one is unable to utilize the school because of a handicap, the HCRA does not apply. This appears to be so in Staci Dady’s case.

Affirmed.

       MCL 37.1101 et seq.; MSA 3.550(101) et seq.

       347 US 483, 493; 74 S Ct 686; 98 L Ed 873 (1954).

       See, Haggerty and Sacks, Education of the Handicapped: Towards a Definition of an Appropriate Education, 50 Temple L Quar 941, 963 (1977), for a discussion relating Brown, supra, to the equal educational opportunities of the handicapped.

         MCL 37.2402; MSA 3.548(402).

       The March 31, 1977 effective date of § 402 being the same as that of the HCRA.

       MCL 37.1101 et seq.; MSA 3.550(101) et seq.

       See, MCL 380.1701 et seq.; MSA 15.417Ó1 et seq.; MCL 125.1351 et seq.; MSA 3.447(121) et seq.

       MCL 37.1402(a); MSA 3.550(402)(a).


text:
    EASON v SECRETARY OF STATE
    Docket No. 78-4428.
    Submitted April 16, 1979, at Detroit.
    Decided May 22, 1979.
    Plaintiff, David E. Eason, brought an action in the nature of quo warranto against defendant, Secretary of State, challenging the constitutionality of 1978 PA 164, § 5. Plaintiff urged that said section, which created two additional judgeships for the third judicial circuit and provided that the term of office of one of those additional judgeships be for eight years, was in violation of 1963 Const, art 6, § 12, which provides that circuit judges shall hold office for a term of six years. The Wayne Circuit Court, John D. O’Hair, J., held that the creation of the eight-year term was in contravention of 1963 Const, art 6, § 12. Defendant appeals. Held:

    The provision of the constitution that circuit court judges shall hold office for a term of six years does not preclude the Legislature, in creating additional judgeships, from altering the term of office for such additional judgeships from the normal term of six years, where such alteration of the term is necessary to carry out the constitutional intent that the terms of office in multi-judge circuits be staggered.
    Reversed and remanded.
    Judges — Circuit Judges — Term of Office.
    The provision of the constitution that circuit court judges shall hold office for a term of six years does not preclude the Legislature, in creating additional judgeships, from altering the term of office for such additional judgeships from the normal term of six years, where such alteration of the term is necessary to carry out the constitutional intent that the terms of office in multi-judge circuits be staggered (Const 1963, art 6, §12).
    References for Points in Headnotes

       46 Am Jur 2d, Judges § 15.

      David E. Eason, for plaintiff._

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles D. Hackney, Assistant Attorney General, for defendant.
    Before: Bashara, P.J., and J. H. Gillis and N. J. Kaufman, JJ.
   J. H. Gillis, J.

Defendant appeals from a decision of the Wayne County Circuit Court granting summary judgment to plaintiff.

The sole issue before this Court concerns the constitutionality of 1978 PA 164. This act amended various sections of the Revised Judicature Act, MCL 600.101 et seq.; MSA 27A.101 et seq., to create new circuit and district judgeships. Plaintiff contended, and the lower court agreed, that the act was unconstitutional to the extent that it created a judgeship in the third judicial circuit (Wayne County) with a term of eight years. The section under consideration provides, in part:

"Of the 2 additional judgeships created for the third judicial circuit, the candidate receiving the highest number of votes in the 1978 general election shall be elected for a term of 8 years and the candidate receiving the second highest number of votes shall be elected for a term of 6 years.” 1978 PA 164, § 5.

The lower court held that the creation of an eight-year term was in contravention of Const 1963, art 6, § 12:

"Circuit judges shall be nominated and elected at nonpartisan elections in the circuit in which they reside, and shall hold office for a term of six years and until their successors are elected and qualified. In circuits having more than one circuit judge their terms of office shall be arranged by law to provide that not all terms will expire at the same time.”

Guides for the construction of constitutional language were set forth in Kearney v Board of State Auditors, 189 Mich 666, 671; 155 NW 510 (1915):

"It is a maxim that the object of construction, as applied to a written Constitution, is to ultimately ascertain and give effect to the intent of the people in adopting it. * * * Resort may therefore be had not only to the indicated object sought to be accomplished and the mischief to be guarded against, which has been too often and abundantly reviewed by courts of last resort to need discussion here, but it is also permissible to examine the proceedings of the convention which framed the Constitution.”

The Constitution of 1908 provided for the election of judges in 1911 and every six years thereafter. Const 1908, art 7, §9. The shortcomings of such a system in multi-judge circuits include lengthy and confusing ballots and inefficient administration of justice, since all judges seeking reelection are campaigning at the same time. There is also the possibility of a large turnover at one time which would create further administrative difficulties.

The drafters of the 1963 Constitution decided that by staggering the terms of judges in multijudge circuits these problems could be ameliorated. Hence, § 12 of art 6 was adopted.

In addition, the delegates desired that this system be implemented as soon as possible. They were also aware that one method by which the staggered system could be implemented would be to have some two- and four-year terms to be followed by a normal six-year term. This was deemed less desirable than the alternative of having some eight- and ten-year terms. For these reasons, § 8 of the schedule and temporary provisions was adopted to instruct the Legislature in the method to be used to convert to the new system. That section provided:

"The provisions of Article VI providing that terms of judicial offices shall not all expire at the same time, shall be implemented by law providing that at the next election for such offices judges shall be elected for terms of varying length, none of which shall be shorter than the regular term provided for the office.” 2 Official Record, Constitutional Convention 1961, Schedule and Temporary Provisions, § 8, p 3408.

Plaintiff contends that due solely to the above provision the Legislature was empowered to lengthen a circuit judge’s term beyond six years and that since that provision applied only to the "next election” the Legislature is now without authority to create an eight-year term of office. While we agree that §8 was only a temporary provision and does not authorize the enactment of 1978 PA 164, § 5, we do not agree with plaintiff’s contention that this provision alone gave the Legislature the authority to create some eight- and ten-year terms.

As noted above, § 8 was inserted because the delegates were concerned that, absent this provision, the Legislature might create some two- and four-year terms followed by normal six-year terms to achieve a staggered-term system. As chairman of the committee on the judicial branch, Delegate Danhof explained:

"Mr. Danhof: Mr. Yeager, you get down to the question again of whether you want to spell out all of the details or leave some to the legislature. Now, I should point out that in Committee Proposal 96, section j, there is a requirement that the legislature shall implement this particular section by the passage of legislation which would provide that when the judges are next elected, they would have a varying length of term, no term of which could be shorter than 6 years. This is explicitly put in so you aren’t going to have some circuit judge who normally has been thinking of a 6 year term suddenly winding up with a 2 year or a 4 year term. We will admit that this may mean in some instances an 8 year term or perhaps even a 10 year term.” 1 Official Record, Constitutional Convention 1961, p 1361. (Emphasis supplied.)

The foregoing excerpt indicates an understanding by the drafters of the constitution that article 6, § 12 authorized the Legislature to vary the length of a term from the normal six years in order to achieve the desired purpose. The temporary provision was inserted merely to insure that the system devised would not require a circuit judge to face a reelection campaign after only two or four years in office.

The record of the constitutional convention also evidences an intention that one-third of the judges in a particular circuit should be up for election every two years. Where this was not mathematically possible, the Legislature was expected to come as close as possible to that goal.

"Now, the committee on elections has recommended that there be no spring elections and there be basically an election every 2 years, as I recall their recommendation. This would mean you would have a nonpartisan ballot every 2 years. Now, if there is action of this particular convention to change that or that we have more elections or we have an odd year election, we could perhaps fit this in there. But based upon those recommendations and the provisions that the legislature shall so provide, I would think and I would assume that they would provide that they would have 1/3 elected every 2 years or as close as you can come.” 1 Official Record, supra, p 1361.

Moreover, the record also discloses that when new judgeships were created the Legislature was expected to fit their terms into the staggered system to achieve the one-third goal:

"Mr. Danhof: Mr. Chairman, Mr. King, in the first place, depending on whether we have an April election or not, they probably will not come up in April. But assuming they come up that fall or the fall prior to April, depending on which one we finally conclude, I would anticipate that they would run and that this provision would be set up. You have 5. I give you this as an example: 2 would be elected for 6 years, 2 for 8 years, and in the next case, maybe 1 for 10 years. When and if Oakland county gets a second circuit judge, he would fall in where you have the 1 provision. ” 1 Official Record, supra, p 1541. (Emphasis supplied.)

To conclude that the Legislature may never vary a circuit judge’s term and yet still require that they adhere as closely as possible to a system wherein one-third of the circuit judges in a particular circuit are elected every two years would be counter-productive. To achieve this goal it would be necessary to delay the commencement of some of the new judges’ terms for two or four years. Such a result would be clearly inconsistent with the expressed desire that, through the creation of new circuits and judgeships, the circuit courts be better able to keep "abreast of changing population and economic conditions and thus serve all sections of the state more efficiently”. 2 Official Record, Constitutional Convention 1961, What the Proposed New State Constitution Means to You, art 6, § 11, p 3386.

We conclude that article 6, § 12 of the 1963 Constitution does not require that a circuit judge invariably hold office for a term of six years. To the extent necessary to achieve a system wherein, as nearly as possible, one-third of the judges in a particular circuit are elected every two years, the Legislature is authorized to alter the duration of a circuit judge’s term from the normal six years. Such authority is granted by the second sentence of art 6, § 12.

Reversed and remanded for proceedings consistent with this opinion. No costs, a public question being involved.

       Originally Committee Proposal 96, § j.

       This provision was examined in Thorburn v Oakland County Clerk, 377 Mich 293; 140 NW2d 473 (1966). That case is of little aid to our task since it was rendered by an equally divided court, and concerned the initial change to a staggered system.


author: D. C. Riley, J. M. F. Cavanagh, P.J.

text:
    COLLINS v NATIONWIDE LIFE INSURANCE COMPANY (ON REMAND)
    Docket No. 78-5527.
    Submitted December 6, 1977, at Detroit.
    Decided May 22, 1979.
    Leave to appeal applied for.
    Plaintiff, Juliet M. Collins, as survivor of Frank R. Collins, deceased, commenced an action against Nationwide Life Insurance Company alleging that she was entitled to §10,000 under a double indemnity provision of a life insurance policy on the life of the decedent. Mr. Collins had been a chronic alcoholic and had died as a result of acute alcoholic intoxication. A district court judge granted the defendant’s motion for summary judgment, finding that the death was not accidental for purposes of the insurance policy. On appeal, the Macomb Circuit Court, Hunter D. Stair, J., reversed the district court judgment, finding that the death had been accidental. The defendant appealed by leave granted. The Court of Appeals, in an unpublished per curiam opinion, docket number 77-709, released January 10, 1979, reversed the circuit court and ordered that the district court judgment be reinstated. The plaintiff sought leave to appeal to the Supreme Court. The Supreme Court on September 27, 1978, in lieu of granting leave, ordered the decision of the Court of Appeals reversed, and remanded the matter to the Court of Appeals for consideration of the question of whether injury or death resulting from voluntary intoxication can constitute "accidental injury or death”. 403 Mich 832 (1978). Held:

    A death or injury is accidental only if the agency effecting the death or injury can be termed accidental, that is, unexpected, unanticipated and unforeseen, irrespective of whether the result so qualifies. The decedent’s death was a reasonably foreseeable consequence of the voluntary acts of intoxication and was not "accidental”.

      References for Points in Headnotes

       57 Am Jur 2d, Negligence §§ 15,17.

       57 Am Jur 2d, Negligence § 356.
    44 Am Jur 2d, Insurance §§ 1289,1290.

       17 Am Jur 2d, Contracts §§ 275, 276.

       Clause in life, accident, or health policy excluding or limiting liability in case of insured’s use of intoxicants or narcotics. 13 ALR2d 987.

      Reversed and remanded for reinstatement of the district court’s original judgment.
    M. F. Cavanagh, P.J., dissented. He would hold that under the terms of the policy in question, injury or death resulting from voluntary intoxication can constitute an accidental injury or death. The policy could have been drafted more restrictively so as to exclude death resulting from intoxication. It was not. He would not preclude recovery in the instant case. He would affirm the circuit court judgment.
    Opinion op the Court
    1. Insurance — Life Insurance — Double Indemnity — Accidental Death — Injury — Words and Phrases.
    A death or injury is accidental only if the agency effecting the death or injury can be termed accidental; that is, unexpected, unanticipated and unforeseen, irrespective of whether the result so qualifies.
    Dissent by M. J. Cavanagh, P.J.
    2. Insurance — Life Insurance — Accidental Death — Injury — Voluntary Intoxication.

      Injury or death resulting from voluntary intoxication can constitute an accidental death or injury for purposes of recovery under an accidental death provision of an insurance policy.

    3. Contracts — Construction of Contracts — Maker.

      Generally, a contract is construed more strictly against the maker of the contract who chose the words to which the other party merely assented.

    4. Insurance — Life Insurance — Accidental Death — Accidental Injury — Voluntary Intoxication — Terms of Policy.

      A chronic alcoholic’s unforeseen death from a single episode of drinking may reasonably be termed an "accidental bodily injury” for purposes of recovering under the terms of an insurance policy where the policy could have been drafted more restrictively so as to exclude death from intoxication, but was not.

      LaBarge, Zatkoff & Dinning, P.C. (by Timothy R. Sinclair), for plaintiff.

      Robert B. Tatham (Norman L. Zemke, of counsel), for defendant.
    Before: M. F. Cavanagh, P.J., and J. H. Gillis and D. C. Riley, JJ.
   On Remand

D. C. Riley, J.

The Michigan Supreme Court has reversed our original determination of this matter and remanded the case to us for a resolution of whether injury or death resulting from voluntary intoxication can constitute an "accidental injury or death”.

Upon consideration of the issue, we approve and adopt the majority rule that a death or injury is accidental only if the agency effecting the death or injury can be termed accidental, that is, unexpected, unanticipated and unforeseen, irrespective of whether the result so qualifies. See, e.g., Perry v Aetna Life Ins Co of Connecticut, 380 SW2d 868 (Tex Civ App, 1964), Murphy v Western & Southern Life Ins Co, 262 SW2d 340 (Mo App, 1953). See also, Wells v Prudential Ins Co of America, 3 Mich App 220, 226-227; 142 NW2d 57 (1968), lv den 378 Mich 728 (1966). Pursuant to this standard, decedent’s voluntary acts of intoxication which resulted in a reasonably foreseeable consequence was not "accidental”.

Reversed and remanded for reinstatement of the district court’s original judgment.

Costs to defendant.

J. H. Gillis, J., concurred.

M. F. Cavanagh, P.J.

(dissenting). In revisiting this matter upon the invitation of our Supreme Court, I find I must disagree with the majority’s conclusion.

Rather than look to other jurisdictions, I would prefer to read Wells v Prudential Ins Co of America, 3 Mich App 220; 142 NW2d 57 (1966), lv den 378 Mich 728 (1966), as authority for holding that, under the terms of this policy, injury or death resulting from voluntary intoxication can constitute an "accidental injury or death”. Unlike the policy before us, the policy in Wells, supra, provided that the injury or death must be "effected solely through external, violent and accidental means”. Even with this more restrictive language the Wells Court held recovery was possible and stated, at 227:

"If the unintended result of an intentional act can be accidental, so, too, can the result of a completely involuntary act be accidental.”

As a general principle, a contract is construed more strictly against the maker who chose the words to which the other party merely assented. 3 Corbin, Contracts § 559, p 262. Applying this principle and the above Wells analysis to the language in the instant policy, a chronic alcoholic’s unforeseen death from a single episode of drinking may reasonably be termed an "accidental bodily injury”.

The instant policy could have been drafted more restrictively so as to exclude death resulting from intoxication. It was not and therefore I would not preclude recovery.