author: D. C. Riley, J. J. H. Gillis, J.

text:
    PEOPLE v BERNARD SMITH PEOPLE v LARASENA SMITH
    Opinion op the Court
    1. Criminal Law — Evidence—Other Offenses — Res Gestae.
    The general rule is that evidence tending to show the commission of other criminal offenses by a criminal defendant is inadmissible on the issue of his guilt or innocence of the offense charged because whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence; an exception to this rule is that the acts, conduct and demeanor of the defendant at the time of or shortly before or after the offense is claimed to have been committed may be shown as part of the res gestae; proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime.
    2. Criminal Law — Evidence—Other Offenses — Explanation and Corroboration — Variance of Proof — Information.
    The admission of evidence of other criminal offenses which is offered solely in explanation and corroboration of the evidence of the act charged in an information does not constitute a variance of proofs from the information; therefore, it was not error for a trial judge, at defendants’ trial for armed robbery, to allow the prosecution to introduce into evidence two items that were seized from the defendants’ residence when they were arrested which had been stolen from the victim’s home but were not listed on the information. 3. Criminal Law — Instructions to Jury — Reasonable Doubt.

      References for Points in Headnotes
    [1, 2, 4, 7-10] 29 Am Jur 2d, Evidence §§ 320, 321.

       75 Am Jur 2d, Trial §§ 827, 828.
    [4, 7-10] 29 Am Jur 2d, Evidence § 327.

       73 Am Jur 2d, Statutes § 249 et seq.

       50 Am Jur 2d, Larceny §§ 44, 49, 56.
    73 Am Jur 2d, Statutes §§ 293-295.

      Instructions given to the jury regarding reasonable doubt are proper where the instructions given are consistent with past instructions approved by the Court of Appeals.
    4. Criminal Law — Felonies—Evidence—Prior Convictions — Impeachment — Misdemeanors—Statutes.
    The crimes of unlawful driving away of an automobile and attempted unlawful driving away of an automobile are felonies; therefore, use of a defendant’s prior convictions for committing those offenses does not violate the rule which prohibits the use of prior misdemeanor convictions for impeachment purposes (MCLA 750.92, 750.413; MSA 28.287, 28.645).
    5. Statutes — Statutory Construction — Inconsistencies.
    It is a fundamental rule of statutory construction that courts are bound, whenever possible, so to construe statutes as to give them validity and a reasonable construction; seeming inconsistencies in the various provisions of a statute should be reconciled, if possible, so as to arrive at a meaning which gives effect to all parts of the statute.
    6. Statutes — Construction—Intention of Statutes — Conflicts Between Statutes — Attempted Larceny — Misdemeanors— Felonies.
    Statutory provisions should be construed whenever possible so as not to conflict with other statutory provisions; where one statutory provision expresses a specific intention that conflicts with a general intention expressed elsewhere, the particular intention is to be regarded as an exception to the general intention; therefore, the offense of attempted larceny in a building should be treated as a misdemeanor for purposes of determining the admissibility of such a conviction for impeachment purposes, despite the fact that a general statute makes this crime a felony since it is punishable by imprisonment in a state prison, because the specific statute defining the crime makes it a misdemeanor (MCLA 750.7, 750.92; MSA 28.197, 28.287).
    7. Criminal Law — Evidence—Impeachment—Prior Convictions— Misdemeanors.
    The prohibition on the use of all misdemeanor convictions for impeachment purposes remains the rule of law in Michigan, absent the adoption of Michigan’s proposed rules of evidence, or reconsideration of the issue by the Supreme Court.

      8. Criminal Law — Evidence—Impeachment—Prior Convictions— Misdemeanors — Defendant’s Right to Testify.
    A trial judge’s decision to allow a defendant to be impeached by evidence of a prior misdemeanor conviction cannot be considered to be harmless error, even though the defendant had prior felony convictions which would have been used as impeachment evidence had the defendant taken the stand, where the defendant, faced with the probability of impeachment by his complete criminal record, chose not to testify in his own behalf; where the issue involved is as crucial to the judicial process as a defendant’s right to testify in his own behalf, any doubt as to the motivating factors behind a decision to forego that right must be resolved in the defendant’s favor.
    Dissent by J. H. Gillis, J.
    9. Criminal Law — Evidence—Attempted Larceny — Misdemeanor —Impeachment—Rules of Evidence.

      Attempted larceny from a building is a high misdemeanor punishable by two years in prison and under the Michigan Rules of Evidence, effective March 1, 1978, such an offense clearly would be admissible for impeachment purposes.

    10. Criminal Law — Evidence—Impeachment—Prior Convictions— Misdemeanors — Harmless Error.

      A trial judge’s failure to grant a defense motion to suppress a defendant’s misdemeanor conviction for impeachment purposes was harmless error where the defendant would have been impeached by evidence of his prior felony convictions.

    Appeal from Recorder’s Court of Detroit, John Patrick O’Brien, J.
    Submitted December 8, 1977, at Detroit.
    (Docket Nos. 30241, 77-104.)
    Decided March 6, 1978.
    Leave to appeal applied for.
    Bernard Smith and Larasena Smith were convicted of armed robbery. Defendants appeal. Bernard Smith’s conviction is reversed and the matter remanded, and the conviction of Larasena Smith is affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan,
      Prosecuting Attorney, Edward R. Wilson, Research, Training & Appeals, and Richard A. Neaton and Paul C. Louisell, Assistant Prosecuting Attorneys, for the people.

      Sallen, Sallen, Seymour & Sallen, for defendants on appeal.
    Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   D. C. Riley, J.

The charges in the instant matter stem from a robbery which took place in a residence located within the City of Detroit on February 24, 1976.

The record reveals the following facts:

The victim left her home on the morning in question to drive a roommate to work. Upon her return, she noticed that the door of the house had been tampered with. As she entered the residence, she discovered a masked man with a gun who ordered her into the dining room. The intruder then placed a pillow case over her head and bound her with some cord. The man then removed her ring and watch as he talked with his accomplice. The victim recognized the voice of the accomplice as that of defendant, Larasena Smith, with whom she was acquainted. After the intruders left, the victim untied herself and discovered that her keys and car were missing. She also noticed a strange cap which she carried with her to a nearby bar where the police were notified of the crime.

It appears that the owner of the bar recognized the cap as one belonging to defendant, Bernard Smith. On the basis of this identification, coupled with the fact that the victim recognized defendant Larasena Smith’s voice at the scene of the crime, the police proceeded to the Smith residence and arrested the defendants. During the arrest, the police officers confiscated certain items which were later identified as belonging to the victim and her roommate.

Defendants were then charged with armed rob-, bery, contrary to MCLA 750.529; MSA 28.797, and subsequently were convicted by a jury in Detroit Recorder’s Court. Defendants appeal as of right alleging several instances of error.

Defendants first contend that the trial court erred in admitting into evidence property which was not listed in the information.

At trial, the prosecution sought to admit into evidence a shotgun and a sewing machine that were seized from defendants’ residence when they were arrested. These items were stolen from the victim’s home but were not listed in the information filed against the defendants. Defendants contend that such evidence is inadmissible in that it violates the rule set forth in People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).

"While evidence of a prior conviction of a defendant may be admissible to impeach his credibility, the general rule is that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged.
"Evidence of other crimes is barred because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence.” 390 Mich at 413.

However, an exception to the rule is set forth in People v Scott, 61 Mich App 91, 95; 232 NW2d 315 (1975).

" 'It is elementary that the acts, conduct and demeanor of a person charged with a crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime. ’ People v Savage, 225 Mich 84, 86; 195 NW 669 (1923).” (Emphasis supplied.)

Here, the prosecutor introduced the evidence in question to establish that the defendants were in the victim’s home.

The introduction of such evidence could prejudice the defendants’ case in that the jury could find the defendants guilty of stealing items not listed in the information. However, to do so, the jury would have to disregard the trial court’s clear instructions.

"The third element is that at the time of that assault, the Defendant took the money or property alleged to have been taken, in this case, we’re talking about keys and ring and a watch, which money or property did not belong to the defendant.” (Emphasis supplied.)

We will not presume that the jury disregarded this instruction.

Based upon this record, we find that the trial judge did not abuse his discretion in determining that the probative value of the evidence outweighed its prejudicial effect.

Defendants also claim that they were prejudiced because the admission of the evidence constituted an impermissible variance of the proofs from the information. The admission of evidence of other offenses which is offered solely in explanation and corroboration of the evidence of the act charged in the information does not constitute a variance. People v Jenness, 5 Mich 305 (1858), People v King, 365 Mich 543; 114 NW2d 219 (1962).

Accordingly, we find no error in respect to this issue.

Defendants next contend that the trial court’s instruction on reasonable doubt was improper and mandates reversal of their convictions.

The trial court instructed the jury on reasonable doubt as follows:

"What do we mean when we talk about reasonable doubt? Again, I instruct you that the People must prove the Defendants guilty beyond a reasonable doubt. I said reasonable doubt, that doesn’t mean beyond all doubt, it doesn’t mean beyond a shadow of a doubt; we’re talking about a reasonable doubt.
"A reasonable doubt is exactly what those two words signify, a doubt which is founded in reason, a doubt for which you can give a reason for entertaining. It can be a doubt which arises from the evidence which you’ve heard, during this case or it can be a doubt which arises from the lack of evidence. To put it another way, the People don’t have to eliminate all doubt from your minds. To do that would be to put you in the position of a witness, someone who has seen what happened rather than as a Juror because only if you were a witness to the event could you say that you know what happened.
"But the proofs presented by the People must eliminate doubt based upon reason, any doubt which has a rational explanation.
"Each and every element of the crime charge must be proven by that standard of proof beyond a reasonable doubt and a reasonable doubt is not something flimsy or fanciful or fictitious, nor is it any doubt based upon any sympathy or prejudice or any bias.” (Emphasis supplied.)

Defendants’ contention is without merit. The instruction given by the trial court is consistent with past instructions approved by this Court.

Defendant, Bernard Smith, next contends that the trial court erred in denying his motion to suppress his prior misdemeanor convictions which the prosecution intended to use for impeachment purposes if he testified.

At trial, defendant’s attorney filed a motion to preclude the prosecution from using his prior misdemeanor convictions for impeachment purposes. The trial court denied the motion, and defendant chose not to testify in his own behalf.

Defendant claims that the court’s ruling is in direct conflict with the rule set forth in People v Renno, 392 Mich 45; 219 NW2d 422 (1974), which prohibits the use of prior misdemeanor convictions for impeachment purposes.

Defendant contends that his convictions for attempted unlawful driving away of an automobile and attempted larceny in a building are misdemeanors, pursuant to MCLA 750.92; MSA 28.287, and are therefore barred from being used for impeachment purposes by Renno, supra.

Unlawful driving away of an automobile is a felony under Michigan law. MCLA 750.413; MSA 28.645 provides:

"Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years. ” (Emphasis supplied.)

Pursuant to MCLA 750.92; MSA 28.287 attempted unlawful driving away of an automobile is also a felony:

"If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year.” (Emphasis supplied.)

Since the aforementioned conviction was a felony, its use for impeachment purposes was within the trial court’s discretion, and the Renno rule does not apply.

We now turn to defendant’s conviction for attempted larceny in a building. This particular crime is defined by MCLA 750.92; MSA 28.287 as a misdemeanor. However, under MCLA 750.7; MSA 28.197, attempted larceny in a building is a felony as it is punishable by imprisonment in a state prison.

This inconsistency can be reconciled by applying well-established rules of statutory construction to the facts at hand.

"[It is a] fundamental rule of construction * * * [that] courts are bound, whenever possible, so to construe statutes as to give them validity and a reasonable construction; seeming inconsistencies in the various provisions of a statute should be reconciled, if possible, so as to arrive at a meaning which gives effect to all parts of the statute.” In re Petition of State Highway Commission, 383 Mich 709, 714-715; 178 NW2d 923, 926-927 (1970).
" 'When a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention shall be considered an exception to the general one.’
"The above statement was quoted with approval in Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99, 112 [43 NW2d 77 (1950)], where it was said, in further discussion, that (pp 111, 112):
" 'A special statute shall be given effect as an exception to the general statute in order to carry out the legislative intent. Board of Education v Blondell, 251 Mich 528 [232 NW 375 (1930)]. When a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention shall be considered as an exception to the general one. Attorney General, ex rel Owen v Joyce, 233 Mich 619 [207 NW 863 (1926)]; Heims v School District No 6 of Davison Township, 253 Mich 248 [234 NW 486 (1931)], and cases therein cited.’ ” Bullinger v Gremore, 343 Mich 516, 544; 72 NW2d 777 (1955). See also Minor Child v Health Commissioner, 16 Mich App 128, 131; 167 NW2d 880 (1969).

In the instant matter, MCLA 750.92; MSA 28.287 deals exclusively with the offense of attempted larceny in a building. MCLA 750.7; MSA 28.197 is the general statutory provision that defines what constitutes a felony under Michigan law.

The more specific statute should be controlling under the circumstances, and we rule, as a matter of law, that attempted larceny in a building is a misdemeanor in spite of the fact that it is punishable by up to two years in a state prison.

Having ruled that the offense in question is a misdemeanor, we must now determine if Renno, supra, barred its use for impeachment purposes at trial.

In Renno, supra, the Michigan Supreme Court expressly held that "municipal ordinance or misdemeanor convictions” cannot be used for impeachment purposes. 392 Mich at 55. (Emphasis added.) Even though the dissent makes a comprehensive argument that the Renno rule should not be applied to two-year or high misdemeanors, the fact remains that the Supreme Court has not acted to so limit the reach of Renno. We do not believe that this Court has the power to impose its own limits on Renno’s seemingly unambiguous language.

Absent the adoption of Michigan’s proposed rules of evidence, or Supreme Court response to the People v McMillan majority’s urging of a review of Renno, the prohibition on the use of all misdemeanor convictions for impeachment purposes remains the rule of law in Michigan.

We also cannot agree that the trial court’s decision was harmless error under the facts of this case. In People v Hagar, 73 Mich App 536; 252 NW2d 484 (1977), cited by the dissent, the defendant chose to testify and was impeached by several convictions, all but one apparently misdemeanor convictions. The Hagar Court, in a brief discussion, held that this Renno violation was harmless since the defendant had already been impeached by a felony conviction.

Without wishing to comment on the wisdom of the Hagar decision, we find it distinguishable from the case at bar. In Hagar this Court had a record of the defendant’s testimony and could evaluate the impact of the impeachment by use of misdemeanor convictions. Since the nature of those convictions, and Hagar’s felony conviction, were not revealed in the opinion, it can only be inferred that the prejudice to defendant was not sufficient to mandate reversal of the conviction.

In the present case, however, defendant, faced with the probability of impeachment by his complete criminal record, chose not to testify. This Court has no record on which to evaluate the reasons behind defendant’s decision. While it is conceivable that defendant relinquished his right to testify solely because of a desire to keep his felony conviction off the record, it is equally conceivable that the combined effect of the felony and misdemeanor was the factor that swayed the decision. It is also necessary to note that the misdemeanor conviction here was for a larceny offense, and thus may have had significant impeachment value, especially in a trial for armed robbery. Where the issue involved is as crucial to the judicial process as a defendant’s right to testify in his own behalf, any doubt as to the motivating factors behind a decision to forego that right must be resolved in the defendant’s favor.

Accordingly, the decision to allow defendant to be impeached by a misdemeanor conviction cannot be considered to be harmless error.

We have examined the issue of search and seizure and find no reversible error. See Harris v US, 390 US 234; 88 S Ct 992 (1968), People v Eddington, 387 Mich 551, 565; 198 NW2d 297 (1972).

The conviction of defendant Bernard Smith is reversed and remanded. The conviction of Larasena Smith is affirmed.

M. F. Cavanagh, P. J., concurred.

J. H. Gillis, J.

(dissenting). I respectfully dissent. The Renno case set forth the following rule:

"We do not hesitate in this case to prohibit the further use of municipal ordinance or misdemeanor convictions used by the prosecution solely for impeachment purposes. This type of conviction was never intended by our Legislature to fall within the confines of MCLA 600.2158; MSA 27A.2158, or MCLA 600.2159; MSA 27A.2159. This is affirmatively shown by the legislative history of these statutes. It is time that this Court brings our current interpretation of these statutes back in line with their original purposes.” Renno, supra, at 55.

However, the Renno Court carefully acknowledged that the nature and extent of any rule set forth in Renno would be subject to future modification.

"The nature of and the extent of any rule which this Court may devise in this area is still not settled.” Renno, supra, at 51.

A recent Supreme Court case has questioned the validity of Renno, supra.

"In People v Renno, 392 Mich 45, 55; 219 NW2d 422 (1974), this Court held that municipal ordinance or misdemeanor convictions may not be used for impeachment purposes.
"The proposed Michigan Rules of Evidence would provide that the credibility of a witness may not be impeached by evidence that he was convicted of a crime punishable by imprisonment for one year or less unless the crime involved dishonesty or false statement. MRE 609(a)(2). This rule would modify Renno, Sting [Sting v Davis, 384 Mich 608; 185 NW2d 360 (1971)], and GCR 1963, 607. It appears that before this case is likely to be retried this Court will act comprehensively regarding the proposed Michigan Rules of Evidence.” Kirby v Larson, 400 Mich 585, 600; 256 NW2d 400 (1977).

The Michigan Supreme Court adopted the proposed Michigan Rules of Evidence effective March 1, 1978.

This Court in People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), has interpreted the Renno case, supra, as not mandating per se reversal of a conviction when prior misdemeanor convictions are used for impeachment purposes at trial. The McMillan Court stated that under certain circumstances the use of prior misdemeanor convictions for impeachment purposes would be harmless error. The McMillan Court went on to conclude that Renno, supra, was in need of clarification in respect to what exactly constitutes a misdemeanor for impeachment purposes under the case:

"Renno held that from hence forward, only convictions for infamous crimes could be used to impeach a witness. Renno further equated infamous crimes with felonies.
"We do not think that, in Michigan, the term 'infamous crime’ can necessarily be equated with the term 'felony’. In Attorney General v Montgomery, 275 Mich 504, 513; 267 NW 550 (1936), our Supreme Court defined an infamous crime as follows:
" 'Whether a crime is infamous or not is not determined by the nature of the offense (2 Bouvier’s Law Dictionary [Rawle’s 3d Rev] p 1553,1554), but by the consequences to the individuals by the punishment prescribed for such offense. Butler v Wentworth, 84 Me 25 (24 Atl 456, 17 L.R.A. 764). Crimes subject to infamous punishments are infamous crimes, and the term "infamous crime” means any crime punishable by imprisonment in the state prison (Citations omitted.)
"It would then appear that under Montgomery, supra, impeachment should be permissible by use of prior convictions based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed 'felony’ or 'misdemeanor’.
"We do not point out this apparent inconsistency to nitpick at the Supreme Court. Real problems are presented in this area. For example, the crime of unlawfully taking and using an automobile is labeled a misdemeanor, but, nonetheless, carries the possible sentence of two years imprisonment in a state penitentiary.

MCLA 750.414; MSA 28.646. On the other hand, the crime of issuing a check without an account or credit is labeled a felony although it also carries a possible maximum sentence of two years in the state prison. MCLA 750.131a; MSA 28.326(1). Under Renno, the prosecutor would be allowed to impeach credibility by using a conviction under MCLA 750.131a; MSA 28.326(1); he would not be able to do so by using one under MCLA 750.414; MSA 28.646. Yet the two statutes carry exactly the same penalties, and we believe, under Montgomery, there is no distinction between them in regards to impeaching credibility.” McMillan, supra, at 123-124.

The offense in the instant matter, attempted larceny from a building, is a high misdemeanor punishable by two years in prison. Under the Michigan Rules of Evidence, effective March 1, 1978, such an offense clearly would be admissible for impeachment purposes:

"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect.” (Emphasis supplied.) MRE 609(a).

It should also be noted that the majority in the McMillan case, supra, urged the Supreme Court to allow the use of high misdemeanor convictions for impeachment purposes by restricting the Renno rule to those crimes carrying a maximum penalty of 90 days in jail.

Regardless of the construction the Supreme Court gives to Renno in respect to what constitutes a misdemeanor, the trial judge’s failure to suppress defendant’s misdemeanor convictions for impeachment purposes was harmless error under the circumstances in this case. Since defendant would have been impeached by his prior felony conviction, I fail to see how allowing further impeachment via a misdemeanor conviction would result in a miscarriage of justice.

Accordingly, I would affirm defendants’ convictions.

       The information charged the defendants with feloniously stealing the victim’s watch, ring and keys.

        People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), People v Draine, 72 Mich App 592; 250 NW2d 139 (1976).

        People v Finley, 38 Mich 482 (1878), People v Poe, 27 Mich App 422; 183 NW2d 628 (1970), People v Ames, 60 Mich App 168; 230 NW2d 360 (1975).

        People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).

       68 Mich App 113; 242 NW2d 518 (1976).

        People v Renno, 392 Mich 45; 219 NW2d 422 (1974).

       Leave to appeal was denied by the Michigan Supreme Court, 399 Mich 825 (1977).

        People vHagar, 73 Mich App 536; 252 NW2d 484 (1977).

        People v Roberson, 55 Mich App 413; 222 NW2d 761 (1974), People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976).


source: Caselaw Access Project

author: Danhof, C. J.

license: Public Domain

text:
    STURGIS SAVINGS AND LOAN ASS’N v ITALIAN VILLAGE, INC.
    1. Mechanics’ Liens — Waiver—Burden of Proof — Evidence.
    The burden of proof is on the owner of the property to show a valid waiver of a mechanic’s lien, and to be effective the waiver document should clearly and unequivocally show an express waiver.
    2. Contracts — Ambiguous Terms — Construction Against Preparer —Parol Evidence — Intent of Parties.
    Ambiguous terms, especially in a printed form contract, are to be strictly construed against the preparer of the contract; a trial court does not err in allowing parol evidence, where there is ambiguity in a contract, to show the intent of the parties.
    3. Appeal and Error — Nonjury Case — Findings of Fact — Court Rules.
    Findings of fact by a trial court cannot be set aside unless they are clearly erroneous; this is especially true where the testimony at trial was in sharp conflict and the judge had the advantage of seeing and hearing the witnesses (GCR 1963, 517.1).
    4. Appeal and Error — Property Ownership — Mechanics’ Liens— Waiver — Burden of Proof — Findings of Fact — Clear Error Rule.
    A finding that a plaintiff property owner had not met his burden of showing that the waiver of a mechanic’s lien was clear and unequivocal as to liens for work to be done in the future will not be upset by the Court of Appeals where, after reviewing all the evidence, the appellate court cannot say that the finding of the trial court was clearly erroneous.

      References for Points in Headnotes

       53 Am Jur 2d, Mechanics’ Lien §§ 290, 291, 397.

       17 Am Jur 2d, Contracts §§ 22, 77, 78, 241, 247-275.
    Ambiguity: comment note on the parol evidence rule and admissibility of extrinsic evidence to establish or clarify ambiguity in written contract. 40 ALR3d 1384.

       4 Am Jur 2d, Appeal and Error §§ 17-19, 839-845.

       5 Am Jur 2d, Appeal and Error §§ 822, 839-845.

       81 Am Jur 2d, Witnesses §§ 105-110, 658, 660-666.

       81 Am Jur 2d, Witnesses §§ 75, 76.
    29 Am Jur 2d, Evidence §§ 356, 603, 654, 714.

       5 Am Jur 2d, Appeal and Error §§ 800, 801, 803, 805.

       5 Am Jur 2d, Appeal and Error § 727.

       53 Am Jur 2d, Mechanics’ Liens §§ 432, 433.
    Attorneys’ fees: amount of compensation for services in absence of contract or statute fixing amount. 56 ALR2d 114.

      5. Evidence — Witnesses—Conflicting Testimony — Resolution of Conflicting Testimony — Clear Error Rule.
    The resolution of conflicting testimony is best done by a trial judge and although he is not bound to accept as true the testimony of interested witnesses, such testimony does provide a basis for a finding that is not clearly erroneous.
    6. Witnesses — Personal Knowledge — Witness Testimony — Circumstantial Evidence.
    Questions about the state of a person’s knowledge can only be proved by statements of witnesses or by circumstantial evidence.
    7. Appeal and Error — Judgment—Support For Judgment — Findings of Fact — Noncrucial Findings — Evidentiary Support.
    A trial court’s judgment must be affirmed if supported by findings not against the clear weight of the evidence; a claim of error based upon findings by the court which are not crucial to the decision will not lead to reversal, even if such findings were without evidentiary support.
    8. Appeal and Error — Recovery—Alternative Theories — Resolution on One Ground — Sufficient Relief.
    A party cannot gain reversal on appeal by claiming that the trial court erred in refusing to rule on the prevailing party’s alternative theory of recovery where the resolution of the case on one ground gives that party all the relief he seeks.
    9. Attorney and Client — Attorney Fees — Mechanic’s Lien Claims —Statutes—Remedial Construction — Judge’s Discretion.
    The statute which provides for reasonable attorney’s fees in mechanic’s lien cases is remedial and should not be narrowly construed; the awarding of attorney fees is within the discretion of a trial judge and his discretion will be upheld in the absence of an abuse in determining the amount of reasonable attorney fees (MCLA 570.12; MSA 26.292).
    Appeal from St. Joseph, Robert E. A. Boyle, J.
    Submitted December 8, 1977, at Grand Rapids.
    (Docket No. 30652.)
    Decided March 6, 1978.

      Complaint by Sturgis Savings and Loan Ass’n «against Italian Village, Inc. and others to foreclose a mortgage. The premises were conveyed to Sturgis Savings and Loan by Italian Village, Inc. in lieu of foreclosure. Cross-complaint and counterclaim by Terry Blanchard against Sturgis Savings and Loan for recovery on a mechanic’s lien against the premises. Judgment for Terry Blanchard on the mechanic’s lien. Plaintiff appeals and Terry Blanchard cross-appeals.
    Affirmed.

      Dresser, Marks & Svendsen (by Roger A. Bird and Raymond H. Dresser, Jr.), for plaintiff.

      John L. Schwendener (by Robert J. Barnard, Jr.), for defendant, Terry Blanchard.
    Before: Danhof, C. J., and T. M. Burns and M. J. Kelly, JJ.
   Danhof, C. J.

Plaintiff filed suit to foreclose a mortgage, recorded November 1, 1973, on a restaurant named Italian Village, Inc. Before trial, the owners conveyed the restaurant to the bank in lieu of foreclosure and the only remaining controversy concerns defendant Blanchard’s alleged mechanic’s lien. On October 31, 1973, defendant submitted his bill dated October 26, 1973, for $5,000 to plaintiff for work done to that date. Before Sturgis Savings agreed to release any money for payment, defendant was requested to and did sign a mechanic’s lien waiver agreement. Defendant, after completing further work, billed the restaurant for $4,504.99 but received no payment. He then filed a lien on the property.

The main issue in this case is whether the defendant waived his right to a lien for work done in the future by signing a document on October 31 which stated, "The undersigned hereby waive * * * any and all claims or right of lien which the undersigned now have or may have hereafter * * * for labor rendered, material supplied”. The burden of proof is on the owner of the property to show a valid waiver, Marquette Lumber Co v Albee, 196 Mich 127; 162 NW 1005 (1917). To be effective, the waiver document should clearly and unequivocally show an express waiver, Saginaw Lumber Co v Stirling, 305 Mich 473; 9 NW2d 680 (1943).

If the document had made a clear reference to work to be performed in the future, there would be no controversy. See Pittsburgh Plate Glass Co v Art Centre Apartments, 253 Mich 501; 235 NW 234 (1931). In that case, the materialman executed a waiver knowing it had been changed specifically to include future work. In this case, however, the waiver document’s only reference to the future concerns rights which may later arise from the work performed. It should be noted that "labor rendered, material supplied” was written in the past tense, and so the waiver should be read with this in mind. This interpretation does not make the words meaningless since the contractor could be waiving lien rights on future installment payments for work already completed. In Saginaw Lumber Co, supra, a waiver document was held to cover only work already performed, when the reference to rights which may later accrue was crossed out. In both the above cases, the expression of intention as to future work was clear while in this case it was not as clear. Ambiguous terms, especially in a printed form contract, are to be strictly construed against the preparer, Washtenaw Asphalt Co v State of Michigan, 42 Mich App 132; 201 NW2d 277 (1972), Keller v Paulos Land Co, 381 Mich 355; 161 NW2d 569 (1968). Since some ambiguity did exist in the contract, the trial court was not in error in allowing parol evidence on the parties’ intentions. The issue was not over the terms of the waiver, but whether there was any contract or waiver, at all, concerning work not yet performed.

From analyzing the testimony at trial, the judge found as fact that the defendant only intended a partial waiver for the work covered by his $5,000 bid and bill. His bill was expressly limited to work done to date. Also the court found that the plaintiff was aware of additional work done by the defendant at the restaurant that was not covered by his original bid. These findings cannot be set aside unless they are clearly erroneous. 1963 GCR, 517.1. This is especially true where the testimony at trial is in sharp conflict and the judge had the advantage of seeing and hearing the witnesses. Andrew C Sisman Co v Miller, 215 Mich 425; 184 NW 456 (1921). This rule applies equally to this case, even though the testimony is not irreconcilable. The judge, based on his observations of the witnesses, found that the witnesses for the plaintiff seemed to have selective memories, recalling only incidents favorable to their side.

After reviewing all the evidence, one cannot say that the trial court was clearly erroneous in finding that the plaintiff had not met his burden of showing that the waiver was clear and unequivocal as to liens for work to be done in the future.

Plaintiff also claims that the judge was clearly erroneous in the finding of six specific facts supporting his decision: (1) That the defendant had no intention of waiving lien rights for future work, (2) the plaintiff knew he did not intend a full waiver, (3) that if defendant did additional work, plaintiff agent said plaintiff would see the defendant got paid, (4) that the plaintiff never disclosed that it would not pay over $5,000, (5) that the earmarking of funds was without substance and (6) that two other subcontractors who worked on the building were later paid, but not the defendant. The first and fourth of these facts are supported by the direct testimony of the defendant:

"Q. Did you understand you were waiving your lien rights forever?
"A. No, I did not.”

Also, even though the defendant might have known or suspected that the plaintiff would only pay out $5,000, he claims the plaintiff never disclosed this to him. Mr. Stanard, who was plaintiff’s vice-president, however, claims that he said any future payment must come from the owner. Resolving this conflicting testimony is best done by the trial judge. Although the court is not bound to accept as truth the testimony of interested witnesses, it does provide a basis for a finding that is not clearly erroneous.

The court’s second finding, that plaintiff’s representative knew that defendant only intended a partial waiver, concerned the state of the agent’s knowledge. Like all questions about the state of one’s knowledge, this can only be proved by statements of the plaintiff’s agents or circumstantial evidence. Plaintiff offered no evidence to show that a full waiver was expected. Plaintiff’s evidence, which showed that plaintiff did not intend to pay out any more than the $5,000 earmarked by the loan agreement with the owners, did not concern the defendant’s right to enforce a mechanic’s lien against the property. The circumstantial evidence admitted at trial supported the judge’s findings. Plaintiffs agent inspected the premises after the billing date and found that defendant was performing additional work there. Also there is no evidence of any discussion concerning the status of mechanics’ lien rights for future work. Since plaintiff was aware that defendant was doing additional work on the premises and the parties did not discuss the possibility of waiving lien rights for future work, the trial court was not clearly erroneous in finding from this circumstantial evidence that plaintiffs agents knew that the defendant did not intend to waive his rights to liens for future work.

The other findings claimed as error by plaintiff are not crucial to the decision since the defendant is not seeking recovery through a contractual relationship with the plaintiff. Thus, even if these findings were without support, the judgment must still be affirmed if supported by findings not against the clear weight of the evidence. Weber v Ford Motor Co, 245 Mich 213; 222 NW 198 (1928).

The plaintiff also claims that the trial court erred in not ruling on the applicability of the Building Construction Fund Act, MCLA 570.151; MSA 26.331. Since the judge resolved the case on other grounds, he did not rule on this. When the resolution of the case on one ground gives a person all the relief he seeks, the other party cannot gain reversal on appeal by claiming that the trial court erred in refusing to rule on the prevailing party’s alternative theory of recovery. This Court declines to rule on issues that have not been considered at the trial court. John Deere Co v Wonderland Realty Corp, 38 Mich App 88; 195 NW2d 871 (1972), Szyszkoski v City of Lansing, 64 Mich App 94; 235 NW2d 72 (1975).

Plaintiff also challenges the applicability of MCLA 570.12; MSA 26.292, which provides for reasonable attorney’s fees in proceedings concerning mechanics’ lien claims. Plaintiff argues that this case is not disputing a lien but rather the alleged waiver of it; a simple contract case. However, the purpose of the statute is remedial and it should not be narrowly construed. The language of the statute reads to "determine the amount due to each creditor who has a lien” which covers the issues presented here. The trial court did not abuse its discretion in permitting the awarding of attorney’s fees.

On cross-appeal, defendant claims that the award for reasonable attorney’s fees was too low. The awarding of attorneys’ fees is within the discretion of the trial judge. Williams & Works, Inc v Springfield Corp, 76 Mich App 541; 257 NW2d 160 (1977), and it will be upheld absent an abuse of discretion. See e.g., In the Matter of the Attorney Fees of William J Hayes, 55 Mich App 30; 222 NW2d 20 (1974). However, the judge must make findings of fact on the issue, Desender v DeMeulenaere, 12 Mich App 634; 163 NW2d 464 (1968). In this case, defendant asks for $5,500 based on 121 hours of time expended in collecting a $4,500 claim. One of the reasons the trial judge awarded only $850 was that he felt the attorney was unreasonable in working that many hours and charging more than was sought to be recovered. The trial court also considered the complexity and difficulty of the issues involved in determining a reasonable allowance. It was not required to accept the attorney’s claim of what is reasonable based solely on the number of hours spent. The trial court did not abuse its discretion in determining the amount of reasonable attorney’s fees.

Affirmed. No costs, neither party prevailing in full.


author: Bronson, P. J.

text:
    CITY OF TROY v TROY CIVIL SERVICE COMMISSION
    1. Labor Relations — Discharge—Probationary Employees — Hearings — Police.
    A probationary police officer denied permanent employment is entitled by statute to a hearing at which cause for the denial must be established (MCLA 38.511, 38.514; MSA 5.3361, 5.3364).
    2. Labor Relations — Probationary Employees — Hearings on Dismissal — Statutes.
    A probationary employee does not have a right to a hearing on dismissal at the end of his probationary period of employment unless that right is expressly created by statute.
    Appeal from Oakland, William P. Hampton, J.
    Submitted November 16, 1977, at Detroit.
    (Docket No. 30704.)
    Decided March 6, 1978.
    Complaint by the City of Troy against the Troy Civil Service Commission and Joseph M. Forgue seeking an order of superintending control upholding the plaintiffs dismissal of defendant Forgue from the Troy Police Department and barring the defendant commission from ordering his reinstatement. Judgment for defendants. Plaintiff appeals.
    Affirmed.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Paul H. Townsend, Jr., Ronald J. Santo, and Seth M. Lloyd), for the City of Troy.

      John A. Lyons, for defendant Joseph M. Forgue.
    Reference for Points in Headnotes
    [1, 2] 48 Am Jur 2d, Labor and Labor Relations § 1238.

      Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   Bronson, P. J.

Appellant, City of Troy, appeals from dismissal of its complaint for superintending control and summary judgment for appellees and the reinstatement with back pay of appellee Joseph Forgue to the Troy Police Department. The basic facts underlying this dispute are not contested.

Joseph Forgue was employed as a probationary police officer by the City of Troy from June 26, 1975, to June 25, 1976. On June 25, 1976, he was informed by letter from the Troy City Manager that he would not receive permanent employment with the Troy Police Department. The termination notice accompanying the letter cited "unsatisfactory conduct or capacity for permanent employment” as the reason for discharge.

Forgue appealed this action to the Troy Civil Service Commission. The commission held that under 1935 PA 78, § ll, a probationary police officer denied permanent employment at the end of his probationary period was entitled to a § 14 hearing at which the city must establish cause for the dismissal. As appellant declined to attempt to show the requisite cause, Forgue was ordered reinstated to permanent employment with back pay.

Appellant then filed a complaint for superintending control and a summary judgment motion in Oakland County Circuit Court, contending that the commission’s action was contrary to § 11 of 1935 PA 78. That court affirmed the commission’s action, interpreting §§11 and 14 to mean that a probationary officer denied permanent employment is entitled to a hearing at which cause for the denial must be established.

Section 11(a) provides in part:

"All original appointments to any positions in the police departments, within the terms of this act, shall be for a probationary period of 1 year after the completion of legally required courses of basic training. At any time during the probationary period the appointee may be dismissed for such cause, in the manner provided in this act. If at the close of this probationary term the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified within 10 days in writing, that he will not receive permanent appointment, whereupon his employment shall cease; otherwise his retention in the service shall be equivalent to his final appointment. The probationer shall be entitled to a hearing before the commission as provided in section 14.” (Emphasis added.)

Section 14 provides in part:

"No member of any fire or police department within the terms of this act shall be' removed, discharged, reduced in rank or pay, suspended or otherwise punished except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions, and all charges shall be void unless filed within 90 days of the date of the violation, except in the case of a probationer, whose violations may accumulate for the probationary period.”

The right to a hearing on dismissal at the end of a probationary period of employment depends on express statutory authority. OAG, 1961-1962, No 4023, pp 462, 464; Kaplan, The Law of Civil Service, 230 (Matthew Bender & Co ed, 1958). We hold that the final sentence of § 11(a) provides such statutory authority in clear and unequivocal terms.

Appellant’s argument that § 11(a) does not provide for a hearing for cause in this case is twofold. Appellant first contends that the final sentence of § 11(a) gives the hearing right only to probationers discharged during the probationary term, but not to probationers discharged at the end of their probationary term. We find no support for this interpretation in the language of § 11. The final sentence of § 11 clearly gives a probationer a right to a hearing: "The probationer shall be entitled to a hearing before the commission as provided in section 14.”

The use of the word "probationer” in § 11 is significant. It is used in § 11(a) solely to describe an end-of-term probationary officer; the term "appointee” is used to describe a probationary officer before expiration of the probationary term. One sentence of § 11(a) gives the "appointee” a right to a hearing for cause: "At any time during the probationary period the appointee may be dismissed for such cause * * * .” This sentence designates as an "appointee” a probationary officer during the probationary period. But, when § 11(a) discusses an end-of-term probationary officer, the word "probationer” is used: "If at the end of the probationary term the conduct or capacity of the probationer * * * the probationer shall be notified.” Immediately following this sentence, in which "probationer” refers solely to an end-of-term probationary officer, the final sentence of § 11(a) reads: "The probationer shall be entitled to a hearing * * * .” The use of the word "probationer” in § 11(a) thus indicates that the end-of-term probationary officer is entitled to a § 14 hearing if he is denied permanent employment.

Prior to 1971, § 11 provided:

"If at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified, in writing, that he will not receive permanent appointment, whereupon his employment shall cease; otherwise his retention in the service shall be equivalent to his final appointment: Provided, however, That the probationer shall be entitled to a hearing before the commission as provided in section 14.”

The language used expressed more clearly than the present version the probationer’s right to a hearing upon dismissal at the end of the probationary period, as the right to a hearing was a proviso to language allowing the dismissal of an end-of-term probationer. The 1971 amendments do not indicate that the Legislature meant to change the probationer’s right to a hearing, however. Rather, it appears that the Legislature merely simplified the language of § 11 in the context of other substantive changes in 1935 PA 78. Nothing suggests that the Legislature intended to remove the hearing requirement for dismissal of end-of-term probationers.

Appellant also argues that the lower court’s interpretation destroys the statutory distinction between probationary and permanent employees. However, under § 14, there is still a distinction between probationers and permanent employees regarding the accumulation of charges. In fact, the language in § 14 allowing charges against probationers to be accumulated until the end of the probationary period ("for the probationary period”) would be meaningless unless a probationer had a right to a hearing at that time.

Finally, appellant argues that, as a matter of policy, the City of Troy should be able to discharge end-of-term probationers without demonstrating cause. Our function in this case, however, is to interpret the language of the statute, not to make policy. See Killingsworth v Civil Service Commission of Saginaw, 12 Mich App 340, 349; 162 NW2d 826 (1968). Appellant’s arguments are more properly directed to the Legislature.

We hold that §§ 11 and 14 of 1935 PA 78, as amended, entitle a probationary police officer denied permanent employment to a hearing at which cause for his dismissal must be established. As no cause was established in the case at bar, the order of the lower court reinstating plaintiff with back pay is affirmed. Costs to defendants-appellees.

       MCLA 38.511; MSA 5.3361.

       MCLA 38.514; MSA 5.3364. Appellant contends that even if there is a right to a hearing, it need not be a hearing for cause. We hold that any hearing required under § 11(a) is to be a § 14 hearing at which cause for dismissal must be established by the city.

       GCR 1963, 117.2(3).

       For example, the probationary period for police officers was extended to one year and the completion of basic training courses was added as a requirement. MCLA 38.511; MSA 5.3361.

       We note that a collective bargaining agreement between the City of Troy and the Troy Police Officers’ Association, which was made part of the lower court record, provides that "no employee shall be disciplined or discharged except for just cause”. "Employee” includes probationary officers who are members of the association. Appellant argues that an end-of-term probationary officer denied permanent employment has not been "discharged”. However, appellant’s policy argument is undercut by the agreement, under which a probationer denied permanent employment has at least a colorable right to a hearing for cause.


author: M. J. Kelly, J.

text:
    TOPE v WATERFORD HILLS ROAD RACING CORPORATION
    1. Words and Phrases — Public Policy — Definitions.
    "Public policy” evolves into constitutional provisions, statutes, and judicial decisions, and more often abides only in the customs and conventions of the people, in their clear consciousness and conviction of what is naturally and inherently just and right between man and man; where a course of conduct is cruel or shocking to the average man’s conception of justice, it must be held to be obviously contrary to public policy.
    2. Contracts — Indemnification Against Liability — Negligence— Public Policy.
    An indemnity agreement entered into between a plaintiff race car driver and a defendant race promoter which unequivocally exempts the promoter from liability for damages sustained by the plaintiff because of the promoter’s own negligence is not offensive to public policy where the general public as a whole is minimally affected by the agreement, private interests are primarily at stake, and the public interest would not be served by striking down the provision.
    3. Torts — Negligence—Contracts—Indemnification Against Liability.
    Generally, a party may contract against liability for harm caused by his negligence in performance of a contractual duty, but he may not do so with respect to his gross negligence; if the performance of a tortious act for which indemnification is claimed under the contract is only an undesired possibility in the performance of the contract, and the contract does not tend to induce the act, the indemnification provision is valid.
    4. Contracts — Indemnification—Parties—Bargaining Positions— Knowledge.
    A professional race car driver who entered into an indemnification agreement with a race promoter should be held to a higher standard of conduct and knowledge than an amateur driver as regards the respective bargaining positions of the parties, particularly where the driver had previously participated in a race run over the same course, which consisted of city highways, and was aware of the increased hazards of racing on such a course.

      References for Points in Headnotes

       16 Am Jur 2d, Constitutional Law § 167.

       47 Am Jur 2d, Contracts §§ 188-191.
    41 Am Jur 2d, Indemnity §§ 6-18, 29-31.

       41 Am Jur 2d, Indemnity § 17.
    4 Am Jur 2d, Amusements and Exhibitions §§ 81, 98.

      Appeal from Wayne, William Leo Cahalan, J.
    Submitted November 3, 1977, at Detroit.
    (Docket No. 30719.)
    Decided March 6, 1978.
    Complaint by Donald Tope, administrator of the estate of Harry W. Tope, deceased, against the Waterford Hills Road Racing Corporation for damages for negligence in the design and layout of a race course and in the management of an automobile race in which Harry W. Tope was fatally injured. Accelerated judgment for defendant. Plaintiff appeals.
    Affirmed.

      Goodman, Eden, Millender & Bedrosian (by James A. Tuck and Joan Lovell), for plaintiff.

      Harvey, Kruse & Westen, P. C. (by John A. Kruse and Michael F. Schmidt), for defendant.
    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   M. J. Kelly, J.

Plaintiff appeals from an order for accelerated judgment of no cause of action granted the defendant on October 15, 1976, in Wayne County Circuit Court. Plaintiff is the administrator of the estate of Harry Warren Tope, a professional race car driver. Tope sustained fatal injuries during the Wide Track II road race held on July 5, 1975, at Pontiac, Michigan. The race was sponsored by the City of Pontiac and the defendant, Waterford Hills Road Commission, Inc., a nonprofit Michigan corporation.

Tope had won the inaugural wide track race the year before his fatal accident. He had entered the 1975 race to promote his business, Tope Racing Enterprises, which was his source of livelihood. As a condition to participating in the race, all entrants paid $50 and signed an entry form containing an assumption of the risk, release, discharge of liability, and a separate form entitled "Waiver and Release from Liability and Indemnity Agreement”.

Tope was killed when his race car collided with a guard rail during the race. The trial court noted:

"Tope’s race car was a needle-nose design; the guardrail was of a single-beam design. When Tope’s car collided with the guardrail, the single beam slid up the top of the car until it impacted with Tope’s head.”

Plaintiff administrator filed the instant action alleging that defendant’s negligence in the design and layout of the race course and in the management of the race resulted in Tope’s death. Defendant filed a motion for accelerated judgment based upon:

"(1) [A] purported contractual assumption of risk and release of Defendant contained in the entry blank signed by Tope prior to the race; (2) a purported contractual assumption of risk and release of Defendant contained in the Waiver and Release from Liability and Indemnity Agreement, signed by Tope and other drivers prior to the race; and (3) contributory negligence which Defendant claims Tope was guilty of as a matter of law.” Trial court’s opinion, p 1.

The motion was granted.

Plaintiff raises one issue on appeal contending that the contract provision which exempts an auto racing club from liability for personal injuries to the auto racers caused by the club’s negligence is unenforceable as being contrary to public policy.

The relevant contractual terms, pertaining to the assumption of risk provision and the release and waiver, provide:

"The entrant, in signing this agreement and in consideration of the right to use the race course at his own risk and thereby releases and discharges the Waterford Hills Road Racing, Inc. and The City of Pontiac, the organizers and race officials, together with their successors, assigns, officers, agents, employees, from all liability for injuries to person, property or reputation, suffered by him or his employees as a result of the race or races or events contemplated under this entry blank, or practice or preparation therefor, and whether caused by any condition of the road course or grounds or the conduct of any officer, agént, representative, or employee of the Waterford Hills Road Racing, Inc., or the City of Pontiac and the organizers and race officials, or conduct of said races. It is further agreed that the entrant, in signing this entry form has studied the rules and regulations in the entry form, and agrees to abide thereby. He further agrees to ensure that all crew members and driver designated to drive the car are similarly acquainted with the aforementioned rules.” Official Entry Blank.
"IN CONSIDERATION of being permitted to enter for any purpose of the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit area, racing surface and infield, including walkways, concessions and other appurtenances therein) each of the Undersigned, for himself and personal representatives, assigns, heirs and next of kin:
1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Promoter, Racing Association, Track Operator, Track Owner, Landowner, and each of them, their officers, and employees, all for purposes herein referred to as RELEASEES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damage, and any claim or demands therefor, on account of injury to the person or property or resulting in death of the Undersigned, whether caused by the negligence of Releasees or otherwise while the Undersigned is upon the Restricted Area, and
"Each of the Undersigned warrants the following statements are true and correct and understands that the Releasees have relied on them in entering into the foregoing Release, Waiver and Indemnity Agreement and in giving the Undersigned permission to enter the Restricted Area:
"1. No oral representations, statements or inducements apart from the foregoing written agreement have been made.
"2. He assumes full responsibility and risk of bodily injury, death or property damage due to negligence of Releasees or otherwise upon entering the Restricted Area.
"3. If a driver, he has a valid driver’s license from the state of his residence.
"4. That he is an independent contractor and assumes and takes all responsibility for all charges, premiums and taxes, if any, payable on any funds he may receive as a result of his activities, including without limiting the generality of the foregoing, social security, unemployment, income and withholding taxes, and Workmen’s Compensation insurance.
"5. HE HAS READ AND VOLUNTARILY SIGNS THIS RELEASE AND WAIVER OF ALL LIABILITY OF INDEMNITY AGREEMENT.” Waiver and Release from Liability and Indemnity Agreement (hereafter "Waiver and Release”).

The waiver and release expressly exempts defendant from liability for damages to the plaintiff caused by defendant’s negligence. Construing the indemnity clause strictly against defendant we find the language unequivocal in exempting defendant from liability for damages sustained by the plaintiff because of defendant’s own negligence. See Klann v Hess Cartage Co, 50 Mich App 703, 705-706; 214 NW2d 63 (1973). We are asked to determine whether or not the indemnity clause is contrary to public policy. The precise definition of "public policy” has recently been set forth by another panel of this Court quoting the language found in Skutt v Grand Rapids, 275 Mich 258, 263-265; 266 NW 344 (1936). Murphy v Seed-Roberts Agency, Inc, 79 Mich App 1, 13; 261 NW2d 198 (1977). A summary of the definition establishes that "public policy” evolves into constitutional provisions, statutes, and judicial decisions, " '[m]ore often * * * it abides only in the customs and conventions of the people, — in their clear consciousness and conviction of what is naturally and inherently just and right between man and man’ ”. The definition is further qualified by the Court in the following passage:

" 'When a course of conduct is cruel or shocking to the average man’s conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute or decree of court.’ ”

There is no constitutional or statutory provision, or court decisión which specifically declares the instant release clause, as it relates to auto racing, contrary to public policy. Query: Is it "cruel or shocking to the average man’s conception of justice” for a race promoter to insulate itself from liability for its own negligence? We are dealing with a fairly narrow segment of the public participating in a relatively dangerous sporting activity. The general public as a whole is minimally affected.

We find the contract provisions are not inimical to the public interest. Cf. Gray v Galesburg, 71 Mich App 161, 166; 247 NW2d 338 (1976). Private interests are primarily at stake. See Winterstein v Wilcom, 16 Md App 130; 293 A2d 821, 826 (1972). The public interest would not be served by striking down a contract provision between private parties voluntarily assumed and historically sanctioned in Michigan in other factual situations. Mann v Pere Marquette R Co, 135 Mich 210; 97 NW 721 (1903), Blazic v Ford Motor Co, 15 Mich App 377, 380; 166 NW2d 636 (1968), lv den, 382 Mich 758 (1969), Shelby Mutual Insurance Co v Grand Rapids, 6 Mich App 95; 148 NW2d 260 (1967), United States Fibres, Inc v Proctor & Schwartz, Inc, 358 F Supp 449 (ED Mich, 1972).

In Gore v Tri-County Raceway, Inc, 407 F Supp 489, 492 (MD Ala, 1974), wherein a widow of a participant in an auto race brought suit against the operator of the race track for damages for her husband’s death, the court, reviewing a similar release clause, stated:

"If these agreements, voluntarily entered into, were not upheld, the effect would be to increase the liability of those organizing or sponsoring such events to such an extent that no one would be willing to undertake to sponsor a sporting event. Clearly, this would not be in the public interest.” (Emphasis added.)

The Gore court granted defendant’s motion for summary judgment and dismissed plaintiffs case.

This Court has held:

"Generally a party may contract against liability for harm caused by his negligence in performance of a contractual duty, but he may not do so with respect to his gross negligence. Shelby Mutual Insurance Co v Grand Rapids, 6 Mich App 95; 148 NW2d 260 (1967); Thomas v Atlantic CLR Co, 201 F2d 167 (CA 5, 1953), Restatement, Contracts, § 574; 6A Corbin on Contracts, § 1472, pp 596-597. * * *
"A contract of indemnity against one’s own negligence is not necessarily invalid. Buffa v General Motors Corp, 131 F Supp 478 (ED Mich, 1955); Blazic v Ford Motor Co, 15 Mich App 377; 166 NW2d 636 (1968). If the performance of the tortious act for which indemnification is claimed under the contract is only an undesired possibility in the performance of the contract, and the contract does not tend to induce the act, the indemnification provision is valid. Restatement, Contracts, § 572.” Klann v Hess Cartage, supra, at 706.

The fatal accident here caused in part by the negligent design of the guard rail for racing purposes, was "only an undesired possibility in the performance of the contract, and the contract [did] not tend to induce the act”. Under Klann such a provision is valid.

The Klann panel noted some exceptions to the above rules, specifically, contracts of common carriers and other public servants when contracting in their capacity to serve the public. The instant facts do not present parties directly serving the public, thus, the exceptions are inapplicable.

Plaintiff relies upon Allen v Michigan Bell Telephone Co, 18 Mich App 632; 171 NW2d 689 (1969), lv den, 383 Mich 804 (1970). In Allen, this Court refused to enforce a contract clause which limited the telephone company’s liability for damages when it failed to publish plaintiffs advertisements in the yellow pages as it had contracted to do. The primary concern of the Court in denying effect to the exculpatory clause was that the plaintiff was contracting with a public utility which, in essence, had a monopoly on the type of advertising sought by the plaintiff. There being no realistic alternative means for the plaintiff to communicate with the same audience which the yellow pages reaches, the Court found that the nonliability term was offered on a "take it or leave it” proposition, that the term was unreasonable and, in effect, unconscionable. The Court concluded by stating:

"We believe the law in Michigan to be that, where goods or services used by a signiñcant segment of the public can be obtained from only one source, or from limited sources on no more favorable terms, an unreasonable term in a contract for such goods or services will not be enforced as a matter of public policy.” (Emphasis added.) 18 Mich App at 640.

We hold the Allen decision inapplicable and plaintiff’s reliance on it not justified under the facts of this case. The Allen Court was concerned with a public utility and monopolistic services offered to the general public at large. The facts of the instant case do not concern a public utility nor public services. There is no great disparity in bargaining power between the parties. Furthermore, we are not confronted with a situation where "a significant segment of the public” would contract with defendant.

Judicial opinions from other jurisdictions have upheld similar race track release forms. See Corpus Christi Speedway, Inc v Morton, 279 SW2d 903 (Tex Civ App, 1955), French v Special Services Inc, 107 Ohio App 435; 159 NE2d 785 (1958), Gore v Tri-County Raceway, Inc, supra, Hine v Dayton Speedway Corp, 20 Ohio App 2d 185; 252 NE2d 648 (1969), LaFrenz v Lake County Fair Board, — Ind App —; 360 NE2d 605 (1977), Lee v Allied Sports Associates, Inc, 349 Mass 544; 209 NE2d 329 (1965), Morrow v Auto Championship Racing Assoc, Inc, 8 Ill App 3d 682; 291 NE2d 30 (1972), Seymour v New Bremen Speedway, Inc, 31 Ohio App 2d 141; 287 NE2d 111 (1971), Solodar v Watkins Glen Grand Prix Corp, 36 App Div 2d 552; 317 NYS2d 228 (1971), Theroux v Kedenburg Racing Assoc, Inc, 50 Misc 2d 97; 269 NYS2d 789 (1965), Winterstein v Wilcom, 6 Md App 130; 293 A2d 821 (1972). In fact, plaintiff fails to cite a single case where such a clause has been denied application. The Winterstein court held:

"The short of it is that as to the releases here the effect of the exemptive clauses upon the public interest was nil. We find that each release was merely an agreement between persons relating entirely to their private affairs. In the absence of a legislative declaration, we hold that they were not void as against public policy.” 16 Md App at 139; 293 A2d at 826.

We agree with the quoted conclusion.

Plaintiffs brief notes that none of the cases cited by defendant involved a plaintiff who raced for a living as did Mr. Tope. This argument reverses itself to his detriment. Professional race car drivers should be held to a higher standard of conduct and knowledge reflecting a more equable bargaining position than the amateur.

Furthermore, the instant race in which plaintiffs driver had previously participated was run over city highways, an admittedly unique format. The race has since been discontinued by order of the State Highway Commission. It is indisputable that city highways are not best adapted to race car driving. The record indicates that Tope was aware of the increased hazards of racing on city streets.

The instant exculpatory clauses in the auto racing contract are not contrary to public policy and are enforceable. The order of the trial court granting defendant’s motion for accelerated judgment of no cause of action in favor of the defendant and against the plaintiff is affirmed.


author: N. J. Kaufman, J.

text:
    SMITH v MAYOR OF THE CITY OF ECORSE
    1. Administrative Law — Appeal and Error — Standard of Review.
    The judicial yardstick for assessing the validity of an administrative decision is whether the decision is supported by competent, material and substantial evidence on the whole record; on an appeal of an administrative decision, a court should not superimpose its judgment on that of the administrative agency and review questions of fact and weigh evidence or determine whether the probabilities preponderate one way or another, but should simply determine whether the evidence justifies the findings of the agency.
    2. Administrative Law — Veteran’s Preference Act — Police Officers — Suspensions—Hearings—Mayor Pro Tem Decisions.
    An administrative hearing concerning the suspension of a police officer pursuant to the veteran’s preference act may be conducted by the mayor pro tem of a city although the city charter does not specifically state that the mayor pro tem should conduct such hearings where such a conclusion is implied in the city charter and is correct both in terms of legal sense and common sense; to hold otherwise would mean that the hearing could not be held until a new mayor was elected (MCLA 35.402; MSA 4.1222).
    Appeal from Wayne, Harry J. Dingeman, Jr., J.
    Submitted January 4, 1978, at Detroit.
    (Docket No. 30827.)
    Decided March 6, 1978.
    Complaint by Raymond Smith against the City of Ecorse, its mayor and acting chief of police seeking a restraining order reinstating the plaintiff as a police officer in the City of Ecorse and for damages for wrongful suspension. Judgment for defendants. Plaintiff appeals.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law § 549.

       2 Am Jur 2d, Administrative Law §§ 435-440.

      Affirmed.

      Pitts, Mann & Patrick, P. C., for plaintiff.

      Victor T. Mitea and Todd J. Mikesell, City Attorneys for the City of Ecorse.
    Before: Bashara, P. J., and J. H. Gillis and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Plaintiff-appellant, a police officer in the City of Ecorse, was suspended on February 21, 1975. A complaint was filed against him consisting of three criminal allegations. A hearing was scheduled before the Police and Fire Commission of the City of Ecorse but was adjourned at the request of appellant’s counsel. Prior to the adjourned hearing, appellant filed a lawsuit in Wayne County Circuit Court. On July 3, 1975, the circuit court struck two of the allegations against appellant and on August 7, 1975, entered an order remanding the matter to proceed on the third count only: making inconsistent statements before the Wayne County prosecutor’s office and in a trial of a criminal cause. In his petition to the Wayne County Circuit Court, appellant demanded and was granted a hearing under the veteran’s preference act.

Pursuant to the August 7, 1975, order, on September 3, 1975, a hearing was commenced before the Honorable Charles G. Coman, Mayor of the City of Ecorse. However, before this hearing could be concluded, Mayor Coman entered Detroit Osteopathic Hospital and the hearing was adjourned without date pending his recovery and emergence from the hospital.

During the mayor’s illness, the parties returned to Wayne County Circuit Court and appellant requested that the then mayor pro tern conduct a new hearing. Appellee objected contending that the mayor pro tern could not hold the hearing because the mayor was living and the veteran’s preference act provides that the mayor will conduct the hearing.

Mayor Coman did not return from the hospital where he died on November 29, 1975. Following Coman’s death, Dora Gaines was elected the new Mayor of Ecorse.

Proceeding under the August 7, 1975, order of the circuit court, the parties attempted to have the matter heard by the newly elected mayor. However, when appellant and appellees, along with their respective counsel, appeared for the hearing, Mayor Gaines disqualified herself on the basis that her personal knowledge of the appellant and his family might interfere with her ability to render a fair decision.

Appellant claims that the litigants returned to the Wayne County Circuit Court to ask for direction. Appellee does not address this issue.

The docket card does not show a hearing on this issue and appellant admits that no order was entered by the trial court.

Subsequently, Mayor Gaines designated Harry J. White as mayor pro tern to hear the matter. The hearing under the veteran’s preference act was held by Mayor Pro Tern White without the presence of appellant or his counsel although appellant admits he received proper notice. Mayor Pro-Tern White found, based on the unrefuted testimony, that appellant was guilty of the charges against him and should be dismissed. The trial court upheld the administrative hearing. We affirm.

The trial court in its opinion stated:

- "The Court’s function here is to ascertain if there was competent, material and substantial evidence upon which the Administrative decision can be based.
" 'Judicial yardstick for assessing validity of an administrative decision is whether the decision is supported by competent, material and substantial evidence on the whole record.’ Union Bank & Trust Co., v First Michigan Bank & Trust Co. 44 Mich. App 83 [205 NW2d 54 (1972).]
" 'In determining questions such as here presented to the trial court and now presented in this appeal to this court, neither court should superimpose its judgment over that of the commission and review questions of fact and weigh evidence, nor determine whether the probabilities preponderate one way or another, but such appeals simply determine whether the evidence is such as justifies the findings of the Commission.’
’’Carroll v City Commission, etc., 266 Mich. 123 [253 NW 240 (1934)]; Bischoff v County of Wayne, 320 Mich. 376 [31 NW2d 798 (1948)]; Mapley v City of Pontiac, 288 Mich 396 [284 NW 924 (1939)]; In re Fredericks, 285 Mich. 262 [280 NW 464 (1938)]; Royal v Ecorse Police & Fire Comm., 345 Mich. 214 [75 NW2d 841 (1956)].”

We agree with the trial court’s summation of the relevant standard on appeal.

The fact that the mayor pro tern conducted the hearing instead of the mayor is correct both in terms of legal sense and common sense. While the city charter does not specifically state the mayor pro tern should conduct hearings on the veteran’s preference act, such a conclusion certainly is implied from § 3 of the city charter.

To hold otherwise would mean that where a party requested and received a hearing under the veteran’s preference act, and the mayor refuses for any reason, the hearing could not be held until a new mayor was elected.

Affirmed. No costs.

       MCLA 35.402; MSA 4.1222, provides, in pertinent part:
      "No veteran * * * shall be removed or suspended, or shall, without his consent, be transferred from such office or employment except for official misconduct habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency; and such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing * * * before the mayor of any city * * * and at such hearing the veteran shall have the right to be present and be represented by counsel and defend himself against such charges * * * Provided further, That the mayor * * * may refer any protest where a veteran is removed, transferred, suspended or discharged, to the legal department of such city or village for a hearing. The legal department shall act as a fact finding body and shall have the power to examine witnesses, administer oaths and do all those things which the mayor could do hereunder: Provided further, That the findings shall be transmitted to the mayor in writing by the legal department, whereupon the mayor shall examine the transcript of the hearing and make a decision based on the transcript thereof * * * .”

       Black’s Law Dictionary defines “pro tempore” as "For the time being; temporarily; provisionally.”

       "CHAPTER V
      "CITY COUNCIL
      "SECTION 3. The Mayor shall preside at the meetings of the Council. In the absence of the Mayor, the Mayor Pro Tempore shall preside. In the absence of the Mayor and the Mayor Pro Tempore, the Council shall designate one of its number to act as presiding officer.”


author: J. H. Gillis, J. R. M. Maher, J.

text:
    PEOPLE v GALDONI
    Opinion of the Court
    1. Criminal Law — Double Jeopardy — Waiver—Record—Sworn Affidavits.
    A defendant may be deemed to have waived his right not to be placed in double jeopardy where a review of the trial record reveals evidence which supports the prosecutor’s claim that defendant waived his double jeopardy rights at a previous trial and where this evidence coupled with sworn affidavits signed by defendant’s original counsel and the trial judge leads to the conclusion that defendant waived his double jeopardy rights.
    Dissent by R. M. Maher, J.
    2. Criminal Law — Double Jeopardy — Waiver—Record—Consent.

      A defendant’s waiver of his double jeopardy rights must be placed on the record at the time he is ñrst placed in jeopardy, when it is most germane to the proceedings; at that time there should be an affirmative showing on the record that the defendant himself consented to such waiver.

    3. Criminal Law — Double Jeopardy — Waiver—Record—Affidavits —Transcripts.

      It is improper to manufacture a record from after-the-fact affidavits and from the transcript of a defendant’s second trial in order to show that the defendant waived his protection against double jeopardy during his ñrst trial where no record of such waiver appears on the record of the ñrst trial; the proper record to which the court must look for such waiver is the record of the ñrst proceeding where it is most appropriate.

      4. Criminal Law — Double Jeopardy — Waiver—Basis—Affidavits— Record — Primary Control.

      Affidavits by a defendant’s former attorney and the judge at his ñrst trial are an invalid basis on which to base a ñnding that a waiver of the defendant’s right against double jeopardy was on

      the record and are insufficient to support a ñnding of waiver at all where the affidavits allege an in-chambers waiver and do not state that defendant was present, and where the affidavits do not disclose that defendant retained primary control over the course to be followed or disclose a personal manifestation by defendant that he consented to a waiver of the protection against double jeopardy.

      Reference for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 473, 475-477.

      Appeal from Livingston, Bert M. Hensick, J.
    Submitted October 4, 1977, at Lansing.
    (Docket Nos. 30851, 30852.)
    Decided March 6, 1978.
    Gerald G. Galdoni was convicted of breaking and entering an occupied dwelling with intent to commit larceny and with felonious assault. Defendant appealed. Reversed (unpublished per curiam opinion). The Court of Appeals granted the people’s motion for a rehearing.
    On rehearing, defendant’s convictions are affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank R. DelVero, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, by Mark I. Leach, Assistant Attorney General) for the people.

      John S. Lobur, for defendant.
    Before: D. C. Riley, P. J., and J. H. Gillis and R. M. Maher, JJ.
   J. H. Gillis, J.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit a larceny therein, contrary to MCLA 750.110; MSA 28.305, and felonious assault, contrary to MCLA 750.82; MSA 28.277.

Defendant was originally charged with a total of four counts, including the two referred to above. He was previously convicted in a bench trial of the second count, statutory rape, contrary to MCLA 750.520; MSA 28.788, and the third count, kidnapping, contrary to MCLA 750.349; MSA 28.581.

Defendant appealed to this Court as of right alleging five instances of error in respect to his later convictions. This Court, in an unpublished per curiam opinion, reversed his convictions concluding that defendant was subject to double jeopardy when he stood trial on the first and fourth counts nine months after being convicted on the second and third counts.

The prosecution alleged that defendant had waived his double jeopardy rights. However, this Court noted that no formal waiver appeared on the record, and, accordingly, concluded that defendant could properly raise the issue on appeal. Since the prosecution did not dispute defendant’s arguments, the issue was decided in favor of defendant and his convictions were reversed.

Our second review of the record reveals evidence which supports the prosecution’s claim that defendant waived his double jeopardy rights:

"The Court: Back on the record. Mr. Florey, you’ve indicated that you had a motion to make. You may proceed.
"Mr. Florey: [defendant’s attorney] Actually, Your Honor, I have two. One is a motion that I might have properly made before, a motion to dismiss both of these charges under the double jeopardy ruling that the Michigan Supreme Court has made in People v White [390 Mich 245; 212 NW2d 222 (1973)], especially concerning the bringing and entering a charge, the Indictment. The Information in this case shows, alleges that the offense took place on September 15th, a time prior to that of two other offenses for which this defendant has been charged.
"The Court: Counsel, I don’t want to interrupt you, and normally wouldn’t, except that I think you’ll find that your predecessor counsel, at the time of the previous non-jury trial, waived any objection that you might have had for not trying all of these cases together. I think the record would reflect that — I’m sorry. Neither one of you were present.
"Mr. Florey: No.
"The Court: But, I am reasonably certain we can check the record, if you choose.
"Mr. Florey: If that’s true, of course, Your Honor, I wouldn’t—
"The Court: Well, with that understanding and that belief of the Court, then I think your arguments would be wasted time. I understand your arguments and, quite honestly, if there were no waiver, and had not been a discussion between the Court and counsel concerning it, I would give serious consideration to an argument under People v White, but the three charges were made, the two trials here — the two charges here involved, I think, were specifically waived insofar as trial was concerned, so that they might be tried at a later date, and that was with the concurrence of Mr. Gladner for the prosecution and Mr. Goldstein for the defendant. We even have a different court reporter.
"Mr. Florey: Is Mr. Burchfield still here? He might remember that. Well, at any rate, Your Honor, it’s either part of the record or it’s not. I think you know the argument here is the same transaction.
’’The Court: I’m sorry I interrupted you. You are certainly entitled to put it on the record.
"Mr. Florey: No, I just want to make sure that it is on the record should your memory not be absolutely correct.
’’The Court: Very well.
"Mr. Florey: And I wouldn’t be surprised if it wasn’t under the circumstances.
’’The Court: I am certain in my own mind, without having any of the transcript before me, that the entire question of People v White, of speedy trial, of all of the rights of this defendant and Mr. Gembarowicz in connection with both of these items, were gone into by this Court and both attorneys, and in what they felt — and I’m speaking of the attorneys — was in the best interest of their clients. They said, 'No, Judge, we don’t want to try those other two cases until afterwards. We want to try the kidnapping/rape charges, and we’ll see where we go from there.’ I concurred in that decision, feeling that this was the right of the defendants, through their attorneys, and I’ve got to assume they discussed with the individual defendants, and thereby allowed only the kidnapping/rape charge to be tried.”

This dialogue strongly suggests that defendant did in fact waive his double jeopardy rights.

This evidence coupled with sworn affidavits signed by defendant’s original counsel and the trial judge leads us to the conclusion that defendant waived his double jeopardy rights.

Accordingly, defendant’s convictions are affirmed.

D. C. Riley, P. J., concurred.

R. M. Maher, J.

(dissenting). On rehearing, I find no reason to reverse this panel’s original decision. No waiver was placed on the record in this case. The prosecutor attempts to demonstrate that defendant waived his double jeopardy rights by submitting affidavits from defendant’s former attorney and from the trial judge. Neither is the result of contemporaneous writings or notations by the party.

The people also submit and the majority cites a lengthy excerpt from the transcript of defendant’s second trial, that for breaking and entering an occupied dwelling with intent to commit a larceny therein and for felonious assault. I need only repeat that the excerpt is from defendant’s second trial to demonstrate its improper use here. The waiver must be on the record at the time it is most germane to the proceedings. That time was at defendant’s first trial, when the trials for the various counts were severed. At that time, there should have been an affirmative showing on the record that defendant consented. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976).

It is totally improper for the majority to say "the record * * * supports the prosecution’s claim”. It does not. The proper record to which we must look is the record of the first proceeding. As the trial court admits, no waiver was on that record. The majority’s attempt to manufacture a record from after-the-fact affidavits and from the transcript of a second trial must be condemned as a subversion of defendant’s right not to be placed twice in jeopardy. It is not too much to ask that the waiver be placed on the record at the appropriate time. This is what the law requires. People v Alvin Johnson, supra. The majority completely skirts this requirement and fashions a new and dangerous rule, heedless of defendant’s rights. I cannot be so careless of his constitutional rights.

Moreover, I find the affidavits, assuming they could even be used, inadequate to support a finding that defendant himself waived his double jeopardy rights. The affidavits allege an in-chambers waiver and do not state that defendant was present. Nowhere does either affidavit disclose that defendant retained primary control over the course to be followed. See United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976). There is no showing that defendant did anything positive to indicate he was exercising that control. People v Alvin Johnson, supra. There is no disclosure of a personal manifestation by defendant that he consented to a waiver of the protection against double jeopardy. People v Hoffman, 81 Mich App 288; 265 NW2d 94 (1978) (Maher, J., concurring). Not only are the affidavits an invalid basis on which to base a finding that the waiver was on the record, they are insufficient to support a finding of waiver at all.

I would reverse defendant’s convictions.