author: Bronson, J. C. W. Simon, J.

text:
    KAILMIAI v THE FIRESTONE TIRE & RUBBER COMPANY (On Remand)
    Docket Nos. 21693, 21694.
    Submitted June 8, 1978, at Detroit.
    Decided November 27, 1978.
    Henry C. Kailimai, R. LaVerne Kailimai, husband and wife, and Michael Watters brought an action against the Firestone Tire & Rubber Company for damages caused by the blowout of a tire manufactured by the defendant. Watters’ action was separated for trial. Mr. Kailimai was awarded $48,000 on his claim for personal and consequential injuries and Mrs. Kailimai was awarded $12,000 for loss of consortium in Wayne Circuit Court, Elza H. Papp, J. The defendant’s motion for a new trial was granted as to Mr. Kailimai, and as to Mrs. Kailimai unless she accepted a remittitur of all of her judgment in excess of $1,000. The plaintiffs sought leave to appeal. The Court of Appeals peremptorily ordered a new trial as to both plaintiffs, limited to the issue of damages. The defendants then appealed to the Supreme Court which remanded to the Court of Appeals for consideration as on leave to appeal granted, 398 Mich 230 (1976). On remand, held:

    References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 622, 649.

       41 Am Jur 2d, Husband and Wife §§ 448-450.

       41 Am Jur 2d, Husband and Wife § 455.

       5 Am Jur 2d, Appeal and Error §§ 850, 851.

       58 Am Jur 2d, New Trial §§ 120, 121, 123, 124.

       22 Am Jur 2d, Damages § 315.
    Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in an action for personal injury or death. 81 ALR2d 733.

       30 Am Jur 2d, Evidence § 1089.

       81 Am Jur 2d, Witnesses § 75.

       22 Am Jur 2d, Damages § 366.

       41 Am Jur 2d, Husband and Wife §§ 7, 482.

       41 Am Jur 2d, Husband and Wife § 493.

       5 Am Jur 2d, Appeal and Error § 608. 22 Am Jur 2d, Damages § 326.

       22 Am Jur 2d, Damages § 326. 29 Am Jur 2d, Evidence § 387.

      1. The trial order for Mr. Kailimai’s claim was improper and the jury verdict must be reinstated.
    2. The loss of consortium claim was established and the trial court abused its discretion in ordering a remittitur since the award was within the limits of what reasonable men might deem just compensation.
    Reversed, and the jury verdict reinstated.
    C. W. Simon, J., concurred in part and dissented in part. He would hold that:
    1. The defendant is not entitled to a new trial on Mr. Kailimai’s claim because none of the three grounds assigned by the trial judge as the basis for granting the defendant’s motion for a new trial are sufficient to uphold the trial court’s ruling.
    2. The plaintiffs’ proofs on the loss of consortium claim was legally insufficient, therefore, a judgment for defendant notwithstanding the verdict should be granted.
    3. The defendant waived any objection as to the legal sufficiency of plaintiffs’ proofs with regard to the property damage claim because the defendant failed to move the trial court for a directed verdict and the defendant is no more entitled to a new trial than to a judgment notwithstanding the verdict.
    He would affirm the award for Mr. Kailimai and grant a judgment in favor of the defendant notwithstanding the verdict for Mrs. Kailimai.
    Opinion op the Court
    1. Evidence — Competence to Testify — Value of Chattels — Self-Serving Testimony — Admissibility of Evidence.
    The owner of a chattel is competent to testify as to its value; this is especially true where the owner is engaged in a business which makes use of such chattel; while such testimony may be self-serving, that is a matter for the jury to consider in determining the weight to be accorded it and does not relate to admissibility.
    2. Husband and Wife — Damages—Loss of Consortium — Words and Phrases.
    Loss of consortium includes loss of society, companionship, service and all other incidents of the marriage relationship.
    3. Damages — Husband and Wife — Loss of Consortium — Jury Question.
    The amount of damages suffered by a person who has established a claim for loss of consortium is a fact question to be determined by the jury and will not be set aside unless it is so excessive as to shock the judicial conscience.
    Partial Dissent, Partial Concurrence by C. W. Simon, J.
    4. Appeal and Error — New Trial — Legally Sufficient Reasons.

      The Court of Appeals, in deciding whether an order granting a new trial should be upheld on appeal, must determine whether the reasons assigned by the trial judge are legally recognized and supported by a reasonable interpretation of the record.

    5. Evidence — Admission of Evidence — Damages—New Trial.

      The admission of evidence which was offered by a plaintiff in support of damages claimed in the plaintiff’s original complaint but had not been included in the pretrial statement cannot be considered grounds for a new trial where the issues were not expressly waived by the plaintiff.

    6. Evidence — Damages—Testimony—Party as Witness — Earnings.

      There is no legal restriction which precludes a party from testifying as to the amount of his earnings prior to being injured in an accident.

    7. Evidence — Admissibility—Objections to Evidence — Preserving Issue — Appeal and Error.

      Objections to the admissibility of evidence unless properly raised at trial cannot be later asserted on appeal.

    8. Witnesses — Competence—Personal Knowledge.

      A witness is competent to testify to things within the witness’s personal knowledge.

    9. Damages — Personal Injuries — Excessive Damages — Setting Aside Verdict — Pain and Suffering — Loss of Consortium.

      A verdict rendered in an action for damages for personal injuries should not be set aside as being excessive as long as the amount awarded is within the range of the evidence and is within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained, pain and suffering, and loss of consortium.

    10. Husband and Wife — Consortium—Words and Phrases.

      Loss of consortium includes such intangibles as comfort, society, aid, companionship and normal conjugal affection which are not subject to exact measure.

      11. Evidence — Legal Sufficiency of Evidence — Loss of Consortium — State of Marital Relationship Prior to Injury.

      The evidence in regard to a loss of consortium claim is legally insufficient unless testimony is introduced concerning the state of the marital relationship before as well as after the incident out of which the claim arises; where there is no evidence to guide the jury, either a directed verdict or a judgment notwithstanding the verdict is proper.

    12. Evidence — Legal Sufficiency of Evidence — Value of Property —Judgment Notwithstanding the Verdict — Directed Verdict — Motions.

      A judgment notwithstanding the verdict, with regard to a claim for property damage, based on the legal insufficiency of the evidence of the value of the property before it was damaged, is xmavailable to a defendant where the defendant failed to move for a directed verdict in the trial court; by such failure, the defendant waived his objection as to the legal sufficiency of the plaintiff’s proofs in that respect (GCR 1963, 515.2).

    13. Evidence — Legal Sufficiency of Evidence — Market Value— Value of Property — Reasonable Time.

      Evidence of market value, in an . action for property damages, is not legally sufficient where it is not conñned to a reasonable time before the damage occurred.

    14. Damages — Evidence—Legal Sufficiency of Evidence — Property Damage — Value of Property — Preserving Issue — Directed Verdict — Motions.

      A defendant in an action for property damages waives all objection to legal insufficiency of the plaintiff’s proofs of the value of the damaged property by failing to move for a directed verdict where some evidence is presented by the plaintiff and the defect, if any, could have been readily cured; such defendant should no more be entitled to a directed verdict than, to a judgment notwithstanding the verdict.

      Zeff & Zeff (by Gary C. Berger) (Edward Grebs, of counsel), for plaintiffs.

      Butzel, Long, Gust, Klein & Van Zile (by John H. Dudley, Jr.), for defendant.

      Before: Bashara, P.J., and Bronson and C. W. Simon, JJ.

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

   On Remand

Bronson, J.

We agree with Judge Simon’s disposition of the case as to Mr. Kailimai. The fact that he did not produce documentation for his estimates concerning the value of the truck, lost wages, and lost investment goes to the weight of the evidence, not its admissibility. Since the testimony was properly admitted, there was no legally recognized reason given by the trial court for overturning the jury verdict and granting a new trial. Kailimai v The Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976). The new trial order for Mr. Kailimai’s claim was improper and the jury verdict must be reinstated.

We disagree with Judge Simon, however, on his disposition of Mrs. Kailimai’s loss of consortium claim. Loss of consortium includes "loss of society, companionship, service, and all other incidents of the marriage relationship”. Washington v Jones, 386 Mich 466, 472; 192 NW2d 234 (1972).

Mrs. Kailimai testified that her husband was confined to the hospital for two weeks after the accident. She further testified that for several months after arriving home, her husband could no longer sleep in bed but had to sleep in a reclining chair because of the pain. Neither she nor the children could touch him or get near him. Furthermore, he was unable to do any work around the house or take care of the children.

This testimony clearly shows that after the accident Mrs. Kailimai was deprived of the companionship and services of her husband which she had previously enjoyed. Since she had established a claim for loss of consortium, the amount of damages suffered is a fact question to be determined by the jury and will not be set aside unless it is so excessive as to shock the judicial conscience. See Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976), lv den, 399 Mich 823 (1977). Since our review of the record demonstrates that the award was " 'within the limits of what reasonable minds might deem just compensation’ ”, the trial court abused its discretion in ordering a remittitur.

The trial court’s judgment is reversed and the jury verdict is reinstated. Costs to plaintiffs.

Bashara, P.J., concurred.

C. W. Simon, J.

(concurring in part, dissenting in part). Plaintiffs appeal from an interlocutory order of the Wayne County Circuit Court granting defendant’s motion for a new trial as to Mr. Kaili-mai, and as to Mrs. Kailimai unless she accepted a remittitur of all her judgment in excess of $1,000. The jury in this products liability action had awarded Mr. Kailimai $48,000 on his claim for personal and consequential injuries and Mrs. Kail-imai $12,000 for loss of consortium. Defendant’s motion was brought pursuant to GCR 1963, 527.1(4) and 527.1(7).

Plaintiff Mr. Kailimai had been the operator of a service station located in Dearborn Heights, which he had leased from the Mobil Oil Company since 1965. During that year he purchased a heavy-duty Dodge truck to use for towing in connection with his business. The truck was built to his specifications, including a set of 9.00-16 tube-type Firestone tires, and delivered in December.

Upon receipt of the truck and discovery that the tires were out of round, Mr. Kailimai complained to both the truck dealer and the tire manufacturer, defendant Firestone Tire & Rubber Company. Defendant agreed to replace the tires. However, because all available tires were being diverted to use by the armed forces, Mr. Kailimai’s were not replaced until August 25, 1966. During the interim Mr. Kailimai was able to conduct his towing operations with the original tires.

The day after replacement, August 26, 1966, Mr. Kailimai was involved in an accident while towing a customer’s car west on 1-96 near Howell. The truck’s right rear tire allegedly suffered a blowout, caused the truck to roll over, and thereby injured Mr. Kailimai. Following the accident he was no longer able to operate his business, and Mobil closed the station.

On August 7, 1969, plaintiffs’ actions were brought alleging that defendant was negligent in its design of, and breached its warranty with regard to, the replacement tire. The cause was tried in the Wayne County Circuit Court and resulted in the aforementioned jury awards.

Defendant moved for a new trial on the grounds that both awards were excessive, GCR 1963, 527.1(4), and that error was committed when, over its objection, Mr. Kailimai was allowed to testify as to the value of his lost truck and the amount of his earnings prior to the accident, and, even absent objection, the amount of his investment in the business, GCR 1963, 527.1(7). Since defendant’s motion arguably related to damages only, plaintiffs requested that any new trial, if granted, be limited to the issue of damages. Upon consideration of these arguments, the trial court set aside the jury’s verdict and granted a complete new trial as to both plaintiffs, although as to Mrs. Kailimai such was conditioned upon her refusal to accept the remittitur. This decision forms the basis of plaintiffs’ appeal.

In deciding whether an order granting a new trial should be upheld on appeal this Court must determine whether the reasons assigned by the trial judge are legally recognized and supported by a reasonable interpretation of the record. Kailimai v The Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976). Here, the trial judge assigned basically three grounds for her ruling, none of which withstands careful scrutiny.

First, the trial judge assigned error to the introduction of evidence with regard to damages that had not been included in the pretrial statement. However, while the pretrial statement is designed to control the course of the proceedings, plaintiffs did not offer proof of any damage that was not claimed in their original complaint and, unless expressly waived at the pretrial conference, their right to present competent proof in support of these issues cannot be denied. GCR 1963, 301.3. Butler v Raupp, 65 Mich App 20; 236 NW2d 748 (1975). Since there is nothing to indicate that plaintiffs had expressly waived these issues, the admission of evidence in support of them cannot be considered grounds for a new trial. In fact, it would have been error to rule otherwise.

Second, the trial judge attributed error to the admission of Mr. Kailimai’s testimony with regard to the value of his truck, the amount of his earnings prior to the accident, and the sum of his investment in the service station. However, none of this proffered testimony was improper.

In nearly all jurisdictions, including Michigan, the owner of a chattel is competent to testify as to its value. Kavanagh v St Paul Fire & Marine Ins Co, 244 Mich 391; 221 NW 119 (1928); Duma v Janni, 26 Mich App 445; 182 NW2d 596 (1970). See Anno: Admissibility of opinion of nonexpert owner as to value of chattel, 37 ALR2d 967. And, this is especially true where, as here, the owner is engaged in the business which makes use of such chattel. Mason v Partrick, 100 Mich 577; 59 NW 239 (1894). Indeed, Mr. Kailimai was an experienced mechanic and, as was pointed out by the trial judge, arguably qualified as an expert in the area. While his testimony may have been self-serving, that is a matter for the jury to consider in determining the weight to be accorded it and does not relate to admissibility.

Similarly, there is no legal restriction which precludes a party from testifying as to the amount of his earnings prior to the accident. Pawlicki v Detroit United R Co, 191 Mich 536; 158 NW 162 (1916), Duma v Janni, supra. 22 Am Jur 2d, Damages, § 315, pp 413-414. While documentation of his past earnings may have proved more cogent, the existence of better evidence in this instance does not render the proferred testimony incredible. The evidence is relevant and admissible. Again, the weight to be accorded it is a determination solely within the province of the jury.

With regard to the testimony of Mr. Kailimai concerning his $2,000 investment in the service station defendant failed to object. Therefore, the issue is not preserved for appeal. Marietta v Cliffs Ridge, Inc, 385 Mich 364; 189 NW2d 208 (1971). Moreover, this evidence was based upon the personal knowledge of the witness, Mr. Kailimai, a consideration of utmost importance in our system of evidential preferences. See MRE 602. Since Mr. Kailimai had direct personal knowledge he was competent to testify. That the expenditures were not documented is immaterial to admissibility.

Third, neither the $48,000 award to Mr. Kaili-mai nor the $12,000 award to Mrs. Kailimai was excessive. Cf. Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976), lv den, 399 Mich 823 (1977).

" ' "As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside.” ’ ” Pippen v Denison Division of Abex Corp, supra at 675, quoting Stevens v Edward C Levy Co, 376 Mich 1, 5; 135 NW2d 414 (1965).

To this we would add loss of consortium. Loss of consortium includes such intangibles as comfort, society, aid, companionship, and normal conjugal affection, Montgomery v Stephan, 359 Mich 33; 101 NW2d 227 (1960), which are similarly not subject to exact measure. That "another jury might find differently” is irrelevant.

Indeed, unlike the trial court, we are not persuaded that the jury’s verdict was "more or less based on the fact that we have * * * a very collectable defendant”. There is no evidence whatsoever of a verdict influenced by passion or prejudice.

Finally, however, the trial judge was correct in pointing out the legal insufficiency of plaintiffs’ proofs with regard to loss of consortium and damage to the truck. Plaintiffs offered only evidence of the extent of Mr. Kailimai’s injuries in support of loss of consortium, and only evidence of the value of the truck when purchased nine months prior to the accident in support of property damage.

With regard to the loss of consortium claim, unless testimony is introduced concerning the state of the marital relationship before as well as after the accident, the evidence is legally insufficient. Washington v Jones, 386 Mich 466; 192 NW2d 234 (1971). Where there is no evidence to guide the jury, either directed verdict or judgment notwithstanding the verdict is proper. Since the trial court granted neither, we reverse.

However, with regard to the claim of property damage, defendant never moved for directed verdict. Thus, judgment notwithstanding the verdict is unavailable. GCR 1963, 515.2. Whether or not evidence of the price paid nine months prior to destruction is legally sufficient, by such failure in the court below, defendant waived objection as to the legal sufficiency of plaintiffs’ proof in that respect.

Moreover, while evidence of market value is not legally sufficient where it is not confined to a reasonable time before destruction, 22 Am Jur 2d, Damages, § 325, p 426, evidence of the price paid nine months prior to the accident certainly is some evidence of market value, Kendrick v Beard, 90 Mich 589; 51 NW 645 (1892), Colorado Kenworth Corp v Whitworth, 144 Colo 541; 357 P2d 626; 97 ALR2d 990 (1960). In fact, while Kendrick would appear to place an affirmative duty on defendant to proceed with evidence of depreciation, defendant has neither discredited this evidence of original value through cross-examination nor rebutted it through evidence aliunde.

By moving for directed verdict at the close of plaintiffs’ proofs defendant could have tested their legal sufficiency and still preserved its opportunity to present evidence of depreciation on rebuttal. However, by failing to present the error in a timely fashion so that a ruling could be had and the insufficiently proved element of damages removed from jury consideration, defendant has unfairly hedged its bet by allowing the jury’s general verdict to be tainted by a possible error of only slight magnitude in comparison to the total award. Thus, where, as here, some evidence of market value is presented and the defect, if any, could have been readily cured, we feel defendant waives all objection to legal insufficiency by failing to move for directed verdict. Defendant should no more be entitled to a new trial than judgment notwithstanding the verdict.

We do not hold that defendant be required to prove plaintiffs’ case, but only point out that here, by neither effectively cross-examining Mr. Kaili-mai nor introducing rebuttal evidence, defendant has contributed to the error. Assuming that a directed verdict had been moved for, its decision whether to present evidence of depreciation would be based upon the ruling of the trial judge with regard to whether market value had been established within a reasonable time prior to destruction. If defendant felt that the trial judge erroneously ruled the evidence sufficient, it would still be free to refrain from submitting evidence of depreciation so as to avoid rendering the error harmless under GCR 1963, 529.1. By failing to move for a directed verdict defendant has only compounded the problem. Now, any error could only be corrected by granting a new trial as to all damages. Any erroneous portion cannot be extracted from the general verdict.

I would reverse and remand to the trial court with instructions to affirm the jury award in favor of Mr. Kailimai and grant judgment for defendant notwithstanding the verdict for Mrs. Kailimai.

       Because we have concluded that the evidence was properly admitted, we have no need to address the directed verdict issue raised in the dissenting and concurring opinion.

        Stevens v Edward C Levy Co, 376 Mich 1, 5; 135 NW2d 414 (1965), quoting 6 Callaghan’s Michigan Pleading & Practice (2d ed), § 41.13, p 378.

       In an order dated March 17, 1975, this Court, under GCR 1963, 806.7, peremptorily remanded to the circuit court for a partial new trial as to both plaintiffs "limited to damages only”. However, such order was made without the benefit of the lower court record which had been twice requested but never received. Therefore, the Supreme Court reversed and remanded the case here as if on leave granted. Kailimai v The Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976).


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v FELDMAN
    Docket No. 27266.
    Submitted December 14, 1977, at Lansing.
    Decided November 27, 1978.
    Leave to appeal applied for.
    Joel D. Feldman was convicted in Bay Circuit Court, John X. Theiler, J., of one count of possession of burglary tools, one count of possession of a device adapted for breaking into a parking meter with intent to steal, four counts of inserting part of an instrument into a parking meter with intent to steal, and four counts of forcing an entrance into a parking meter with intent to steal. The defendant appeals by leave granted, alleging (1) that reversible error occurred when the trial court failed to caution the jurors against discussing the case among themselves during the course of the trial, and (2) that his constitutional guarantees against double jeopardy were violated. Held:

    1. The trial court, in its preliminary instructions to the jury, not only failed to caution the jurors against discussing the case among themselves, but gave the distinct impression that they could discuss the case among themselves during the course of the trial. This error requires a reversal of the defendant’s conviction and that a retrial be granted.
    2. On retrial the defendant should not be charged with the ten counts in the original information since the charges of inserting an instrument into a parking meter with intent to steal and the charges of forced entry into a parking meter comprise alternate descriptions of the same offense and because the charge of possession of an instrument adapted to breaking into a parking meter is necessarily included in the charge of insertion of the instrument. Therefore, only two forced entry counts are appropriate because only two meters were broken into, along with one count of possession of the burglary tools which was unrelated to the meter breaking offense.
    Reversed and remanded.
    References for Points in Headnotes

       75 Am Jur 2d, Trial § 994.

       16 Am Jur 2d, Constitutional Law § 332. 21 Am Jur 2d, Criminal Law §§ 135,165-169, 473-475.

       21 Am Jur 2d, Criminal Law § 189. 50 Am Jur 2d, Larceny § 138.

       21 Am Jur 2d, Criminal Law § 189. .

      1. Criminal Law — Instructions to Jury — Discussion of Case by Jurors — Course of Trial.
    A preliminary instruction by a trial judge in a criminal trial which not only fails to caution the jurors against discussing the case among themselves, but gives the distinct impression that the jury may discuss the case among themselves during the course of the trial, results in reversible error.
    2. Constitutional Law — Double Jeopardy — Multiple Punishment —Single Offense.
    Constitutional guarantees against double jeopardy prohibit double or multiple punishment for the same crime.
    3. Criminal Law — Breaking Into Parking Meters — Description of Offense — Double Jeopardy — Statutes.
    Inserting an instrument into a parking meter with intent to steal and forced entry into a parking meter with intent to steal are alternate descriptions of the same offense (MCL 752.811; MSA 28.643[101]).
    4. Criminal Law — Breaking Into Parking Meters — Possession of Breaking Instrument — Necessarily Included Lesser Offense.
    A charge of possession of an instrument adapted to break into a parking meter is necessarily included in a charge of insertion of the instrument into a meter with intent to steal.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and George B. Mullison, Chief Assistant Prosecuting Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: V. J. Brennan, P.J., and D. F. Walsh and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   V. J. Brennan, P.J.

Defendant Joel David Feld-man was convicted on May 14, 1975, in Bay County Circuit Court of one count of possession of burglary tools, contrary to MCL 750.116; MSA 28.311, one count of possession of a device adapted for breaking into a parking meter with intent to steal, contrary to MCL 752.811; MSA 28.643(101), four counts of inserting part of an instrument into a parking meter with intent to steal, contrary to MCL 752.811; MSA 28.643(101), and four counts of forcing an entrance into a parking meter with intent to steal, contrary to MCL 752.811; MSA 28.643(101). On September 2, 1975, defendant was sentenced to a prison term of from 2 to 10 years on the possession of burglary tools count and 1 to 3 years on each of the remaining counts, the sentences to run concurrently. Defendant appeals his convictions here on delayed leave to appeal granted.

Defendant’s prosecution arose out of events occurring near the Jenison Hardware Store in Bay City, Michigan, across from the Wenona Park. Testimony of employees of the hardware store indicated that on July 29, 1974, three people were observed standing around one of the several parking meters which were located on the street adjacent to Wenona Park. Employee Paul Abbs testified that one of defendant’s companions was holding a wire and that shortly afterward money fell out of a meter and into the purse carried by defendant’s other companion. Defendant appeared to be on watch and was not involved in the actual taking of the money from the meter. This testimony was corroborated by another eyewitness.

The police were subsequently called and apprehended defendant and his companions within Wen-ona Park. During the process of arrest, officers discovered various tools and a roll of money in the front seat of the suspects’ car. These items along with other tools found in defendant’s van were introduced into evidence at trial. Defendant’s conviction on all ten counts of the information followed.

Defendant claims that reversible error occurred when the trial court failed to caution the jury against discussing the case among themselves. In fact the trial court in its preliminary instruction gave the jury the distinct impression that they could discuss the case among themselves during the course of the trial.

The problem which results from this instruction is that the jury is allowed to formulate and express opinions before all the evidence is in. Given the fact that the prosecution presents its evidence first, initial expressions of opinion would most likely be unfavorable to the defendant. Upon the presentation of the defendant’s case, the jury’s inclination would be to give special attention to testimony that confirms their prior expressions so as to avoid any embarrassment involved in changing their opinion. As such the burden of proof is effectively shifted from the prosecution to the defendant. People v Hunter, 370 Mich 262; 121 NW2d 442 (1963). We agree with defendant that this was reversible error.

Inasmuch as the cause must be sent back we will address the defendant’s double jeopardy claim so as to prevent any possible recurrence of error on retrial.

The protection against double jeopardy prohibits double or multiple punishment for the same crime. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), People v Alvin Johnson, 396 Mich 424, 430; 240 NW2d 729 (1976).

With this in mind we point out that the defendant may again be charged with one count of possession of burglary tools contrary to MCL 750.116; MSA 28.311 since this charge was not based on possession of the same tools allegedly used to break into the parking meters.

However, counts 2 through 10 setting forth nine separate charges under MCL 752.811; MSA 28.643(101) do present double jeopardy problems. The facts tend to show that two parking meters were broken into. From this incident the defendant was charged with one count of possession of a device adapted to break into a parking meter with intent to steal, four counts of inserting an instrument into a parking meter with intent to steal and four counts of forced entry into a parking meter with intent to steal. It is clear that the latter eight counts comprise alternate descriptions of two acts of breaking. Such conduct may only be punished singularly, thus the bringing of the eight separate charges was improper. Furthermore, the charge of possession of an instrument adapted to break into a parking meter is necessarily included in the charge of insertion of the instrument. People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

On remand the defendant can only be charged with one violation of MCL 750.116; MSA 28.311, and two violations of MCL 752.811; MSA 28.643(101). We again caution the prosecutor on the obvious practice of overcharging. See People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978).

Reversed and remanded.

       This writer confesses a change of view as expressed in his dissent in People v Blondia, 69 Mich App 554; 245 NW2d 130 (1976).

       We are at a loss to understand why the Bay County Prosecutor has undertaken a policy of "shotgun” charges. The presentation of proofs, the instructions to the jury on the elements of each charge and the instructions on the various verdicts they could return must have caused them much confusion. There is no doubt that this practice would lead to longer trials, a situation most circuits do not need. We do have a suspicion that the multiple-charge policy is for the possible extraction of more pleas, although there is nothing on this record to prove this point.


author: Bronson, J.

text:
    PEOPLE v CARSON PEOPLE v KING
    Docket Nos. 30015, 30016.
    Submitted June 5, 1978, at Detroit.
    Decided November 27, 1978.
    Defendants James L. Carson and Jasper King were convicted of carnal knowledge of a female over 16 years of age and defendant Carson was also convicted of gross indecency in the Recorder’s Court for the City of Detroit, John L. Kadela, J. Defendants appeal. Cases consolidated on appeal. Held:

    1. The credibility of the complainant is a question for the jury whose determination will not be disturbed on appeal unless a review of the record demonstrates that the complainant’s testimony was so entirely unbelievable as to be outside the realm of credibility.
    2. Three conditions must be satisfied before a statement can be admitted as an excited utterance: (1) a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.
    3. It was error to allow a witness to testify to a telephone conversation between the witness and the complainant 4-1/2 hours after the crimes, under the excited utterance prong of the res gestae rule, since the time lapse provided sufficient opportunity for fabrication and the complainant’s activities showed that she was capable of reflective thought during this period; the error was harmless error, however, since the objected-to testimony was merely cumulative and its admission or omission would not have affected the outcome of the trial,

      References for Points in Headnotes

       75 Am Jur 2d, Trial § 417
    81 Am Jur 2d, Witnesses §§ 140, 656, 658 et seq.

    Credibility witness giving uncontradicted testimony as matter for court or jury. 62 ALR2d 1191.

       29 Am Jur 2d, Evidence §§ 708 et seq., 723, 724.

       29 Am Jur 2d, Evidence §§ 708-717.

       29 Am Jur 2d, Evidence §§ 4, 256, 708 et seq:

       29 Am Jur 2d, Evidence § 597. 30 Am Jur 2d, Evidence § 1087.

       59 Am Jur 2d, Parties §§ 7-14.

       30 Am Jur 2d, Evidence §§ 1082, 1083, 1124. 81 Am Jur 2d, Witnesses § 648.

       21 Am Jur 2d, Criminal Law § 570.

      4. A statement qualifies as an admission only if it is made by a party opponent.
    5. The complaining witness in a criminal prosecution is not a party opponent.
    6. A proper foundation must be laid before testimony is admissible as a prior inconsistent statement; therefore, the trial court did not err in excluding a statement which might have qualified as a prior inconsistent statement where a proper foundation for its admission was not laid.
    7. A judge may not impose a higher sentence upon the retrial of a defendant than that imposed after the first trial unless he states on the record the factors occurring after defendant’s original sentence upon which he bases his decision for an increased sentence; this rule applies regardless of whether the increased sentence is imposed by a judge different than the one who imposed the original sentence.
    8. Here the trial judge imposed higher sentences upon retrial without stating his reasons, therefore, the case must be remanded for a resentencing wherein the trial judge must either . reimpose the original sentences or state the factors upon which he bases the imposition of higher sentences.
    Remanded.
    1. Witnesses — Criminal Law — Complainant—Credibility—Jury— Carnal Knowledge — Reversible Error.
    Credibility is a question for the jury; the jury’s determination will not be disturbed on appeal unless a review of the record demonstrates that the witness’s testimony was so entirely unbelievable as to be outside the realm of credibility.
    2. Witnesses — Excited Utterances — Admissibility—-Fabricating Stories.
    Excited utterances are deemed reliable, and thus admissible under the excited utterance prong of the res gestae rule, on the theory that the startling event suspends the witness’s reflective thought process rendering the person incapable of fabricating a s.tory at the time the statement was made.

      3. Evidence — Admissibility—Hearsay—Excited Utterance — Res Gestae Exception — Conditions.
    A statement may be admitted into evidence under the excited utterance prong of the res gestae rule where the following three conditions are satisfied (1) there is a startling occasion, startling enough to produce nervous exictement and render the utterance spontaneous and unreflecting, (2) the statement was made before there was time to contrive and misrepresent, and (3) the statement relates to the circumstances of the occurrence preceding it; when considering the time for contrivance condi- ' tion a court must consider two factors jointly, whether the time period between the event and the statement provided an opportunity for fabrication and whether the witness’s emotional state during this time period rendered him capable of fabricating a story.
    4. Witnesses — Evidence—Appeal and Error-Criminal Law — Excited Utterances — Res Gestae — Harmless Error — Cumulative Testimony — Effect on Outcome.
    The erroneous admission of testimony, in a trial for carnal knowledge of a female over 16 years of age and gross indecency, under the excited utterance prong of the res gestae rule, regarding a telephone conversation between the witness and the complainant 4-1/2 hours after the crimes was harmless error where the objected-to testimony was merely cumulative and its admission or omission would not have affected the outcome of the trial.
    5. Witnesses — Admissions—Party Opponents.
    A statement qualifies as an admission only if it was made by a party opponent.
    6. Witnesses — Criminal Law — Trial—Party Opponents — Complaining Witnesses.
    The complaining witness in a criminal prosecution is not a party opponent.
    7. Witnesses — Testimony—Foundation—Prior Inconsistent Statements — Admissibility.
    A proper foundation must be laid before testimony is admissible as a prior inconsistent statement; in laying such a foundation the cross-examiner must identify the statement as to time, place and substance and ask the witness whether he or she made the statement; upon receiving a denial or equivocal answer, the foundation has been laid and the cross-examiner may proceed to prove the making of the alleged statement.

      8. Criminal Law — Sentencing—Retrials—Increased Sentences— Factors — Record.
    A judge may not impose a higher sentence upon the retrial of a defendant than that imposed after the first trial unless he states on the record the factors occurring after defendant’s original sentence upon which he bases his decision for an increased sentence; this rule applies whether or not the increased sentence is imposed by a judge different than the one who imposed the original sentence.

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

      Jack J. Kraizman, for defendants.
    Before: Bashara, P.J., and Bronson and C. W. Simon, JJ.

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

   Bronson, J.

Defendants Carson and King were convicted by a jury of carnal knowledge of a female over 16 years of age contrary to MCL 750.520; MSA 28.788 and were sentenced to terms in prison of 6 to 10 years and 10 to 15 years respectively. Defendant Carson was also convicted of gross indecency contrary to MCL 750.338b; MSA 28.570(2) and was sentenced from 3 to 5 years in prison. Defendants appeal as of right.

The only evidence which directly tied defendants to the crimes was the testimony of the complaining witness. If believed, her testimony was sufficient to establish all elements of the crimes charged. Defendants challenge their convictions on the grounds of insufficient evidence based upon the complainant’s lack of credibility. Credibility is a question for the jury. People v Renno, 392 Mich 45; 219 NW2d 422 (1974). A review of the record certainly does not demonstrate that complainant’s testimony was so entirely unbelievable as to be outside the realm of credibility. This being the case, the jury’s determination will not be disturbed on appeal. See People v Palmer, 392 Mich 370, 376; 220 NW2d 393 (1974), People v Smalls, 61 Mich App 53; 232 NW2d 298 (1975).

Defendants next allege that the trial court erred in allowing a witness to testify to a telephone conversation between the witness and complainant approximately 4-1/2 hours after the crimes. The trial court apparently permitted the testimony under the excited utterance prong of the res ges-tae rule. See McCormick, Evidence (2d ed), § 288, p 686.

Excited utterances are deemed reliable, and thus admissible, on the theory that the startling event suspends the witness’s reflective thought process and renders the person incapable of fabricating a story at the time the statement was made. McCormick, Evidence (2d ed), § 297, p 704. In recognition of this rationale, three conditions must be satisfied before a statement can be admitted as an excited utterance.

"(1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.” Rice v Jackson, 1 Mich App 105, 111; 134 NW2d 366 (1965), accord, People v Mosley, 74 Mich App 145; 254 NW2d 33 (1977).

In the present case, the primary problem concerns condition number two. In considering the "time for contrivance” requirement a court must examine not only whether the time period between the event and the statement provided an opportunity for fabrication but also whether the witness’s emotional state during this time period rendered him capable of fabricating a story. These two factors cannot be considered in isolation but must be considered jointly.

In the present case 4-1/2 hours elapsed between the crimes and the telephone conversation in question. This is a sufficient time lag to provide a person with the opportunity for fabrication. Secondly, complainant testified that after the crimes she returned home and thought about what had just happened. There is no indication that she was in a state of continuous nervous excitement during this time period. Conversely, the evidence demonstrates that although understandably upset, complainant engaged in activities requiring contemplation and reflective thought. Therefore, since the time lapse provided sufficient opportunity for fabrication and her activities showed that she was capable of reflective thought during this period, her conversation with the witness could not be considered an excited utterance.

Although this testimony should not have been admitted, the error does not require reversal. The testimony was merely a reiteration of testimony given by the complainant to which no objection had been made. Complainant’s account of the conversation was objectionable on the same grounds as that of the present witness. No objection was made, however, and the evidence was admitted. Thus the objected-to testimony was merely cumulative and its admission or omission would not have affected the outcome of the trial. Therefore, the error was harmless. See People v Swan, 56 Mich App 22; 223 NW2d 346 (1974).

Defendants’ next contention is that the court erred in prohibiting defendant Carson’s mother from testifying about a telephone conversation she had with complainant. Allegedly, complainant stated that she did not wish to get defendants in trouble but that a close friend had been checking up on her and she had to tell him something to. explain why she had come home late. Defendants claim that the testimony was admissible as an admission. A statement qualifies as an admission only if it was made by a party opponent. See Ghezzi v Holly, 22 Mich App 157; 177 NW2d 247 (1970); MRE 801(d)(2). The complaining witness in a criminal prosecution is not a party opponent. 4 Wigmore, Evidence (Chadbourn Rev), § 1076, p 154.

Although not an admission, the statement could still qualify as a prior inconsistent statement. However, before testimony is admissible as a prior inconsistent statement, a proper foundation must be laid. The cross-examiner must identify the statement as to time, place and substance and ask the witness whether he or she made the statement. Upon receiving a denial or equivocal answer, the foundation has been laid and the cross-examiner may proceed to prove the making of the alleged statement. People v Dozier, 22 Mich App 528; 177 NW2d 694 (1970). Absent such a foundation the statement is inadmissible. Since defendants did not lay the proper foundation, the trial court did not err in excluding the statement.

Finally, defendants contend that the trial court erred when it sentenced them upon retrial to harsher sentences than those imposed after their first trial. The Supreme Court has held that an increase in sentence upon retrial is not per se unconstitutional. North Carolina v Pearce, 395 US 711, 723; 89 S Ct 2072, 2079; 23 L Ed 2d 656, 668 (1969). The Court noted, however, that it would be impermissible to impose a harsher sentence merely as a penalty on a defendant for having successfully exercised his right to appeal. Realizing that the fear of such a retaliatory motive might serve to chill a defendant’s right to appeal, the Court adopted a prophylactic rule to be followed when an increased sentence is imposed upon retrial.

"In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 US at 726; 89 S Ct at 2081; 23 L Ed 2d at 670.

Subsequent Supreme Court cases have served to limit the application of the Pearce rule in analogous situations. A review of these cases demonstrates that the determinative factor in deciding upon the applicability of the rule is whether the increased sentence in the second proceeding poses "a realistic likelihood of 'vindictiveness’ Blackledge v Perry, 417 US 21, 27; 94 S Ct 2098, 2102; 40 L Ed 2d 628, 634 (1974). The prosecution contends that such a likelihood does not exist in the present case because the increased sentences were imposed by a different judge than the one who imposed the original sentences, and thus Pearce is inapplicable.

We do not find this contention convincing. First, it should be noted that Pearce involved different sentencing judges. See Chaffin v Stynchcombe, 412 US 17, 41, n 4; 93 S Ct 1977; 36 L Ed 2d 714 (1973) (Marshall, J., dissenting). Thus Pearce covers the exact situation presented in this case and is controlling. This result is further supported by our Supreme Court’s decision in People v Payne, 386 Mich 84; 191 NW2d 375 (1971), rev’d on other grounds 412 US 47; 93 S Ct 1966; 36 L Ed 2d 736 (1973), in which the Court applied Pearce to cases where different judges of the same court imposed sentencing.

Finally, the institutional loyalty of members of the same court must be taken into consideration. See Grano, Criminal Procedure, 23 Wayne L Rev 517, 610 (1977). The Pearce safeguards were adopted to forestall not only actual vindictiveness but also the threat or appearance of vindictiveness. Given the usual collegiality of members of the same bench, we are convinced that the appearance of vindictiveness and its corresponding chill on a defendant’s right to appeal cannot be dispelled without the application of the Pearce safeguards.

Therefore, as a matter of constitutional law and in the exercise of our supervisory powers over lower state courts we hold that upon retrial a judge may not impose a higher sentence upon defendant than that received after his first trial unless he states on the record the factors, occurring after defendant’s original sentence, upon which the judge bases his decision of an increased sentence. Accord, People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976). Since the trial judge in the present case imposed higher sentences on defendants without stating his reasons, the case must be remanded for resentencing. On remand the trial judge must either reimpose the original sentences or state the factors upon which he bases his imposition of a higher sentence. We do not retain jurisdiction.

Remanded.

       This is an appeal from defendants’ second trial. The first trial resulted in defendants being convicted of the same crimes for which they were convicted in the present trial. Defendant King was sentenced to a term of 7-1/2 to 15 years. Defendant Carson was sentenced to terms of 5 to 10 years and 3 to 5 years. A new trial was granted after sentencing.

       It cannot be said that this admission of plaintiff’s account of the conversation constituted manifest injustice which would mandate reversal even in the absence of objection. Mauricio v Tobias, 52 Mich App 127; 216 NW2d 602 (1974).

        Compare Chaffin v Stynchcombe, 412 US 17; 93 S Ct 1977; 36 L Ed 2d 714 (1973) (refusing to apply Pearce when sentencing done by a jury instead of a judge), and Colten v Kentucky, 407 US 104; 92 S Ct 1953; 32 L Ed 2d 584 (1972) (refusing to apply Pearce to a situation where a judge imposed an increased sentence after defendant’s de novo trial in a higher court), with Blackledge v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974) (applying Pearce rationale and precluding a prosecutor in a de novo trial before a superior tribunal from charging a defendant with a higher crime than that with which he was originally charged in his trial in the lower court).

       This fact was not mentioned in the Pearce opinion which would seem to indicate that the Court deemed it irrelevant to the decision of the case whether the same judge or a different judge imposed the increased sentence.

       The Supreme Court reversed Payne on the retroactivity question holding that Pearce was not to be given retroactive application. The Court declined to address any of the other sentencing questions involved in the case. 412 US at 49.


author: D. F. Walsh, J.

text:
    TOTH v WATERFORD TOWNSHIP
    Docket No. 77-240.
    Submitted May 4, 1978, at Detroit.
    Decided November 27, 1978.
    Steven L. Toth and Judith Toth brought an action against the Charter Township of Waterford and the Oakland County Road Commission seeking to enjoin the defendants from connecting a new proposed drain to an existing drain which crosses plaintiffs’ land underground. The existing drain has been in place since the 1940’s. Judgment for defendants, Oakland Circuit Court, Richard D. Kuhn, J. Plaintiffs appeal, alleging that the road commission has not acquired a prescriptive easement in the existing drain and that the proposed addition to the drain is impermissible. Held:

    1. The road commission has acquired a prescriptive easement in the existing drain, which has been in place without objection for the statutory period.
    2. The plaintiffs have not shown that they would be damaged by the addition of the proposed drain. The nature of the easement will not change because of the addition.
    Affirmed.
    1. Drains — Highways—Highway Commissioners.
    Generally, a highway commissioner has the right to have surface water drain from the highways in his jurisdiction over lower lands and may construct drains for that purpose.
    2. Drains — Easements—Easement by Prescription.
    An owner of an upper estate acquires an easement by prescription in a drain where the owner of a lower estate without objection permits the drain to exist and to cast waters upon his land for the statutory period.
    References for Points in Headnotes

       39 Am Jur 2d, Highways, Streets, and Bridges § 114 et seq. 78 Am Jur 2d, Waters § 126.

       25 Am Jur 2d, Drains and Drainage Districts § 34. 25 Am Jur 2d, Easements and Licenses §§ 48, 57. 78 Am Jur 2d, Waters § 20 et seq.

       25 Am Jur 2d, Drains and Drainage Districts § 31 et seq.

      3. Drains — Statutes—Drain Code.
    Absent fraud, all matters pertaining to the locating, constructing, cleaning, and extending of drains are to be determined according to the procedures set forth in the Drain Code (MCL 280.1 et seq.; MSA 11.1001 et seq.).

      4. Drains — Easements—Existing Drain.
    It is necessary for drain authorities to secure easements or releases from a landowner only if a parcel of land is to be traversed or damaged by a drain; a drain authority may tie in a new drainage system to an existing drain where the existing drain is adequate to handle the additional water flow and where the county road commission has acquired a prescriptive easement in the existing drain, the nature of which will not change because of the tie-in.

      Keeling, Bogue & Huthwaite, for plaintiffs.

      Peter J. Donlin, for Charter Township of Waterford.

      L. W. McEntee, for Oakland County Road Commission.
    Before: M. F. Cavanagh, P.J., and Bronson and D. F. Walsh, JJ.
   D. F. Walsh, J.

Plaintiffs appeal the circuit court’s denial of an injunction to restrain defendant Township of Waterford from proceeding with plans to connect a new storm drainage system to an existing underground storm drain running across plaintiffs’ property. They raise two issues:

(1) Has defendant Oakland County Road Commission acquired a prescriptive easement in the existing drain?

(2) Is the proposed addition to the existing drain permissible?

Plaintiffs are the owners of a lot bordered on the west by Watkins Lake and on the east by Covert Road. In the early 1940’s, the Oakland County Road Commission installed an underground drain inside of and parallel to plainfiifs’ southern property line. The drain ran from Covert Road to the lakeshore. The drain was then extended in a straight line to two catch basins located on either side of Covert Road. The eastern catch basin connected to another located at the northeast corner' of the intersection of Covert Road and Watkins Lake Road. The area drained by this storm sewer drain extends from the front of plaintiffs’ lot north to the above intersection and, presumably, includes the immediate area around the Covert Road —Watkins Lake Road catch basin.

The drain on plaintiffs’ property was installed with the personal knowledge of plaintiffs’ grantor, and has since been maintained by the road commission.

The proposed addition to the existing drain originates on Richmond Street approximately 330 feet south of the catch basin directly in front of plaintiffs’ southern property line. The new drain is to provide emergency flood relief for residential lots southeast of plaintiffs’ property. The surface water from this area does not naturally flow across Covert Road and into Watkins Lake.

Plaintiffs brought the instant action to prevent connection of the Richmond Street system with the drain running across their property. After hearing testimony, the trial court ruled that the public had acquired a prescriptive easement in the existing drain and that the addition of the proposed drain would not significantly expand the existing easement or significantly damage plaintiffs’ property.

We affirm the trial court’s finding of a prescriptive easement in the existing drain. As a general rule, highway commissioners have the right to have surface water drain from the highway over lower lands and may construct drains for that purpose. Maynard v Hawley, 331 Mich 123; 49 NW2d 92 (1951), Tower v Somerset Twp, 143 Mich 195; 106 NW 874 (1906). Where the owner of the lower estate without objection permits a drain to exist and cast waters upon his land for the statutory period, the upper estate owner acquires an easement by prescription in the drain. Cranson v Snyder, 137 Mich 340; 100 NW 674 (1904), Leidlein v Meyer, 95 Mich 586; 55 NW 367 (1893).

The second issue raised by plaintiffs is properly resolved by reference to the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq. The statute represents the Legislature’s attempt to codify all laws regarding drains and to provide for detailed, specific and exclusive procedures to be followed in proceedings to construct and maintain drains. Muskegon Twp v Muskegon County Drain Commissioner, 76 Mich App 714; 257 NW2d 224 (1977), lv den 402 Mich 834 (1977). Absent fraud, all matters pertaining to the locating, constructing, cleaning, extending, etc., of drains are to be determined according to the procedures set forth in the Drain Code. Battjes Builders v Kent County Drain Commissioner, 15 Mich App 618; 167 NW2d 123 (1969), lv den 382 Mich 764 (1969), Toledo, Saginaw & Muskegon R Co v Shafer, 190 Mich 89; 155 NW 712 (1916).

County drain commissioners have jurisdiction over all drains within their respective counties. MCL 280.23; MSA 11.1023. The drain commissioner is statutorily authorized to clean, deepen, extend, etc., existing drains. MCL 280.191; MSA 11.1191. If additional rights of way and releases of damages are necessary, the commissioner is to follow the same procedures which apply when such rights of way and releases are needed in connection with a new drain. MCL 280.195; MSA 11.1195. The commissioner must "endeavor to secure from the owners of each parcel or tract of land to be traversed or damaged by the proposed drain or drains an easement or release of right of way and all damages on account thereof’. MCL 280.73; MSA 11.1073. (Emphasis supplied.) If the landowners do not execute the necessary releases, condemnation proceedings are to be instituted. MCL 280.75; MSA 11.1075.

Plaintiffs do not challenge the correctness of the trial court’s finding that the existing drain would not be overburdened by the Richmond Street drain. The judge found that there would be no damage to plaintiffs’ property as a result of the tie-in. Alternatively, the judge conceded that there would perhaps be damage due to erosion of land at the western outlet of the drain. He ordered that necessary steps be taken to prevent additional rutting or erosion of land between the drain outlet and the low water mark of Watkins Lake.

In Sturm v Kelly, 120 Mich 685; 79 NW 930 (1899), the Bay County drain commissioner petitioned for location and establishment of a drain. The commissioner located the new drain so as to utilize an old drain; the old drain was to be used as the outlet for the new drain. Among the issues raised on appeal was whether the commissioner could use the established drain as the outlet for the new drain without obtaining the consent of landowners on each side of the old drain. The Supreme Court held that, under the facts, it was not necessary to obtain a release for a right of way from landowners abutting the old drain. The Court based its holding on the showing that these landowners would not be damaged by the use of the new drain, but would be materially benefited, and that the dimensions of the old drain would not be changed after the tie-in. Id. at 689.

So too in the instant case plaintiffs have not shown that they would be damaged by the Richmond Street drain, assuming installation of the necessary outlet control. Only if a parcel of land is to be traversed or damaged by a drain is it necessary for drain authorities to secure easements or releases. MCL 280.73; MSA 11.1073. There was uncontradicted evidence that the existing drain will be adequate to handle the additional flowage from the Richmond Street drain. As a result of modifications made in the Richmond Street drain plans, that drain will be used rarely; it is to be only an emergency flood relief drain. We also note that the nature of the drain easement across plaintiffs’ property will not change; it is now strictly a storm sewer and will continue as such.

Accordingly, we affirm the trial court’s findings that the road commission acquired an easement by prescription in the drain on plaintiffs’ property, and that the township may proceed with its plans to connect a new storm drain to the existing drain.

No costs, a public question.

       Townships are statutorily authorized to construct storm sewers and may, under certain circumstances, act on their own initiative in doing so. MCL 41.722; MSA 5.2770(52), MCL 41.723; MSA 5.2770(53). The statute granting townships authority to construct storm sewers mentions nothing about the easements which must be obtained to carry out this function. It is the drain code which sets forth detailed requirements for obtaining the necessary easements and releases. MCL 280.73 et seq.; MSA 11.1073 et seq. In the instant case the Township of Waterford is apparently relying on its statutory authority to invoke drain code procedures. MCL 280.71; MSA 11.1071.


text:
    MILLIGAN v THE UNION CORPORATION
    Docket No. 77-245.
    Submitted May 4, 1978, at Detroit.
    Decided November 27, 1978.
    Plaintiff Jack Milligan brought an action against defendant The Union Corporation seeking damages for the alleged wrongful termination of an employment contract. The Wayne Circuit Court, Roland L. Olzark, J., granted summary judgment for the defendant. Plaintiff appeals. Held:

    1. The trial court properly granted summary judgment on the ground that there was no genuine issue of material fact since no material facts were in dispute in light of the plaintiff’s admission in his compiaint and deposition testimony that the employment contract was to be terminable at the will of the defendant.
    2. Contracts for permanent or life employment are indefinite hirings which, absent distinguishing features or consideration in addition to the services to be rendered, are terminable at the will of either party.
    3. An employee serving under a contract of employment terminable at will has no cause of action for damages for wrongful discharge absent a claim of additional consideration passing from the employee to the employer or a claim that the employee’s discharge contravenes some settled public policy of this state.
    4. Absent such distinguishing features or additional consideration, there is no cause of action if a terminable at will employee is never given an opportunity to commence employment, since the measure of damages cannot be greater than that which would follow from termination of the contract at the earliest possible time after commencement of performance.
    Affirmed.
    1. Appeal and Error — Judgments—Summary Judgments — Master and Servant — Employment Contracts — Termination—Issues of Material Fact — Plaintiff’s Admissions — Court Rules.
    A trial court properly granted summary judgment to the defendant, in an action for damages for the alleged wrongful termination of an employment contract, on the ground that there was no genuine issue of material fact where no material facts were in dispute in light of the plaintiiFs admission in his complaint and deposition testimony that the employment contract was to be terminable at the will of the defendant (GCR 1963, 117.2[3], 117.3).

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment §§ 26, 27.

       53 Am Jur 2d, Master and Servant §§ 32, 33.

       53 Am Jur 2d, Master and Servant §§ 32-34.

      2. Master and Servant — Employment Contracts — Termination.
    Contracts for permanent or life employment are considered indefinite hirings which, absent distinguishing features or consideration in addition to the services to be rendered, are terminable at the will of either party.
    3. Master and Servant — Employment Contracts — Termination at Will — Wrongful Discharge — Causes of Action — Measure of Damages.
    An employee serving under a contract of employment terminable at will has no cause of action for damages from wrongful discharge absent a claim of additional consideration passing from the employee to the employer or a claim that the employee’s discharge contravenes some settled public policy of this state; absent distinguishing features or additional consideration, there is no reason to recognize a cause of action if a terminable at will employee is never given an opportunity to commence employment, since the measure of damages cannot be any greater than that which would follow from a termination of the contract at the earliest possible time after the commencement of performance.

      Draugelis, Ashton & Scully (by Richard T. Haynes), for plaintiff.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Roger K. Timm and Gary A. Krieger), for defendant.
    Before: M. F. Cavanagh, P.J., and Bronson and D. F. Walsh, JJ.
   D. F. Walsh, J.

Plaintiff appeals entry of summary judgment for defendant, GCR 1963, 117.2(3). Plaintiff had sought damages from defendant for breach of an employment contract.

It was plaintiffs allegation that on February 18, 1975, April 13, 1975, and May 5, 1975, defendant, by and through its executive vice president, entered into an agreement whereby plaintiff was to be employed by defendant in a position of responsibility equal to or greater than his then current position with defendant. Such employment was to be considered new employment rather than a continuation of existing employment. Plaintiffs existing employment was scheduled to and did end in the summer of 1975. Plaintiff expected the new employment to be permanent but terminable at the will of defendant. On May 21, 1975, after plaintiff had passed up two comparable job opportunities with other corporations, plaintiff was advised that his employment with defendant was terminated. He had not yet begun to work for defendant in the promised new position.

The trial court granted summary judgment for defendant, ruling that, by passing up other employment opportunities, plaintiff had merely prepared himself for assuming the new position with defendant. Because the employment was to be terminable at will, plaintiffs claim for damages was rejected. The trial court found no significance in the fact that plaintiff had never been given an opportunity to commence work in the new position.

On appeal plaintiff first claims that the trial court improperly found that there was no genuine issue of material fact. GCR 1963, 117.2(3). We agree with the trial court that there was no evi-dentiary support for plaintiffs claim that material facts were disputed. The court relied solely on plaintiffs complaint and deposition testimony. By deposition plaintiff himself testified that the employment contract was to be terminable at the will of defendant corporation. He was bound by this testimony. Gamet v Jenks, 38 Mich App 719, 726-727; 197 NW2d 160, 164 (1972). In light of this admission the trial court properly disposed of the matter by summary judgment. GCR 1963, 117.3.

Plaintiff also claims that the trial court erred in ruling that defendant was entitled to judgment as a matter of law. We find no error. Although plaintiff testified that he expected his employment to last for the rest of his "working days”, he also admitted that the job would be terminable at the will of the corporation. This admission is in accord with established authority which provides that contracts for permanent or life employment are considered indefinite hirings which, absent distinguishing features or consideration in addition to the services to be rendered, are terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684; 273 NW 315 (1937), Adolph v Cookware Co of America, 283 Mich 561; 278 NW 687 (1938). Absent a claim of additional consideration passing from the employee to the employer or a claim that the employee’s discharge contravenes some settled public policy of this state, an employee serving under a contract of employment terminable at will has no cause of action for damages from wrongful discharge. Toussaint v Blue Cross & Blue Shield of Michigan, 79 Mich App 429; 262 NW2d 848 (1977).

The plaintiff in Lynas v Maxwell Farms, supra, sold his restaurant business so that he could assume his duties with the defendant company. It was understood that he was to have a permanent lifetime position with the defendant. When terminated approximately one year after taking his position with the company, the plaintiff sued to recover damages for breach of his contract of employment. The Michigan Supreme Court rejected the plaintiff’s claim that he had supplied additional consideration in selling his restaurant business. The plaintiff’s detriment, if any, in preparing himself to accept the new employment "was not mutually understood as being a part of the consideration” and "was only a necessary incident in placing himself in a position so that he might perform the contract”. Id. at 688-689. The Court ruled similarly in Adolph v Cookware Co of America, supra, where the action of the plaintiff in giving up his chiropractic practice Was found to be only a necessary incident to placing himself in a position to accept and perform under the employment contract and not a part of the consideration paid to the defendant for the contract.

Absent distinguishing features or additional consideration, we see no reason to recognize a cause of action if the terminable at will employee is never given an opportunity to commence employment. Logic dictates that the measure of damages cannot be any greater than that which would follow from a termination of the contract at the earliest possible time after the commencement of performance. See Songer v Mack Trucks Inc, 23 App Div 2d 544; 256 NYS2d 313 (1965).

The instant record contains no suggestion that any consideration, in addition to the rendition of services, flowed or would have flowed to defendant from plaintiff. Passing up other employment opportunities was merely preparatory to commencement of plaintiff’s new position with defendant. There is no suggestion that the parties understood that it was part of the consideration flowing to defendant from plaintiff in exchange for the offer of employment. Nor do we find any public policy grounds dictating that we make an exception to the usual rule as to terminable at will employment contracts.

Accordingly, we find no reversible error on the part of the trial court in entering summary judgment for defendant. That judgment is affirmed.

        See, e.g., Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976).

        Compare Brawthen v H & R Block, Inc, 52 Cal App 3d 139; 124 Cal Rptr 845 (1975), where the California court noted that moving of the employee’s family and foregoing of other business and contracts would, if bargained for, constitute sufficient consideration to create a cause of action for breach of a contract for permanent employment.

       Plaintiff’s reliance on Hackett v Foodmaker, Inc, 69 Mich App 591; 245 NW2d 140 (1976), lv den 399 Mich 823 (1977), is misplaced. In Hackett the jury could have found that the considerable expense incurred by the plaintiff in moving from California to Michigan to accept the defendant’s offer of employment was a part of the plaintiff’s performance which had been bargained for. Such bargaining would have removed the case from the general rule that contracts for indefinite or permanent employment are terminable at will. See Ebling v Masco Corporation, 79 Mich App 531; 261 NW2d 74 (1977). In addition, the Hackett defendant’s refusal to honor its offer of employment after the plaintiff’s participation in an antitrust suit against the defendant raised significant public policy considerations in favor of the plaintiff’s claim of wrongful discharge. We do not feel that the fact that the plaintiff in Hackett was not given an opportunity to commence performance under the contract, while considered "a distinguishing feature” by the Hackett panel, was dispositive in determining the existence of a cause of action for damages. Despite the indefinite term of the employment contract, the plaintiff in Hackett would have had a cause of action even if discharge had come after his performance under the contract had begun.


author: T. M. Burns, J. D. E. Holbrook, Jr., P.J.

text:
    PEOPLE v ROSALES
    Docket No. 77-362.
    Submitted June 12, 1978, at Grand Rapids.
    Decided November 27, 1978.
    Leave to appeal applied for.
    Defendant Roberto Rosales was convicted of carrying a pistol in a motor vehicle in Saginaw Circuit Court, Eugene Snow Huff, J. At trial a police officer testified that: (1) at roll call on the morning in question' he had been told that a young black man who has been arrested for armed robbery of "after hours” establishments had escaped; (2) in the early morning hours of the same day he noticed a van parked in front of a known "after hours” establishment in an area noted for the high incidence of crime; (3) defendant was seated in the driver’s seat and a young black man was seated in the passenger seat; (4) upon being spotted approaching the van, defendant’s eyes widened, as if surprised, and he made a quick movement down and forward, as if he were placing something between and to the rear of the seats; (5) the officer ordered defendant from the van and noticed a bulge in the carpet covering the floor of the van in the area where defendant had reached; and (6) he reached into the area and removed a fully loaded, cocked and ready-to-fire semi-automatic pistol. The trial court denied suppression of the pistol. Defendant appeals. Held:

    1. The determination of whether or not the police acted within the bounds of the Fourth Amendment in searching a vehicle, as in all search and seizure questions, is based on the specific facts presented.
    2. Under the circumstances the search was justified as a protective search or limited intrusion for his own safety and the pistol was properly admitted.
    Affirmed.
    D. E. Holbrook, Jr., P.J., concurred separately.
    References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 2 et seq., 16, 96.

       20 Am Jur 2d, Courts § 191.

      Opinion of the Court
    1. Criminal Law — Constitutional Law — Searches and Seizures— Automobile.
    The determination of whether or not the police acted within the bounds of the Fourth Amendment in searching a vehicle, as in all search and seizure questions, is based on the specific facts presented.
    2. Criminal Law — Constitutional Law — Searches and Seizures— Automobiles — Protective Searches.
    A police officer who had been told at roll call that a young black man who had been arrested for armed robbery of “after hours” establishments had escaped had justification to order defendant out of his van and search the area into which defendant had just reached where, in the early morning hours, the officer observed the van parked in front of a known "after hours” establishment, the defendant was in the company of a young black man, the area was noted for a high incidence of crime, the officer, upon being noticed by defendant, observed defendant’s eyes widen, as if surprised, and defendant made a quick movement down and forward as if placing something between and to the rear of the seats; such a search was justified as a protective search or limited intrusion for his own safety and a pistol found as a result was properly admitted at trial.
    Concurrence by D. E. Holbrook, Jr., P.J.
    3. Appeal and Error — Stare Decisis — Precedent.

      A prior case should not be cited as precedent in a case where the facts are substantially different.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczma-rek, Prosecuting Attorney, and Roland J. Jersevic, Assistant Prosecuting Attorney, for the people.

      Kathleen M. Cummins, Assistant State Appellant Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   T. M. Burns, J.

Defendant was convicted after a jury trial for carrying a pistol in a motor vehicle, MCL 750.227; MSA 28.424, and sentenced to serve two to five years in prison. Defendant made several attempts both before and during the trial to have the pistol suppressed as the product of an illegal search and seizure under the Fourth Amendment. The only issue raised on appeal relates to the seizure of the pistol.

As in all search and seizure questions, the determination of whether the police acted within the boundaries of the Fourth Amendment must be based upon the specific facts presented. On the facts of this case, the police action was justified as a protective measure under the rationale of Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972).

In the early morning hours of June 10, 1976, a Saginaw police officer, alone in his patrol car, noticed a van parked beyond the curb, blocking the entrance doors to a building. The officer knew that an illegal "after hours” establishment was being run in this building. At roll call that morii-ing, the officer had been told that a young black man who had been arrested for the armed robbery of similar after hours establishments had escaped from the hospital. The officer also knew that this area was noted for the high incidence of crime.

Defendant was seated in the driver’s seat of the van and a young black man was in the passenger seat. The officer knew the escaped suspect’s name, but had only a general description which would fit many citizens of Saginaw, including the individual seated in defendant’s van. Still, given the proximity to the "after hours” establishment, the officer decided to investigate the identity and purpose of the two individuals. Other officers were notified of this intention by radio.

The officer circled the block and pulled behind and to the side of the van. He was able to begin his approach to the van unnoticed by the occupants. When he did notice the officer, defendant’s eyes widened, as if surprised, and he made a quick movement down and forward, as if he were placing something between and to the rear of the seats. The officer immediately ordered defendant out of the van.

Defendant alighted from the van when ordered to do so and went to stand with another officer who had just arrived. At this point, the first officer could see a bulge in the carpet covering the floor of the van in the area into which defendant had just reached. The officer reached into the area and removed a .38-caliber Colt semi-automatic pistol fully loaded, cocked and ready to fire. Defendant’s companion, who had remained in the van up to this point and was within reaching distance of the bulge in the carpet, was then removed and a search revealed that he had a loaded revolver in his waistband.

Under the circumstances just described, the officer’s decision to order defendant out of the van, see Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977), and investigate the area into which he had just reached can be justified as a protective search or limited intrusion for his own safety. As the majority noted in Adams v Williams, supra, "[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape”. 407 US at 145.

The officer was faced with two individuals in a high crime area under circumstances which led him to conclude that an impending robbery at the after hours joint was more than a mere possibility. When defendant saw the officer and made the move noted above, the officer believed defendant was hiding a weapon. The intrusion was limited to removing defendant from the van and checking this area to either confirm or immediately dispel his belief that defendant was armed.

It must be admitted that the officer did not, before discovery of the pistol, have probable cause either to arrest defendant or undertake a full scale search of the van. But, neither of those events occurred until after the first pistol was discovered. That first pistol, the one upon which this prosecution is based, was discovered in a limited protective search. Just as the officer in Adams, who did not have probable cause to search the defendant, was justified by the surrounding circumstances in checking the spot he believed a gun was hidden, 407 US at 148, so the officer in this case was justified in his limited intrusive act. An officer’s "suspicion” or conclusion based on his experience is entitled to some weight in our Fourth Amendment analysis. People v Ridgeway, 74 Mich App 306, 314; 253 NW2d 743 (1977), lv den, 401 Mich 831 (1977). The officer testified that he was sure defendant had a gun.

This case has certain similarities to People v Robertson, 81 Mich App 446; 265 NW2d 365 (1978), recently decided by this Court. In each case the seizure of a weapon from an area of a vehicle, not a person, can be justified under the self-protection for officers rationale of Terry and Adams. In each the area to be checked is drawn to the officer’s attention by a "furtive gesture” of one of the occupants of the vehicle. In each, the "furtive gesture” does not stand alone but is coupled with other factors indicating criminal behavior and giving a basis for the officer’s suspicion that a weapon had been hidden in a particular location in the vehicle.

It is the surrounding facts and circumstances, and the fact that the officer is looking for a gun, as opposed to drugs or other contraband, which distinguishes these cases from many of the other so called "furtive gesture” cases where a full search, dependent on probable cause, is involved. While this writer joined in suppressing evidence of a controlled substance seized in People v Strong, 77 Mich App 281; 258 NW2d 205 (1977), where the occupants made a movement in a van very similar to the movement here and would have suppressed marijuana evidence where the defendant did nothing more than drop a jacket over two clear vials in People v Hall, 40 Mich App 329, 340; 198 NW2d 762 (1972) (T. M. Burns, P.J., dissenting), in neither of those cases did the surrounding circumstances give the officer reason to believe that his own safety may be in danger. There is a vast difference between what an officer may expect to be confronted with in a campground, Strong, supra, or on an expressway in Van Buren County, Hall, supra, as compared to downtown Saginaw in the early morning. These differences in the surrounding circumstances justify a different police response. Actions and circumstances which may justify an officer’s protective search for weapons would not justify the same intrusion where the officer had no reason to suspect a weapon’s presence.

The trial court was correct in réfusing to suppress the pistol in this case.

Affirmed.

W. Van Valkenburg, J., concurred.

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

(concurring). I concur for the reason that the officer in the instant case believed defendant was hiding a weapon.

In People v Robertson, 81 Mich App 446; 265 NW2d 365 (1978), a case in which I dissented, the officer had no idea what the "dark colored object” was. Hence, in that case, I concluded that the search could not be characterized as a "protective” search. The facts in the case at bar being different, the search can be so characterized and justified.

       Defendant does admit that the fact of proximity to the after hours establishment may have given the officer reason to make an investigative stop. Given the circumstances detailed in the text, it seems clear that the officer’s choice to approach the van was reasonable under the Fourth Amendment. The problem lies only with his response after he began to approach the van.

       The van was used in a business and contained only the two front bucket seats. The carpeting from the front area of the van met the carpeting from the back and overlapped slightly. The seam of the overlap ran from door to door rather than down the middle of the van. The bulge observed by the officer before he reached into the van was directly under this area of overlap.


text:
    PEOPLE v POWELL
    Docket No. 77-596.
    Submitted May 4, 1978, at Marquette.
    Decided November 27, 1978.
    James Powell was convicted, on his plea of guilty, of breaking and entering. The Genesee Circuit Court, Ollie B. Bivins, Jr., J., deferred sentence and continued the defendant’s bond. The defendant was called as a witness later the same day in the trial of an alleged accomplice before the same judge. Immediately following that trial, the judge accused Powell of having perjured himself, and revoked his bond. Powell was later sentenced to prison. He moved to set aside the guilty plea, vacate the sentence, and transfer the case to another judge. The motion was denied, and defendant appeals. Held:

    1. Powell has properly preserved for appeal the issue of whether the trial court considered improper information wheri sentencing him, by having filed with the trial court a motion requesting that his sentence be vacated, along with supporting affidavits.
    2. The trial judge improperly used the sentencing power reserved for punishing the conduct directly involved with the crime charged to punish the unrelated conduct in the trial of the alleged accomplice.
    Reversed, and remanded for resentencing before a different circuit judge.
    1. Appeal and Error — Criminal Law — Sentencing—Motions.
    A defendant who alleges that a trial court considered improper information when sentencing him is required, prior to appeal, to make a timely motion to the trial court requesting that his sentence be vacated; the motion should be accompanied by appropriate supporting affidavits.
    2. Criminal Law — Sentencing—Unrelated Conduct.
    A trial court may not use the sentencing power, reserved solely for punishing the conduct directly involved with the crime charged, to punish unrelated conduct.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 533, 569-572.

       21 Am Jur 2d, Criminal Law §§ 535, 536.

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

      James W. Lang, for defendant on appeal.
    Before: V. J. Brennan, P.J., and R. B. Burns and M. J. Kelly, JJ.
   V. J. Brennan, P.J.

Defendant James Powell pled guilty on June 11, 1976, in Genesee County Circuit Court before Judge Ollie B. Bivins, Jr., to a charge of breaking and entering an unoccupied building, contrary to MCL 750.110; MSA 28.305. After the judge accepted defendant’s plea, he deferred defendant’s sentencing and continued his bond. During the plea proceeding, defendant testified that Clinton Carter had participated in the crime with him but that no one else had been involved.

Later that day, defendant was called as a witness in the trial of an alleged accomplice, James Wilder. At that trial, defendant testified that Wilder had not participated in the crime with him but that another party had been involved. The jury in the Wilder case was not able to reach a verdict and Judge Bivins declared a mistrial. Immediately following the trial, defendant was called to the bench where Judge Bivins accused defendant of perjuring himself, revoked defendant’s bond and remanded him to county jail.

Judge Bivins sentenced defendant on August 5, 1976, to serve from 5 to 10 years in prison. Defendant then moved to set aside the guilty plea, vacate his sentence, and transfer the case to another judge. He alleged in his motion that Judge Bivins had acted improperly in his actions incident to the Wilder trial, thereby punishing defendant for his testimony in that case. The defendant submitted an affidavit in support of his motion. Defendant submits to this Court two affidavits, one from defendant’s trial attorney in this case and one from counsel for defendant in the Wilder case setting forth the factual basis surrounding the claim of the trial judge’s improper conduct. Defendant appeals as of right under GCR 1963, 806.1.

Defendant contends the sentencing court committed error requiring resentencing before another judge when he improperly accused defendant of perjury regarding testimony given in a companion case and immediately afterward revoked defendant’s bond, ordered him returned to county jail and subsequently sentenced him to 5 to 10 years in prison.

The basis of the defendant’s argument is that the trial court considered improper information in its sentencing. Where such a claim is made defendant is required to make a timely motion to the trial court prior to appeal requesting the sentence be vacated. Included with his motion should be appropriate supporting affidavits. See Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975). The defendant in the present case complied with these requirements and thus preserved the matter for appeal.

The problem present is that the court appeared to use the sentencing power reserved solely for punishing the conduct directly involved with the crime charged to punish unrelated conduct. The danger we perceive in allowing such a situation to remain uncorrected is that where defendants are called to testify in companion cases they may perjure themselves in order to placate the trial court. In order to insure complete and uncompro-mised testimony by defendants in such circumstances, we cannot allow the kind of conduct and sentencing consequences involved here. See People v Westerfield, 71 Mich App 618, 625-626; 248 NW2d 641 (1976).

Reversed and remanded for resentencing before another Genesee County Circuit Court judge.