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

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v TRAYCIK (AFTER REMAND)
    Docket No. 77-4900.
    Submitted June 13, 1978, at Lansing.
    Decided October 3, 1978.
    Leave to appeal applied for.
    Martha Watkins was injured in an automobile accident while a passenger in an automobile owned by Bessie Evans, now deceased, and driven by Erwin Shanks. The- automobile was insured under a policy issued by State Farm Mutual Automobile Insurance Company to Bessie Evans. Martha Watkins commenced an action for damages against Mr. Shanks and the estate of Bessie Evans.
    After Martha Watkins commenced her action, State Farm brought an action against L. E. Traycik, administrator of the estate of Bessie Evans, deceased, Erwin Shanks and Martha Watkins for a declaratory judgment to determine its obligation under the insurance contract. State Farm alleged that Martha Watkins and Bessie Evans were sisters who lived in the same household, and argued that its liability coverage did not apply to Martha Watkins because of a "household” exclusionary clause in the policy. Mrs. Watkins conceded that she was a sister to Bessie Evans and that they resided in the same household.
    The trial court ruled that the plaintiffs exclusion was void and that the liability coverage of the policy was applicable to Martha Watkins’ claim. The plaintiff appealed. The Court of Appeals, in an unpublished per curiam opinion, No. 30617, issued September 14, 1977, remanded the matter to the circuit court to allow the parties to amend their pleadings and to allow the trial court to determine whether Martha Watkins was related to Bessie Evans in light of an assertion by counsel for Martha Watkins, during oral argument, that the two women were not related.
    On remand, it was determined that Martha Watkins and Bessie Evans were not related and that, therefore, the "household” exclusionary clause was inapplicable to Martha Watkins. Summary judgment for defendant Martha Watkins, Genesee Circuit Court, Philip C. Elliott, J. Plaintiff appeals. Held:

      Reference for Points in Headnotes
    [1, 2] 7 Am Jur 2d, Automobile Insurance § 109 et seq.

      1. The trial court’s holding that the two women were not members of the same household for purposes of the "household” exclusionary clause was improper since they had lived together for 21 years and had generally held themselves out to be "family” and, because of the close relationship which existed between them, the policy behind the "household” exclusionary clause seems clearly to apply.
    2. No sound reasoning exists to justify continued recognition of "household” exclusions from liability coverage where such recognition would clearly violate the statutorily expressed policy of comprehensive liability coverage. The exclusionary clause involved in the case at bar is void.
    Affirmed.
    1. Insurance — Liability Insurance — Automobiles—Exclusions— Legislative Intent — Statutes.
    An exclusionary clause in an automobile liability insurance policy, which was not contemplated by the Legislature when it amended the insurance code by adding a provision which authorizes an automobile liability insurer to provide that its policy coverage will not be effective if the vehicle is operated by a specific named person, is contrary to public policy and is therefore void and unenforceable (MCL 500.3009; MSA 24.13009).
    2. Insurance — Liability Insurance — Automobiles—Exclusions— Legislative Intent — Statutes.
    An exclusionary clause, in an automobile liability insurance policy, which excludes liability coverage to "any member of the family of an insured residing in the same household as the insured” was not contemplated by the Legislature when it amended the insurance code by adding a provision which authorizes an automobile liability insurer to provide that its policy coverage will not be effective if the vehicle is operated by a specific named person and is therefore void and unenforceable (MCL 500.3009; MSA 24.13009).

      Brownell, Andrews, Philpott & Piper, for plaintiff.

      Norman N. Gottlieb, P.C., for defendants.

      Before: D. E. Holbrook, P.J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   After Remand

D. E. Holbrook, P.J.

Defendant Martha Watkins was injured in an automobile accident on July 14, 1972, while a passenger in an automobile owned by Bessie Evans, deceased, and driven by defendant Erwin Shanks. That automobile was insured under a policy issued to Bessie Evans by plaintiff. After Martha Watkins filed suit against Mr. Shanks and the estate of Bessie Evans, plaintiff sought a declaratory judgment to determine its obligation under the insurance contract. Plaintiff argued that its liability coverage did not apply to Martha Watkins because the policy excluded coverage to "any member of the family of an insured residing in the same household as the insured”. In the trial court, Martha Watkins conceded that she was a sister of Bessie Evans and resided in her household. The case was submitted to the trial court on briefs and the court found plaintiff’s exclusion void and the liability coverage of the policy applicable to Martha Watkins’s claim.

The case was appealed to this Court, and in an unpublished per curiam opinion, No. 30617, issued September 14, 1977, this Court said:

"During oral arguments before this Court, counsel for defendant Martha Watkins asserted that he had only recently learned that Martha Watkins was not related to Bessie Evans. If this assertion is correct then the household exclusion cited by State Farm would have no application. Therefore, if proven, the nonrelative status of Martha Watkins may settle the issue conclusively in her favor. State Farm, however, may wish to contest the issue or assert other policy provisions in light of this new allegation by defendant Watkins. Under these circumstances we believe it would be improvident to reach the legal issue presented in this appeal.” (Emphasis in original.) (Footnote omitted.)

The case was therefore remanded to the trial court to allow the parties to amend their pleadings and the court to determine whether Martha Watkins was related to Bessie Evans.

On remand, Martha Watkins testified by deposition that she and Bessie Evans were not related. Martha Watkins testified that they had neither a common mother nor father. The two women were born of separate parents, but when they were teenagers, after the death of Bessie Evans’s father and Martha Watkins’s mother, Martha Watkins’s father married Bessie Evans’s mother. The trial court found that "the exclusionary clause relied upon by the Plaintiff in denying liability to the Defendant Martha Watkins as [sic] inapplicable to her for the reason that she is not a 'relative’ of the named insured within the meaning of the policy provisions,” and granted summary judgment in favor of defendant Martha Watkins. Plaintiff appeals.

The purpose of "household” exclusions such as the clause under consideration was to protect insurers from liability in cases where, due to close family ties between plaintiff and the insured, the insurer may be victimized by a collusive lawsuit. Anno: Validity, Construction, and Application of Provision of Automobile Liability Policy Excluding from Coverage Injury or Death of Member of Family or Household of Insured, 46 ALR3d 1024, 1030-1032, § 4. This note indicates that a majority of courts in other jurisdictions which have been required to interpret such clauses under similar circumstances have emphasized the domestic arrangement rather than consanguinity or lack thereof in determining the legal effect of such clauses. Anno, supra, § 11, pp 1050-1054.

In spite of the strong Michigan policy of construing all insurance contracts which require judicial interpretation against the preparer and in favor of the insured, 14 Callaghan’s Michigan Civil Jurisprudence, Insurance, § 146, p 162, and cases cited therein, it would require an unusually strained construction of the term "household” in order to remove defendants Evans and Watkins from the intended meaning of the clause in question. They had resided together for 21 years, and had generally held themselves out to be "family”. In addition, due to the close relationship which existed between them, the policy behind the clause in question seems clearly to apply. Therefore, the conclusion that the trial court erred in holding these defendants not to be members of the same "household” is compelling.

Nevertheless, resolution of this matter requires consideration of defendants-appellees’ claim that the clause in question should be considered void as a matter of law, as it contravenes public policy. In support of this conclusion, appellees cite two recent Michigan cases holding the "household” exclusion to be invalid under comparable circumstances, Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977), and Allstate Insurance Co v DeFrain, 81 Mich App 503; 265 NW2d 392 (1978). Gurwin involved a declaratory judgment action brought by the plaintiff insured, as next friend of his minor children, to determine the liability of the insurer under a policy which excluded coverage of the plaintiff to "liability of any insured for bodily injury to (a) any member of the same household of the insured except the servant”. The appellate Court upheld the trial court’s, ruling that the clause was void, noting that under the financial responsibility act, MCL 257.520(b)(2); MSA 9.2220(b)(2), a liability policy must insure the named insured "against loss from the liability imposed by law”. The Court noted that under Lilje v Allstate Insurance Co, 393 Mich 259; 224 NW2d 279 (1974), and Citizens Mutual Insurance Co v Central National Insurance Co of Omaha, 65 Mich App 349; 237 NW2d 322 (1975), an exclusion which deviates from the statutorily imposed standards is not valid. The Court held that as parental immunity is no longer recognized in Michigan, any attempt to exclude from the policy coverage the liability of an insured for actions brought by the insured’s children was not in compliance with the statutory requirements governing insurance coverage. Although the Court never discussed the policy of discouraging "over-friendly lawsuits” the decision which it reached clearly implied repudiation of this policy as grounds for coverage exclusions.

DeFrain reached the same conclusion in invalidating a "household” exclusion clause relied upon by the insurer in refusing to defend its insured against suit by his then-wife. The Court held that abolition of interspousal immunity necessarily rendered the claimed exclusion invalid as in contravention of public policy as stated in the financial responsibility act, supra.

In addition to the cases cited by appellees, a separate line of cases also suggests that exclusionary clauses such as the one in question contravenes public policy. Allstate Insurance Co v Motor State Insurance Co, 33 Mich App 469; 190 NW2d 352 (1971), lv den, 386 Mich 760 (1971), Robinson v Mendell, 45 Mich App 368; 206 NW2d 537 (1973), Cadillac Mutual Insurance Co v Bell, 50 Mich App 144; 212 NW2d 816 (1973). Each of these cases relied upon MCL 257.520(b)(2); MSA 9.2220(b)(2) (set out in part above), as a declaration of legislative intent. In pertinent part, with emphasis added, the statute asserts that a policy of insurance:

"Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle.” (Emphasis supplied.)

Although appellant relies upon Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513; 194 NW2d 193 (1971), as authority for upholding the "household” exclusion despite policy arguments to the contrary, it is clear that whether or not Weisberg is good law, it is not apposite to actions involving the protection of third parties.

Weisberg involved an exclusionary clause which provided that public liability coverage did not apply to a named insured. It was upheld, and distinguished from Allstate v Motor State on the questionable grounds that the public policy, as embodied in the financial responsibility act, supra, and the accident claims act, MCL 500.3010; MSA 24.13010, was not offended by "exclusion [which] is inherent in the concept of liability insurance. It [liability insurance] contemplates protection of the insured against liability running from the insured to another”, 36 Mich App at 517. Thus, Weisberg is not contrary to the Allstate v Motor State line of reasoning which protects third persons. The Legislature impliedly adopted the Allstate v Motor State result in 1971 when it amended the insurance code by adding MCL 500.3009; MSA 24.13009.

This section expressly authorizes the liability insurer to provide that its policy coverage will not be effective if the vehicle is operated by a specific named person. In Citizens Mutual Insurance Co v Central National Insurance Co of Omaha, 65 Mich App 349, 353-354; 237 NW2d 322 (1975), this Court, in passing upon the validity of a clause which excluded coverage of passengers, had occasion to assess the impact of the new statute on public policy as promulgated in Allstate:

"In accord with this view [the public policy view stated in Allstate] are Robinson v Mendell, 45 Mich App 368; 206 NW2d 537 (1973), Cadillac Mutual Insurance Co v Bell, 50 Mich App 144; 212 NW2d 816 (1973), Celina Mutual Insurance Co v Preferred Risk Mutual Insurance Co, 51 Mich App 99; 214 NW2d 704 (1974), overruled sub nom Lilje v Allstate Insurance Co, 393 Mich 259; 224 NW2d 279 (1974), State Automobile Mutual Insurance Co v Babcock, 54 Mich App 194; 220 NW2d 717 (1974).
"The Legislature obviously remains interested in requiring automobile insurance policies to conform to the dictates of the statute. The theory underlying the Allstate decision was that exclusionary clauses with respect to policies covering a particular motor vehicle which were not contemplated by the Legislature are contrary to public policy and therefore void. A clear intent of § 3009 was to allow an insurance company to exclude from liability coverage only named persons operating a motor vehicle. There are no statutory references to other types of exclusions. It is a familiar rule of statutory construction that the express mention of one thing implies the exclusion of other similar things. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971), Marshall v Wabash Railway Co, 201 Mich 167, 172; 167 NW 19 (1918). An exclusionary clause which exempts from liability coverage all passengers of a motor vehicle is at variance with the intent of the Legislature, contrary to public policy and is therefore void and unenforceable.” (Emphasis in original.)

We find the reasoning of this Allstate line of cases still to be persuasive, and furthermore, agree with the assessment of legislative intent made by the Court in Citizens Mutual. Unlike the Gurwin and DeFrain cases, supra, there has never been any recognized "member-of-household immunity” which would be effectuated by the exclusionary clause under consideration. Therefore, no sound reasoning exists to justify continued recognition of "household” exclusions from liability coverage when such recognition would clearly violate the statutorily expressed policy of comprehensive liability coverage.

Affirmed. Costs to defendants.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GENESEE COUNTY ROAD COMMISSION v STATE HIGHWAY COMMISSION
    Docket No. 30599.
    Submitted June 5, 1978, at Lansing.
    Decided October 3, 1978.
    Michael Mitchell was killed as a result of an automobile accident. A wrongful death action was commenced on his behalf in circuit court against Genesee County Road Commission, Michigan Mutual Insurance Company, and Michigan State Highway Commission. At the same time a similar complaint was filed against the State Highway Commission in the Court of Claims. The State Highway Commission’s motion for summary judgment was granted by the circuit court, on the ground that the Court of Claims had exclusive jurisdiction over claims against state agencies.
    Subsequently, the action against the State Highway Commission in the Court of Claims was voluntarily dismissed. The Genesee County Road Commission and Michigan Mutual Insurance Company settled the circuit court action by the payment of $75,000. As a result of the circuit court settlement, an action for contribution for $37,500 was commenced in the Court of Claims by Genesee County Road Commission and Michigan Mutual Insurance Company against the State Highway Commission. The defendant’s motion for summary judgment, on the ground that the action was barred under the doctrine of governmental immunity, was granted by the Court of Claims, Martin B. Breighner, J. The plaintiffs appeal. Held:

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Courts § 33.
    [2, 3, 5, 7] 18 Am Jur 2d, Contribution § 35 et seq.

    57 Am Jur 2d, Municipal, School, and State Tort Liability 59 et seq.

    Uniform Contribution Among Tortfeasors Act. 34 ALR2d 1107.
    Contribution between negligent tortfeasors at common law. 60 ALR2d 1366.
    [3] 39 Am Jur 2d, Highways, Streets and Bridges §§ 342-344.
    [4, 6] 73 Am Jur 2d, Statutes § 313.
    [6] 57 Am Jur 2d, Municipal, School, and State Liability §§ 293 et seq., 301, 302.
    Rule of municipal immunity from liability for acts in performance of governmental functions as applicable to personal injury or death as result of a nuisance. 56 ALR2d 1415.
    [7] 16 Am Jur 2d, Constitutional Law §§ 491, 527-530.

      The plaintiffs’ claim for contribution was barred by governmental immunity as their claim did not fit into any of the recognized exceptions to governmental immunity which protected the defendant.
    Affirmed.
    1. Courts — Court of Claims — Governmental Immunity — Statutes.
    The power of the Court of Claims is limited in part by the doctrine of governmental immunity (MCL 691.1407; MSA 3.996[107]).
    2. Torts — Governmental Immunity — Exceptions—Contribution— Statutes.
    A right to bring an action for contribution against the State Highway Department because a settlement of a negligence action had been made where the accident for which settlement had been made also involved the proper maintenance of roadways under the jurisdiction of the State Highway Department is dependent upon the applicability of some exception to the governmental immunity statute (MCL 691.1407; MSA 3.966[107]).
    3. Highways — Governmental Immunity — Bodily Injury — Exception — Contribution—Statutes.
    The statute which allows a "person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel”, to recover the damages suffered by him from such governmental agency because of its failure to keep the highway reasonably safe limits relief to that class of persons who suffer bodily injury or property damage and does not allow a tortfeasor who was also liable and who has settled with the injured party to bring an action for contribution against a defendant governmental agency otherwise covered by governmental immunity (MCL 691.1402; MSA 3.996[102]).
    4. Torts — Governmental Immunity — Exception.
    Statutory exceptions to governmental immunity are to be strictly construed.
    5. Torts — Joint Tortfeasors — Contribution—Governmental Immunity.
    A joint tortfeasor is not barred from seeking the equitable right of contribution in Michigan; however, that right does not affect governmental immunity where contribution is sought from a party protected by governmental immunity.
    6. Tokts — Governmental Immunity — Exceptions—Statutes.
    There are no exceptions to the governmental immunity act outside of the act itself beyond the court-made nuisance exception (MCL 691.1407; MSA 3.996[107]).
    7. Constitutional Law — Equal Protection — Governmental Immunity.
    The concept of governmental immunity does not violate the equal protection clause.

      Brownell, Andrews, Philpott & Piper, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso and Francis J. Carrier, Assistants Attorney General, for defendant.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   Per Curiam.

Plaintiffs appeal as of right from a September 29, 1976, judgment of the Court of Claims granting defendant’s motion for summary judgment brought under GCR 1963, 117.2(1).

This case arose out of an automobile accident on November 3, 1969, in Genesee County. As a result of this accident a wrongful death action was filed in circuit court on November 3, 1971, in behalf of Michael Mitchell. Plaintiffs and defendant herein were named as defendants in that action. At the same time, a similar complaint was filed against the State Highway Commission in the Court of Claims. On April 27, 1972, the circuit court judge granted the Michigan State Highway Commission’s motion for accelerated judgment in that action, on the ground that MCL 600.6419; MSA 27A.6419 gave the Court of Claims exclusive jurisdiction over claims against state agencies.

Subsequently, the Court of Claims action against the State Highway Commission was voluntarily dismissed. On October 16, 1975, plaintiffs herein settled the circuit court action by the payment of $75,000.

On April 7, 1976, plaintiffs sought contribution from defendant for $37,500 as a result of the settlement in the circuit court action. However, defendant’s motion for summary judgment was granted, on the ground that the action was barred under the doctrine of governmental immunity.

The Court of Claims was established by the Legislature under the authority of Const 1963, art 9, § 22 and art 6, § 26. Its jurisdiction is exclusive and extends

"over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies.” MCL 600.6419(1); MSA 27A.6419G).

However, the power of the Court of Claims is limited in part by the doctrine of governmental immunity. This doctrine was codified by MCL 691.1407; MSA 3.996(107) which states in part:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.”

In Van Antwerp v State, 334 Mich 593, 600-601; 55 NW2d 108 (1952), the Supreme Court held that the passage of a predecessor of the present Court of Claims Act did not waive the right of the state to rely upon governmental immunity. A similar result is mandated here by the second sentence of MCL 691.1407; MSA 3.996(107) which states:

"Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed

See also Doan v Kellogg Community College, 80 Mich App 316, 320-321; 263 NW2d 357 (1977), which held that the Court of Claims Act should be interpreted in light of the subsequently-enacted governmental immunity act. Thus, since the maintenance of roadways is clearly a governmental function, Thomas v Dep’t of State Highway, 398 Mich 1, 11; 247 NW2d 530 (1976), plaintiffs’ right to bring this action is dependent upon the applicability of some exception to the governmental immunity provided generally by MCL 691.1407; MSA 3.996(107).

Plaintiffs attempt to rely upon MCL 691.1402; MSA 3.996(102) in support of their right to bring suit against defendant. That statute provides in part:

"Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.”

Although this section would have permitted the action in behalf of Michael Mitchell to be pursued against the state, it does not authorize the sort of action attempted here. This is because the statute limits relief to that class of persons who Suffer bodily injury or property damage. Plaintiffs, of course, have suffered no such loss. Statutory exceptions to governmental immunity are to be strictly construed. Stremler v Dep’t of State Highways, 58 Mich App 620, 632-633; 228 NW2d 492 (1975). Subsequent language in MCL 691.1402; MSA 3.996(102), limiting actions to "injury or loss suffered on or after July 1, 1965,” should not be read to expand the class of person who could bring a suit against the state. Rather, this language merely refers to the bodily injury and property damage mentioned previously therein.

Plaintiffs’ other bases in support of bringing this action are similarly without merit. It is true that the Michigan Supreme Court has overruled a common-law rule barring joint tortfeasors from the equitable right of contribution, Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 329; 174 NW2d 797 (1970). However, plaintiffs cannot avail themselves of this right, as Moyses did not deal with a situation where the action was otherwise barred by governmental immunity. Nor should Moyses be construed as setting forth an exception to the rule of governmental immunity. This is because MCL 691.1407; MSA 3.996(107) eliminates tort liability of governmental agencies "[ejxcept as in this act otherwise provided.” Thus, except for the court-made nuisance exception, Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), one cannot look beyond the scope of the governmental immunity act for exceptions thereto.

Nor can plaintiffs rely upon MCL 600.2925; MSA 27A.2925, as applied in Morgan v McDermott, 382 Mich 333; 169 NW2d 897 (1969), as a basis for this action. That statute, which provides for a statutory right of contribution, only applies when a money judgment has been recovered jointly against two or more defendants. Such is not the case here. Nor can plaintiffs rely upon MCL 600.2925a; MSA 27A.2925a which amended this section, since the amendment applies only to torts committed on or after January 1, 1975. See 1974 PA 318, § 3.

Plaintiffs lastly contend that the statutory scheme which permits the Genesee County Road Commission to be sued for contribution in circuit court, while shielding the State Highway Department from such an action, violates their rights to equal protection of the laws. This Court has consistently rejected claims that governmental immunity violates the equal protection clause. See for example Snow v Freeman, 55 Mich App 84, 86; 222 NW2d 43 (1974), and Anderson v Detroit, 54 Mich App 496, 498-499; 221 NW2d 168 (1974). Reich v State Highway Dep’t, 386 Mich 617; 194 NW2d 700 (1972), cited by plaintiffs, is inapplicable, as that case dealt with a notice provision not involved here.

Affirmed. No costs, a public question being involved.

D. R. Fkeeman, J., not participating.


text:
    PEOPLE v HARRIS
    Docket No. 77-1232.
    Submitted June 6, 1978, at Grand Rapids.
    Decided October 3, 1978.
    John L. Harris was convicted of carrying a dangerous weapon' in a motor vehicle, Recorder’s Court of Detroit, Michael J. Connor, J. The defendant appeals, alleging, among other things, that the trial court erred in allowing one of the defendant’s witnesses to be impeached by the prosecution’s introduction of evidence of prior misdemeanor convictions and in permitting a prosecution witness to be rehabilitated by evidence of prior consistent statements. Held:

    1. It was error for the trial court to allow a defense witness to be impeached by the use of evidence of prior misdemeanor convictions.
    2. It was improper for the trial court to allow the introduction of evidence of a prosecution witness’s prior consistent statements to rehabilitate the witness after he had been impeached where the prior consistent statements were not admitted to disprove a charge of recent fabrication and where the witness did not deny making the prior inconsistent statements. This was not harmless error in the case at bar.
    3. The defendant’s introduction of evidence regarding the prior misdemeanor convictions of a defense witness, after the trial court’s denial of a defense motion in limine to exclude the introduction of that evidence, does not bar the Court of Appeals from hearing the defendant’s claim, because the apparent purpose of defense counsel was to reduce the prejudicial impact of the conviction evidence by introducing it himself, since the trial court refused to exclude it. This was not a waiver of the defendant’s objection.
    Reversed and remanded.
    References for Points in Headnotes
    [1] 81 Am Jur 2d, Witnesses §§ 569-575.
    [2] 81 Am Jur 2d, Witnesses §§ 641-655.
    [3] 5 Am Jur 2d, Appeal & Error § 717.
    [4] 5 Am Jur 2d, Appeal & Error §§ 601-603.

      1. Witnesses — Criminal Law — Evidence—Prior Misdemeanor Convictions — Impeachment.
    Evidence of a witness’s prior misdemeanor convictions may not be used by the prosecution solely for impeachment purposes.
    2. Witnesses — Evidence—Prior Consistent Statements — Rehabilitation of Witness.
    Evidence of a witness’s prior consistent statements is inadmissible to rehabilitate the witness except to rebut a charge of recent fabrication or as evidence of the fact that the witness had made a prior inconsistent statement; whether evidence is probative of either of these facts is a matter within the trial court’s discretion.
    3. Evidence — Appeal and Error — Improper Admission of Evidence —Motion In Limine.
    A trial court’s error in admitting evidence is generally cured when a party opposing the introduction of the evidence makes use of evidence similar to that to which he objected; however, an exception arises where the objecting party uses the evidence in self defense, to explain or rebut the original evidence; this "self-defense” exception should be expanded to allow an appellate court to reach the merits of an evidentiary issue despite the objecting party’s trial tactic of admitting the evidence himself after the denial of an in limine motion to exclude the evidence in question.
    4. Evidence — Exclusion of Evidence — Motion In Limine.
    A motion in limine to exclude evidence is proper.

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

      Durant & Card, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Per Curiam.

Defendant was found guilty by a jury of the offense of carrying a dangerous weapon in a motor vehicle, which is proscribed by MCL 750.227; MSA 28.424.

It was undisputed at trial that a pistol was removed by police from a car in which defendant and a female companion had been riding. The case for the prosecution rested mainly upon the testimony of a police officer who stated he had seen defendant leave the driver’s position of the car and walk around it to the passenger’s side, where he re-entered and attempted to conceal a handgun between the seats. Witnesses for the defendant testified that defendant was riding as a passenger only and had exited the car to examine it for a noise it was making. Both defendant and his companion denied knowledge that a gun was in the car. The vehicle was owned by neither defendant nor his companion.

While presenting its case in chief, the prosecution was permitted, over defense objection, to introduce prior consistent statements by one of the arresting officers, Officer Holt, who had testified for the people and had been impeached on cross-examination by evidence of prior contradiction. The trial court ruled such statements admissible whenever prior inconsistencies have been brought out. Upon the close of the people’s case, defendant moved the court in limine to prohibit the prosecutor from impeaching one of defendant’s witnesses, his companion, by reference to a prior misdemeanor conviction for accosting and soliciting. The trial court denied the motion, reasoning that witnesses, other than an accused, may be so impeached.

Both during voir dire and in its instructions after trial, the court informed the jury of the state’s burden of proof. It told them on three occasions that defendant was presumed innocent until the state presented sufficient evidence to convince the jury of defendant’s guilt beyond a reasonable doubt. The court did not specifically charge that the presumption of innocence "goes into the jury room”.

Contrary to defendant’s objection, we find sufficient evidence on the record to support his conviction, see People v Little, 58 Mich App 12; 226 NW2d 735 (1975), People v Filip, 58 Mich App 564; 228 NW2d 464 (1975), People v Stephens, 58 Mich App 701; 228 NW2d 527 (1975), and no error in the court’s burden of proof instructions, People v Heard, 31 Mich App 439; 188 NW2d 24 (1971), see People v Parsons, 105 Mich 177, 186-87; 63 NW 69, 72 (1895).

We agree with defendant, however, that the court erred in allowing defendant’s witness to be impeached by misdemeanor convictions and in permitting the prosecutor’s witness to be rehabilitated by evidence of prior consistent statements.

People v Renno, 392 Mich 45; 219 NW2d 422 (1974), holds that misdemeanor convictions may not be "used by the prosecution solely for impeachment purposes”. Id., at 55, 219 NW2d at 425. (Emphasis in original.) That decision is based on MCL 600.2158; MSA 27A.2158 and MCL 600.2159; MSA 27A.2159, which apply in this case. By their own language, these code sections respectively govern the impeachment of any "person * * * giving evidence,” and any "person * * * as a witness.” Although Renno factually involved a witness who was a defendant, the case’s analysis and holding apply to all witnesses. People v Alphus Harris, 56 Mich App 517, 528; 224 NW2d 680, 685 (1974). See also People v Bowen, 77 Mich App 684; 259 NW2d 189 (1977), People v Foster, 77 Mich App 604; 259 NW2d 153 (1977).

Prior consistent statements are inadmissible to rehabilitate a witness except to rebut a charge of recent fabrication, Brown v Pointer, 41 Mich App 539; 200 NW2d 756 (1972), rev’d on other grounds, 390 Mich 346; 212 NW2d 201 (1973), or as evidence of the fact that a witness had made a prior inconsistent statement, Stewart v People, 23 Mich 63 (1871). Whether evidence is probative of either of these facts is a matter within the trial court’s discretion. See id., 76. Neither party contends that the prior consistent statements of Officer Holt were admissible to disprove a charge of recent fabrication. We do not have to decide whether it was an abuse of discretion to allow the evidence under the rule of Stewart v People, as it is apparent at a glance (see tr, pp 124, 129, 132) that the witness did not deny making the prior inconsistent statements. Cf. People v Hallaway, 389 Mich 265, 277; 205 NW2d 451, 455 (1973) (Stewart clearly inapplicable when no inconsistent statement made), Leach v Detroit Electric R Co, 129 Mich 286, 288; 88 NW 635 (1902) (same). But see Woodrow v Johns, 61 Mich App 255; 232 NW2d 688 (1975).

The cumulative effect of both rulings by the trial court was to diminish the credibility of a defense witness and to bolster the credibility of a witness for the prosecution. Since the evidence presented by each side was directly conflicting, witness credibility was crucial to the jury’s verdict. See People v Rahar, 37 Mich App 577; 195 NW2d 77 (1972). Thus, we cannot say that only harmless error occurred. People v Foster, 77 Mich App 604; 259 NW2d 153 (1977), which found harmless error in allowing impeachment by reference to prior misdemeanors, is clearly distinguishable. In that case the actual offense was never revealed to the jury, the question and answer was stricken by the trial judge, and the error was further cured by subsequent instructions.

This last point leads us to discuss another issue which was neglected by both sides in their briefs. The issue is unlikely to reoccur at trial, but its resolution determines the propriety of our reaching the merits of this case. The record shows that evidence of the offense used to impeach defendant’s witness was first introduced by defense counsel and that the prosecutor made only oblique references thereto, not clearly understandable as references to the witness’s prior conviction, but for the witness’s own earlier admissions. Defense counsel’s apparent purpose was to reduce the prejudicial impact of the conviction evidence by mentioning it himself. This presents a question in our minds whether defendant has waived his objection. See State v Burt, 249 NW2d 651 (Iowa, 1977), State v Miller, 229 NW2d 762 (Iowa, 1975), cf., People v Iaconis, 29 Mich App 443; 185 NW2d 609 (1971), aff’d sub nom, People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972) (issue of waiver of objection to ruling on impeachment by witness’s failure to take stand), People v Draine, 72 Mich App 592; 250 NW2d 139 (1976) (same), People v Bernard Smith, 81 Mich App 561; 266 NW2d 40 (1978) (same). We hold that he has not.

No Michigan eases have decided this precise issue. In People v Renno, supra, the defendant first admitted his prior misdemeanor convictions on direct examination by his counsel, yet the Supreme Court reached the merits of his objection on appeal without questioning whether the issue had been properly preserved. Renno, however, is significantly distinguishable from the case before us in that the prosecutor’s remarks in Renno standing alone clearly referred to the witness’s prior conviction. Various panels of this Court have split on the analogous issue of whether a defendant, by staying off the stand, waives his objection to the trial court’s erroneous preliminary ruling that he could be impeached by certain evidence. See People v Iaconis, supra, (issue moot), People v Draine, supra, (issue preserved), People v Bernard Smith, supra, (issue preserved).

The Iowa Courts, in the only other cases we have found directly on point, have reached the merits of the evidentiary objection on appeal despite the opponent’s trial tactics in admitting the evidence himself after denial of an in limine motion to exclude. State v Burt, supra, State v Miller, supra.

As a general rule, Wigmore states that an error in admitting evidence is cured by the opponent’s use of evidence similar to that to which he objected, unless he uses it in self defense to explain or rebut the original evidence. 1 Wigmore, Evidence (3d ed), § 18, p 345.

We choose to follow the Iowa rule and expand the "self-defense” exception noted by Wigmore. Our decision is based on a policy of furthering the practical resolution of trial court errors at trial.

A motion in limine to exclude evidence is eminently proper. Lapasinskas v Quick, 17 Mich App 733; 170 NW2d 318 (1969). When successful, it is the only realistic means by which an opponent of excludable evidence can avoid prejudice to his case. See Anno: Modern status of rules as to use of motion in limine or similar preliminary motion to secure exclusion of prejudicial evidence or reference to prejudicial matters, 63 ALR3d 311, 313. When the motion fails through an error by the trial court, the in limine procedure still serves a practical purpose. Knowing what the court plans by way of admission of testimony, the opponent can plan a strategy that will reduce the harmful impact of the court’s error such as the strategy of being the first to introduce the objectionable evidence, as adopted by defendant in this case. If the opponent’s tactics are successful, they may produce a verdict in his favor, despite the judge’s mistake. This practice serves all interests in the suit, including the court’s. It enhances the fairness of the trial, while reducing the risk that an erroneous ruling by the court will change the outcome of the suit, thereby necessitating a correction on appeal and possibly a new trial, which all entails more time and money. While we do not require defendants to mitigate the damage of court errors in this fashion, we should encourage them to do so.

Reversed and remanded for new trial.

       Similarly the new Michigan rules on impeachment by evidence of prior convictions apply to any "witness”. MRE 609.

       The only arguable references on cross-examination to the crime of accosting and soliciting were as follows:
      "Q [Mr. Damren, prosecutor]: Is your general practice to drive customers from the Rutland Manor place?
      "Q How many men were over at that location that evening?
      "A Men? I don’t know, I guess it was about 10 people there altogether.
      "Q How many people?
      "A Ten.
      "Q Ten. About how many men?
      "A About six.
      "Q Were those all the girls that were there?
      "A Well, a couple of girlfriends came in and left out, you know.
      "Q Who did they leave with?
      "Mr. Blank [defense counsel]: Objection.
      "A I don’t know.
      “Q How old is Patricia?
      "A Patricia? She is about 25,
      "Q How old is Delores?
      "A Delores? 32.
      "Q And I believe you are 18, is that correct?
      "A Uh-huh.

        "Q How long have you known Delores?
      "A About a couple of years.
      "Q How long have you known Patricia?
      "A About a year, I guess.
      "Q Did Delores introduce you to Mr. Harris?
      "A Yes.
      "Q At one of those get togethers?
      "MR. BLANK: Objection, relevancy.
      "THE COURT: Sustained. Well, no, I will overrule that. I suppose their relationship is germane, it goes — well, you may answer that question.
      "Was that at a get together?
      "THE WITNESS: That I met — well, no, it wasn’t exactly a get together. I just came over.
      "Q Had you taken John home on previous occasions?
      “MR. BLANK: Objection, relevancy.
      "THE COURT: No, that is overruled.
      "A No.”
      The only remark that seems prejudicial of its own force — the prosecutor’s reference to "customers” — was successfully challenged by defendant.

       We note, in summary disposition of the state’s argument on the point, that defendant has otherwise preserved his objection by specific, timely objection. See 22 Michigan Law & Practice, Trial, §§ 71-74, pp 255-262.

       See also People v Sanders, 394 Mich 439; 231 NW2d 639 (1975), holding People v Renno, 392 Mich 45; 219 NW2d 422 (1974), retroactively applicable only when the reference to prior misdemeanors occurred first on cross-examination, the negative implication of which is that Renno applies prospectively regardless of when the reference first occurs. But see People v Jackson, 77 Mich App 392; 258 NW2d 89 (1977), holding Renno inapplicable when the only mention of prior misdemeanors came from the defendant.

       The prosecutor in that case expressly referred to the witness’s arrest and conviction. See People v Renno, 392 Mich 45, 63-64; 219 NW2d 422, 429-30 (Coleman, J., dissenting).

       The author of the annotation states:
      "It is commonly understood by trial lawyers that prejudice implanted or stimulated in the minds of jurors can win trials, that objecting to the prejudicial material may only emphasize it, and that traditional 'curative’ actions taken by trial judges when prejudicial material is objected to are ineffective and unrealistic and may aggravate the potential harm. In order to avoid this dilemma, counsel has often sought to secure in advance the exclusion from trial of prejudicial evidence or other references to prejudicial matters by means of a preliminary motion, sometimes called a motion in limine.” 63 ALR3d 311. (Footnotes omitted.)


author: Per Curiam. T. M. Burns, J.

text:
    PEOPLE v HANEY
    Docket No. 77-1770.
    Submitted May 9, 1978, at Detroit.
    Decided October 3, 1978.
    Rebecca L. Haney was convicted of buying, receiving or aiding in the concealment of stolen property worth over $100, knowing the same to have been stolen, in Monroe Circuit Court, James J. Kelley, Jr., J. Defendant appeals. Held:

    The trial court erred in excluding evidence of the defendant’s conversations with the alleged seller of the stolen automobile on the basis of hearsay since the statements were offered to show the defendant’s lack of knowledge of whether the car was stolen and were, therefore, used to show the effect of such utterances on the hearer, not to prove its truth. The error was harmless and didn’t violate the defendant’s right to bring a defense since there was ample evidence from which the jury could infer the requisite guilty knowledge and the evidence would have been cumulative of the evidence placed before the jury. Defendant’s failure to object to the jury instructions precludes appellate review except where a miscarriage of justice would otherwise result.
    Affirmed.
    T. M. Burns, J., dissented and would hold that the trial court’s error in excluding the hearsay evidence of the conversations with the alleged seller deprived the defendant of an opportunity to fully present a defense, deprived the defendant of a fair trial, and, therefore, was reversible error.
    Opinion of the Court
    1. Evidence — Hearsay—Words and Phrases.
    Hearsay is testimony of an out-of-court statement used to prove the truth of the matters asserted therein; the crucial question is the purpose for which the statements are offered.
    References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 493, 497.
    [2, 5] 5 Am Jur 2d, Appeal and Error §§ 802, 803.
    [3] 5 Am Jur 2d, Appeal and Error §§ 623, 891.
    [4] 75 Am Jur 2d, Trial § 843-845.

      2. Appeal and Error — Criminal Law — Evidence—Hearsay— Knowledge — Effect on Hearer — Truth—Harmless Error— Guilty Knowledge — Cumulative Evidence.
    A trial court erred, in a trial for buying, receiving or aiding in the concealment of stolen property worth over $100, knowing the same to have been stolen, in excluding evidence of the defendant’s conversations with the alleged seller of the stolen automobile on the basis of hearsay where the statements were offered to show the defendant’s lack of knowledge of whether the car was stolen and were, therefore, used to show the effect of such utterances on the hearer, not to prove their truth; however, such an error was harmless and did not violate the defendant’s right to bring a defense where there was ample evidence from which the jury could infer the requisite guilty knowledge and where the evidence sought to be introduced by the defendant would have been cumulative of evidence placed before the jury.
    3. Appeal and Error — Preserving Error — Jury Instructions— Miscarriage of Justice.
    A defendant’s failure to object to the jury instructions at trial precludes appellate review of such instructions, except where a miscarriage of justice would otherwise result.
    4. Criminal Law — Trial—Jury Instructions — Court’s Duties — Circumstantial Evidence.
    A trial judge has no duty to sua sponte instruct the jury that when a case is based on circumstantial evidence the state must refute every theory consistent with innocence; such an instruction does not accurately reflect the state of the law in Michigan.
    Dissent by T. M. Burns, J.
    5. Appeal and Error — Evidence—Hearsay—Contested Issues — Opportunities for Defense — Fair Trial — Truth.

      A trial court’s error, in a trial for buying, receiving or aiding in the concealment of stolen property worth over $100, knowing the same to have been stolen, in excluding on hearsay grounds testimony which bears directly on the only contested issue, whether the defendant knew the car was stolen when she bought or received it, deprived the defendant of an opportunity to fully present a defense and, therefore, deprived the defendant of a fair trial, where the purpose of such testimony was to show that the defendant did not know the car was stolen and

      was not to prove the truth of the matters asserted in the conversations.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William P. Godfroy, Assistant Prosecuting Attorney, for the people.

      Barbara R. Levine, Assistant State Appellate Defender, for defendant on appeal.
    Before: Cynar, P.J., and T. M. Burns and D. C. Riley, JJ.
   Per Curiam.

Defendant appeals as of right from her February 1, 1977, conviction by a Monroe County jury of buying, receiving or aiding in the concealment of stolen property worth over $100, knowing the same to have been stolen. MCL 750.535; MSA 28.803. On March 10, 1977, she was sentenced to a term of two to five years imprisonment.

Defendant was a passenger in a 1971 Lincoln driven by Arthur Thomas when it was stopped for speeding on June 11, 1976. After defendant produced a registration slip bearing her name, the officer ran a check on the car’s license plates. This revealed that the plates were registered to Arthur Thomas for a 1968 Ford Mustang. Other discrepancies in the registration led the officer to run a vehicle identification number check on the car. These discrepancies included the absence of a validation stamp, extraneous letters in the identification number and an imprecise description of the make of the car. Furthermore, it was pointed out at trial that the fees listed on the registration were too high and that it was incorrectly marked "tax exempt”. The vehicle identification number check indicated that the car was reported stolen on June 1, 1976. On the basis of this evidence, defendant was arrested.

At trial the owner of the car, Joseph Brooks, testified that the car was stolen from the parking lot of an Ann Arbor shopping center on June 1, 1976. He also testified that when the car was returned to him he noted that his key no longer fit the ignition.

The prosecution also called Joseph Giljum, a used car sales manager, to testify. He appraised the Lincoln at $3400 wholesale and $4200 retail. He also stated that there was a lot of flexibility in car prices and that $1500 was not much of a variance for a car such as that involved herein. In response to a prosecution question as to whether $1500 was a fair market price for the car, he replied that it was "more than fair, it’s very cheap”.

Defendant took the stand in her own defense and gave the same explanation that was given to the arresting officers. She testified that she and Mr. Thomas saw the automobile in a Highland Park parking lot with a "For Sale” sign on it. They stopped and talked to the purported owner, Rufus Williams. On June 4, 1976, she paid $1500 for the car. She testified that the transfer took place in the Secretary of State’s Office in Highland Park. There, she claimed to have paid Williams the money, signed some papers and received the registration and a handwritten receipt. She also testified that she was told by Williams that the title would come in the mail. She added that after the purchase Williams removed the license plates from the car; so she took a plate from Thomas’s car and placed it on the Lincoln. The whereabouts of Rufus Williams is unknown, as defendant never obtained his address or phone number.

Defendant claims that the trial court erred in sustaining prosecution objections to the introduction of evidence of defendant’s conversations with the alleged seller of the car. These conversations, which apparently involved price negotiations and matters relating to the transfer of the automobile, were excluded on the basis of hearsay. Each of these objections followed a statement by defendant as to what Williams had allegedly told her.

Hearsay is testimony of an out-of-court statement used to prove the truth of the matters asserted therein. People v Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973) (opinion of T. E. Brennan, J.). See also MRE 801(c). On their face, statements of what another person said at some prior point in time would appear to be hearsay, absent any applicable exception to the hearsay rule. The crucial question, of course, is the purpose for which the statements are offered. Defendant contends that the statements here were offered to show her lack of knowledge of whether the car was stolen. She contends that evidence of price negotiations would show the reason for the car’s low price, that evidence of her conversations with Williams would explain why she was ignorant of the discrepancies in the registration and that evidence of her conversations with Williams after the transaction would shed light on the matter of the license plates.

We agree with defendant’s contention that evidence of statements made by others may have some bearing upon the question of knowledge or lack thereof. Obviously, one’s knowledge is affected by the statements of others. In such situations the utterance is used to show the effect on the hearer, not to prove its truth. McCormick, Evidence (2d ed), § 249, pp 589-590, People v Cameron, 52 Mich App 463, 466; 217 NW2d 401 (1974). It was thus error for the trial judge to exclude these statements.

Defendant further contends that this error violated her right to present a defense, citing Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973). That case involved a confession by another which was excluded on the basis of hearsay. There, the excluded evidence, if believed, would have provided a complete defense to the crime. Such is not the case here. Even accepting as true defendant’s allegations as to the substance of the excluded testimony, there was ample evidence from which the jury could infer the requisite guilty knowledge.

Moreover, this Court fails to see what could have been added by defendant which would not have been cumulative of the evidence placed before the jury. Defendant explained that her companion’s license plates had been put on the car because Williams had removed his. Her ignorance of the false validation or the registration was explained by her failing to accompany Williams to the counter in the crowded Secretary of State’s office. Any inference to be drawn from the prosecution’s expert witness’s characterization of the purchase price as "cheap” were substantially rebutted by his own testimony, indicating that a $1500 variance from $3400 wholesale price was not that much. Therefore, on the basis of the above, we hold that the exclusion of the statements constituted harmless error and that defendant’s right to bring a defense was not violated.

Defendant also contends that certain portions of the jury instructions constituted reversible error. However, no objections were made to any of the instructions. Thus, this issue was not preserved for review. GCR 1963, 516.2; People v Sherman Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977).

There is an exception to the "no objection, no review” rule when a miscarriage of justice would otherwise result. Hall, supra, 462. However such is not the case here. Contrary to defendant’s contention, the trial judge has no duty to sua sponte instruct the jury that when a case is based on circumstantial evidence, the state must refute every theory consistent with innocence. People v Blackwell, 61 Mich App 236, 243; 232 NW2d 368 (1975). Furthermore, we agree that such an instruction does not accurately reflect the state of the law. See People v Edgar, 75 Mich App 467, 472-474; 255 NW2d 648 (1977). Nor do we find authority in support of defendant’s contention that the instructions for this offense must reflect a theory of either "buying”, "receiving” or "aiding in concealment”. Assuming arguendo that such a choice must be made, the instruction on "aiding in concealment” was proper, since the information listed the date of the arrest, not the date of the alleged purchase, as the date of the offense. Finally, the trial judge’s review of the evidence was not so' biased as to warrant reversal. Although it is unwise to summarize some facts as "alleged”, while noting others in more absolute terms, in this instance any error was cured by other instructions indicating that the jury should disregard anything said by the trial judge that could be construed as an opinion.

Affirmed.

T. M. Burns, J.

(dissenting). The question in this case is the extent of the error in excluding, on hearsay grounds, testimony which bears directly on the only contested issue below — whether defendant knew the car was stolen when she bought or received it. We all agree that error occurred. My review of the record convinces me the error deprived defendant of the opportunity to fully present her defense, and thus deprived her of a fair trial.

The two lines of inquiry in question involved conversations with the seller during price negotiations and during the transfer of funds and receipt of registration at the Secretary of State’s office. See footnote 1 of the majority opinion. In each case, the trial court limited the testimony on the basis of hearsay. Since the purpose of this testimony was not to prove the truth of the matter asserted in the conversations, but rather, to show that defendant did not know the car was stolen, the trial court erred in excluding it. People v Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973) (opinion of T. E. Brennan, J.), People v Cameron, 52 Mich App 463; 217 NW2d 401 (1974). In my view, the error was sufficiently prejudicial to warrant reversal.

The prosecution argued that defendant’s explanation of how she acquired this car was unreasonable and that the jury should infer that defendant knew the car was stolen from the facts and circumstances. However, only a part of the facts and circumstances had been presented, those supporting the prosecutor’s theory. All the defense was allowed to show was defendant’s claim that she had paid $1,500 for a Continental Mark III.

The heart of the defense was showing that defendant, from her inexperience, believed the amount paid was reasonable and that nothing in the documents received from the Secretary of State’s office should have led her to the opposite conclusion. The improperly excluded evidence would bear directly on these points. By excluding the testimony, the court deprived defendant of a large part of her defense. See, Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973).

I would reverse.

       She tried to testify as follows:
      "Q [Mr. Nordstrom, defense attorney] And did he indicate a price to you?
      "A Yes.
      "Q And what was the price that he first indicated to you?
      "A Well, the very first price — he said he was trying to get twenty-five * * * .
      "MR. VITALE [Chief Assistant Prosecuting Attorney]: Objection your Honor. I believe that would probably be hearsay as to what he indicated to her.
      "THE COURT: Objection sustained.
      "Q (By Mr. Nordstrom) Miss Haney, did this individual who has come to be known as Rufus Williams, indicate a price to you?
      "MR. VITALE: Objection again.
      “MR. NORSTROM: Your Honor, I’m not asking what the price was. I’m asking if he indicated a price to her.
      "A (By the witness) Yes, he did.
      "THE COURT: Don’t answer where there’s an objection. It’s still hearsay. Objection sustained.
      "Q And then how did you get into contact with him?
      "A Well, at first — he called me at my home and I gave him my number because he said that he didn’t have a phone, so I gave him my number to call me the next day at my home. He called at the house and I told him I had some money but it wasn’t what he had asked for.
      "MR. VITALE: I’m going to object to that hearsay, Judge.
      "THE COURT: Miss Haney, don’t tell us what somebody else told you.
      "Objection sustained, at this stage at least.
      "Q Now when you got to the Secretary of State’s Office, what happened then?
      "A We went in, he and I went inside, and there was a line, and I was standing in the line with him until he told me that I could go sit down.
      "MR. VITALE: Objection.

        "THE COURT” Miss Haney, I told you not to tell us what was told to you by this Mr. Williams. Keep that out of your testimony. It’s hearsay.
      "Q And after he gave you the receipt, what did you do then?
      "A After I gave him — after he gave me the receipt for the money we both left the Secretary of State and went outside.
      "Q Then what happened?
      "A At that point we both got into the car, and he asked me would I drop him off at Dexter — on Dexter, and I told him yes, so I dropped— when we got to Dexter he got out of the car and said that he wanted to * * * .
      "MR. VITALE: I’ll object, your Honor. Hearsay.
      "Q (By Mr. Nordstrom) Miss Haney again don’t tell us what Mr. Williams said to you.”


author: Per Curiam. Bashara, J.

text:
    CASSIDY v McGOVERN
    Docket No. 77-2507.
    Submitted May 4, 1978, at Grand Rapids.
    Decided October 3, 1978.
    Leo T. Cassidy was injured in a collision between his car and an automobile owned by Seaton Industries, Inc., and driven by Terrance McGovern. Leo and his wife, Ardith M. Cassidy, brought an action for damages under the automobile no-fault act. Prior to trial, defendants admitted liability, reserving for trial only the issues of damages and whether plaintiffs met the threshold requirement of serious impairment of body function or permanent serious disfigurement under the no-fault act. The jury returned a verdict of no cause of action. Judgment for defendants, Emmett Circuit Court, Martin B. Breighner, J. Plaintiffs appeal, raising several issues. Held:

    The question of serious body impairment can either be a question of law or of fact under the no-fault act. If a trial judge denies a motion for a directed verdict and sends the issue to the jury under the mistaken belief that he cannot determine the issue as a matter of law, he has used an erroneous standard and the case should be remanded.
    Remanded for further proceedings.
    Bashara, J., concurred, except he would hold that the question of whether plaintiffs met the threshold requirements of the no-fault act was properly submitted to the jury.
    Opinion of the Court
    References for Points in Headnotes
    [1, 6] 75 Am Jur 2d, Trial § 654.
    [2, 3, 12] New Topic Service, No-Fault Insurance §§ 1 et seq.

    [4] 75 Am Jur 2d, Trial § 714.
    [5] 5 Am Jur 2d, Appeal and Error §§ 624, 625.
    [7] 75 Am Jur 2d, Trial § 256.
    [8] 8 Am Jur 2d, Automobiles and Highway Traffic § 975.
    29 Am Jur 2d, Evidence § 785 et seq.

    [9] 29 Am Jur 2d, Evidence § 251.
    [10] 5 Am Jur 2d, Appeal and Error § 622.
    [11] 75 Am Jur 2d, Trial § 608.

      1. Trial — Instructions to Jury — Requested Instructions — Party’s Theory — Refusal to Give — Appeal and Error.
    A trial court does not err in refusing to charge as to a particular party’s theory of another case.
    2. Automobiles — Insurance—No Fault — Torts—Serious Bodily Impairment — Jury Question — Legal Question.
    The question of whether a particular impairment satisfies the threshold requirement of the no-fault act for a serious impairment of bodily function is not always a question for the fact finder; there are cases in which the trial court can rule, as a matter of law, that a plaintiff’s injury is so minor that it fails to reach the threshold of a serious impairment; there are also cases in which, as a matter of law, the threshold of a serious impairment is reached by the very nature of the injury, and where reasonable minds could not differ on the question of whether the threshold is met and where the trial judge should not give the issue to the jury for determination.
    3. Automobiles — Insurance—No Fault — Torts—Serious Body Impairment — Jury Question — Legal Question — Use of Erroneous Standard — Remand.
    The question of serious body impairment under the no-fault act can either be a question of law or of fact; where a trial judge misinterpreted this rule and thought he was forced to send the issue to the jury and denied a motion for a directed verdict because he did not perceive the possibility of determining the issue as a matter of law, he used an erroneous standard and the cause should be remanded with instructions that he is not forced in all circumstances to send the issue of serious impairment to the jury and may grant a directed verdict if the nature of the injury complained of was such as to meet the threshold of a serious impairment as a matter of law.
    Concurrence in Part, Dissent in Part by Bashara, J.
    4. Trial — Instructions to Jury — Statutes—Appeal and Error.

      It is not necessarily error to refuse to mention the existence of a statute in charging a jury provided the judge states the law as embodied in the statute.

    5. Appeal and Error — Comments of Counsel — Failure to Object-Manifest Injustice.

      Failure to object to opposing counsel’s allegedly improper argument to a jury precludes appellate review in the absence of manifest injustice.

      6. Trial — Instructions to Jury — Theory of Case — Ambiguous Theory — Inapplicable Theory.

      A trial court does not err in refusing to charge as to a particular party’s theory of another case, especially where the theory may be ambiguous or inapplicable.

    7. Trial — Insurance—Instruction to Jury — Reference to Insurance — Statutes.

      An instruction to a jury to disregard any consideration of insurance is not an abuse of trial court discretion because references to an insurer or the question of carrying insurance during trial is prohibited by both statute and common law; the instruction is also proper where the existence of insurance is totally irrelevant to the issues involved (MCL 500.3030; MSA 24.13030).

    8. Evidence — Photographic Evidence — Automobiles—Trial—Admissibility — Prejudice.

      Photographic evidence of vehicles subsequent to a collision can properly be excluded from trial where the evidence has little relevance, and there is a danger of undue prejudice.

    9. Evidence — Determination of Relevancy — Admissibility—Judge’s Discretion — Abuse of Discretion — Appeal and Error.

      Relevancy and admissibility of evidence are matters within the discretion of a trial court and the Court of Appeals will not reverse unless there is a clear abuse of that discretion.

    10. Appeal and Error — Judge’s Trial Statements — Judge’s Trial Decisions — Judge’s Discretion — Abuse of Discretion — Manifest Injustice.

      Failure to object or to move for a mistrial on the basis of a judge’s trial statements, decisions, or the conduct of a trial, precludes reversal by the Court of Appeals except where there is a clear abuse of discretion on the part of the trial judge or manifest injustice can be shown.

    11. Instructions to Jury — Judge’s Discretion — Manner and Style.

      A trial judge is allowed great discretion in the manner and style of his charges to a jury.

    12. Automobiles — Insurance—No Fault — Torts—Serious Bodily Impairment — Jury Question — Legal Question.

      The question of whether a particular impairment satisñed the threshold requirement of the no-fault act for a serious impairment of bodily function generally is submitted to the trier of fact to determine whether a particular injury is serious or

      permanent; where legal interpretation of these no-fault terms approaches or breaches permissible limits, the interpretation becomes a question of law for the court; however, where it cannot be said with any conñdence that interpretation of the term "serious impairment of body function" approaches or breaches the permissible limits, the question is properly submitted to the jury.

      John D. Hayes, for plaintiffs.

      Gillett & Carpenter, for defendants.
    Before: D. E. Holbrook, Jr., P.J., and Bashara and R. M. Maher, JJ.
   Per Curiam.

The concurrence/dissent adequately states the facts in this case and satisfactorily disposes of most of the issues facing us. We differ on two points, however. Plaintiffs in this case argue that the trial court erred in refusing to include in its instructions the holding of McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). As our brother does, we reject plaintiffs’ argument basically because a "trial court does not err in refusing to charge as to a particular party’s theory of another case”. But in discussing McKendrick, we must not de-emphasize the language concerning "particular body function”. While the language is not part of the holding of the case, it does have a significance which our brother seems to deny.

The choice of the words "particular body function” was not inadvertent: the McKendrick Court interpreted the statute as not requiring impairment of the total body function, e.g., through a life-sustaining organ such as the heart or liver. The Court chose the word "particular” to suggest that impairment of one specific body function comes within the ambit of the statute. The very nature of the impairment at issue in McKendrick, tendonitis of the biceps tendon of plaintiff’s right arm, implies that the Court was referring to a particular body function, not simply "body function”. Although not the holding of the case, we believe it is one of its important implications and should not be obscured.

On a second issue we differ more fundamentally with our brother. Plaintiff argued that as a matter of law he satisfied the threshold requirement of the no-fault act for serious impairment of bodily function. He therefore moved for a directed verdict. In denying the motion, the trial judge stated:

"Mr. Hayes [plaintiffs’ attorney], the McKendrick case defeats your argument. It is very clear in the McKendrick case that the Court has decided that the issue of serious impairment of body function is a fact question for the jury, and your motion is denied.”

McKendrick does not conclude that every question of whether a particular impairment falls under the act must be submitted to the fact finder. In Vitale v Danylak, 74 Mich App 615; 254 NW2d 593 (1977), this Court, consistent with McKendrick, allowed a trial judge to rule by summary judgment that plaintiff’s injuries (a stiff neck) did not, as a matter of law, meet the standard of serious impairment of body function. The Vitale Court stated that no specific "permissible limits” had been drawn but that the Court was of the opinion that "if any class of cases could approach such limitation, the case at bar must be included in that class”.

Just as there is a class of cases, of which Vitale is representative, in which the trial court can rule as a matter of law that plaintiff’s injury is so minor that it fails to reach the threshold, so there is a class of cases in which, as a matter of law, the threshold of serious impairment is reached by the very nature of the injury, i.e., reasonable minds could not differ on the question of whether the threshold is met. In such a case, the trial judge should not give the issue to the jury for determination.

The trial judge in the instant case used an erroneous standard. He thought, because of a misinterpretation of McKendrick, that he was forced to send the issue to the jury. He did not perceive that McKendrick does not foreclose the possibility of the court determining as a matter of law that the threshold was reached. In denying plaintiffs’ motion for a directed verdict, the judge here was unaware of this alternative.

We therefore remand to the trial court with instructions to the judge that McKendrick does not force him in all circumstances to send the issue of serious impairment to the jury. He should recognize that he may grant a directed verdict for plaintiffs, if the nature of Leo Cassidy’s injury was such as to meet the threshold of serious impairment as a matter of law.

Bashara, J.

(concurring in part, dissenting in part). Plaintiffs appeal from a jury verdict of no cause for action. The suit arose from a claim, under the no-fault act, for damages sustained in an automobile collision. Plaintiff Leo Cassidy sustained complete breaks in both bones of his lower right leg, as well as other contusions and abrasions. Just prior to trial, defendants admitted fault, reserving for trial only the issues of threshold liability and damages. Plaintiffs raise several issues, which will be dealt with seriatim.

I

Plaintiffs claim the jury was misled and misinformed about the threshold tort requirement of the no-fault act. They argue that defendants’ argument and medical testimony showing that "serious impairment” requires permanency was erroneous. They also contend that the trial court’s instructions to the jury were not couched in statutory language but instead employed the objectionable phrase "serious impairment of a body function and/or permanent serious disfigurement”.

A review of the record reveals that when the jury returned for further instructions, the trial judge clarified any ambiguity as to whether serious impairment of body function requires permanency. He indicated that impairment need only be Serious, whereas disfigurement must be permanent and serious.

In Krisher v Duff, 331 Mich 699, 711; 50 NW2d 332 (1951), the Supreme Court stated:

" * * * it is not necessarily error to refuse to mention the existence of the statute provided the judge states the law as embodied in the statute.”

See also Lepley v Bryant, 336 Mich 224; 57 NW2d 507 (1953).

Plaintiffs failed to object to defense counsel’s allegedly improper argument, thereby precluding appellate review in the absence of a manifest injustice. In view of the trial court’s clarification of the issues for the jury, I find no manifest injustice.

Finally, I would also reject plaintiffs’ argument that the trial court erred in refusing to include in its instructions the holding of McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). The McKendrick Court concluded that the trial court erred in granting summary judgment on the grounds that plaintiff did not suffer serious impairment of body function by virtue of tendonitis in his right arm.

However, the "particular body function” language used in McKendrick does not appear to be the holding of the Court. The words were used only as an analogy relating to the existence of a material issue of fact relating to summary judgment. The Court clearly appeared to be distinguishing between impairment and serious impairment.

A trial court does not err in refusing to charge as to a particular party’s theory of another case. This is so especially where the theory may be ambiguous or inapplicable. Nowicki v Suddeth, 7 Mich App 503; 152 NW2d 33 (1967).

While the trial court’s initial instruction as to the threshold for serious impairment of body function may have been ambiguous, when the record is viewed as a whole, no reversible error was committed.

II

Plaintiffs contend the trial judge erred in refusing to advise the jury that defendants had limited immunity because they acquired and maintained proper security for payment. Further, that it was an abuse of discretion to instruct the jury to disregard any consideration of insurance.

MCL 500.3030; MSA 24.13030 does not appear to have been repealed by the no-fault act. That act provides that no reference be made to an insurer or to the question of carrying insurance during trial.

Even if the statute were considered to have been impliedly repealed by the no-fault act, mention of insurance coverage could be precluded based on the common law, Broitman v Kohn, 16 Mich App 400; 168 NW2d 311 (1969). See also Heuss v Rockwell Standard Corp, 495 F2d 1207 (CA 6, 1974).

In the case at bar, the existence of defendants’ liability insurance was totally irrelevant to the threshold damage issues. Consequently, the trial court’s refusal to allow any reference thereto was not erroneous.

Ill

1 likewise find no error in the trial court’s refusal to allow photographic evidence of the vehicles involved subsequent to the collision. The evidence had little relevance, since serious damage to an automobile does not always mean serious damage to its occupants. Considering the danger of undue prejudice, the evidence could properly be excluded, People v Surles, 29 Mich App 132; 185 NW2d 126 (1970), lv den, 385 Mich 764 (1971).

Relevancy and admissibility of evidence are matters within the trial court’s discretion. This Court will not reverse unless there is a clear abuse of that discretion, People v Amison, 70 Mich App 70; 245 NW2d 405 (1976), Carreras v Honeggers & Co, Inc, 68 Mich App 716; 244 NW2d 10 (1976).

IV

Plaintiffs argue that it was improper for the trial court to admonish the jury to disregard plaintiffs’ counsel’s first closing argument as to the legislative intent regarding the no-fault act; and that the court further erred in interpreting some of counsel’s arguments as a request to punish defendants. Plaintiffs failed to timely object or move for a mistrial. Secrist v Detroit, 299 Mich 393; 300 NW 137 (1941), Lucy v Dowd, 285 Mich 530; 281 NW 314 (1938).

Therefore, I would reverse on this ground only where there is such a clear abuse of discretion on the part of the trial judge that manifest injustice can be shown. Secrist, supra, and Lucy, supra.

A review of the record reveals that plaintiffs’ counsel attempted a rather extensive explanation of the no-fault statute. An attempt was made by counsel to interpret the words used in the statute in their "common meaning” for the benefit of the jurors. Not all of the argument was perhaps necessary or relevant. The trial judge is allowed great discretion in the manner and style of his charge to the jury. Pratt v Berry, 37 Mich App 234; 194 NW2d 465 (1971). Viewing the record as a whole, I cannot say that discretion was abused.

V

Plaintiffs finally argue that the injuries sustained by plaintiff Leo Cassidy qualify as a "serious impairment of body function” as a matter of law, and therefore, the trial judge erroneously denied a directed verdict as to the threshold requirement of the no-fault act.

The trial judge denied the motion, on the basis of McKendrick v Petrucci, supra. I cannot find reversible error on the part of the trial judge. However, I must respectfully observe that McKendrick did not conclude that every question of whether a particular impairment falls under the act must be submitted to the fact finder.

In Vitale v Danylak, 74 Mich App 615, 619; 254 NW2d 593 (1977), this Court interpreted McKendrick and the Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973) as follows:

"We do not read the language of the Supreme Court as a complete prohibition of the use of summary judgment whenever a 'serious impairment’ or 'permanent serious disfigurement’ is alleged in the pleadings. While we recognize that generally the trier of fact must make the qualitative decision of whether a particular injury is serious or permanent, it does not follow that the trial judge is in all cases precluded from consideration of those questions.”

It cannot be said with any confidence that, under the facts of the instant case, interpretation of the term, "serious impairment of body function” " * * * approaches or breaches permissible limits * * * ”. The question of whether plaintiffs met the threshold requirements of the no-fault act was properly submitted to the jury.

Conclusion

For the foregoing reasons, I believe that no reversible error was committed in the conduct of the trial. I also note that the recent Supreme Court opinion of Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), does not appear to invalidate any of the holdings of this opinion.

I would affirm with costs to defendants.

       MCL 500.3135(1); MSA 24.13135(1) states:
      “A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.”

       "Sec. 3030. In the original action brought by the injured person, or his or her personal representative in case death results from the accident, as mentioned in section 3006, the insurer shall not be made or joined as a party defendant, nor shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the course of trial.”


text:
    LEWALLEN v CITY OF NILES
    Docket No. 77-2531.
    Submitted June 14, 1978, at Grand Rapids.
    Decided October 3, 1978.
    Plaintiffs Noble F. Lewallen, Jane F. Lewallen, and others, brought suit to enjoin the City of Niles and Wolverine Sign Works from discharging surface waters upon their land. A temporary injunction was denied and the case set for trial. Before trial, the plaintiffs and the city reached an agreement allowing the city to be dismissed as a defendant. The Berrien Circuit Court, Zoe S. Burkholz, J., provided in its judgment that Wolverine be given 60 days in which to implement, at their cost, a plan to stabilize the erosive condition on plaintiffs’ land and, if such a plan was not carried out, defendant was to be enjoined from concentrating or increasing the volume or velocity of its water flowing into the ravine on plaintiffs’ land. Defendant was given reasonable access to plaintiffs’ land to carry out the plan. Plaintiffs were allowed to seek monetary damages for any further erosion incurred subsequent to the date of the judgment and the time of implementation of the plan or injunction. Defendant appeals. Held:

    The record, common sense, and the law fully support the trial court’s grant of relief. Wolverine placed a greater burden on the servient estate than would have occurred naturally where Wolverine changed the grade of the land, paved a road so that it acted as a flume directing the water into a ravine on the plaintiffs’ land, and removed the vegetation, thus getting water into the ravine faster and with greater force.
    Affirmed.
    1. Waters and Watercourses — Natural Flow — Real Property— Dominant Estates — Servient Estates.
    The owner of a lower or servient estate must accept the surface water from the upper or dominant estate in its natural flow.
    References for Points in Headnotes
    [1-3] 78 Am Jur 2d, Waters §§ 10 et seq., 119 et seq., 128 et seq.

    Modern status of rules governing interferences with drainage of surface waters. 59 ALR2d 421.
    [3] 5 Am Jur 2d, Appeal and Error § 822.

      2. Waters and Watercourses — Real Property — Dominant Estates —Changing Conditions — Servient Estates — Surface Water.
    The owner of a dominant estate may not, by changing conditions on his land, put a greater burden on the servient estate by increasing and concentrating the volume and velocity of the surface water; the owner of the dominant estate has a duty to place no greater burden on the servient estate than would occur naturally.
    3. Appeal and Error — Court of Appeals — Equity—De Novo Review — Findings of Trial Court — Surface Waters — Real Property.
    The Court of Appeals reviews an equity case involving the discharge of surface waters upon real property de novo but accords great consideration to the findings of the trial court.

      Drew & Drew, for plaintiffs.

      Warner, Norcross & Judd (by John H. Logie), for defendant.
    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.

   Per Curiam.

Plaintiffs, three landowners in the City of Niles, brought this suit in October of 1975 to enjoin the defendants, City of Niles and Wolverine Sign Works, from discharging surface waters upon their land. A temporary injunction was denied and the case set for trial.

Before trial, plaintiffs and the city reached an agreement allowing the city to be dismissed as a defendant. The city agreed to divert the flow of certain storm sewers away from plaintiffs’ land.

The dispute continued between plaintiffs and Wolverine Sign Works. Wolverine owns land across a public street and higher than plaintiffs’ land. Wolverine is in the process of developing a subdivision, Westfield Farms No. 2, on property which was formerly farmland. The process of development has included grading the property, removal of substantially all of the vegetation, removal of a concrete collection box for water at the base of the drainpipe, and the paving of a road, Kensington. This development occurred after the suit was begun and after the temporary injunction was denied.

A ravine exists on plaintiffs’ property. This ravine has acted as the natural drainage point of the land now owned by Wolverine for some time. A 20-inch pipe carries the water collecting at the corner of Wolverine’s land under Wells Street and dumps it into the ravine on plaintiffs’ property. Since the development of Wolverine’s property began, there has been extensive and damaging erosion in the ravine. Although the pipe has emptied into the ravine for some time, the erosion damage is of fairly recent vintage and accelerating.

There is and has been no real dispute about the rules of law applicable to this suit. The owner of the lower or servient estate must accept surface water from the upper or dominant estate in its natural flow. By the same token, the owner of the dominant estate may not, by changing conditions on his land, put a greater burden on the servient estate by increasing and concentrating the volume and velocity of the surface water. Bennett v County of Eaton, 340 Mich 330; 65 NW2d 794 (1954), Emerald Valley Land Development Co v Diefenthaler, 35 Mich App 346; 192 NW2d 673 (1971), lv den, 386 Mich 770 (1971), and cases collected therein.

The trial court heard the testimony, including expert testimony, of both parties and issued a lengthy opinion. In her factual conclusion she stated:

"* * * that under the past circumstances (prior to improvements) the erosive effect of Defendant’s water had stabilized and there was no erosion; that the present existing conditions increased the flow and velocity of Defendant’s water on Plaintiffs’ land causing erosion and causing plaintiffs’ ravine to be in a present unstable condition; that the future effect of Defendant’s planned development will increase the flow and velocity of Defendant’s water on Plaintiffs’ land even more and more erosion will result; that the problems arose because of poor subdivision drainage design which allows too much of Defendant’s water too fast to go upon Plaintiffs’ land, and that proper design or present corrective measures could stabilize Plaintiffs’ present erosive conditions.”

In the judgment which followed, defendant was given 60 days in which to implement a plan to stabilize the erosive condition on plaintiffs’ land and, if such a plan was not carried out, defendant was to be enjoined from increasing the volume or velocity of its water flowing into the ravine. Defendant was given reasonable access to plaintiffs’ land to carry out the plan. Plaintiffs were allowed to seek monetary damages for any further erosion incurred subsequent to the date of the judgment and the time of implementation of the plan or injunction. Wolverine was not enjoined from carrying out its development or completing the subdivision. It was merely stopped from destroying plaintiffs’ land in the process and bearing the cost of any plan which was necessary to achieve that result.

We review this type of case de novo, but give great consideration to the findings of the trial court. Bennett v County of Eaton, supra. The trial court’s grant of relief was fully justified in this case. The record, common sense, and the law fully support her ruling. Changing the grade of the land, paving a road so that it acts as a flume directing the water into the ravine, and removing the vegetation would all tend to get more water to the ravine faster and with greater force. This is exactly what cannot be done. Wolverine had a duty to place no greater burden on the servient estate than would occur naturally.

Affirmed. Costs to appellee.