text:
    HORTON v CITY OF KALAMAZOO
    1. Municipal Corporations — Credit—Private Purpose — Taxing Power' — Public Purposes — Constitution.
    The Michigan Constitution forbids a city to loan its credit for a private purpose, or to exercise its taxing power for anything but public purposes; public funds cannot be used to further a private enterprise (Const 1963, art 7, §§ 21, 26).
    2. States — Municipal Corporations — Legislative Acts — Government Powers — Public Purpose.
    The state and its political subdivisions are limited to such legislative acts and such governmental powers as exhibit a public purpose.
    3. Municipal Corporations — Police Power — Proper Purpose.
    The protection of the public from illegal activity is a proper purpose for the exercise of the police power.
    4. Municipal Corporations — Legislative Body — Actions—Presumptions.
    The actions of a municipal legislative body enjoy a presumption of validity.
    5. Constitutional Law — Public Purpose — Courts—Legislative Determinations.
    The courts are especially deferential toward legislative determinations of public purpose since a determination of what constitutes a public purpose involves considerations of economic and social philosophies and principles of political science and government that should be made by the elected representatives of the people.

      References for Points in Headnotes
    [1, 2, 5] 56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 588-591.

       56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 229, 230.

       56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 438-442.

       56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions § 502.

       56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions § 230.

       5 Am Jur 2d, Appeal and Error § 612.

      6. Municipal Corporations — Expenditures—Public Purpose — Private Parties — Benefits—Cost.
    An expenditure serves a public purpose, even if private párties also profit from it, where the likely benefits of the expenditure to the community outweigh its likely cost; payments made to private parties may serve a public purpose.
    7. Municipal Corporations — Employer-Employee—Reimbursement —Matters of Interest to City — Personal Benefit.
    A city may properly reimburse an employee for expenses incurred in presenting the city’s case to a decision-maker on a matter of undoubted interest to the city where there is no apparent prospect of personal benefit to the employee himself.
    8. Appeal and Error — Issues Not Heard in Lower Court.
    A claim may not be reviewed for the first time on appeal where it was not the subject of a ruling by the court below.
    Appeal from Kalamazoo, Raymond W. Fox, J.
    Submitted December 8, 1977, at Grand Rapids.
    (Docket No. 77-1376.)
    Decided January 24, 1978.
    Complaint by Jeffrey B. Horton against the City of Kalamazoo, several individual members of the City Commission of the City of Kalamazoo, three city attorneys, and a city police officer seeking to enjoin the city from providing funds and services for expenses incurred by the police officer in suits brought by him to abate public nuisances, and for an accounting and restitution. Summary judgment for defendants. Plaintiff appeals.
    Affirmed.

      Holman, Pelletier & Horton, for plaintiff.

      Morris & Culver, P. C, for defendants.
    Before: Danhof, C. J., and T. M. Burns and M. J. Kelly, JJ.
   Per Curiam.

Defendant city, through its city commission, furnished legal counsel to defendant Fouts, a city police officer, and agreed to pay his costs in three actions brought by Fouts in the name of the state under the padlock law, MCLA 600.3805; MSA 27A.3805, to abate public nuisances. Plaintiff sued to enjoin the providing of funds and services, sought restitution and an accounting. The trial court held that the expenditures were for a public purpose. From its grant of summary judgment in favor of the defendants, plaintiff appeals.

The Michigan Constitution forbids a city to loan its credit for a private purpose, Const 1963, art 7, § 26, or to exercise its taxing power for anything but public purposes, Const 1963, art 7, § 21. The state and its political subdivisions are limited to "such legislative acts and such governmental powers as exhibit a public purpose”. Gaylord v Gay-lord City Clerk, 378 Mich 273, 295; 144 NW2d 460 (1966). Public funds cannot be used to further a private enterprise. McManus v Petoskey, 164 Mich 390, 395; 129 NW 681 (1911), Skutt v Grand Rapids, 275 Mich 258; 266 NW 344 (1936). But what constitutes a public purpose cannot be precisely defined; to a considerable extent each case has to be decided on its own facts. Gregory Marina, Inc v Detroit, 378 Mich 364, 393; 144 NW2d 503 (1966) (opinion by T. M. Kavanagh, C. J.), 2 McQuillin, Municipal Corporations (3d ed), § 10.31, pp 817-818.

The actions brought by Fouts with the city’s assistance are intended to abate alleged nuisances which are claimed to be the scenes of illegal activity. "It cannot be doubted that the protection of the public from illegal activity is a proper purpose for the exercise of police power”. Tally v Detroit, 54 Mich App 328, 336; 220 NW2d 778 (1974).

The actions of a municipal legislative body enjoy a presumption of validity. Id. at 335, Watnick v Detroit, 365 Mich 600, 606; 113 NW2d 876 (1962). The courts are especially deferential toward legislative determinations of public purpose, "[f]or determination of what constitutes a public purpose involves considerations of economic and social philosophies and principles of political science and government. Such determinations should be made by the elected representatives of the people”. Gregory Marina, Inc v Detroit, 378 Mich 364, 394; 144 NW2d 503 (1966) (opinion by T. M. Kavanagh, C. J.), see 2 McQuillin, supra, § 10.31, p 817. Justice O’Hara’s opinion in Gregory Marina went even further: "In Michigan, constructing and operating a marina is a 'public purpose’ because the legislature, whose business it is, said so”. 378 Mich at 406. Long ago Justice Cooley, in The People ex rel The Detroit & Howell R Co v The Township Board of Salem, 20 Mich 452, 475; 4 Am Rep 400 (1870), stated:

"I do not understand that the word public, when employed in reference to this power, is to be construed or applied in any narrow or illiberal sense, or in any sense which would preclude the Legislature from taking broad views of State interest, necessity or policy, or from giving those views effect by means of the public revenues. Necessity alone is not the test by which the limits of State authority in this direction are to be defined, but a wise statemanship must look beyond the expenditures which are absolutely needful to the continued existence of organized government, and embrace others which may tend to make that government sub-serve the general well-being of society, and advance the present and prospective happiness and prosperity of the people.” (Emphasis in original.)

Since that time the trend in Michigan and nationally has been toward an even more flexible concept of public purpose. Gaylord v Gaylord City Clerk, supra, at 299, 2 McQuillin, supra, § 10.31, p 818.

Although the nuisance abatement suits brought by Fouts are nominally the actions of a private individual, that does not in itself preclude a finding that the city’s assumption of their costs serves a public purpose. So far as the record reveals, the benefits of successfully prosecuting the suits would inure to the citizens of Kalamazoo generally, not just to Fouts. If the likely benefits of an expenditure to a community outweigh its likely costs, the expenditure serves a public purpose even if private parties also profit from it. Gaylord v Gaylord City Clerk, supra, at 296-297. Payments made to private parties may serve a public purpose. An example is Hays v Kalamazoo, 316 Mich 443; 25 NW2d 787; 169 ALR 1218 (1947), where the Supreme Court held that it served a public purpose for the City of Kalamazoo to join and pay dues to the Michigan Municipal League, a private association set up to lobby for municipal interests. Even closer to the situation at hand is Meehan v Parsons, 271 Ill 546; 111 NE 529 (1916), cited approvingly in Hays, supra, at 463, in which a city reimbursed its mayor for expenses incurred in traveling to Washington to seek Federal aid for the construction of levees. There, as here, a city properly reimbursed an employee for expenses incurred in presenting the city’s case to a decision-maker on a matter of undoubted interest to the city but offering no apparent prospect of personal benefit to the employee himself.

On appeal, plaintiff advances for the first time the argument that the nuisance abatement suits were not brought in the name of the real party in interest, contrary to MCLA 600.2041; MSA 27A.2041 and GCR 1963, 201.2. We do not pass on that issue because it is untimely raised. Cook v Casualty Ass’n of America, 246 Mich 278, 280-281; 224 NW 341 (1929), American Electrical Steel Co v Scarpace, 399 Mich 306, 309; 249 NW2d 70 (1976), Three Lakes Association v Whiting, 75 Mich App 564, 575; 255 NW2d 686 (1977).

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v McCLAIN
    Criminal Law — Plea of Guilty — Withdrawal of Plea — Liberality —Abuse of Discretion.
    A trial court should construe with great liberality the request of a defendant to withdraw his plea of guilty prior to sentencing where the defendant advises the court that he is not guilty; refusal of a trial court to allow a defendant to withdraw his guilty plea was an abuse of discretion where the defendant explained that he pled guilty only because of the influence of his counsel, that he did not commit the crime, and that he wanted the police to investigate the crime and discover the perpetrator.
    Appeal from Recorder’s Court of Detroit, Clarence Laster, Jr., J.
    Submitted February 11, 1977, at Detroit.
    (Docket No. 28551.)
    Decided April 5, 1977.
    James J. McClain was convicted, on his plea of guilty, of second-degree murder. Defendant appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training & Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

      Lawrence S. Strauss, for defendant on appeal.
    References for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 491, 503-506.
    Comment note. — Right to withdraw guilty plea in state criminal proceeding where court refuses to grant concession contemplated by plea bargain. 66 ALR3d 902.

      Before: M. J. Kelly, P. J., and J. H. Gillis and R. M. Maher, JJ.
   Per Curiam.

Defendant, charged with first-degree murder, MCLA 750.316; MSA 28.548, pled guilty on January 22, 1976, before the late Judge Donald S. Leonard to the offense of second-degree murder, MCLA 750.317; MSA 28.549, pursuant to a plea bargain. On February 6, 1976, defendant was brought before Judge Clarence Laster for sentence. Defendant was advised that Judge Leonard was ill and that Judge Laster was going to pronounce sentence. Defendant and his counsel then asked that defendant be allowed to withdraw his plea of guilty and proceed to trial. It is rather obvious from a reading of the transcript that defendant and his counsel were displeased with the fact that defendant was not going to be sentenced by Judge Leonard whom they considered to be a lenient sentencer. Defendant then went on to explain to the court that the only reason that he pled guilty was becáuse of the influence of his counsel; that he did not commit the crime; and that he wanted the police department to investigate the crime and "see who did it”. The trial court declined to allow defendant to withdraw the plea and proceeded to sentence him.

No authority need be cited for the proposition that the trial court should construe with great liberality the request of the defendant to withdraw his plea prior to sentence when the defendant advises the court that he is not guilty. It was an abuse of discretion on the part of the trial court to refuse the withdrawal of this plea.

Reversed and remanded for trial on the original charge of first-degree murder.


text:
    PEOPLE v LEONARD
    1. Criminal Law — Cruelty to Children — Evidence—Weight of Evidence.
    A verdict of guilty of cruelty to children was not against the great weight of the evidence where the defendant and the child’s mother both testified that the defendant had spanked his own two children with a belt, medical and photographic evidence showed that the spanking in this instance was more like a beating, and the defendant testified that he had spanked the child the same as he did his own children, but for a longer period of time.
    2. Criminal Law — Cruelty to Children — Evidence—Photographs —Probative Value.
    Photographs showing the extent of a beating of a child in a trial for cruelty to children were properly admitted into evidence where the photographs were not gruesome and where they were of probative value because the extent of a "spanking” administered by the defendant was strongly contested.
    3. Criminal Law — Statutes—Cruelty to Children — Constitutional Law — Equal Protection — Custodianship.
    A statute which provides for the posting of bond in exchange for a suspended sentence for a person convicted of cruelty to children and which creates classifications based upon permanent versus temporary custodianship of a child is rational, reasonable, and is constitutional (MCLA 750.136; MSA 28.331).
    4. Criminal Law — Evidence—Statements of Defendant — Walker Hearing — Witnesses—Reversible Error.
    It is error for a trial court to refuse to hold a Walker hearing to determine the admissability of statements made by a defendant where the defendant moves for such a hearing before trial; however, a trial court’s refusal to hold a hearing which was requested on the day before trial was not reversible error where testimony of police witnesses regarding the defendant’s statements was merely cumulative of the defendant’s testimony, the police testimony was brief, did not refer to defendant’s statements as confessions, the witnesses were cautioned not to mention statements by a former codefendant, and the defendant’s testimony elaborated upon the statements testified to by the witnesses.

      References for Points in Headnotes

       30 Am Jur 2d, Evidence §§ 1080-1090.

       30 Am Jur 2d, Evidence § 1105.

       [No reference]

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

      Appeal from Livingston, Bert M. Hensick, J.
    Submitted January 10, 1978, at Lansing.
    (Docket No. 77-1322.)
    Decided January 30, 1978.
    Gary G. Leonard was convicted of cruelty to children. Defendant appeals.
    Affirmed.

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

      David M. Hartsook, for defendant on appeal.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of cruelty to children, MCLA 750.136; MSA 28.331. He appeals and we affirm.

Defendant raises four issues, which we deal with seriatim.

Defendant phrases his first argument in terms of sufficiency of the evidence, but argues it in terms of weight of the evidence.

The evidence clearly meets the sufficiency test. As for the weight of the evidence, defendant admitted spanking the three-year-old child he was babysitting for, but suggests that the child’s mother may have herself administered the beating which resulted in severe bruises, after she had returned home with the child. There wasn’t any testimony that the mother had administered any beating. Although both defendant and the mother testified that the mother had seen defendant spank his own children with a belt and had told defendant to spank her child if the child behaved badly, medical and photographic evidence in the present case showed that the spanking was more like a beating. Defendant testified that he had spanked the child the same as his own children, except for a longer period of time. The beating itself may bespeak the intent, see People v Green, 155 Mich 524, 533; 119 NW 1087, 1090 (1909). The verdict of guilty was not against the great weight of the evidence.

Defendant’s second argument is that the photographs of the child’s injuries were erroneously admitted, because the photographs were gruesome and there was no dispute that the child was spanked, spanked on the buttocks, and spanked with a belt.

The photographs, while showing the extent of a rather severe beating, were not gruesome. They were of probative value because the extent of the spanking administered by defendant was strongly contested.

Third, defendant argues that the statute violates constitutional rights of due process and equal protection under the law. The argument is essentially one of equal protection, and is based on the following language:

"* * * Provided, however, If, after such conviction and before sentence, in case the child has not been deformed or maimed, he or she shall appear before the clerk of the court in which said conviction shall have taken place, and with good and sufficient surety, to be approved by said clerk enter into bond to the people of the state of Michigan in the penal sum of $1,000.00 conditioned that he or she will furnish such child or children with necessary and proper home, care, food, shelter, protection and clothing, the said court may suspend sentence therein. * * * .” MCLA 750.136; MSA 28.331.

Before the trial court, defendant argued that the statute created unconstitutional classifications based on wealth and on permanent versus temporary custodians, and also argued that defendant did not have the $1,000 in order to post bond. On appeal defendant does not argue the wealth classification. It is questionable whether defendant has standing to argue the custodian issue on appeal since on the record he would have been unable to post the bond in any case. However, dealing with the issue on the merits, we find that the classification based on type of custodianship is rational and reasonable and is constitutional.

The last issue is based upon the trial court’s denial of a motion, made the day before trial, for a Walker hearing on the admissibility of statements made by defendant. The trial court based its ruling on the untimeliness of defendant’s motion. The trial court erred because such a hearing must be held if the defendant moves for it before trial, People v Childers, 20 Mich App 639, 646; 174 NW2d 565, 569 (1969). Childers applies to involuntary confession cases, see People v Mitchell, 44 Mich App 679, 683; 205 NW2d 876, 878 (1973).

However, just as in Childers, the error was not a reversible error. The testimony of the police witnesses regarding the statements did not contradict, and was merely cumulative of, defendant’s own testimony. We also note that the police testimony as to the contents of the statements was brief, the statements were never referred to as confessions, the trial court cautioned the witnesses about even mentioning statements by defendant’s wife (a former codefendant), and defendant’s testimony elaborated upon the statements testified to by the witnesses.

Affirmed.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


author: Bashara, J. P. R. Mahinske, J.

text:
    ADAMS v THE GREAT ATLANTIC & PACIFIC TEA COMPANY
    Opinion op the Court
    1. Workmen’s Compensation — Bureau of Workmen’s Compensation — Jurisdiction—Statutes.
    A dispute or controversy within the meaning of the Workers’ Disability Compensation Act is a jurisdictional element and its existence at the time a claim is properly filed with the Workmen’s Compensation Bureau vests the bureau with jurisdiction over the claim which cannot be unilaterally divested by either party to the dispute (MCLA 418.847; MSA 17.237[847]).
    2. Action — Forum—Jurisdiction—Voluntary Dismissals — Adversary Proceedings — Resolution of Controversies.
    Restrictions upon voluntary dismissals require that a forum with jurisdiction over a controversy be permitted to proceed to a final resolution and that resolution may derive from a full adversary proceeding on the merits, stipulation by the parties to a determination, or summary resolution where a party is entitled to prevail as a matter of law, but whatever mode is employed, the purpose, which is a final resolution of the controversy, is the same (GCR 1963, 504.1).
    3. Action — Forum—Jurisdiction.
    The forum must be permitted to render an ultimate resolution, once an adjudicatory proceeding has properly commenced.
    4. Workmen’s Compensation — Employers—Referee’s Authority— Final Orders — Parties’ Rights.
    An employer cannot, by an agreement to pay worker’s compensation, divest the hearing referee of authority to render a final order settling the rights of the parties.
    References for Points in Headnotes
    [1, 5-8, 10, 11] 82 Am Jur 2d, Workmen’s Compensation §§ 399, 472, 545.

       82 Am Jur 2d, Workmen’s Compensation §§ 459-468.

       82 Am Jur 2d, Workmen’s Compensation §§ 472, 545.

       82 Am Jur 2d, Workmen’s Compensation §§ 459-468, 540.

       82 Am Jur 2d, Workmen’s Compensation §§ 613-616, 630-637.

      Concurrence by P. R. Mahinske, J.
    5. Workmen’s Compensation — Employers—Voluntary Payment of Benefits — Dispute or Controversy — Parties’ Rights.

      A dispute or controversy within the meaning of the Workers’ Disability Compensation Act exists even though an employer offers to begin voluntary payment of compensation beneñts where all of the worker’s proofs have been submitted and where there still is a genuine dispute between the parties regarding rate of compensation and date of injury.

    6. Workmen’s Compensation — Dispute or Controversy — Determination of Rights — Statutes.

      The Worker’s Disability Compensation Act clearly indicates that any dispute or controversy can be submitted for a determination of rights (MCLA 418.841, 418.847; MSA 17.237[841], 17.237[847j).

    7. Workmen’s Compensation — Employers—Voluntary Payment of Benefits — Determination of Rights — Statutes.

      The simple expedient of voluntary payment of compensation beneñts by an employer determines nothing in the absence of an admission or stipulation as to all the conditions of liability; neither the payment of compensation nor the accepting of the same by an employee or his dependents shall be considered as a determination of the rights of the parties under the Worker’s Disability Compensation Act (MCLA 418.831; MSA 17.237[831j).

    8. Workmen’s Compensation — Employers—Voluntary Payment of Benefits — Determination of Rights.

      The payment of workmen’s compensation by an employer under an award, order, or proper stipulation determines the rights of the parties and such compensation cannot be discontinued or reduced without a further order or award.

    9. Workmen’s Compensation — Appeal and Error — Appeal Board —Finding of Fact.

      The Workmen’s Compensation Appeal Board is the ñnal fact ñnder in the cases before it, but if the board interprets the Workers’ Disability Compensation Act erroneously in reaching its decision appellate courts have the duty and authority to correct any such erroneous construction.

    10. Workmen’s Compensation — Employees—Workers’ Disability Compensation Act — Compensation Proceedings — Voluntary Payment of Benefits.

      Neither the Workers’ Disability Compensation Act nor the gen

      eral court rules contain any express provision which would allow an employer to unilaterally force an end to proceedings by offering voluntarily to pay compensation beneñts; furthermore, such an offer does not deny a claimant the right to proceed further to have the rights of the parties determined.

    11. Workmen’s Compensation — Due Process Hearings — Bureau of Compensation — Overload of Litigation.

      Due process requires that a workmen’s compensation plaintiff is entitled to a full and impartial determination of his claim even though voluntary payments of beneñts are offered by an employer.

    Appeal from Workmen’s Compensation Appeal Board.
    Submitted June 21, 1977, at Detroit.
    (Docket No. 27709.)
    Decided February 6, 1978.
    Claim by Kermie Adams against The Great Atlantic & Pacific Tea Company for workmen’s compensation. Benefits granted. Defendant appealed to the Workmen’s Compensation Appeal Board, which reversed the referee’s decision and award of benefits. Plaintiff appeals by leave granted.
    Reversed.

      Ripple & Chambers, P. C. (by Sanford L. Steiner), for plaintiff.

      Lacey & Jones (by John L. Salter), for defendant.
    Before: D. C. Riley, P. J., and Bashara and P. R. Mahinske, JJ.

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

   Bashara, J.

The pertinent facts of this case are delineated in Judge Mahinske’s concurring opinion. We conclude that procedural policy mandates reversal of the Workmen’s Compensation Appeal Board determination and reinstatement of the referee’s order.

Whether a dispute or controversy persists after an employer agrees to make voluntary payments, is an issue that exceeds the scope of inquiry required for the resolution of this case. A dispute or controversy within the meaning of MCLA 418.847; MSA 17.237(847) is a jurisdictional element. Its existence at the time a claim is properly filed with the Workmen’s Compensation Bureau vests the bureau with jurisdiction over the claim. That jurisdiction cannot be unilaterally divested by either party to the dispute.

Policy considerations congruent to those underlying the restrictions upon voluntary dismissals embodied in GCR 1963, 504.1, require that a forum with jurisdiction over a controversy be permitted to proceed to a final resolution. See, e.g., African Methodist Episcopal Church v Shoulders, 38 Mich App 210; 196 NW2d 16 (1972). That resolution may derive from a full adversary proceeding on the merits, stipulation by the parties to a determination, or summary resolution where a party is entitled to prevail as a matter of law. Whatever mode is employed, the purpose is the same — a final resolution of the controversy.

A contrary result would leave the litigants susceptible to multiple commencements and terminations of the same proceedings depending upon the vagaries of an opponent inclined to frustrate final resolution of the case. The adverse consequences to the administration of justice are evident. Therefore, once an adjudicatory proceeding has properly commenced, the forum must be permitted to render an ultimate resolution.

In the case under review, the proceedings were commenced by plaintiff to determine his disputed right to compensation payments from defendant. Defendant cannot, by an agreement to pay compensation, divest the referee of authority to render a final order settling the rights of the parties.

Reversed, and the order of the referee is reinstated. Costs to plaintiff.

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

P. R. Mahinske, J.

(concurring). This appeal involves the question of whether there is a "dispute or controversy” within the meaning of the Workers’ Disability Compensation Act once the employer offers to begin voluntary payments after all of plaintiffs proofs have been submitted, and where there still exists a genuine dispute between the parties regarding rate of compensation and date of injury. We find that under these circumstances there is a dispute or controversy.

Plaintiff-appellant filed a petition for a hearing seeking workmen’s compensation benefits on May 2, 1972. Injuries were claimed to have been sustained on January 5, 1968, during a welding accident. Compensation was voluntarily paid by the defendant-appellee until November 27, 1968, when plaintiff returned to work. Plaintiffs last day of work was October 4, 1971, and he was paid compensation until April 1, 1972, when defendant claims he was released from care and should have returned to work.

Testimony was taken and a medical deposition presented before the hearing referee. Plaintiffs petition claimed an aggravation of a preexisting condition created by work activity on October 4, 1971.

After all the proofs of plaintiff were in, defendant offered to pay compensation and maintained the matter was closed and therefore out of the hands of the referee. Plaintiff contended that unless a stipulated award was entered, including the 1971 compensation rate, the hearing referee should enter a formal award. Subsequent to argument of the law the referee entered a formal award. On appeal the Workers’ Compensation Appeal Board (WCAB) set aside the award and ruled that the offer of voluntary payment took the matter from the referee. Stated otherwise, the WCAB ruled that there is no dispute or controversy after voluntary payment is offered.

In the matter now before this Court on appeal we have a situation where the claimant has gone to the expense, trouble, and effort to present his entire claim to the referee before voluntary payment was offered by the employer. Such fact situation in and of itself clearly distinguishes this case from the fact situation in Arnett v Chrysler Corp, 395 Mich 796 (1975). In Arnett the plaintiff was denied a hearing after the claim was filed and before the hearing was begun because the employer began voluntary payments. In addition, in the present case the record made below clearly indicates that after plaintiff’s proofs were in and the offer of voluntary payments was tendered, there still remained a dispute between the parties regarding date of injury and rate of compensation.

The precise issue raised in the instant case is one of first impression in this Court.

The Workers’ Disability Compensation Act clearly indicates that any dispute or controversy can be submitted for a determination of rights. See MCLA 418.841; MSA 17.237(841), and MCLA 418.847; MSA 17.237(847). The act is clear regarding the rights of the parties when there is a voluntary payment situation. MCLA 418.831; MSA 17.237(831) states:

"Neither the payment of compensation or the accepting of the same by the employee or his dependents shall be considered as a determination of the rights of the parties under this act.”

1964-65 AACS, R 408.40, Rule 10, p 3283, provides in part:

"When compensation is being paid under an order or award of the hearing referee or appeal board, compensation shall not be discontinued or reduced without a further order or award, * * * .”

The above clearly indicates that the simple expedient of voluntary payment determines nothing in the absence of an admission or stipulation as to all of the conditions of liability. The above also indicates that once compensation is being made under an award, order, or proper stipulation, the rights of the parties are determined, and such compensation cannot be discontinued or reduced without a further order or award. This implies a right to a hearing.

While it is true that the WCAB is the final fact finder in the cases before it, Miller v Sullivan Milk Products, Inc, 385 Mich 659, 669; 189 NW2d 304 (1971), it is also true that if the WCAB interprets the act erroneously in reaching its decision the appellate court has the duty and authority to correct any such erroneous construction. DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 100; 214 NW2d 794 (1974). Therefore, the instant case is properly before the Court to determine whether or not such an erroneous interpretation of the Workmen’s Compensation Act has been made by the WCAB in reversing the award of the referee.

In its holding below the WCAB in effect held that an employer can unilaterally force an end to the proceedings by offering voluntarily to pay benefits, and that such an offer denies the claimant any right to proceed further and have the rights of the parties determined. This Court disagrees with the board’s interpretation of the Workers’ Disability Compensation Act.

The act contains no express provision for doing what defendant and the WCAB urge as the proper procedure in cases like the instant one, i.e., halting of proceedings automatically upon an offer to make voluntary payments on plaintiff’s claim. Neither is there support for such a procedure under the General Court Rules.

It appears that plaintiff was afforded no more than his due process right to a full and fair determination of his claim when the referee granted an award in spite of defendant’s offer to make voluntary payments. This would render improper the reversal of the referee’s award by the WCAB.

It has been urged on this Court that there are overriding considerations which lend legitimacy to the ruling of the WCAB, i.e., that the purpose of the act to encourage voluntary compliance is served and that to do otherwise would open a floodgate of litigation to overload the Bureau of Workers’ Compensation. Weighed against the import of depriving plaintiff of his right to a full and impartial determination of his claim, such a remote possibility of encouraging litigation must lose. The suggestion was made by the Supreme Court in Arnett, supra, that on remand, administrative procedures could be adopted to deal with the issue. Administrative procedure may well be the answer to check the possible encouragement of litigation in future cases.

The decision of the WCAB is reversed and the order of the referee reinstated. Costs to appellant.


author: M. F. Cavanagh, J.

text:
    WESTERN MICHIGAN UNIVERSITY BOARD OF TRUSTEES v BRINK
    1. Zoning — Parties—Standing—Aggrieved Party — Statutes.
    An owner o^land located within 300 feet of premises which are the subject of a decision of a zoning board of appeals is a proper party to any review of that decision instituted in the circuit court and is entitled to notice of the circuit court proceedings; however, such a landowner does not have standing to institute the circuit court review unless he is an "aggrieved party” (MCLA 125.590, 125.591; MSA 5.2940, 5.2941).
    2. Zoning — Parties—Standing—Pleading—Facts.
    The facts upon which a plaintiff in a zoning case relies to establish his standing must be alleged and proven; it is not necessary to decide whether an allegation of ownership of contiguous land would be sufficient to establish standing to institute circuit court review of a decision of a zoning board of review where a plaintiff did not allege that he owned land contiguous to the land which is the subject of the zoning board’s actions.
    3. Zoning — Pleading—Special Damages — Cost of Property Acquisition.
    A plaintiff must allege and prove that he has suffered some special damages not common to other property owners similarly situated in order to have any status to challenge in court the actions of a zoning board of appeals; an allegation that the action of the board may result in a higher cost to the plaintiff in the event the plaintiff is able to acquire the subject property in the future is not an allegation of special damages sufficient to confer standing.
    References for Points in Headnotes

       82 Am Jur 2d, Zoning and Planning §§ 299, 301, 343-345.
    [1, 2, 4] Standing of lot owner to challenge validity or regularity of zoning changes dealing with neighboring property, 37 ALR 2d 1143.

       82 Am Jur 2d, Zoning and Planning § 340.

       82 Am Jur 2d, Zoning and Planning §§ 334-337.

      4. Pleading — Zoning—Appeal and Error — Facts—Standing.
    Failure of a plaintiff to properly plead and present for proof in the lower court the facts upon which it relies to establish its standing in a case for the review of a decision of a zoning board prevents the plaintiff from relying on such facts on appeal.
    Appeal from Kalamazoo, Raymond W. Fox, J.
    Submitted June 16, 1977, at Grand Rapids.
    (Docket No. 29839.)
    Decided February 6, 1978.
    Complaint by the Western Michigan University Board of Trustees against Robert H. Brink, Harm Meyer, The American National Bank and Trust Company of Michigan, Janis Ulps, and the Zoning Board of Appeals of the City of Kalamazoo for an order of superintending control to set aside a decision of the zoning board of appeals. Complaint dismissed. Plaintiff appeals.
    Affirmed.

      Ford, Kriekard, Staton, Allen & Decker, P. C., for plaintiff.

      Don M. Schmidt, Deputy City Attorney, for defendant Zoning Board of Appeals of the City of Kalamazoo.

      Thomas T. Huff, for defendant Robert H. Brink.
    Before: M. J. Kelly, P. J., and M. F. Cavanagh and J. R. Rood, JJ.

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

   M. F. Cavanagh, J.

Defendant Kalamazoo Zon-

ing Board of Appeals granted defendant Brink’s petition for expansion of a nonconforming use and for variances to accomodate the expansion. Plaintiff sought an order of superintending control from circuit court to set aside the board’s decision. See MCLA 125.590; MSA 5.2940. This statute limits the right to institute a suit for review of the board’s decision to parties thereby "aggrieved”. The court sua sponte raised the issue of whether plaintiff had alleged facts sufficient to show that it was an aggrieved party. The court found that plaintiff had not made sufficient averments, and ruled that plaintiff’s complaint would therefore be dismissed. Plaintiff sought and was granted a rehearing on this issue, and the matter was submitted on briefs. After considering the briefs the court reaffirmed its prior decision and entered an order dismissing plaintiff’s complaint. It appears that plaintiff at no time amended or sought leave to amend its complaint. Plaintiff appeals as of right.

I

Plaintiff sought review under § 10 of the city and village zoning act, which provides, in pertinent part, as follows:

"Sec. 10. Any party aggrieved by any order, determination or decision of any officer, agency, board, commission, board of appeals, or the legislative body of any city or village, made pursuant to the provisions of section 3a of this act may obtain a review thereof both on the facts and the law, in the circuit court for the county wherein the property involved or some part thereof, is situated * * * .” MCLA 125.590; MSA 5.2940.

Section 11 of that act further provides that:

"Sec. 11. Any person required to be given notice under the provisions of subsection (d) of section 5, shall be a proper and necessary party to any action for review instituted under the provisions of section 10 and shall be given due notice personally or by registered or certified mail of any such proceedings in the same manner as provided in subsection (d) of section 5.” MCLA 125.591; MSA 5.2941.

Plaintiff, as an owner of land located within 300 feet of defendant Brink’s premises, was entitled to and did receive notice of the proceedings before the Zoning Board of Appeals, pursuant to § 5 of the act. MCLA 125.585; MSA 5.2935. Hence, plaintiff was, under § 11, a proper party to any review instituted under § 10.

However, plaintiff argues that § 11 not only made plaintiff a proper party to any appeal taken by an aggrieved party, but also gave plaintiff itself standing to institute such an appeal, regardless of whether it was an aggrieved party.

Plaintiff cites no authority for this construction of statute, and we do not find it persuasive. The "aggrieved party” requirement is a standard limitation in state zoning acts providing for review of zoning board of appeals decisions. See Comment, Standing to Appeal Zoning Determinations: The "Aggrieved Person” Requirement, 64 Mich L Rev 1070 (1966). This requirement has repeatedly been recognized and applied in the decisions of this Court. See Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582 (1975), Joseph v Grand Blanc Twp, 5 Mich App 566; 147 NW2d 458 (1967), Marcus v Busch, 1 Mich App 134; 134 NW2d 498 (1965). Had the Legislature meant to unshoulder this burden from parties in plaintiff’s status it could have done so in simple terms. However, § 11 does not speak in terms of standing to seek review, but only of notice and a right to appear in "any action for review instituted”. We do not read this language as broadening the class of parties privileged to begin such reviews. Such a reading would tend to clog our courts with suits by parties who could allege no legally cognizable interest in the outcome. For this reason we will not strain to reach plaintiffs reading of this statute.

II

Plaintiff next contends that it has standing to bring this suit because it owns property adjoining that of defendant Brink.

The facts upon which a plaintiff relies to establish his standing must be alleged and proven. Joseph v Grand Blanc Twp, supra, at 570-571; 147 NW2d at 460, 4 Anderson, American Law of Zoning (2d ed), § 25.23, pp 248-250.

However, though plaintiffs briefs here and before the lower court state that plaintiff owned land contiguous to Brink’s, this fact is not alleged in plaintiffs complaint. Instead, plaintiff alleged only that it was "the owner of land lying within 300 feet of * * * [Brink’s] premises and its campus is within close proximity to the said premises”. Therefore, the issue here raised is not properly before this Court, and will not be decided.

III

Plaintiff’s third contention is that its complaint satisfies the general rule as stated in Unger v Forest Home Twp, supra, at 617; 237 NW2d at 584:

"In order to have any status in court to challenge the actions of a zoning board of appeals, a party must be 'aggrieved’. * * * The plaintiff must allege and prove that he has suffered some special damages not common to other property owners similarly situated * * * .” (Citations omitted.)

In support of this contention, plaintiff here argues the merits of several "facts” not alleged in its complaint. Again, the failure to properly plead and present for proof in the lower court the facts upon which it relies to establish its standing prevents plaintiff from relying on those facts on appeal.

Plaintiff’s complaint did allege that it had been negotiating with defendant Brink for the purchase of his property, and that the parties had been unable to agree upon a price. Plaintiff further alleged that, pursuant to a Campus Development Plan, it intended to acquire Brink’s land for construction of a new building for plaintiff’s College of Business. Plaintiff also made the general allegation that Brink’s planned construction on his property would cause plaintiff irreparable injury.

As stated in the trial court’s opinion:

"What seems to bother the plaintiff more than anything else is that if this variance is allowed and defendant Brink enlarges his premises, as he was authorized to do by the Zoning Board of Appeals, the plaintiff will have to pay a higher price to purchase the land or an award on condemnation proceedings would be higher than at the present time.”

Plaintiff advanced this argument in its brief in support of the motion for rehearing.

We agree with the trial court that this is not an allegation of special damages sufficient to confer standing. Although the board’s order may indeed result in higher acquisition costs to plaintiff, this in no way interferes with plaintiff’s beneficial use or enjoyment of its own land. Plaintiff’s financial interest in throttling the development of neighboring properties is not the kind of legally protectable property right or privilege, the threatened interference with which grants standing to seek review.

Plaintiff’s other arguments have been considered and found meritless.

Affirmed. Costs to appellees.

       Even if this issue were preserved for review we would be little impressed by plaintiffs argument. Our research has revealed no Michigan case on point; foreign jurisdictions split on the question. See Comment, Standing to Appeal Zoning Determinations: The "Aggrieved Person” Requirement, 64 Mich L Rev 1070, 1079 (1966), and cases therein cited; 4 Anderson, American Law of Zoning (2d ed), § 25.18, pp 231-237; 2 Rathkopf, The Law of Zoning and Planning (3d ed), pp 63-21 to 63-23. See also 1 Yokley, Zoning Law and Practice (2d ed), § 172, pp 427-434. We see little reason for abandoning the general rule that ''[tjhird parties will be permitted to appeal to the courts as persons aggrieved if they can 'show that * * * their property will suffer some special damages as a result of the decision of the board complained of, which is not common to other property owners similarly situated’ ”. Comment, 64 Mich L Rev, supra, at 1078-1079. (Footnotes and citation omitted.) If adjoining landowners could suffer such special damages, then they can easily plead them. If the board’s decision does not pose a threat of unique harm to the neighbor, then the courts would be ill-served by a rule allowing his suit.

       "Brink’s non-conforming tavern use lies in the middle of WMU’s campus partially as it exists and completely as it is planned. If the City’s and WMU’s plans are not to be frustrated, all or in substantial part WMU must ultimately acquire Brink’s property by purchase or by condemnation. The immediate effect of the ZBA expansion order was to increase, dramatically, this acquisition cost, whether acquisition was acquired by purchase or condemnation and whether Brink’s construction is commenced, is completed, or whether it is not.” Plaintiffs brief in support of motion for rehearing, p 5.


author: N. J. Kaufman, P. J.

text:
    GEORGE v TRAVELERS INDEMNITY COMPANY
    1. Insurance — Arson—Burden of Proof — Insurers.
    The burden is placed on the insurer who raises an arson defense to prove by a preponderance of the evidence that the plaintiff set fire to the building or caused it to be set on fire.
    2. Arson — Elements—Circumstantial Evidence — Motive—Opportunity — Incendiary Origins.
    The elements of arson may be established by circumstantial evidence; Michigan courts have affirmed arson convictions based on circumstantial evidence of motive, such as insurance coupled with business difficulties, plus opportunity, such as access to the building where there is independent evidence of the incendiary origins of the fire.
    3. Insurance — Arson—Direct Evidence — Circumstantial Evidence —Motive—Opportunity—Incendiary Origins.
    There was enough direct and circumstantial evidence of motive, opportunity and incendiary cause for a jury to find that an arson defense was established by defendant insurers, in an action for damages for the alleged failure of the insurers to honor the terms of policies covering the plaintiff’s property and business, where it was undisputed that the fire resulted from arson, the plaintiffs were heavily insured, the plaintiffs had easy access to the building, and there was evidence from which the jury could conclude that the plaintiffs’ corporation was heavily in debt as well as evidence suggesting that community hostility against the plaintiffs had made it unprofitable, if not impossible, to carry on business.
    References for Points in Headnotes

       5 Am Jur 2d, Arson and Related Offenses §§ 42, 46-53.

       5 Am Jur 2d, Arson and Related Offenses §§ 47, 52, 53.

       5 Am Jur 2d, Arson and Related Offenses §§ 42, 47, 52, 53.

       5 Am Jur 2d, Arson and Related Offenses §§ 46-58.

       75 Am Jur 2d, Trial §§ 283-285, 1012.

       5 Am Jur 2d, Appeal and Error §§ 624, 722.

       5 Am Jur 2d, Appeal and Error §§ 600, 835.

      4. Evidence — Inferences—Facts—Circumstantial Evidence — Direct Evidence.
    A conclusion cannot be inferred from a fact which was itself derived inferentially from circumstantial evidence; however, where two distinct lines of argument, each based on an inference from different direct evidence converge on the same conclusion, it is not necessary to base an inference on an inference for either argument.
    5. Trial — Appeals to Prejudice' — Race—Religion—Nationality. The law is blind to differences in race, religion, and nationality; appeals to prejudice, whether overt or covert, have no place in the administration of justice.
    6. Trial — Appeals to Prejudice — Ethnic Allusions — Appeal and Error.
    It is reversible error to deny the opposing party a fair trial by making irrelevant and inflammatory ethnic allusions.
    7. Appeal and Error — Appeals to Prejudice — National Origins— Relevance — Overkill.
    The Court of Appeals, in evaluating the possible prejudice resulting from a defense counsel’s protracted inquiry on cross-examination into the plaintiffs’ national origins, looks to whether the questions were relevant to the issues and, if not, whether they were calculated to arouse prejudice; the Court will look to see if defense counsel indulged in unnecessary overkill instead of pursuing a limited, focused inquiry into areas relevant to the issues.
    8. Appeal and Error — Evidence—Failure to Object — Reasons for Objection — Manifest Injustice — Curative Instructions.
    Failure to object specifically and for proper reasons to the admission of evidence precludes appellate review unless there is manifest injustice; failure to request a curative instruction forecloses appellate review unless the remarks of counsel are so prejudicial as to be irreparable by a cautionary instruction.
    Appeal from Wayne, John R. Kirwan, J.
    Submitted December 12, 1977, at Detroit.
    (Docket No. 30158.)
    Decided February 6, 1978.
    Leave to appeal applied for.
    Complaint by Harry George and Bahjat M. Yaldoo, individually and as corporate officers in behalf of True Value Supermarket, Inc., and True Value Supermarket, Inc., against Travelers Indemnity Company, American Home Assurance Company, Allstar Insurance Corporation, and Jefferson Insurance Company of New York for damages based on the alleged failure of defendants to honor the terms of policies covering the value of the supermarket, its contents, and for business interruption after the supermarket was destroyed by fire. Judgment for defendants. Plaintiffs appeal.
    Affirmed.

      Costello & Barkey, P. C, for plaintiffs.

      Ross, Soloy & Kochansky, for American Home Assurance Company and Jefferson Insurance Company of New York.

      Denenberg, Tufñey & Thorpe (by Charles R. Tuíñey and llene Gordon), for Travelers Indemnity Company.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   N. J. Kaufman, P. J.

This appeal arises out of an action for damages based on" the alleged failure of defendant insurance companies to honor the terms of policies covering plaintiffs for the value of a True Value Supermarket, for the contents therein, and for business interruption, after the supermarket burned down on October 31, 1971. At the time of the fire, plaintiff Harry George, the president and sole stockholder of True Value Supermarket, Inc., owed $15,000 to plaintiff Bahjat Yaldoo. Yaldoo was vice-president and director and also managed the store until September 1971. Plaintiffs appeal from a jury verdict of no cause of action as to all claims, which was returned on June 15, 1976, after a lengthy trial. There was considerable testimony, including admissions by plaintiffs themselves, tending to show that there had been serious trouble with residents of the local community in the period immediately preceding the fire. Yaldoo had an armed confrontation with local youths which led to the circulation of leaflets accusing him of racism and proposing a boycott of the store. The store was picketed and its windows were smashed, as were the windows of Yaldoo’s car. Yaldoo was forced to give up his position as manager. He was replaced by Edward George, Harry George’s son.

The captain of the arson section of the Detroit Fire Department, Michael Buschbacher, testified without objection that when he questioned Edward George after the fire, Edward George told him that he had received threats ranging from "beating him up to burning the building”, and that because the store had been "harassed by picketing” it had closed earlier than it used to. At trial, Edward George denied saying this. The president of the company which serviced the store’s burglar alarm system testified that he had to make frequent service calls throughout October, 1971, to repair the system because it was connected to store windows which were repeatedly broken. His statement that the store was closed for two weeks in October was denied by both Harry and Edward George.

Captain Buschbacher, who investigated the blaze, testified that in his opinion it had been deliberately set. Indeed, Lhevinne Pickett, a defense witness, testified that he set the fire at the store. He explained he was hired by one Hazim Saeegh, who gave him detailed instructions as to when to arrive at the store, how to get in and hide until closing time, where to find the charcoal lighter fluid needed to start the fire, and where to find an axe with which to break out and get away afterwards. There was no objection to any of this testimony. The trial court did sustain an objection to a question as to what Saeegh told Pickett with respect to the burglar alarm. However, Pickett did testify without objection that he asked Saeegh if the burglar alarm would be on, and he also testified that when he left the store, the alarm did not go off. Over a general objection that the matter was inadmissible and prejudicial, Pickett answered affirmatively the question of whether Saeegh told him why the store was being burned. An objection to a question asking what Saeegh told Pickett was sustained.

Hazim Saeegh was not called as a witness. Harry George and Bahjat Yaldoo denied knowing either Saeegh or Pickett. Pickett said he did not know either of the plaintiffs and did not know who owned the store he burned. Pickett did testify, though, that the day after the setting of the fire, Saeegh drove him to the parking lot of a Food Farm Market; Saeegh went inside and returned with $1,600 or $2,000 for Pickett. Harry George admitted that he owned a 30% interest in the Food Farm store.

During cross-examination of the plaintiffs and another of their witnesses, defense counsel repeatedly asked questions relating to the Chaldean national origins of George and Yaldoo. Counsel asked if the previous owners of the True Value Supermarket were Chaldean. He also asked: "What is a Kaldean [sic]?” There were no objections to these questions. When there was objection to additional inquiry about Chaldean markets, defense counsel justified the questioning as relevant to the witness’s credibility because he derived a great deal of business from Chaldean clients. There was no contrary argument and the trial court permitted defense counsel to elicit the fact that the witness’s agency derived about $10,000 in income from Chaldean markets in 1970-1971.

On cross-examination, Edward George was asked if his new wholesale business sold mainly to Chaldean markets. There was no objection.

On cross-examination, Harry George was questioned at great length about his Chaldean nationality, the size of the Detroit Chaldean community, whether the community is "closeknit”, whether Chaldeans attend a particular church, whether there is a Detroit-area Chaldean telephone directory, and whether Harry George had sponsored or assisted Chaldean immigrants to the United States. The only objection was to the question whether the Chaldean community was closeknit. Counsel for Harry George objected that "the Kaldean [sic] community here has nothing to do with this trial. It is immaterial and irrelevant”. Defense counsel responded that "we intend to prove in this case that there was a — that the individual who was hired to set this particular fire was in fact hired by a gentleman who was Kaldean [sic], as opposed to the theory of the Plaintiff in this case, which I think is obvious”. He suggested that inquiry would be relevant if the Chaldean community was very small, and the trial judge allowed him to ask about that.

There was never any testimony to the effect that Saeegh was a Chaldean. In proceedings out of the presence of the jury, the trial court sustained an objection by the plaintiffs when defense counsel asked Pickett whether Saeegh was a Chaldean. The only source of Pickett’s knowledge of Saeegh’s nationality was hearsay, which was not allowed into evidence.

On appeal, plaintiffs raise several issues; only the one regarding the questioning of plaintiffs and their witnesses merits extended discussion.

Initially, however, it is necessary to review the evidence presented at trial as it relates to the legal defense offered by defendant to build the proper foundation from which to dispose of plaintiffs’ major contention.

Where an arson defense is raised by an insurer, the burden is on the insurer to prove by a preponderance of the evidence that the plaintiff set fire to the building or caused it to be set on fire. Walz v Peninsular Fire Insurance Co, 221 Mich 326, 343; 191 NW 230 (1922). The elements of arson may be established by circumstantial evidence. People v Porter, 269 Mich 284, 292; 257 NW 705 (1934), Peterson v Oceana Circuit Judge, 243 Mich 215, 217; 219 NW 934 (1928). Where there is independent evidence of the incendiary origins of a fire, Michigan courts have affirmed arson convictions based on circumstantial evidence of motive (such as insurance coupled with business difficulties) plus opportunity (such as access to the building). People v Dorrikas, 354 Mich 303, 307-308; 92 NW2d 305 (1958), People v Bailey, 42 Mich App 359, 361-363; 202 NW2d 557 (1972), People v Horowitz, 37 Mich App 151, 153-158; 194 NW2d 375 (1971), lv den, 387 Mich 753 (1972).

In this case, it was undisputed that the fire resulted from arson. The plaintiffs were heavily insured and there was evidence from which the jury could conclude that the corporation was heavily in debt as well as evidence suggesting that community hostility had made it unprofitable, if not impossible, to carry on the business. Plaintiffs presented contrary evidence, but it was for the jury to decide what to believe and what to disbelieve. People v Fuller, 395 Mich 451, 453; 236 NW2d 58 (1975), People v Chamblis, 395 Mich 408, 420-421; 236 NW2d 473 (1975). Of course, the plaintiffs had easy access to their own store. George owned the corporation and had keys to the store, and Yaldoo had managed the store until a few weeks before the fire. The jury could believe that one or the other of these men was sufficiently familiar with the store to furnish the detailed instructions successfully followed by the arsonist Pickett. There was enough direct and circumstantial evidence of motive, opportunity and incendiary cause for the jury to find that the arson defense was established.

Plaintiffs contend, however, that on these facts the conclusion that they are responsible for starting the fire stems from the impermissible pyramiding of inferences. A conclusion cannot be inferred from a fact which was itself derived inferentially from circumstantial evidence. People v Atley, 392 Mich 298, 314-316; 220 NW2d 465 (1974), People v Jacobson, 72 Mich App 489, 497; 250 NW2d 105 (1976), People v Little, 58 Mich App 12, 16; 226 NW2d 735 (1975). Plaintiffs stress the fact that, though Pickett admitted burning the store for Saeegh, there was no evidence linking Saeegh to the plaintiffs. But this criticism has nothing to do with the pyramiding of inferences. The evidence that Saeegh hired Pickett to burn the store is direct, not circumstantial. From the direct evidence furnished by Pickett’s testimony the jury might reasonably infer that Saeegh was acting at the behest of someone who had a motive for the burning of the store. We have already seen that, even if Pickett had never testified, there was circumstantial evidence of plaintiffs’ responsibility for the fire. The conclusion that plaintiffs instigated the fire was strengthened, not weakened, by-Pickett’s testimony. Two distinct lines of argument, each based on an inference from different direct evidence, converged on the same conclusion. For neither argument was it necessary to base an inference on an inference.

As noted earlier, the issue which arouses our greatest concern in this case is the possible prejudice resulting from defense counsel’s protracted inquiry into the plaintiffs’ Chaldean ethnic affiliation during cross-examination. Even in the occasional case where racial, ethnic, or religious matters are relevant to the issues, there is always the risk of incidentally arousing prejudice — and this Court abhors injecting the poison of prejudice into any legal proceeding. The law is blind to differences in race, religion, and nationality. Appeals to prejudice — overt or covert — have no place in the administration of justice. It is reversible error to deny the opposing party a fair trial by making irrelevant and inflammatory ethnic allusions. Nemet v Friedland, 273 Mich 692, 697; 263 NW 889 (1935), Solomon v Stewart, 184 Mich 506, 511; 151 NW 716; Am Ann Cas 1917A, 942 (1915), Cluett v Rosenthal, 100 Mich 193, 199-200; 58 NW 1009; 43 Am St 446 (1894). Any effort to arouse the prejudice of the jury "cannot be overlooked, nor can it ever, in the final analysis, prove other than detrimental to the interests of the litigant whose counsel resorts to such a course”. Solomon v Stewart, supra, at 511. In evaluating the ethnic allusions in this case, we look to whether the questions were relevant to the issues and, if not, whether they were calculated to arouse prejudice.

A few of the questions referring to Chaldeans may have been relevant but most were not. Arguably, the questions directed to the insurance broker about the amount of business he derived from Chaldeans related to his credibility by revealing bias or interest. People v Field, 290 Mich 173, 178; 287 NW 422 (1939), People v Meier, 47 Mich App 179, 196; 209 NW2d 311 (1973). But that cannot justify asking the witness what a Chaldean is or whether the previous owners of the True Value Supermarket were Chaldeans. There was likewise no justification for asking Edward George whether his new wholesale business sold mainly to Chaldean markets. But above all, the lengthy cross-examination of Harry George accentuated his national origins in an entirely unnecessary way. Where the Chaldeans originated, the number of churches they attend, and the size and cohesiveness of the Detroit Chaldean community were questions irrelevant to any issue in the case.

Defendants argue that since Hazim Saeegh is a Chaldean, these questions served to rebut the plaintiffs’ theory that the store was burned down by neighborhood blacks. But there was no admissible evidence that Saeegh was a Chaldean, and even if there was, the questions asked went far beyond the scope of the supposed rationale. Instead of pursuing a limited, focused inquiry, defense counsel indulged in unnecessary overkill. Cf., People v Biondo, 76 Mich App 155, 157; 256 NW2d 60 (1977). We conclude that for the most part the ethnic allusions were irrelevant.

However, due to the particular circumstances of this case, the questioning was not prejudicial. There was no objection to most of the questions concerning Chaldeans, and the objections to others rested on other grounds than their prejudicial character. Failure to object specifically and for proper reasons to the admission of evidence precludes appellate review unless there is manifest injustice. People v Frederick Lester, 78 Mich App 21, 32; 259 NW2d 370 (1977). Additionally, there was no request for a curative instruction. Unless the remarks of counsel are so prejudicial as to be irreparable by a cautionary instruction, the failure to request such an instruction forecloses appellate review. Hill v Husky Briquetting, Inc, 78 Mich App 452; 260 NW2d 131 (1977), Smith v E R Squibb & Sons, Inc, 69 Mich App 375, 386; 245 NW2d 52 (1976). Finally, in this case, unlike Cluett, Solomon, and Nemet, supra, there was no resort to ethnic epithets or stereotypes or other blatant appeals to prejudice. This is not to say that facially neutral ethnic references cannot be prejudicial. But, taking everything into account, including the direct and circumstantial evidence supporting defendants’ claim of arson, we hold that the questioning was not so prejudicial as to deny the plaintiffs a fair trial.

Affirmed.

Appendix

That part of the cross-examination of Harry George which focused on the Chaldean community rather than the issues in the case was conducted by counsel for defendant Travelers Indemnity Company and went as follows:

"Q. And, you are a Kaldean [sic], is that correct?
"A. Yes.
"Q. What is a Kaldean?
"A. Huh?
"Q. What is a Kaldean?
"A. Well, that’s an old — I get these mixed up. You have heard of Bubitania or something. I cannot pronounce it. We originated from there. Butibazania, I don’t—
"Q. Well, is it—
"MR. KRANSON: [plaintiff’s counsel]: If you want some help I will tell you. He is trying to say Mesopatamia [sic], and he is trying to tell you that they speak the Arabic language which is the same language that Jesus Christ spoke.
"THE WITNESS: Correct.
"MR. KRANSON: And they are all from the same community in Telkeef. I have represented them for twenty-five years. I will answer your questions if you would like me to.
"MR. TUFFLEY: [counsel for Travelers]: Thank you, Mr. Kranson.
"Q. (By Mr. Tuffley:) Now, is there a Kaldean community in the Detroit metropolitan area?
"A. Yes
"Q. And, would it be fair to say that the Kaldean community in this Detroit area is a rather closeknit community?
"MR. KRANSON: Your Honor, the Kaldean community here has nothing to do with this trial. It is immaterial and irrelevant.
"THE COURT: Do you wish to respond, Mr. Tuffley?
"MR. TUFFLEY: Yes, Your Honor, I think it does because, as we have indicated to the Court and the jury that we intend to prove in this case that there was a — that the individual who was hired to set this particular fire was in fact hired by a gentleman who was Kaldean, as opposed to the theory of the Plaintiff in this case, which I think is obvious.
"THE COURT: Well, even if that were true, does that mean that he hired this man. I am not sure I understand the connection.
"MR. TUFFLEY: Well, the connection was obviously, Your Honor, if there were only ten Kaldeans in the community, it would have a great deal of relevance. On the other hand, if there were a million Kaldeans in the Detroit area, there may not be.
"THE COURT: Why don’t you ask him that question, how many Kaldeans are there in this area.
"Q. (By Mr. Tuffley:) Do you know how many Kaldeans there are in the metropolitan Detroit area?
"THE COURT: You say 10,000?
"THE WITNESS: Maybe that’s not — I mean, how would I know? I am not—
"THE COURT: All right. Go ahead.
"Q. (By Mr. Tuffley:) This is a — the Kaldeans have their own phone book, haven’t they?
"A. They do.
"Q. And that lists all the Kaldeans in the Detroit metropolitan area, and their address and their telephone number.
"A. Mostly all of them that are here.
"Q. And their businesses and so forth?
"A. Yes.
"Q. And, do you know how that came about, why that telephone book was put together?
"A. Well, the church did that.
"Q. The church?
"A. Yes.
"Q. Is there a particular church which is attended by Kaldeans?
"A. Two of them.
"Q. There are only two churches in the Detroit area?
"A. None in the Detroit area, no.
"Q. Well, where are they located?
"A. We have one in the Detroit area, I think, and one in Southfield.
"Q. There are two Kaldean churches then?
"A. Yes.
"Q. And they prepared this telephone book?
"A. I think so.
"Q. And that contains most of the names and addresses and so forth of the Kaldeans in the community?
"A. Right.
"Q. Would you say that you know, at least by name, the majority of the Kaldeans in the Detroit metropolitan area, Mr. George?
"A. Not all of them, no.
"Q. Quite a few?
"A. I know quite a few, yes.
"Q. You have probably sponsored a number of people who have immigrated to the United States, haven’t you?
"A. What do you mean by sponsored?
"Q. Well, given them jobs and so forth and helped them get started when they get here.
"A. Whenever they come and ask for a job, whoever they be, I will give them a job. Not only the Kaldean people, whoever needs help, we give them help. It is not only the Kaldeans.
"Q. Not only Kaldeans?
"A. No, sir.”

       A portion of this questioning is reproduced in the Appendix.

       An example would be an interracial identification situation. See, e.g., People v Flinnon, 78 Mich App 380; 260 NW2d 106 (1977).

         See Anno: Statement by counsel relating to race, nationality, or religion in civil action as prejudicial, 99 ALR2d 1249.

       We emphasize that our holding does not imply that we condone the tactics in question. Counsel who indulge in such argument always bear the risk that unnecessary prejudice will, in the right case, overwhelm an otherwise proper presentation of relevant evidence. This Court will not hesitate to call their bluff. See People v Hoye, 80 Mich App 258; 263 NW2d 343 (1977).