author: J. H. Gillis, J. M. J. Kelly, P. J.

text:
    PEOPLE v WEST (AFTER REMAND)
    Opinion of the Court
    1. Criminal Law — Plea of Guilty — Sentencing—Mistaken Belief.
    A defendant’s mistaken belief that the trial court is going to be lenient in sentencing him upon acceptance of defendant’s plea of guilty is not sufficient to set aside the guilty plea.
    2. Criminal Law — Plea of Guilty — Sentencing—Mistaken Belief —Evidentiary Hearing.
    The Court of Appeals should not substitute its judgment for that of the circuit court where a defendant pleads guilty to a criminal charge and then appeals claiming that the plea was based on the defendant’s belief that he had been promised a lesser sentence than the one actually imposed, where subsequently, on remand, the circuit court held an evidentiary hearing and decided that the plea should be upheld.
    Dissent by M. J. Kelly, P. J.
    3. Criminal Law — Plea of Guilty — Motions—Mistaken Belief— Withdrawal of Plea.

      A defendant’s motion to set aside his plea of guilty should be granted and he should be given a trial on the original charges where the defendant in entering his plea of guilty relied on what appeared to him to be a bargain and he was misled.

    Appeal from St. Clair, Ernest F. Oppliger, J.
    Submitted October 15, 1976, at Detroit.
    (Docket No. 26536.)
    Decided April 3, 1978.
    Jeffrey A. West was convicted, on his plea of guilty, of armed robbery and assault with intent to commit rape. Defendant appeals. The Court of Appeals remanded for an evidentiary hearing. On remand the defendant’s plea was upheld.

      References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law § 484 et seq.

    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

      Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Burgess & Burgess (by Barbara A. Schwartz), for defendant on appeal.
    Before: M. J. Kelly, P. J., and J. H. Gillis and Beasley, JJ.
   After Remand

J. H. Gillis, J.

Defendant pled guilty to armed robbery, MCLA 750.529; MSA 28.797, and assault with intent to commit rape, MCLA 750.85; MSA 28.280. He was sentenced to terms of from 20 to 40 years for the armed robbery and from 6 to 10 years for the assault. Defendant appealed as of right from the denial of his motion to withdraw his pleas. We remanded this case to the circuit court for an evidentiary hearing in order to determine if the trial judge made a statement that could have been fairly interpreted by the defendant to be a promise of leniency that went unfulfilled. We also retained jurisdiction.

Upon remand, the circuit court found no such promise and denied the motion to withdraw the pleas.

Defendant claims that his pleas were given in exchange for the promise not to sentence him for a term of greater than 20 years. Defendant’s argument must be rejected for two reasons.

First, the record does not support defendant’s contention. Defense counsel admitted that the trial judge would not state a specific number of years as a maximum sentence. In response to defense counsel’s request, the trial judge stated that normally someone convicted of armed robbery would receive a sentence of 15 or 20 years. It was defense counsel’s impression that if defendant pled guilty, he would receive a similar maximum sentence. This was a conclusion based on defense counsel’s own experience rather than a representation by the trial judge. He relayed this false impression to the defendant who relied upon it. A defendant’s mistaken belief that the trial court is going to be lenient in sentencing him upon acceptance of defendant’s plea of guilty is not sufficient reason to set aside the guilty plea. People v Bolden, 78 Mich App 120; 259 NW2d 389 (1977), People v Michael Williams, 36 Mich App 188; 193 NW2d 387 (1971).

Secondly, when a defendant pleads guilty to a criminal charge and then appeals claiming that the plea was based on the defendant’s belief that he had been promised a lesser sentence than the one actually received, the Court of Appeals should not substitute its judgment for that of the circuit court where the circuit court has held an evidentiary hearing and has decided that the plea should be upheld. People v Hall, 399 Mich 288; 249 NW2d 62 (1976), People v Bolden, supra.

Affirmed.

Beasley, J., concurred.

M. J. Kelly, P. J.

(dissenting). 1 respectfully dissent.

I believe the record does support defendant’s contention and I further find that this is not a case of bad advice or mistaken impression only. The defense attorney swore on his oath that he told the defendant he would get a 20-year maximum sentence. He supported that with the recitation of conversations which took place below. I do not stand on either side of the question as to who was mistaken about those conversations. Somebody was, and lawyers and sometimes even judges make mistakes. The defendant made no mistake. He relied on what appeared to him to be a bargain and he was misled. People v Bolden, 78 Mich App 120; 259 NW2d 389 (1977), quoted in the majority opinion was a case of mistaken belief and is easily distinguishable. People v Hall, 399 Mich 288; 249 NW2d 62 (1976), is not so easily distinguishable. Having written the opinion which was reversed in Hall it would be unseemly for me to defend it but I can only reiterate that that was a sentence recommendation case and this case is somewhat different.

I have a nagging doubt or a reasonable belief that the defendant’s plea was essentially coerced. I would grant the motion to set aside the plea and would remand on the original charges.


source: Caselaw Access Project

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

license: Public Domain

text:
    BERGER v WEBER
    Docket No. 27377.
    Submitted January 12, 1977, at Lansing.
    Decided April 3, 1978.
    Leave to appeal applied for.
    Christine Berger and Wayne Berger brought an action against Albert Weber, Becker Leasing Co., Inc., and Star of the West Milling Company seeking damages for injuries sustained by Christine Berger and for loss of her consortium which resulted when her automobile was struck from the rear by a truck owned and operated by the defendants. Wayne Berger also sought damages from the defendants as next friend of his mentally retarded daughter Denise Berger for the loss of her mother’s society, companionship, love and affection as a result of the injuries. Defendants conceded the issue of liability as to Wayne and Christine Berger individually but sought a trial on the amount of damages. Defendants moved for summary judgment on the issue of liability to Denise Berger. The Ingham County Circuit Court, Thomas L. Brown, J., granted the motion for summary judgment as to Denise Berger’s claims finding that no cause of action existed in Michigan for a minor child’s loss of a parent’s society and companionship. A jury returned a verdict for plaintiffs Wayne and Christine Berger in the amount of $142,000. Defendants moved for a new trial. Motion denied. Defendants appeal contending the instructions to the jury were erroneous and prejudicial to their case. Plaintiff Wayne Berger cross-appeals on behalf of Denise Berger. Held:

    In this case and in all future cases, a child may maintain an independent cause of action for loss of the society and companionship of a parent or one who has assumed a parental role, but the child may not recover for lost support because such financial losses are recoverable by the injured parent.
    Affirmed in part, reversed in part, and remanded.
    References for Points in Headnotes
    [1, 3, 4] 59 Am Jur 2d, Parent and Child §§ 106 et seq., 111.
    Child’s right of action, for loss of support, training, parental attention and the like, against third person negligently injuring parent. 59 ALR2d 454 s., 69 ALR3d 528.

       59 Am Jur 2d, Parent and Child § 8 et seq.

      1. Action — Parties—Parent and Child — Loss of Society — Loss of Companionship — Loss of Support — Parents—Parental Role.
    A child may maintain an independent cause of action for loss of parental society and companionship when a parent is severely injured; the child does not have an independent action for support, at least in the economic sense, because the injured parent may recover for financial losses resulting from his or her disability; the term parent includes not only natural parents but those who have assumed a parental role to a child; this rule applies only to the instant case and all future cases.
    2. Parties — Children—Rights.
    Children are persons with many of the same rights as adults including constitutional protection for freedom of speech, equal protection against racial discrimination, due process in civil contexts, and a variety of rights in the criminal procedure context.
    3. Parties — Children—Legal Interests — Parental Society — Parental Companionship.
    Children have a legal interest in the society and companionship of their parents which is deserving of protection when a parent is injured to the extent that he or she cannot provide the child with parental love, guidance and affection.
    4. Damages — Determination—Difficulties—Parent and Child— Loss of Society — Loss of Companionship — Liability.
    Difficulty in determining damages should not bar a child from recovering for the loss of society and companionship resulting from an injury to the child’s parent, once liability for such injury is established.

      Church, Wyble, Kritselis & Tesseris (by Thomas H. Hay), for plaintiffs.

      Davidson, Gotshall, Kohl, Nelson, Secrest, Waróle & Lynch, for Star of the West Milling Company.

      Willingham, Coté, Hanslovsky, Griffith & Fores-man, P. G, for Weber and Becker Leasing Co., Inc.
    Before: D. E. Holbrook, Jr., P. J., and V. J. Brennan and Bronson, JJ.
   D. E. Holbrook, Jr., P. J.

This action arose out of a March 13, 1973, rear-end collision involving plaintiff Christine Berger and defendant Albert Weber. Plaintiffs Wayne and Christine Berger filed a complaint on their own behalf and sought damages for medical expenditures, loss of income and loss of consortium. As next friend, Wayne Berger sought damages for his mentally retarded daughter’s loss of society, companionship, love and affection of her mother, Christine Berger, as a result of the injuries sustained by Mrs. Berger. It was further alleged that the mentally retarded child was dependent upon her mother to administer to her peculiar physical and psychological needs and because Mrs. Berger had allegedly sustained both physical and psychological injuries in the accident, she could no longer continue to administer to the peculiar needs of her retarded daughter.

Defendants conceded the issue of liability as to Wayne and Christine Berger and sought a trial on the amount of damages. A jury awarded Wayne and Christine Berger $142,000 and defendants appeal. We find defendants’ allegation of error in the jury instructions to be so lacking in merit as to render discussion unnecessary and we affirm.

Plaintiff Wayne Berger, as next friend, cross-appeals the trial court’s pre-trial grant of defendants’ motion for summary judgment as to the issue of liability for the minor daughter’s loss of society and companionship. The trial court ruled there was no cause of action in Michigan for a minor child’s loss of a parent’s society and companionship.

We reverse and hold that a child may maintain a cause of action for loss of parental society and companionship when a parent is "severely” injured. Because the injured parent may recover for financial losses resulting from his or her disability, we reject the contention that the child has an independent action for "support”, at least in the economic sense. To allow a parent to recover lost wages, for example, and to also allow a child to recover for loss of support would result in double recovery. We therefore confine our holding to a child’s independent action for loss of society and companionship.

We have carefully weighed the competing arguments and find the balance tips in favor of creating this cause of action. In Michigan there are several old cases with dictum to the effect that a child does not have an independent cause of action for injuries to a parent and a 1968 Court of Appeals case which, noting the lack of precedent, concluded a child did not state a cause of action. In Blair v Seitner Dry Goods Co, 184 Mich 304; 151 NW 724 (1915), overruled on other grounds, Montgomery v Stephan, 359 Mich 33; 101 NW2d 227 (1960), the Court found that minor children may suffer on account of an injury to a parent but that "it has never been considered that they had an action therefor”. 184 Mich at 313. Similarly, Hayrynen v White Pine Copper Co, 9 Mich App 452; 157 NW2d 502 (1968), grounded its objection to a child’s recovery on the lack of " 'statutory or prior judicial authority at the present time’ ”. 9 Mich App at 456. In deciding which statute of limitations was applicable in a wrongful death action, the Michigan Supreme Court indicated, without analysis, that a minor had no right of action for injuries to his parent. Cugell v Sani-Wash Laundry Co, 280 Mich 286, 289; 273 NW 571 (1937).

In light of recent statutory and judicial developments we believe that the time has come for recognition of a child’s genuine loss when he or she is deprived of parental society and companionship. Until the 1960 case of Montgomery v Stephan, supra, a husband could recover for the loss of a wife’s consortium but the wife could not recover for the same loss when her husband was injured. Citing the long history of legal discrimination against married women, Justice Talbot Smith found that the conditions of modern society justified an overdue change in the judicially created bar to a wife’s action for loss of consortium. As Justice Smith concluded, "[t]he reasons for the old rule no longer obtaining, the rule falls with it”. 359 Mich at 49. We believe the spirit of Montgomery is analogous to the case at bar and that neither the lack of precedent cited in Hayrynen nor the varying objections from courts in other jurisdictions are sufficient to uphold archaic barriers which prevent a child from being compensated for his or her unquestionable loss.

Emerging Rights of Children

Our ruling is in keeping with the modern judicial recognition of a child as a person with many of the same rights as adults. Once relegated to the status of chattel, children have lagged behind other groups of society in being accorded basic rights of citizenry.

In a recent pronouncement by the United States Supreme Court allowing minors to obtain contraceptives without parental consent, Carey v Population Services International, 431 US 678, 692; 97 S Ct 2010, 2020; 52 L Ed 2d 675, 689 (1977), the Court noted:

" 'Minors, as well as adults, are protected by the Constitution and possess constitutional rights.’ Planned Parenthood of Central Missouri v Danforth, [428 US 52, 74; 96 S Ct 2831, 2843; 49 L Ed 2d 788, 808 (1976)]. '[W]hatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.’ In re Gault, [387 US 1, 13; 87 S Ct 1428, 1436; 18 L Ed 2d 527, 538 (1976)].”

The Court identified some of those rights: constitutional protection for freedom of speech, equal protection against racial discrimination, due process in civil contexts, and a variety of rights in the criminal procedure context. 431 US at 692; 97 Sup Ct at 2020; 52 L Ed 2d at 689.

In the context of a complex child custody case, In re Maria S Weldon, 397 Mich 225, 276; 244 NW2d 827 (1976), Justice Coleman commented,

"We recognize two protected rights * * * that of the child as a separate and distinct entity to those unalienable rights of American citizenship.”

Earlier in her opinion Justice Coleman stated:

"We find the Child Custody Act [MCLA 722.21 et seq.; MSA 25.312(1) et seq.] to be consistent with contemporary recognition of the inherent rights of children as citizens”. In re Weldon, 397 Mich at 268.

In determining child custody, the legislative standard is the "best interests of the child”. A minor child has a right to legal representation in a child custody proceeding, MCLA 552.45; MSA 25.121.

The recent abolition of intra-family tort immunity carries with it the implication that a child has an independent identity. Plumley v Klein, 388 Mich 1; 199 NW2d 169 (1972). Also a child may sue a tortfeasor for negligently inflicted pre-natal injuries, the Court stating that a child has a right to begin life with a sound mind and body. Womack v Buchhorn, 384 Mich 718, 725; 187 NW2d 218 (1971).

In short, these cases reflect a growing awareness by the judiciary that children are persons with a variety of legal interests. Today we conclude that one of these interests, parental society and companionship, is deserving of protection when a parent is injured to the extent that he or she cannot provide the child with parental love, guidance and affection.

Nature of Child’s Loss

Currently Michigan law allows a spouse to recover for loss of "consortium” when the other spouse is severely injured, Montgomery v Stephan, supra. In 1971 the wrongful death act was amended to specifically allow recovery for the "loss of society and companionship of the deceased”. Even before the statutory amendment, children could recover for such losses in a wrongful death action. Westfall v Venton, 1 Mich App 612; 137 NW2d 757 (1965), Iv den, 377 Mich 700 (1966). Parents may recover for such losses when their children are killed. So we are confronted with the anomalous situation of saying that a child suffers the compensable loss of society and companionship when a parent is killed but not when the parent is injured so severely that he or she cannot perform the parental function. We say that when a spouse has been severely injured the other spouse may recover for the loss of society, companionship and/ or consortium, but that the child may not recover for almost identical losses.

After noting courts have not allowed recovery, Prosser states,

"It is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant’s negligence. This is surely a genuine injury, and a serious one”.

Even in denying recovery, courts have recognized the child suffers a true loss. Recently the California Supreme Court admitted:

" * * * we do not doubt the reality or the magnitude of the injury suffered by plaintiffs. We are keenly aware of the need of children for the love, affection, society and guidance of parents; any injury which diminishes the ability of a parent to meet these needs is plainly a family tragedy, harming all members of that community.” Borer v American Airlines Inc, 19 Cal 3d 441, 453; 138 Cal Rptr 302, 310; 563 P2d 858, 866 (1977).

See also Hill v Sibley Memorial Hospital, 108 F Supp 739 (DDC 1952), Hankins v Derby, 211 NW2d 581, 582 (Iowa, 1973). The loss of parental guidance and training can have a severe impact on the child’s development and personality. The importance of the "family unit” has been noted in several Michigan cases. As the dissenters on the Iowa Supreme Court lament,

"Everyone seems to agree that 'a child has an interest in the maintenance of a viable family relationship and in all the benefits derived from the family circle’ but no one does anything about it.” Hankins v Derby, supra, at 589 (dissent of Mason, Reynoldson and McCormick, JJ.).

Reasons for Denying a Cause of Action Are Not Persuasive

We agree with Justice Mosk in his dissent in Borer v American Airlines, supra, that in light of the strong policy reasons for granting recovery, the reasons advanced by the majority in Borer are unpersuasive and have been rejected in other contexts.

In Michigan and other jurisdictions courts have cited a lack of precedent for such an action. Hayrynen v White Pine Copper Co, supra, Borer v American Airlines, supra. This argument misperceives the evolving nature of the common law. Carried to its logical extreme, this doctrine would result in a static body of law. In acknowledging the wife’s right to recover for loss of consortium, Justice Smith reasoned:

"Were we to rule upon precedent alone, were stability the only reason for our being, we would have no trouble with this case. We would simply tell the woman to begone, and to take her shattered husband with her, that we need no longer be affronted by a sight so repulsive. In so doing we would have vast support from the dusty books. But dust [from] the decision would remain in our mouths through the years ahead, a reproach to law and conscience alike. Our oath is to do justice, not to perpetuate error.” Montgomery v Stephan, supra, at 37-38.

We concur with Justice Mosk’s response to the lack of precedent argument — when the crowd is marching in the wrong direction, it is time to break ranks and strike out on our own.

A second argument advanced by some courts is the uncertainty of damages and/or the inability of money damages to compensate for such an intangible loss. While it is true that calculating damages for loss of society and companionship may be difficult, it would seem no more difficult than the task of determining a spouse’s identical loss or the almost identical loss of a child in a wrongful death action when a parent is killed. Probably in the vast majority of cases involving parental injury, the injury will not be so severe that the child suffers a loss of society and companionship. But in cases, for example, where a parent is severely crippled or suffers brain damage a child will be deprived of parental guidance, love and affection. Obviously there will be a range of possible recoveries depending on the extent of the loss. Once liability is established, difficulty in determining damages will not bar recovery. Troppi v Scarf, 31 Mich App 240, 261; 187 NW2d 511 (1971), Purcell v Keegan, 359 Mich 571 576; 103 NW2d 494 (1960).

We reject the majority’s argument in Borer that because a child’s loss is intangible, money damages are inadequate. This is more a comment on the inadequacy of legal remedies in general rather than a valid reason for denying recovery to a child. Money cannot purchase eyesight for one who is blinded nor can it truly compensate for intangibles such as pain and suffering or the loss of a life. To say that a child cannot be fully compensated for his or her loss does not justify ignoring the loss altogether.

A third argument made by some courts is the possibility of double recovery by the child because, either juries already compensate the child for lost economic support through an award to the parent, or juries already indirectly factor in a child’s emotional loss through an award to the parent. We agree with the first of these arguments and, therefore, we have declined to allow a child an action for loss of economic support. The second argument, however, is actually a further reason for adopting an independent action for the child. Rather than having juries make blind calculations of the child’s loss in determining an award to the parent, a child’s loss could be openly argued in court and the jury could be instructed to consider the child’s loss separately. The award would accrue directly to the child rather than be lumped in with that of the parent, who may or may not spend it for the child’s benefit. The possibility of double recovery for loss of society and companionship would be eliminated if the jury was instructed to consider the losses of the parent and child independently.

A fourth objection advanced by some courts is the familiar "floodgates argument” that once a child is allowed recovery, maiden aunts, second cousins and next-door neighbors will fill the courts with their claims of lost companionship. This makeweight argument has probably been made whenever a new cause of action was proposed. Because of the crucial role of a parent in a child’s development, we specifically confine our holding to allow recovery for the loss of parental society and companionship. This would include not only natural parents but those who have assumed a parental role to a child. Whether a person serves as a parent will have to be adjudicated on a case by case basis. The rights of a new class of tort plaintiffs should be forthrightly judged on their own merits, rather than engaging in gloomy speculation as to where it will all end.

A fifth barrier thrown up by some is the spectre of multiple lawsuits, since children will have their own cause of action. While we are acutely aware of bulging trial court dockets, we conclude that the interests of the child in recovering outweigh the possibility that plaintiffs will choose to bring multiple actions resulting from one tortious incident.

A sixth objection raised by some is that in view of the fact that children may not recover for intentional invasion of the family relationship, it would be anomalous to allow recovery for negligent invasion. In Michigan MCLA 600.2901; MSA 27A.2901 has abolished actions for alienation of affections. This statutory prohibition specifically prevents a minor child from recovering from one who has induced a parent away from home, Miller v Kretschmer, 374 Mich 459; 132 NW2d 141 (1965). First we note that the abolition of this action has not been considered inconsistent with the child’s right to recover for the negligent death of a parent under the wrongful death statute nor the spouse’s right to recover when the other spouse is negligently injured. Secondly, the abolition of the alienation of affections action rests on different policy grounds. As noted by one law review commentator, when a parent is enticed from the home, the value of the parental love and companionship is open to question. The action is grounded on the theory that an innocent spouse or parent has been maliciously enticed from the home by a seductive intruder. The modern scenario is more likely to disclose a disappointed spouse who is as much the pursuer as the pursued. While at first glance allowing recovery for negligent, but not intentional, interference with the family relationship might seem anomalous, on closer examination of the differing policies, we find the argument unpersuasive.

A seventh objection, argued by the California majority in Borer, is that a child cannot recover for loss of "consortium” because of the sexual aspect of the spousal relationship. We do not choose to debate what "consortium” does or does not include. Rather than attempting to make a perfect analogy between the loss of a spouse and that of a child, we focus on the fact that the child has suffered a genuine loss of society and companionship and should be compensated.

Summary

We have carefully scrutinized the various policy considerations and conclude that the magnitude of the child’s loss outweighs the factors which would militate against allowing recovery. As one commentator points out, it is arguable that the child’s need for compensation for the loss of emotional benefits flowing from family life is even greater than that of the spouse. An adult is better able to understand and adjust to such a loss than is a helpless child.

In abandoning older precedents to allow parents to recover for lost society and companionship when their child was blinded and disfigured, the Wisconsin Supreme Court concluded:

"What is said with respect to parental loss in the event of death of a child is equally true in the case of injury. Our wrongful death statute already recognizes the loss of society and companionship as an element of damages in the case of death. It seems reasonable to recognize this same type loss where there has been injury to a minor child.” Shockley v Prier, 66 Wis 2d 394, 400; 225 NW2d 495, 499 (1975).

Juxtaposing the terminology of "parent” and "child” would summarize our conclusion today.

The language of the older Michigan Supreme Court cases, Blair, supra, and Cugell, supra, represents dictum, and the Court of Appeals is not bound to follow it. In the interests of justice and fairness we hold the new rule to apply to the instant case and all future cases. See Plumley v Klein, supra, at 8.

Affirmed in part; reversed in part. Remanded for further proceedings. Costs to appellees and cross-appellants.

       As of this writing 19 jurisdictions, including the District of Columbia, have rejected children’s various claims for loss of support and/or consortium and/or services and/or society and companionship. Borer v American Airlines Inc, 19 Cal 3d 441, 449; 138 Cal Rptr 302, 308; 563 P2d 858, 864 (1977). See also, Anno. 69 ALR3d 528.

        See, Montgomery v Stephan, supra, at 39.

        Tinker v Des Moines School District, 393 US 503; 89 S Ct 733; 21 L Ed 2d 731 (1969).

        Brown v Board of Education of Topeka, 347 US 483; 74 S Ct 686; 98 L Ed 873 (1954).

        Goss v Lopez, 419 US 565; 95 S Ct 729; 42 L Ed 2d 725 (1975).

         In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970) (proof beyond a reasonable doubt), Breed v Jones, 421 US 519; 95 S Ct 1779; 44 L Ed 2d 346 (1975) (prohibition of double jeopardy), In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967) (rights to notice, counsel, confrontation, cross-examination and not incriminate oneself), and Gallegos v Colorado, 370 US 49; 82 S Ct 1209; 8 L Ed 2d 325 (1962) (protection against coerced confessions).

         MCLA 600.2922; MSA 27A.2922, amended by 1971 PA 65.

        Currie v Fiting, 375 Mich 440; 134 NW2d 611 (1965), Reisig v Klusendorf, 375 Mich 519; 134 NW2d 634 (1965).

       Prosser, Law of Torts (4th ed), § 125, p 896.

       Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent. 56 B U L Rev 722, 740-741 (1976), citing P. Mussen, J. Conger & J. Kagan, Child Development and Personality, 163-164, 397-398 (3d ed, 1969), and McCord, McCord & Thurber, Some Effects of Parental Absence on Children, 64 J Abnormal Soc Psych, 361 (1962). See also the testimony of Dr. Trocchio relating to the psychological effects of deprivation of a parental figure in Justice Coleman’s opinion In re Maria S Weldon, 397 Mich 225, 279-280; 244 NW2d 827 (1976).

        Westfall, supra at 620, Justice Coleman’s opinion in Weldon, supra at 275-276 (child custody context), and the dissenting opinion of Justice Adams in Heider v Michigan Sugar Co, 375 Mich 490, 516; 134 NW2d 637 (1965).

       Dissent of Justice Mosk, Borer, supra, n 1, 19 Cal 3d at 453-460; 138 Cal Rptr at 310-315; 563 P2d at 866-871.

        Id. 19 Cal 3d at 458; 138 Cal Rptr at 313; 563 P2d at 869.

         Russell v Salem Transportation Co, Inc, 61 NJ 502; 295 A2d 862 (1972), Borer, supra, n 1, 19 Cal 3d at 448; 138 Cal Rptr at 307; 563 P2d at 863, 56 B U L Rev, supra, at 734, 69 ALR3d 528, supra, n 1, at 542-543.

        Borer, supra, n 1, 19 Cal 3d at 446-448; 138 Cal Rptr at 306-307; 563 P2d at 862-863. See, the dissent of Justice Adams in Breckon v Franklin Fuel Co, 383 Mich 251, 287-298; 174 NW2d 836 (1970), which concluded that dependency in terms of companionship was perhaps even easier to ascertain than pain and suffering. Justice Adams’ dissent was specifically adopted by the Court in Smith v City of Detroit, 388 Mich 637, 649; 202 NW2d 300 (1972).

       56 B U L Rev, supra, at 735-736.

       Non-biological parents may, and often do, serve the identical needs of a child, see, Justice Coleman’s opinion in Weldon, supra at 276, citing Goldstein, A. Freud & Solnit, Beyond the Best Interests of the Child (Free Press, 1973), pp 12-14.

       Dissent of Justice Mosk in Borer, supra, n 1, 19 Cal 3d at 460; 138 Cal Rptr at 314; 563 P2d at 870.

       See, 69 ALR3d 528, 543-544, Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship, 51 Ind LJ 590, 603-604 (1976), Note, The Child’s Claim for Loss of Consortium Damages: A Logical and Sympathetic Appeal, 13 San Diego L Rev 231, 249-250 (1975).

       56 B U L Rev, supra, at 739.

        Borer, supra, n 1, 19 Cal 3d at 448; 138 Cal Rptr at 307, 563 P2d at 863.

       56 B U L Rev, supra, at 742.


author: D. E. Holbrook, Jr., J. M. J. Kelly, P. J.

text:
    PEOPLE v SUITER
    Docket No. 28990.
    Submitted May 10, 1977, at Lansing.
    Decided April 3, 1978.
    William E. Suiter was convicted by a jury in Montmorency Circuit Court, Joseph P. Swallow, J., of arson of real property. On appeal, the defendant contends that reversal is required because the county prosecuting attorney acted as defense counsel in violation of statute, because the special prosecutor who was appointed to try the case made statements of his belief in defendant’s guilt, and because the trial court erred by telling the jury, in response to a jury request, that the court was not permitted to allow the jury to view certain geographical areas because the jury had begun deliberations. Held:

    1. Representation as defense counsel by the prosecutor does not automatically require reversal, and reversal is not mandated where defendant’s counsel was appointed prosecuting attorney before the trial, the defendant wished to continue with his counsel despite advice by the court that he did not have to, there was no showing that while serving as prosecutor defendant’s counsel did anything as prosecutor which pertained to the defendant’s case, and there was no showing of prejudice.
    2. The remarks of the prosecutor as to his belief in defendant’s guilt do not constitute reversible error because, when read as a whole, those beliefs were related by the prosecutor to the evidence.
    3. Although the trial court does have discretion to allow a jury a view of the premises where a crime was committed even after the jury begins deliberations, there was no error in the court’s refusal to allow a view because the jury’s request was to view areas other than the premises where the crime was committed.

      References for Points in Headnotes

       63 Am Jur 2d, Prosecuting Attorneys § 29.

       5 Am Jur 2d, Appeal and Error § 948 et seq.

       75 Am Jur 2d, Trial § 192 et seq.

    Supreme Court’s view as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L Ed 2d 886.

       75 Am Jur 2d, Trial §§ 74, 75.
    Unauthorized view of premises by juror or jury in criminal case as ground for reversal, new trial, or mistrial. 58 ALR2d 1147.

      Affirmed.
    M. J. Kelly, P. J., dissented on the basis that the language of the statute prohibiting a prosecuting attorney from defending any person charged with crime within the county of which he is prosecuting attorney is mandatory and renders the waiver of error by defendant ineffectual. Judge Kelly also noted that the trial court’s failure to exercise its discretion in disallowing a view of certain areas by the jury was error, but the error did not require reversal because counsel for both sides concurred in the trial court’s decision.
    Opinion of the Court
    1. Criminal Law — Prosecuting Attorneys — Defense Counsel— Prejudice.
    Reversal of a defendant’s conviction on the grounds that his defense counsel continued to represent him after assuming office as prosecuting attorney is not required where the defendant clearly wished to continue with his attorney after being advised that he did not have to do so, where there is no showing of prejudice, and where there is no affirmative showing that while serving as prosecutor defendant’s counsel did anything as prosecutor which pertained to the defendant’s case.
    2. Criminal Law — Appeal and Error — Tactical Error — Grounds for Reversal.
    A defendant who attempts to use a possible error to his tactical advantage should not be allowed to use that error as grounds for reversal.
    3. Criminal Law — Prosecuting Attorneys — Prosecutor’s Remarks —Belief in Defendant’s Guilt — Evidence.
    A prosecutor’s remarks must be read as a whole, and no prejudicial error occurred where a prosecutor, in his closing argument, expressed his personal belief in the defendant’s guilt and also related that belief to the evidence in the case, and where there was no objection to the prosecutor’s remarks and no request for a curative instruction.
    4. Jury — Criminal Law — Jury View — Judge’s Discretion — Premises Where Crime was Committed.
    The question of whether or not a jury may view the premises where a crime has been committed rests in the sound discretion of the trial court; there was no failure of a trial court to recognize or exercise that discretion where it refused a jury’s request to view areas other than the premises where the crime was committed.
    Dissent by M. J. Kelly, P. J.
    5. Criminal Law — Prosecuting Attqrneys — Prosecutor as Defense Counsel — Statutes.

      The language of a statute which prohibits a prosecuting attorney from defending a person charged with a crime in the county of which he is prosecuting attorney is mandatory and renders ineffectual a defendant’s waiver of the error by requesting that he continue to be represented by his attorney after his attorney assumed the office of prosecuting attorney, even though the defendant was given the opportunity to have different counsel (MCLA 776.14; MSA 28.1271).

    6. Criminal Law — Trial—Jury—Jury View.

      A trial court erred in telling a jury that the court was not permitted to allow the jury to view certain geographical areas because the jury had already begun its deliberations because the jury request should have been discussed in the context of an exercise of the court’s discretion rather than being flatly foreclosed; however, reversal on this ground is not warranted where counsel for both parties concurred in the trial court’s decision to disallow a view (MCLA 768.28; MSA 28.1051).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon L. Rise, Prosecuting Attorney (Prosecuting Attorneys Appellate Unit, by Thomas C. Nelson, Assistant Attorney General), for the people.

      Marshall S. Redman, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. J. Kelly, P. J., and Allen and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

Defendant-appellant William Edward Suiter was convicted by jury of arson of real property, MCLA 750.73; MSA 28.268, after a trial on January 14 and 15, 1976, the Honorable Joseph P. Swallow, Montmorency County Circuit Court Judge, presiding. The charge resulted from a fire in the Atlanta Coin Laundry, west of Gerber Road, Atlanta, Montmorency County, Michigan, on May 9, 1975. On February 23, 1976, appellant was sentenced to two to ten years imprisonment. He appeals as of right raising three issues on appeal.

The first reason advanced by appellant for reversing his conviction is that the county prosecutor acted as defense counsel at defendant’s trial in violation of MCLA 776.14; MSA 28.1271. While it is true that he did we do not believe such practice to automatically require reversal. The defendant cites People v LaPine, 61 Mich App 345; 232 NW2d 401 (1975), as authority for the proposition that defendant’s conviction must be reversed. This is not, in our opinion, what LaPine stands for. In LaPine this Court found waiver and no showing of prejudice and affirmed. While it is true the Court stated at 349 thereof: "While the actions of defense counsel in similar cases should be avoided, we see no reason to reverse defendant’s conviction where he has not been prejudiced”, such language supports the appellee’s position and not that of the defendant.

Review of the court file indicates that defense counsel filed his appearance on behalf of the defendant on May 16, 1975. On July 24, 1975, the then prosecutor of Montmorency County filed a motion with the trial court to have one Jon L. Rise appointed special prosecutor for this particular case. An order granting such relief was issued by the court. On July 28, 1975, defendant was arraigned with his counsel being present. Defense counsel had previously represented defendant at the preliminary examination. On September 1, 1975, defendant’s counsel was appointed prosecutor of Montmorency County. The instant case was noticed for trial on November 20, 1975, and trial took place on January 14 and 15 of 1976. The record fails to reveal that while acting as prosecutor defense counsel performed any acts pertaining to defendant’s case. The same was true in LaPine, supra.

Prior to the taking of any testimony in defendant’s case the following colloquy transpired between the trial judge and defendant:

"THE COURT: * * * All right. Now, before we proceed, I think — and call the jury — the record should reflect we are out of the presence of the jury at this time. And there has been prior discussions with the Court among counsel relative to the fact that Mr. Tibbetts is now the prosecuting attorney. But he is representing Mr. Suiter as defense counsel.
"Now, Mr. Suiter, I understand that you are satisfied with Mr. Tibbetts as your defense counsel, even though the fact that he is now prosecutor. Is that correct?
"MR. SUITER: Yes, sir.
"THE COURT: All right. And you want to proceed with Mr. Tibbetts as your attorney?
"MR. SUITER: Yes, sir.
"THE COURT: Even understanding the fact that this may constitute — while Mr. Tibbetts is bound by his oath as a lawyer to do the best job that he can for you, and I’m sure he will, but even under that circumstance, it is possible for you to raise an objection of conflict of interest and have another attorney appointed for you. But even realizing that, it’s my understanding, it has been expressed to me by Mr. Tibbetts, that you desire to proceed with him as your defense counsel. Is that correct?
"MR. SUITER: I am satisfied.
"THE COURT: All right. And you want to proceed with him as your counsel?
"MR. SUITER: Right.”

From the foregoing it is apparent that defendant wanted to proceed with his attorney despite repeated advice by the court that he did not have to do so and that the court would appoint substitute counsel if defendant so wished. Such conduct by the defendant, in our opinion, constitutes both acquiesence and waiver. Such also was the case in LaPine, supra.

The circumstances herein are most analagous to LaPine and absent a showing of prejudice or an affirmative showing that while serving as prosecutor defendant’s counsel did something as prosecutor which pertained to defendant’s case reversal is not mandated on the basis of the prosecutor’s violation of MCLA 776.14; MSA 28.1271. We find no such affirmative action on the part of the prosecutor nor any prejudice. Moreover, when a defendant attempts to use a possible error to his tactical advantage and the results are not to his liking, this Court will not allow him to use that as grounds for reversal. People v Baines, 68 Mich App 385, 388; 242 NW2d 784 (1976). While the prosecutor may or may not be subject to criminal prosecution and/or disciplinary action for violation of the statute such violation by the prosecutor, under the facts in this case, is not grounds for reversal of defendant’s conviction.

The second reason given by appellant for reversal of his conviction are the following remarks made by the prosecutor during closing argument:

"Now, let’s review the facts. First of all, did he start the fire? I feel he did. If I didn’t feel he did, I wouldn’t be here.”

Appellant claims that People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970), prohibits such remarks and labels them "prejudicial error”. We submit this is not the case at all. While it is true that the foregoing remarks, standing alone, might well constitute reversible error, when the special prosecutor relates his personal beliefs to the evidence same do not. Humphreys, supra at 414. Following the above quoted remarks the special prosecutor continued:

"And there are several things that indicate that to me. I think the strongest point is the fact that Deputy Teets and Deputy Baker saw him leaving, running from a burning building. Now, to say that he could not have known that building was on fire when a few seconds after he left it was completely filled with smoke, is ridiculous. He had to know it was on fire. And since he was the only one in the building, I feel he had to have started it.
"Now, what did he do after he left this burning building? Now, you will notice from this map that the laundromat is here, the Standard Station is here. What is in between? The Sheriff’s Department. Now, did he call the Sheriff’s Department to report the fire? No. Did he stop off at the Sheriff’s Department and report the fire? No. In fact, when he was arrested — and remember at the time he was arrested the police officers testified that his car was parked in front of the Standard Station, the door open, the motor running, which indicates to me a hasty retreat from the auto — he denied knowing anything about a fire.
"Now, we didn’t see him light the match. Be a heck of a lot easier if we did. We didn’t. But you can, without any question in your mind, indicate from the circumstances involving this thing that he did in fact start that fire.”

Prosecutorial remarks must be read as a whole and it is readily apparent from a reading of same together with the transcript that the special prosecutor related his personal beliefs to the evidence in the case and properly before the jury. Hence no reversible error. Furthermore, there was no objection to said remarks nor was there a request for a curative instruction.

As to the final issue advanced by appellant we find same to be equally lacking in merit. Appellant claims that the trial court was in error when it told the jury that it was not permitted to allow the jury, once deliberations had commenced, to view certain geographical areas. While we agree that the trial court has discretion to allow a jury a view of the premises even after deliberations have commenced, here the jury was not requesting to view the premises where the crime was committed. The request of the jury was stated thus:

"We, the jury, would like to know if it is at all possible if we could walk a couple of the routes on the map and visit a few of the spots referred to during the trial.”

At no point in the request did the jury specifically request to view the premises where the crime took place. The law applicable to this final issue is set forth in 1 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 462, p 574, where it is stated:

"The question of whether or not the jury shall view the premises where a crime has been committed * * * rests in the sound discretion of the trial court.” (Emphasis supplied.)

Since this is not what the jury requested there was no failure to recognize or exercise discretion on the part of the trial judge.

Affirmed.

Allen, J., concurred.

M. J. Kelly, P. J.

(dissenting). I believe the violation of the statute mandates reversal. I agree that there is no clear demonstration of actual prejudice but this is really not a situation which lends itself to clearly defined prejudice. The statute provides:

"Sec. 14. It shall be unlawful for any prosecuting attorney of this state to defend or assist in the defense of any person charged with crime within the county of which he is prosecuting attorney.” MCLA 776.14; MSA 28.1271.

If the error complained of had occurred in Southeastern Michigan, could we say that a prosecutor, elected or appointed, who assumed office September 1st, could continue to be active in the defense of a client and try his case as defense attorney some four or five months later? The word "shall” is "mandatory and imperative, and when used in a command to a public official, it excludes the idea of discretion”. Brown v Department of Military Affairs, 30 Mich App 463, 467; 186 NW2d 747, 749 (1971).

We must determine what sanction should be invoked for "unlawful” activity on the part of the prosecuting attorney. I readily acknowledge the same distaste mentioned by the majority for allowing a defendant to use error which he has expressly waived as the basis for reversal. Perhaps I would be inclined to vote with the majority and let the violation here go to criminal prosecution or disciplinary action were it not for People v LaPine, 61 Mich App 345; 232 NW2d 401 (1975), which is cited by and relied on by both parties. Although the LaPine Court found no prejudice it cautioned that defense counsel in similar cases should avoid such conflict. Either that warning means something or it does not. I would hold that the mandatory language of the statute, coupled with the message contained in LaPine, rendered the defendant’s waiver ineffectual. Were we to require a showing of actual prejudice we would be ignoring the fact that this case was noticed for trial six months after LaPine had been released.

Furthermore, I find another distinction significant. Deputies, assistants, substitutes, and temporary public prosecutors are in a different category than public prosecutors themselves. A county prosecuting attorney in Michigan fills a constitutional office of great importance affected with a public trust. His powers are awesome and his duties should be carried out in a manner which reflects the highest ethical standards. He may be said to belong to the judicial branch of government, but in reality, he is the foremost representative of the executive branch in the enforcement of criminal law in his county. "It is against public policy for the prosecuting attorney, whose duty it is to look after the interests of the State and county and represent county officers, to take a private position antagonistic to that of, or conflicting with, his public duty.” Ray v Gun Plains Township, 340 Mich 549, 555; 66 NW2d 95, 98 (1954).

I agree with the dissent of Judge Brennan in People v LaPine, supra at 350, that the purpose of the statute "is to avoid the possibility of any conflict of interest or the appearance of any impropriety in this area by the imposition of a flat prohibition against prosecuting attorneys”.

Perhaps one other issue raised by defendant-appellant should be mentioned. The trial court was in error when it told the jury that it was not permitted to give the jury a view of certain geographical areas because the case was closed. A trial court has discretion under MCLA 768.28; MSA 28.1051 to allow a jury view, even after deliberations have begun. People v Dykes, 37 Mich App 555; 195 NW2d 14 (1972). I would not be inclined to vote reversal on this ground alone because, very clearly, counsel for each side concurred in the trial judge’s decision to disallow a view. The point is that the jury could have been allowed a view and their request should have been discussed in the context of an exercise of the court’s discretion rather than as being flatly foreclosed since deliberations had begun.

I would reverse.


author: D. E. Holbrook, Jr., P. J. D. R. Freeman, J.

text:
    BAUMANN v POTTS
    Docket No. 30006.
    Submitted June 15, 1977, at Lansing.
    Decided April 3, 1978.
    Lee R. Baumann and Jeanne E. Baumann brought a negligence action against Donald C. Potts seeking damages for injuries sustained when their automobile was struck from the rear by an automobile driven by the defendant. Defendant asserted the defense of sudden emergency due to brake failure in his vehicle. Plaintiffs moved for a directed verdict which was denied. The jury later returned a verdict of no cause of action. Plaintiffs moved for a new trial claiming that the verdict was against the great weight of the evidence and contending that the trial court erred in allowing the sudden emergency defense to be offered to excuse violation of the statute requiring automobiles to be equipped and maintained with adequate braking systems. Plaintiffs also argued that if the sudden emergency doctrine was applicable in a brake failure situation, then the defense should be limited to those instances where the defendant has presented clear and convincing evidence corroborating the claim. The Saginaw County Circuit Court, Eugene S. Huff, J., denied the motion. Plaintiffs appeal. Held:

    1. Proof of violation of a penal statute, like the brake equipment statute, creates a prima facie presumption of negligence which may then be rebutted by the alleged wrongdoer with evidence showing an adequate or legally sufficient excuse for his actions under the facts and circumstances of the case. A legally sufficient excuse is a determination to be made by the finder of fact by applying the reasonable, prudent person test.
    2. The court also found that the tests adopted by the state appellate courts to determine whether a presumption of negligence arising from violation of a penal statute had been rebutted as a matter of law were not applicable to determine the issue of whether the facts submitted in rebuttal of the presumption in a particular case should be submitted for jury determination of the establishment of a legal excuse as a matter of fact.

      References for Points in Headnotes

       57 Am Jur 2d, Negligence §§ 242-244, 246.
    [2, 3, 4] 57 Am Jur 2d, Negligence §§ 249-251.
    [5, 7, 8] 57 Am Jur 2d, Negligence § 90 et seq.

       7 Am Jur 2d, Automobiles and Highway Traffic § 151.

      3. It was also held that the sudden emergency doctrine was not an affirmative defense and that the party asserting it did not have the burden of proof of establishing by a preponderance of the evidence that an emergency existed.
    Affirmed.
    Judge D. R. Freeman concurred, but emphasized that although a defendant asserting the sudden emergency doctrine was not required to prove the claim by a preponderance of the evidence, he still must meet the burden of presenting some evidence on the claim. Judge Freeman also would hold that the circumstances to be considered in applying the reasonable, prudent person test should not be restricted solely to the events of the accident but should include relevant evidence of prior circumstances as well.
    Opinion op the Court
    1. Negligence — Criminal Law — Presumptions—Rebuttal—Statutes — Penal Statutes.
    A violation of a penal statute creates a prima facie case of civil negligence, a presumption which can be rebutted by the alleged wrongdoer by coming forward with evidence showing an adequate or legally sufficient excuse under the facts and circumstances of the case.
    2. Negligence — Presumptions—Crimes—Rebuttal—Jury—Statutes — Penal Statutes.
    The establishment of an adequate or legally sufficient excuse to rebut the presumption of civil negligence arising from the violation of a criminal statute is a determination to be made by the finder of fact on proper instruction.
    3. Negligence — Presumptions—Crimes—Rebuttal—Reasonable Man Test — Statutes—Penal Statutes.
    The test to be applied by the finder of fact to determine whether an adequate or legally sufficient excuse has been established by a defendant in a civil action for negligence to rebut the presumption of negligence arising from the violation of a criminal statute is whether a reasonable or prudent person would have acted similarly under all of the circumstances giving rise to the action.

      4. Negligence — Presumptions—Crimes—Rebuttal—Tests—Mat-
    ters of Fact — Matters of Law — Statutes—Penal Statutes. The tests adopted by the Michigan Appellate Courts to determine whether the presumption of negligence arising from a violation of a penal statute has been rebutted by a defendant in a civil action as a matter of law do not control the issue of whether the facts in a particular case should be submitted for a jury determination.
    5. Negligence — Sudden Emergency Doctrine — Burden of Proof— Standard of Proof.
    The sudden emergency doctrine is not an affirmative defense; it is not incumbent upon a defendant asserting sudden emergency in a civil action for negligence to establish by a preponderance of the evidence that an emergency existed, and, therefore, the defendant does not have the burden of proof as to such issue.
    6. Automobiles — Negligence—Statutes—Misdemeanor—Penal Statutes.
    Violation of the statute requiring that motor vehicles be equipped and maintained with adequate braking systems constitutes a misdemeanor, thereby rendering the act a penal statute.
    Concurrence by D. R. Freeman, J.
    7. Negligence — Defenses—Sudden Emergency Doctrine — Burden of Proof — Evidence.

      It is necessary that a defendant raising the defense of sudden emergency in an action for negligence present some evidence on the issue; once the issue has been raised by the defendant with some supporting evidence, however, the burden of persuasion by a preponderance of the evidence is upon the plaintiff.

    8. Negligence — Defenses—Sudden Emergency Doctrine — Circumstances.

      The test to determine whether the sudden emergency doctrine may be claimed by a defendant in an action for negligence following an automobile accident is whether the defendant acted in a manner in which a reasonable, prudent person would have acted under all of the circumstances of the case; the circumstances to be considered should not be restricted solely to the events of the accident, but should include circumstances prior to the accident which could be signiñcant to the outcome.

      Moore, Barr & Kerwin, for plaintiffs.

      Smith & Brooker, P. C., for defendant.
    Before: D. E. Holbrook, Jr., P. J., and Allen and D. R. Freeman, JJ.

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

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

This rear-end collision case resulted in a jury verdict of no cause of action. During the course of trial plaintiffs moved for a directed verdict, which motion was denied. Subsequent to the jury verdict plaintiffs moved for a new trial, which motion was also denied, and plaintiffs appeal. The facts necessary to resolve this dispute will be hereafter set forth where nécessary and applicable.

On appeal plaintiffs claim first, that the sudden emergency defense should not be extended to excuse violation of the brake equipment statute, MCLA 257.705; MSA 9.2405; second, that, if we do allow the sudden emergency defense to be available in brake failure cases, we should limit same to such situations where the defendant has presented clear and convincing evidence corroborating his claim; and, third, that the verdict of the jury was contrary to the great weight of the evidence. In answering appellant’s contentions, although not necessarily seriatim, we find ourselves compelled to turn to three Michigan cases.

In Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976), the Supreme Court, speaking through Mr. Justice Williams, at 129 and 130 stated:

"In a growing number of states, the rule concerning the proper role of a penal statute in a civil action for damages is that violation of the statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case. The excuses may not necessarily be applicable in a criminal action, since, in the absence of legislatively-mandated civil penalties, acceptance of the criminal statute itself as a standard of care in a civil action is purely discretionary. See Comment and Illustrations, 2 Restatement Torts, 2d, § 288A, pp 33-37.
"Michigan cases have in effect followed this rule.” (Emphasis supplied.)

At 143 Justice Williams continued:

"We have seen, therefore, that while some of our Michigan cases seem to present negligence per se as an unqualified rule, the fact of the matter is that there are a number of qualifications which make application of this rule not really a per se approach at all. Not only must the statutory purpose doctrine and the requirement of proximate cause be satisfied, but the alleged wrongdoer has an opportunity to come forward with evidence rebutting the presumption of negligence.
"An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the Under of fact whether the party accused of violating the statute has established a legally sufficient excuse. If the finder of fact determines such an excuse exists, the appropriate standard of care then becomes that established by the common law. Such excuses shall include, but shall not be limited to, those suggested by the Restatement Torts, 2d, §228A, and shall be determined by the circumstances of each case.” (Emphasis supplied.)

In Szymborski v Slatina, 386 Mich 339; 192 NW2d 213 (1971), which was also a rear-end collision case, plaintiff claimed, among other things, that the trial court erred in its charge to the jury by failing to instruct them that the statutory presumption of negligence arising from a rear-end collision could only be overcome by clear, positive and credible evidence and further by failing to instruct the jury that the defendant had the burden of proof upon the question of "sudden emergency”. In resolving these claims of error the Court stated at 340 and 341:

"On the statutory presumption:
" 'Where, however, we are dealing with the rear-end presumption, it appears that the standard urged by the plaintiff is pertinent only to the issue of whether the presumption has been rebutted as a matter of law. Petrosky v Dziurman (1962), 367 Mich 539, 547. This standard is one for the judge. If the evidence is less than clear, positive and credible, ’’the question whether such presumption has been overcome should be settled —on proper instruction of course — in the jury room.” Petrosky v Dziurman, supra, 544, 545, citing Garrigan v LaSalle Coca-Cola Bottling Co. (1961), 362 Mich 262. The trial court did not err in refusing to instruct that the jury could find that the presumption was rebutted only upon clear, positive and credible evidence.’
"On sudden emergency:
"' ’’The doctrine of sudden emergency is a 'logical extension of the "reasonably prudent person” rule,’ and as such is not an affirmative defense. Baker v Alt (1965), 374 Mich 492, 496. As it was said in Baker, at p 496, the ’test to be applied is what that hypothetical, reasonably prudent person would have done under all the circumstances of the accident, whatever they were.’ ” (Emphasis supplied.) Since the ’’sudden emergency” rule is not an affirmative defense, it was not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed nor was it error for the judge to refuse to so charge. ’ ” (Emphasis supplied.)

In Lucas v Carson, 38 Mich App 552, 557; 196 NW2d 819 (1972), then Judge, now Justice, Fitzgerald, speaking for the Court, in addressing the issue of what evidence is necessary to rebut the presumption of negligence arising from violation of a penal statute wrote as follows:

"The general rule appears to be that evidence required to rebut this presumption as a matter of law should be positive, unequivocal, strong, and credible. Krisher v Duff, 331 Mich 699 (1951); Petrosky v Dziurman, 367 Mich 539 (1962). In the case at bar, defendant driver contended that she was at all times driving in a reasonable and prudent manner.
"Although the issue presented here is a close one, the trial court was correct in its decision that there was sufficient evidence on the issue of reasonable care to present a factual consideration for the jury and to preclude a directed verdict for plaintiff as a matter of law. Although the statutory presumption of negligence was certainly not rebutted by defendants’ evidence as a matter of law, the trial court decided that there was sufficient evidence at least to generate a jury question regarding rebutting of the presumption.”

The foregoing standard was cited and adopted by the Supreme Court in Zeni v Anderson, supra at 133, 134, 135.

From the above cited cases we conclude that (1) a violation of a penal statute creates a prima facie case of negligence, a presumption which can be rebutted by affording the alleged wrongdoer an opportunity to come forward with evidence showing an adequate or legally sufficient excuse under the facts and circumstances of the case; (2) whether the party accused of violating the statute has established an adequate or legally sufficient excuse is a determination to be made by the finder of fact on proper instruction; (3) the test to be applied by the finder of fact is what a reasonable prudent person would have done under all the circumstances of the accident; (4) the clear, positive and credible test set forth in Szymborski, supra, the positive, unequivocal, strong and credible test adopted by Lucas, supra, and, as previously stated, approved of by the Supreme Court in Zeni v Anderson, supra at 133, 134, 135, and the clear and convincing test urged upon us by the plaintiffs in the instant case apply only to the question of whether the presumption of negligence for violation of a penal statute has been rebutted as a matter of law and do not control the issue of whether the facts in a particular case should be submitted for jury determination; (5) the "sudden emergency” doctrine is not an affirmative defense; and, (6) it is not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed and therefore as to such issue defendant does not have the burden of proof.

Plaintiffs’ contention that the sudden emergency defense should not be extended to excuse violation of the brake equipment statute is without merit. When the brake equipment statute is read in conjunction with the defective equipment statute, MCLA 257.683; MSA 9.2383, it is apparent that violation of the brake equipment statute constitutes a misdemeanor thereby rendering same a penal statute. As such, a prima facie case of negligence is established subject to rebuttal by the wrongdoer coming forward with evidence showing an adequate or legally sufficient excuse. Zeni v Anderson, supra.

Plaintiffs’ second allegation, that if we extend the sudden emergency defense to excuse a violation of the brake equipment statute we should limit same to such situations where the defendant has presented clear and convincing evidence corroborating his claim, is equally without merit. From the above cited cases we have already con-eluded that the clear, positive and credible test set forth in Szymborski, supra, the positive, unequivocal, strong and credible test adopted by Lucas, supra, and Zeni, supra, and the clear and convincing test urged upon us by plaintiffs, in the instant case, applies only to whether the presumption of negligence for violation of a penal statute has been rebutted as a matter of law and does not control the issue of whether the facts in a particular case should be submitted for jury determination. If the evidence is less than clear, positive and credible the question of whether the presumption has been overcome should be settled on proper instruction— in the jury room. Szymborski, supra, and Lucas, supra. There the question to be decided is whether the alleged wrongdoer has come forward with evidence showing an adequate or legally sufficient excuse under the facts and circumstances of the case with the test to be applied, by the finder of fact, to be what a reasonable, prudent person would have done under all the circumstances of the accident. Zeni, supra, and Szymborski, supra.

With respect to plaintiffs’ final assertion of error, that the verdict of the jury was contrary to the great weight of the evidence, we turn to the above cited authority together with the facts as testified to by the defendant and investigating officer.

During the month of June of 1971 defendant was operating his 1965 Ford Galaxie in the City of Saginaw on the Holland Street Bridge at a speed of 20 to 25 miles per hour. As he reached the crest of the bridge and commenced his descent he noticed flashing lights which indicated that a train was approaching. He also noticed traffic stopped for the train. Knowing he would have to stop he applied his foot to the brake pedal. The pedal went straight to the floor. To avoid an accident defendant testified that he turned off his engine and attempted to apply his parking brake but to no avail. As a result he rear-ended the plaintiffs’ car which was stopped for the train. Defendant further testified he had never previously experienced any difficulty with his brakes and in fact that his brakes had worked three to four blocks earlier when he had experienced no previous brake line leaks or any indication of a soft pedal. He further testified that following the accident there was brake fluid on the highway, which testimony was contradicted by the investigating officer.

The investigating officer testified that he checked the brakes and that they did in fact go straight to the floor. Also he failed to observe any skid marks on the pavement. He further testified that he checked the master cylinder and wheel cylinders and that said systems had no brake fluid so as to enable same to function properly. He also testified that the braking system was not working properly to stop the vehicle.

Considering the foregoing evidence we hold there to have been sufficient evidence to go to the jury on the theory of sudden emergency and that the trial court properly denied plaintiffs’ motion for a directed verdict. Certainly the evidence in the instant case is equal to if not stronger than the testimony of the defendant in Lucas v Carson, supra, where defendant testified she was at all times driving in a reasonable and prudent manner.

As in Lucas the issue presented here is a close one. While the statutory presumption of negligence was certainly not rebutted by defendant’s evidence as a matter of law, the trial court correctly decided that there was sufficient evidence at least to generate a jury question regarding rebutting of the presumption of defendant’s negligence.

Contrary to the law the trial judge instructed the jury that the defendant had the burden of proof of his claim that he was confronted with a sudden emergency1 not of his own making and that he was not negligent in the occurence of the accident. In explaining what is meant by "burden of proof’ the court instructed the jury that the evidence must satisfy them that the proposition on which a party has the burden of proof has been established by a preponderance of the evidence. By so instructing the jury the trial judge placed on the defendant a higher degree of proof than required by the above cited cases. Hence, while the instruction was error the error inured to the plaintiffs’ benefit since the instructions given by the court not only are more than the law requires but are also more stringent than the test plaintiffs seek us to adopt.

Affirmed. Costs to appellee.

Allen, J., concurred.

D. R. Freeman, J.

(concurring). It is necessary that a defendant raising a sudden emergency doctrine meet the burden of presenting evidence. Although the trial court’s instruction on a preponderance of the evidence burden was improper, this Court’s holdings should not be read to indicate that no proofs are necessary. Placing the burden of producing evidence on the defendant certainly does not detract from the efficacy of the doctrine. Of course, the burden of persuasion by a preponderance of the evidence does not shift from the plaintiff.

The third conclusion reached by the majority finds the test to apply is a reasonable, prudent person test under "all the circumstances of the accident”. The circumstances to be considered should not be restricted solely to the events of the accident. For example, evidence of prior difficulties with brakes (as was adduced in the instant case) may be significant.


author: M. F. Cavanagh, J.

text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v Van SLYKE
    1. Automobiles — Insurance—Exclusionary Clauses — Named Insured — Words and Phrases — Spouse.
    A clause in an automobile liability insurance contract which provided an exclusion of liability coverage to the "named insured” is not invalid for vagueness in the meaning of the term "named insured” as including the spouse of the policyholder where the clause by its terms clearly denies coverage to a named insured and defines that term to include the person or persons named in the declaration certificate and, if an individual, the individual’s spouse, if a resident of the same household.
    2. Automobiles — Insurance—Exclusionary Clauses — Liability Insurance — Named Insured — Statutes.
    A clause in an automobile liability insurance policy which excludes liability coverage to the insured for injuries incurred by any named insured is not authorized by the statute which provides that no automobile liability policy shall be delivered or issued for delivery in this state unless it provides liability coverage of specified minima; this statute prohibits and renders void and unenforceable an exclusionary clause not provided for therein; therefore, such an exclusion is void as contrary to public policy (MCLA 500.3009; MSA 24.13009).
    Appeal from Kent, George R. Cook, J.
    Submitted June 15, 1977, at Grand Rapids.
    (Docket No. 30194.)
    Decided April 3, 1978.
    Leave to appeal applied for.
    Complaint by the Detroit Automobile Inter-Insurance Exchange against Otis Van Slyke and Vera Van Slyke for a declaratory judgment that liability coverage, in an automobile insurance policy issued by plaintiff to Mr. Van Slyke, did not extend to injuries sustained by the wife of the policyholder. Judgment for plaintiff. Defendant Vera Van Slyke appeals.

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d, Automobile Insurance §§ 128, 129.
    Validity, construction, and application of provision of automobile liability policy excluding from coverage injury or death of insured. 46 ALR3d 1061.

      Reversed.

      Allaben, Massie, VanderWeyden & Timmer, for plaintiff.

      McCroskey, Libner, VanLeuven, Kortering, Cochrane & Brock (by Barbara Timmer), for defendant.
    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.

On September 13, 1973, defendant Otis Van Slyke was driving his automobile when it collided with another vehicle. Defendant-appellant, Vera Van Slyke, was a front seat passenger in the vehicle driven by Mr. Van Slyke. Mr. and Mrs. Van Slyke were husband and wife and living in the same household at the time of the accident.

Defendant-appellant Vera Van Slyke instituted suit in Muskegon County Circuit Court, alleging that the defendant, Mr. Van Slyke, was guilty of negligence for having proceeded into the intersection against a red traffic signal and otherwise having failed to make proper observations and drive with due care and caution. Mrs. Van Slyke alleged that she had sustained severe and permanent injuries as a result of Mr. Van Slyke’s negligence.

Mr. Van Slyke sought the defense of the plaintiff-appellee, Detroit Automobile Inter-Insurance Exchange (hereinafter DAIIE). However, DAIIE refused to defend Mr. Van Slyke, maintaining that an exclusion in the policy issued to Mr. Van Slyke precluded coverage of Mr. Van Slyke for injuries incurred by his wife, Vera Van Slyke. DAIIE thereafter commenced a declaratory action in Kent County Circuit Court, seeking a determination of the parties’ respective rights. The case was submitted to the circuit judge upon briefs, and the trial judge issued a declaratory judgment in which he held that under the terms of the insurance policy issued by the DAIIE to Mr. Van Slyke, the latter was not provided liability coverage for injuries sustained by his wife. The court further ruled that an exclusionary clause in the automobile liability insurance policy was valid and enforceable, citing Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513; 194 NW2d 193 (1971), as controlling. It is this determination which the defendant-appellant, Vera Van Slyke, appeals to this Court as of right. The original negligence action which was instituted in Muskegon County Circuit Court is being held in abeyance until this Court makes its determination on the propriety of the Kent County Circuit Court declaratory judgment.

The liability provisions of the policy issued to defendant, Otis Van Slyke, provided that the insured would be covered for bodily injury and property damage claims arising out of the insured’s operation, ownership or maintenance of a motor vehicle.

In the same section of the insurance policy is found a list of exclusions which limited Mr. Van Slyke’s liability protection under the policy. One of them provides that:

"This policy does not apply under Section I: (a) to bodily injury to any named insured.” (Emphasis supplied.)

Appellee contends, and the trial court found, that Mrs. Van Slyke was included under the definition of "named insured” employed in the policy, and that Mr. Van Slyke was therefore without liability protection as against bodily injury sustained by Mrs. Van Slyke. Appellant contends that the definition of "named insured” as used in the policy was ambiguous, and that the term should be construed so as not to include her within its definition. Assuming that the exclusion does in fact apply to her, she maintains that the exclusion is invalid and unenforceable because violative of public policy. Failing this, she finally maintains that if she was not covered under the liability provision of the insurance policy issued by DAIIE, then she would be entitled to recover from the uninsured motorists accident claims fund.

We will first address appellant’s claim that the term "named insured” as contained in the exclusion clause of the policy is ambiguous, requiring us to invalidate the exclusion.

The definition of "named insured” is contained in § I of the policy form:

" 'Named insured’ means the person or persons named in Item I of the Declaration Certificate, and if an individual, includes the spouse, if a resident of the same household. ”

Clearly, the definition of "named insured” contemplated both the person named in the Declaration Certificate and the spouse of that person. We find no ambiguity with respect to the definition of "named insured” within the policy. The exclusion clause by its terms clearly denies Mr. Van Slyke coverage for injuries sustained by his wife, Mrs. Van Slyke. She was a "named insured” under the definition contained in the policy. The trial court did not err in this regard.

We turn now to appellant’s contention that an exclusionary clause which denies coverage to an insured for claims brought against him by a third person, defined by the policy as a "named insured”, violates public policy and is therefore void.

On September 2nd, 1973, when the policy involved in the case at bar was issued, persons who owned or operated motor vehicles on Michigan highways were required to have an insurance policy in effect with liability coverage as specified in MCLA 500.3009; MSA 24.13009. That statute provides that no automobile liability policy shall be delivered or issued for delivery in this state unless it provides liability coverage of specified minima. The statute provides for only one exclusion, clearly inapplicable here. The exclusion contained in the policy before this Court is not authorized by the statute.

In Citizens Mutual Insurance Co v Central Na tional Insurance Co of Omaha, 65 Mich App 349; 237 NW2d 322 (1975), the Court construed the statute to prohibit and render void and unenforceable an exclusionary clause not provided for therein. We find the reasoning of Citizens Mutual persuasive and controlling in the instant case.

Appellee, and the lower court, would base a contrary result on Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513; 194 NW2d 193 (1971). In Weisberg a split panel held that a liability policy which denied coverage for injuries to the vehicle’s owner did not violate public policy.

The Weisberg majority reached this result by defining the legislative purpose behind § 3009’s predecessor as "the protection of the rights and claims of third parties when the vehicle owner becomes liable to those third parties”. 36 Mich App at 518; 194 NW2d at 195. Since the vehicle owner in Weisberg was the injured party, there could be no liability running from him to the injured party, and hence denying him recovery did not contravene the legislative purpose.

The error in this reasoning, as was pointed out in a thorough and persuasive dissent by Justice (then Judge) Levin, is that the automobile liability insurance laws in effect at that time required (even as they do now) that not only the owner but also the operator of the vehicle be covered by liability insurance. Surely this indicates a legislative policy to assure all those injured by another’s negligent operation of a motor vehicle a source of recovery. Because this class could, as it did in Weisberg, include the owner himself, there was in fact a conflict between the presumed legislative policy and the exclusionary clause upheld in Weisberg.

However, even if it were assumed that the Weisberg majority correctly concluded that public policy authorizes an exclusion which denies the owner recovery, that holding would not control here. Plaintiff-appellee alleged in its complaint, and defendant admitted, that the insurance policy issued in the. instant case provided coverage for a vehicle owned and operated at the time of the accident by Otis Van Slyke. Even if Weisberg’s holding were correct, it would not justify denying coverage to Mr. Van Slyke’s passenger and non-owner spouse, to whom he may be liable.

In view of our determination that the exclusion here is void as contrary to public policy, appellant’s alternate claim to relief from the accident claims fund is moot.

Reversed, costs to appellant.

M. J. Kelly, P. J., concurs in the result only.

       MCLA 257.1104; MSA 9.2804, MCLA 257.1102; MSA 9.2802.

       MCLA 500.3009(2); MSA 24.13009(2):
      "When authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance referred to in subsection (3) of section 4 of Act No. 198 of the Public Acts of 1965, as amended, being section 257.1104 of the Compiled Laws of 1948: Warning — when a named excluded person operates a vehicle all liability coverage is void — no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.”
      As the statute clearly states, this exclusion, where applicable, eliminates all liability coverage, as opposed to the denial of recovery by a single person, a named insured, for which appellee here contends. In the instant case there is neither ground nor effort to support an argument that the exclusion was made a part of the policy.

        Cf. Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977). In Gurwin the insurance policy contained a clause excluding liability to members of the insured’s household. The insured sued for a declaratory judgment that this clause was void as applied to deny coverage for liability to the insured’s children. The lower court found the clause invalid and this Court affirmed, reasoning that the exclusion was unauthorized by statute and therefore invalid.

       MCLA 257.520; MSA 9.2220, as incorporated by reference in former MCLA 257.1102(d); MSA 9.2802(d), amended by 1971 PA 211, § 1, Eff Dec 29, 1971. See Citizens Mutual Insurance Co v Central National Insurance Co of Omaha, 65 Mich App 349; 237 NW2d 322 (1975).


author: J. E. McDonald, J.

text:
    LEMANSKI v FORD MOTOR COMPANY
    1. New Trial — Appeal and Error — Judge’s Discretion — Court Rules.
    A new trial is to be sought in the trial court; only after the trial judge has exercised his discretion and has disposed of the motion may the matter be presented to the Court of Appeals, where the question on review is whether or not the trial judge abused his discretion in either granting or denying the motion (GCR 1963, 527, 805, 812.6).
    2. New Trial — Appeal and Error — Burden of Persuasion — Judge’s Discretion.
    A party who moves for a new trial has the burden of persuading the trial court that during the trial an error was committed of sufficient magnitude to cause the trial court to grant a new trial; on appeal from the grant or denial of the motion for new trial the appellant must bring before the reviewing court a sufficient record from the lower court which might indicate that the claim of an abuse of discretion has validity.
    3. Appeal and Error — Motions—New Trial — Support for Motion.
    The Court of Appeals should not consider the question of whether a trial court abused its discretion in denying a motion for a new trial where the motion before the trial court was only pro forma, no briefs were submitted to the trial court in support of the motion, and the moving party did not see fit to have the oral argument on the motion transcribed.
    Appeal from Huron, Allen E. Keyes, J.
    Submitted October 11, 1977, at Detroit.
    (Docket No. 30392.)
    Decided April 3, 1978.
    Complaint by Stanley Lemanski and Susie Lemanski against Ford Motor Company, Garth O’Mara, doing business as O’Mara Ford, John Ahrens, Kenneth Weber doing business as Weber’s Marathon Station, and Marathon Oil Company for damages for injuries received by Stanley Lemanski when he was struck by his automobile as it was being moved by a service station employee. Subsequent to filing of the complaint, Stanley Lemanski died, and Susie Lemanski was substituted, as executrix of his estate. Marathon Oil Company was dismissed by stipulation. Judgments of no cause of action as to defendants O’Mara, Ahrens, and Weber. Judgment for plaintiff as to defendant Ford Motor Company. Ford moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was denied, and Ford appeals.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 555, 556. 58 Am Jur 2d, New Trial §§ 212, 213.

       58 Am Jur 2d, New Trial § 192.

       56 Am Jur 2d, Motions, Rules, and Orders §§ 9,11, 13.

      Affirmed.

      Jacobs, Lichtenstein & Miller (Michael D. Dennis, of counsel), for plaintiff.

      Miller, Canñeld, Paddock & Stone (by Wolfgang Hoppe and Frank J. Greco), for defendant Ford Motor Company.
    Before: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.

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

   J. E. McDonald, J.

Decedent Stanley Lemanski was injured on January 22, 1974, when he was struck by his own automobile while it was being driven by an employee of the service station where he had taken it to have mud flaps installed. Mr. Lemanski was standing at the back of the service bay as the employee drove the car into the bay. The car failed to stop and severely injured Mr. Lemanski’s legs. Mr. Lemanski, age 80, died in April of 1976. The cause of his death was not related to the accident.

In March, 1974, Mr. and Mrs. Lemanski filed this action. The defendants were Ford Motor Company, manufacturer of the 1974 automobile involved in the accident; Garth O’Mara, doing business as O’Mara Ford, the dealer who sold the vehicle to the Lemanskis; John Ahrens, the service station employee who was driving the car at the time of the accident; Kenneth Weber, individually and doing business as Weber’s Marathon Station, the operator of the service station and employer of Mr. Ahrens, and the Marathon Oil Company.

The suit was originally filed in Wayne County and there was a change of venue to Huron County where the matter was tried before a jury.

The case proceeded to trial against defendants Ahrens and Weber on a negligence theory; against O’Mara on breach of implied warranty; and against the Ford Motor Company on negligence, breach of express warranty and breach of implied warranty.

The trial of this matter consumed six days and resulted in a transcript of almost 900 pages. The instructions to the jury covered about 30 pages of the transcript.

The jury returned verdicts of no cause of action as against defendants Ahrens, Weber and O’Mara. Mrs. Lemanski, as executrix of her late husband’s estate, was awarded $86,626 against Ford Motor Company, and Mrs. Lemanski, individually, was awarded $48,250 against defendant Ford Motor Company. Mrs. Lemanski was 71 years of age at the time of the verdict.

Judgment was entered on the verdicts on June 24, 1976. On July 12, 1976, a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial was filed by defendant Ford Motor Company. There is no brief in support of the motion made by defendant Ford Motor Company in the record of the lower court. An answer to the motion was filed by the plaintiff on August 11, 1976. There is no brief by the plaintiff in the lower court records in opposition to the motion for a new trial.

The disposition of this motion by the trial court consists of the following:

"This matter having come on to be heard before the Court on Motion of Defendant Ford Motor Company on Friday, August 20, 1976, and the Court having reviewed said Motion and plaintiff’s response thereto and having listened to the arguments of counsel;
"IT IS THEREFORE ORDERED that the Defendant’s Motion for Judgment Notwithstanding the Verdict and/ or for New Trial is denied.”

This order by the court was signed September 13, 1976, but the form indicates that several of the attorneys involved had approved it as to form and content as early as August 30, 1976. The lower court records indicate that the transcript was ordered on September 16, 1976, and that a claim of appeal was filed on the 23rd day of September, 1976, which reads as follows:

"Ford Motor Company, Defendant-Appellant, claims an appeal from the Order Denying Judgment Notwithstanding the Verdict and/or for New Trial entered September 13, 1976, in the Circuit Court for the County of Huron * * * copy of which is attached hereto.”

New trials are to be sought and granted or denied in the trial court. GCR 1963, 527.

It is only after the trial judge has exercised his discretion and has disposed of the motion that the matter may be presented to the Court of Appeals. GCR 1963, 805.

The question on review is whether or not the trial court abused its discretion in either granting or denying a motion for a new trial. GCR 1963, 812.6.

"The grant or denial of a new trial is within the sound discretion of the trial court which, if not abused, cannot be interfered with on appeal.” Kailimai v The Firestone Tire & Rubber Co, 398 Mich 230, 232; 247 NW2d 295 (1976).

The record brought to this Court for review does not contain any briefs of counsel or any argument offered in the trial court in support of appellant’s motion for a new trial or for a judgment notwithstanding the verdict.

"It was incumbent upon the appellant to prepare the record.” Kranz v Kranz, 323 Mich 680, 683; 36 NW2d 179 (1949).
"This Court is restricted to reviewing the record before it.” People v Williams, 19 Mich App 291, 306; 172 NW2d 515 (1969).

On the basis of the present record before this Court it is impossible to determine what issues were urged in the lower court as a basis for a new trial.

"This Court is limited on review to the issues decided by the trial court.” Hernandez v Consumers Power Co, 51 Mich App 288, 291; 214 NW2d 846 (1974).

In making a motion for a new trial, the burden is on the appellant-defendant to persuade the trial court of error committed during the trial of sufficient magnitude to cause the trial court in its judicial discretion to grant a new trial.

"An appellate court will interfere with the trial court’s exercise of its discretion in this regard only if abuse of its discretion is so plain that upon consideration of the facts upon which the trial judge acted an unprejudiced person can say that there was no justification or excuse for the ruling made.” Carpenter v Cleveland, 32 Mich App 213, 215; 188 NW2d 248 (1971).

It is the responsibility of the appellant-defendant to bring before the reviewing court sufficient of the record from the lower court to indicate that the claim that the trial court abused its discretion in disposing of the motion has validity.

"The granting or denying of a motion for new trial rests within the sound discretion of the trial court and reversal of such order is a function of whether prejudicial error was committed and an abuse of discretion is found.” Durbin v K-K-M Corp, 54 Mich App 38, 57-58; 220 NW2d 110 (1974).

In Fera v Village Plaza, Inc, 396 Mich 639; 242 NW2d 372 (1976) the plaintiffs received a jury award of $200,000 for loss of anticipated profits in their proposed new business, as a result of defendant’s breach of a lease. The Court of Appeals reversed, 52 Mich App 532; 218 NW2d 155 (1974). The Supreme Court reversed and reinstated the jury award.

In his opinion reversing the Court of Appeals, Chief Justice Kavanagh said:

"The trial judge, who also listened to all of the conflicting testimony, denied defendants’ motion for a new trial, finding that the verdict was justified by the evidence. We find no abuse of discretion in that decision.
" 'As a reviewing court we will not invade the fact-finding of the jury or remand for entry of judgment unless the factual record is so clear that reasonable minds may not disagree.’ ” 396 Mich at 648.

In Kailimai v The Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976), the plaintiffs obtained a verdict and judgment in the circuit court. The trial court granted the defendant a partial new trial unless the plaintiff accepted a remittitur.

The Supreme Court, in a unanimous opinion by Coleman, J., said:

"The plaintiffs appealed to the Court of Appeals. The Court of Appeals peremptory order remanded the cause to Wayne County circuit court for partial new trials as to both plaintiffs, 'limited to damages only’. The Court of Appeals acted without the benefit of the trial transcript or transcripts of the post-trial proceedings.
"We granted leave on the narrow issue of whether the Court of Appeals erred in reversing the trial court’s grant of new trials without reviewing the record upon which the trial court acted or the reasons it assigned for its ruling.
"The grant or denial of a new trial is within the sound discretion of the trial court which, if not abused, cannot be interfered with on appeal.
"The Court of Appeals acted in the instant case without benefit of the record. * * * The Court of Appeals cannot decide this question without benefit of the lower court file and transcripts or a stipulated record.” 398 Mich at 232-233.

It would appear that any matter deemed by the moving party to be entitled only to a pro forma motion before the trial court and not deemed worthy of a brief in that court, supported by argument not deemed worthy of transcription by the moving party, cannot be considered in a reviewing court where the question is whether or not the trial judge abused his discretion in disposing of the motion before him.

"An appellate court, passing upon the propriety of a trial court’s denial of a motion for new trial, must view the motion through the eyes of the trial court.” People v Taylor, 383 Mich 338, 363; 175 NW2d 715 (1970).

It is axiomatic that if the moving party fails to make a motion for a new trial, error cannot be reviewed on appeal. More than a pro forma motion for a new trial is required. The requirement is that there be not only form but also substance to the motion for a new trial for it is only on the substance contained in the presentation of the motion for a new trial that the reviewing court can test whether or not the trial court in its disposition of the motion abused its discretion to the point that reversal of the trial court is required.

A perfunctory motion for a new trial followed by a perfunctory order denying that motion does not serve to catapult the issues before the trial court into the lap of the appellate court.

We note that in denying appellant’s motions the trial court did not sign and file a concise statement of his reasons as required by GCR 1963, 527.7.

We do not think any useful purpose would be served by requiring the trial court to comply with the court rule. People v Russell, 35 Mich App 387; 192 NW2d 689 (1971).

No elaborate and involved briefing or intricate and convoluted oral argument on the review level can "paper over” the lack of foundation laid in the trial court or the lack of sufficient record brought from the trial level for review.

The burden is on the moving party to show the reviewing court that the trial judge in denying its motion for a new trial abused this discretion. This appellant has failed to furnish this Court a record as a basis for holding that the trial judge abused his discretion.

The trial court’s denial of appellant’s motions for a new trial or for a judgment ngtwithstanding the verdict is affirmed.

Affirmed.