text:
    PEOPLE v HAYES (CITY OF DEARBORN HEIGHTS v HAYES)
    1. Searches and Seizures — Wire Communications — Pen Registers —Probable Cause.
    The use of a pen register to gather information about telephone conversations involves a search and orders by a state agency to use a pen register to gather such information may issue only upon a showing of probable cause.
    2. Searches and Seizures — Wire Communications — Pen Registers —Police—Ordinance Violation — Governmental Action— Federal Communications Act — Inadmissible Evidence.
    The interception of wire communications through the use of a pen register by a telephone company under the guidance of a police agency attempting to gather evidence for an arrest for violation of a city ordinance prohibiting harassing phone calls is governmental action and the gathered information is inadmissible at a trial for the offense if the information was gathered without a search warrant.
    3. Municipal Corporations — Ordinances—Phone Calls — Harassing or Molesting — Constitutional Law — Vague or Over-broad Ordinances.
    A state has a legitimate interest in prohibiting obscene, threatening and harassing phone calls and an ordinance prohibiting repeated phone calls for the sole purpose of harassing or molesting is not constitutionally vague or overbroad.
    Appeal from Wayne, Joseph A. Moynihan, Jr., J.
    References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 428-435.
    68 Am Jur 2d, Searches and Seizures §§ 24, 60, 68, 69.
    74 Am Jur 2d, Telecommunications §§ 213, 214.

       Admissibility, in criminal prosecution, of evidence secured by mechanical or electronic eavesdropping device. 97 ALR2d 1283.
    Admissibility, in criminal case, of evidence obtained by search by private individual. 36 ALR3d 553.

       74 Am Jur 2d, Telecommunications § 206.

      Submitted October 12, 1977, at Detroit.
    (Docket No. 30409.)
    Decided April 3, 1978.
    Richard Hayes and Joyce Hayes were convicted in district court of making harassing phone calls in violation of a City of Dearborn Heights ordinance. Defendants appealed to circuit court. Affirmed. Defendants appeal by leave granted.
    Reversed and remanded to district court for a new trial.

      Poole, Klask & Carty, P. C. (by Paul T. Jansen), for plaintiff.

      Michael S. Surnow, for defendants.
    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.

Defendants appeal from an August 26, 1976, judgment of Wayne County Circuit Court, which affirmed defendants’ April 29, 1975, district court jury conviction for making harassing phone calls in violation of a Dearborn Heights ordinance. This Court granted leave to appeal.

Evidence introduced at trial tended to establish the following facts: Sonia Toundaian and her husband, Charles, were the complainants herein. Mrs. Toundaian was a co-chairperson, along with one Mr. Shollenberger, of the Crestwood Civil Action Group whose avowed function was to see that the then striking teachers of the Crestwood School District were fired. Mrs. Toundaian received much publicity, with her name frequently appearing in the media. Between December 4 and Christmas, 1974, Mrs. Toundaian and her husband began receiving many obscene and threatening phone calls. They complained to the phone company and to the police, and consented to a "tap” being placed on their line and indicated their willingness to prosecute the person or persons responsible. The tap, installed during late December or early January, showed that calls were coming from many different locations. During January and February, the complainants continued to receive a great number of alleged harassing phone calls. They kept records of some of these calls and turned them over to the police.

The equipment installed on the Toundaian’s line was a number group trap and indicated that a number of calls had been made from the 644 exchange. A pen register was set up on the 644 exchange on February 5th, and it showed that, on that date, six calls were made from 644-8553 to the Toundaian residence. These six calls were recorded between 11:15 and 11:18. This information was given by the phone company to the police, and the police requested further evidence. A pen register was then set up on phone number 644-8553, which phone was registered to defendant Richard Hayes. Richard Hayes’ wife, Joyce, was one of the striking Crestwood teachers who had been fired on December 30. This pen register recorded that between February 18 and February 21, twenty-one calls were made from 644-8553 to the complainants’ residence. On February 21, a telephone company security employee advised Dearborn Heights Police Detective Bennett of the information he had gathered. The defendants were arrested and charged with making harassing phone calls. Complainants did admit that some harassing calls were received even after defendants had been apprehended.

None of the witnesses testified that they had heard a woman’s voice on the phone.

Defendant-appellants claim that the use of a pen register gathered information which was inadmissible as obtained in violation of the Federal Communications Act, 47 USC 605.

Defendants also claim error in the decision by the district court denying a motion for a continuance for four days because counsel of record was involved in a separate trial.

Further, defendants claim the ordinance under which defendants were convicted is so vague and overbroad as to violate their constitutional rights. Further, the defendants claim they were subjected to cruel and unusual punishment by the district court, ordering them to have their telephone removed from their home for a period of one year. And, the final claim of error is that the district court committed reversible error in admitting evidence gathered by the pen register over the defendants’ objection, on the ground that the evidence was the product of a warrantless search.

It appears that the Federal courts, relying principally upon the language of Justice Powell’s opinion in United States v Giordano, 416 US 505; 94 S Ct 1820; 40 L Ed 2d 341 (1974), have indicated that the use of a pen register does involve a search and that orders to use a pen register may issue only upon a showing of probable cause, Application of the United States of America In the Matter of an Order Authorizing the Use of a Pen Register or Similar Mechanical Device, 538 F2d 956 (CA 2, 1976). See also Application of the United States for an Order Authorizing Installation and Use of a Pen Register v Southwestern Bell Telephone Co, 546 F2d 243 (CA 8, 1976).

"It is also clear that pen register orders are not now covered by Section 605 of the Federal Communications ' Act of 1934. Prior to the enactment of Title III, there was authority for the broad applicability of Section 605 to the interception and disclosure of 'any communication,’ including pen registers * * * The amendment of Section 605 effected by Title III restricted the coverage of that section to radio communications, and withdrew the interception of wire or oral communications from the ambit of the section, making Title III the sole governing provision.” 538 F2d at 958-959.

The testimony regarding the pen register evidence was given by a telephone company employee, John Ellison. When this witness was called, defense counsel objected on Fourth Amendment grounds. Following questioning of this witness outside the presence of the jury, the district court ruled the actions by the Bell Telephone Company not to be governmental action.

Mr. Ellison testified that, in response to a call by complainant, he put a group number trap on their line in early January, 1975. This device indicated that the Toundaians were getting many calls from several different locations. The device was placed back on the Toundaian’s line in late January, 1975, and this time the group number trap indicated that two calls came from the 644 office in Birmingham.

On January 5th, the phone company put a piece of equipment, not a pen register, on the line from which calls were emanating, and this equipment showed that there were six calls made within a four-minute period, between 11:15 and 11:18, to the complainants’ phone from a phone registered to defendant Richard Hayes. Mr. Ellison advised Detective Bennett of this on February 12th. Mr. Ellison testified that Detective Bennett "requested more evidence”. A pen register was installed the same day, February 12th. Charles Toundaian testified that he " * * * talked to Detective Bennett daily”. And, later, Mr. Ellison testified, "We deal in law enforcement * * * liaison with law enforcement items such as this”.

Reading these statements together, we are left with the firm conviction that the police were guiding the investigation of defendants through the agency of the telephone company and its employees. On this basis, we cannot agree with the trial court’s finding that there was no state action, and must reverse. See People v Smith, 19 Mich App 359; 172 NW2d 902 (1969).

Defendants also claim they were convicted under an ordinance which is so vague and overbroad as to violate both the First and Fourteenth Amendments to the United States Constitution.

The Dearborn Heights Ordinance 9.223 reads:

"It shall be unlawful for any person to telephone any other person repeatedly or cause any person to be telephoned repeatedly for the sole purpose of harassing or molesting such other person or his family, whether or not conversation ensues, except for telephone calls made for legitimate purposes.”

The ordinance must be presumed to be constitutional. Watnick v Detroit, 365 Mich 600; 113 NW2d 876 (1962).

Words must be given their common meaning unless a contrary intent is clearly shown. People v Smith, 246 Mich 393; 224 NW 402 (1929).

The defendants cite Walker v Dillard, 523 F2d 3 (CA 4, 1975). However, in Walker we find this language:

"We start from the proposition that the state has a legitimate interest in prohibiting obscene, threatening and harassing phone calls, none of which are generally thought of as protected by the First Amendment.”

We are not persuaded that a person of common intelligence would have to guess at the meaning of "harassing or molesting” within the context of an ordinance prohibiting repeated phone calls for this sole purpose. We find no basis for declaring that the ordinance involved is unconstitutionally vague or overbroad.

Since this matter will be retried, we do not find it necessary to discuss the refusal on the part of the trial court to grant a continuance on the basis that the defendants were entitled to be represented by an attorney of their own choice. And, on that same basis, we find it unnecessary to pass upon the sentence of the district court involving the denial of the use of a telephone.

We reverse the judgment of the Wayne County Circuit Court and remand this matter to the District Court of the City of Dearborn Heights for a new trial.


source: Caselaw Access Project

author: D. F. Walsh, J.

license: Public Domain

text:
    PEOPLE v WILKINS
    1. Evidence — Hearsay—Matters Asserted.
    Hearsay is an extrajudicial statement offered to prove the truth of the matter asserted.
    2. Appeal and Error — Criminal Law — Hearsay—Police Testimony — Anonymous Informants.
    A trial court did not err in a trial for carrying a weapon in a motor vehicle in admitting a police officer’s testimony regarding the information received from an anonymous informant about the weapon being carried where the jury was instructed that the testimony was not offered to prove the truth of the informant’s statements but only to illustrate the basis for the officer’s subsequent actions; the testimony was not hearsay.
    3. Criminal Law — Evidence—Other Bad Acts — Prejudicial Ef-
    fect.
    Evidence of a defendant’s other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues.
    4. Criminal Law — Evidence—Other Bad Acts — Admissibility—Requirements — Statutes.
    Evidence of a defendant’s bad acts other than the charged offense is inadmissible unless it satisfies the following requirements: (1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced, (2) there must be some special circumstances of the prior bad act which tend to prove that the facts or circumstances of the other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense, (3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense, and (4) the matter which they tend to prove is disputed by the defendant in opening argument, by cross-examination of prosecution witnesses or by his presenting affirmative evidence on them (MCLA 768.27; MSA 28.1050).

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 497.

       29 Am Jur 2d, Evidence § 500.
    79 Am Jur 2d, Weapons and Firearms § 12.

       29 Am Jur 2d, Evidence § 320.
    [4, 5, 8, 9] 29 Am Jur 2d, Evidence §§ 321, 322, 324-326.

       29 Am Jur 2d, Evidence § 260.

       5 Am Jur 2d, Appeal and Error §§ 776-778, 798.

       5 Am Jur 2d, Appeal and Error § 806.

       21 Am Jur 2d, Criminal Law § 540.
    Validity, under indeterminate sentence law, of sentence fixing identical minimum and maximum terms of imprisonment. 29 ALR2d 1344.

      5. Criminal Law — Evidence—Other Bad Acts — General Rule-Exceptions — Matters Disputed by Defendant — Prosecutors —Case in Chief.
    The exceptions to the general rule that evidence of other bad acts may be introduced only after the matter which they tend to prove is disputed by the defendant are: (1) the prosecution may introduce in its case in chief evidence probative of a design, scheme or plan, or of the identity of the perpetrator of the charged offense where the purpose of such evidence is to prove that defendant, not some other person, committed the act for which he stands accused, (2) in cases in which the crime charged is one in which the criminal intent necessary for conviction may not be inferred from the mere commission of the act, the prosecution may introduce such evidence in its case in chief to prove that intent, and (3) the prosecutor may introduce evidence in its case in chief of a plan, scheme or system where the charged offense is conspiracy.
    6. Criminal Law — Evidence—Other Bad Acts — Prejudicial Effect — Factors.
    After the requirements for the admission of evidence of other bad acts, other than the charged offense, have been met, a trial court still must weigh the probative value of such evidence against its likely prejudicial effect and exclude such evidence if the latter predominates; in making its determination the court should consider inter alia the availability of less prejudicial sources of proof, the necessity of the evidence to prove an element of the prosecution’s case, the defendant’s theory of the case, the tendency of the evidence to inflame the passions of the jury, and its potential for confusing the issues in the case.

      7. Appeal and Error — Criminal Law — Harmless Error — Reversible Error — Jury.
    The standards for determining whether error committed during a criminal trial is reversible on appeal or merely harmless are (1) was the error so offensive to the maintenance of a sound judicial system as to require reversal, and (2) if not was the error harmless beyond a reasonable doubt; an error is not harmless error where it is reasonably possible that in a trial free of the error even one juror might have voted to acquit the defendant.
    8. Criminal Law — Evidence—Appeal and Error — Harmless Error — Carrying Concealed Weapons — Prior Convictions— Defendant’s Testimony.
    The erroneous admission of testimony, in a trial for carrying a weapon in a motor vehicle, that the defendant had been arrested previously for carrying a concealed weapon and had pleaded guilty to a lesser offense was harmless error where the defendant himself testified at length as to the circumstances underlying the prior conviction.
    9. Appeal and Error — Criminal Law — Evidence—Harmless Error — Carrying Concealed Weapons — Prior Arrests — Jury.
    The erroneous admission of evidence, in a trial for carrying a weapon in a motor vehicle, regarding a prior incident where the defendant was arrested for carrying a concealed weapon but the charges against him were dropped was harmless error where the Court of Appeals finds no reasonable possibility that exclusion of the erroneously admitted evidence would have altered the jury’s verdict.
    10. Criminal Law — Sentences—Indeterminate Sentences — Statutes.
    Any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act as interpreted by case precedent (MCLA 769.8; MSA 28.1080).
    Appeal from Recorder’s Court of Detroit, Joseph A. Gillis, J.
    Submitted November 8, 1977, at Detroit.
    (Docket No. 31149.)
    Decided April 3, 1978.
    Leave to appeal applied for.
    Nathaniel Wilkins was convicted of carrying a pistol in a motor vehicle. Defendant appeals.
    Affirmed as modified.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.

      Charles Burke, for defendant.
    Before: D. C. Riley, P. J., and D. F. Walsh and A. C. Miller, JJ.

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

   D. F. Walsh, J.

Defendant was convicted by a jury of carrying a pistol in a motor vehicle, MCLA 750.227; MSA 28.424, and sentenced to 4-1/2 to 5 years imprisonment. He appeals as of right.

According to the trial testimony, at 8 p.m. on the day of the incident, one of the arresting officers was informed that a black male fitting the defendant’s description would be at a certain address carrying a gun that the informer had seen in the defendant’s possession. The tipster also gave a description of the defendant’s car and its license number. Acting on this information, three officers watched the address until the defendant came out and entered his car. As the defendant was pulling away, the police drew alongside his car and identified themselves. A short chase ensued during which the defendant threw an automatic pistol out the window of his car.

The prosecution also presented testimony concerning an unsigned statement made by the defendant shortly after his arrest. Therein the defendant stated that he had obtained the gun from an acquaintance for approximately $65. He also said that he and a friend had test fired the pistol, but that it was defective in failing to eject the spent shell. Defendant did not sign the statement, telling the interrogating officer that he was "talking as a man” and not making a formal statement.

During its case in chief, the prosecution was permitted to introduce evidence that the defendant had been arrested previously for carrying a concealed weapon and had pleaded guilty to a lesser offense. The trial court allowed the evidence, over objection, as probative of intent, absence of mistake, and knowledge that the gun was in the car in the instant case. MCLA 768.27; MSA 28.1050.

The prosecution also was allowed to cross-examine the defendant regarding a 1976 incident in which he was arrested for carrying a concealed weapon. In that instance, the defendant was driving an automobile and was stopped for speeding. As his passenger exited the car, one pistol fell from the passenger side of the car and another was discovered in the passenger’s waistband. She claimed possession of both guns. The two were arrested on the weapons charge, but a warrant against the defendant was refused and the charge against him was dropped.

Defendant makes four claims of error in his appeal: (1) that the trial court erred in admitting the police officer’s testimony regarding the information received from the anonymous informant; (2) that the trial court erred in admitting testimony concerning defendant’s previous conviction; (3) that the trial court erroneously permitted cross-examination of the defendant about the 1976 incident; (4) that the sentence imposed violated the indeterminate sentencing act. MCLA 769.8; MSA 28.1080.

The basis of the defendant’s objection to the admission of testimony concerning the tipster’s information is that it was inadmissible hearsay. His argument falls with its premise. Hearsay is an extrajudicial statement offered to prove the truth of the matter asserted. People v Cunningham, 398 Mich 514; 248 NW2d 166 (1976), McCormick, Evidence (2d ed), § 246. In the case at bar, the jury was instructed that the testimony was not offered to prove the truth of the informant’s statements but only to illustrate the basis for the officers’ subsequent actions. Thus, the testimony was not hearsay and its admission was not error.

Defendant’s second and third claims of error involve the admission of evidence of other bad acts under MCLA 768.27; MSA 28.1050. In view of the lack of a comprehensive appellate statement defining the limited circumstances under which such evidence is admissible, we are constrained to discuss and delineate the similar acts doctrine.

In Michigan, evidence of a defendant’s other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).

"This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.” People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).

Prevention of that type of prejudice has been of continual concern to our courts for over a century. See, e.g., People v Dean, 253 Mich 434; 235 NW 211 (1931), People v Schweitzer, 23 Mich 301 (1871).

"From the time of Lightfoot v People, 16 Mich 507 [1868], and People v Schweitzer, 23 Mich 301 [1871], we have excluded proofs of other unrelated crimes unless they fall within the limited exceptions recognized by statute or our decisions.” People v Lundberg, 364 Mich 596, 603; 111 NW2d 809 (1961).

As indicated by the above quotation, there have developed a limited number of statutory and judicial exceptions to the above exclusionary rule. The case at bar involves the exceptions enumerated in MCLA 768.27; MSA 28.1050:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

Even given this judicially approved statutory directive, the degree of prejudice inherent in evidence of other bad acts dictates that it be admitted only in narrowly described circumstances. Accordingly, we hold that such evidence is inadmissible unless it satisfies the following requirements.

First, there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced. People v Davis, 343 Mich 348; 72 NW2d 269 (1955), McCormick, Evidence (2d ed), § 190.

Second, there must be some special circumstances of the prior bad act which tend to prove one of the statutory items. People v Lundberg, supra, People v Padgett, 306 Mich 545; 11 NW2d 235 (1943). For example, if a defendant were charged with robbery, another robbery committed by the defendant would not be admissible to prove intent merely because it also involved specific intent to rob. The law requires an additional showing that the facts or circumstances of the other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense. See, People v Locke, 275 Mich 333; 266 NW 370 (1936), Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325 (1956). In the absence of such a connection, the evidence would be inadmissible.

The third requirement is that the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense. People v Oliphant, supra, People v Riddle, 322 Mich 199; 33 NW2d 759 (1948), People v Stander, 73 Mich App 617; 251 NW2d 258 (1977). In discussing materiality in the context of similar acts evidence, the Supreme Court in People v Oliphant, supra, cited with approval McCormick, Evidence (2d ed). We follow its example:

"The remarks of Lord Sumner in Thompson v The King, [1918] App. C. 221, 232 are pertinent: 'Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.’ ” McCormick, Evidence (2d ed), § 190, at 452, n 54. (Emphasis added.)

Thus, the general rule is that evidence of other bad acts may be introduced only when the matter which they tend to prove is disputed. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), People v Stander, supra, see People v Corbeil, 77 Mich App 691; 259 NW2d 193 (1977).

A defendant may dispute matters, and thus place them in issue, by raising them in opening argument, by cross-examining prosecution witnesses or by presenting affirmative evidence on them. Until an issue is thus disputed it is not a proper subject for proof by other bad acts.

The decisions of our Supreme Court indicate three exceptions to the requirement that a matter be disputed before other bad acts may be introduced concerning that matter.

The first exception is that the prosecution may introduce in its case in chief evidence probative of a design, scheme or plan, see, People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), or of the identity of the perpetrator of the charged offense, People v Kelly, 386 Mich 330; 192 NW2d 494 (1971), where the purpose of such evidence is to prove that defendant (and not some other person) committed the act for which he stands accused.

The second exception is that in cases in which the crime charged is one in which the criminal intent necessary for conviction may not be inferred from the mere commission of the act, the prosecution may introduce in its case in chief evidence of other bad acts to prove that intent. See, People v Duncan, supra, People v Johnston, 328 Mich 213; 43 NW2d 334 (1950). A third exception apparently exists permitting presentation of evidence of a plan, scheme or system in the prosecutor’s case in chief where the charged offense is conspiracy. See, People v Ormsby, 310 Mich 291; 17 NW2d 187 (1945), People v McCrea, 303 Mich 213; 6 NW2d 489 (1942).

We emphasize that unless one of the aforementioned exceptions applies, it is error to admit evidence of other bad acts upon an issue that is not actually disputed at trial.

After the aforementioned requirements have been met, the trial court must weigh the probative value of the evidence against its likely prejudicial effect, and must exclude the evidence if the latter predominates. People v Oliphant, supra. In making its determination, the trial court should consider inter alia the availability of less prejudicial sources of proof, the necessity of the evidence to prove an element of the prosecution’s case, the defendant’s theory of the case, the tendency of the evidence to inflame the passions of the jury, and its potential for confusing the issues in the case. People v Oliphant, supra, People v Spillman, 399 Mich 313; 249 NW2d 73 (1976), People v Corbeil, supra, People v Fisher, 77 Mich App 6; 257 NW2d 250 (1977).

Applying the foregoing principles to the instant case, we find that the admission of testimony concerning the defendant’s prior conviction was erroneous. The absence of any connection between the circumstances underlying that conviction and the instant case renders that testimony irrelevant. People v Lundberg, supra, People v Padgett, supra. Furthermore, the matters upon which the testimony allegedly bore — intent and absence of mistake (knowledge) — were not disputed by the defendant in opening argument or in cross-examination of prosecution witnesses. We also note with disapproval the purpose for which the prosecutor offered the evidence:

"I’m trying to bring across the point that your client likes to carry guns”.

That point is precisely what the exclusionary rule forbids — evidence showing no more than the defendant’s disposition to commit the charged offense. See, People v Oliphant, supra, at 491.

We also find that the trial court erred in permitting cross-examination regarding the incident in which the defendant and his passenger were arrested for carrying weapons in an automobile. We infer from the record that the trial court admitted the evidence as probative of a scheme or plan. Yet nowhere is the nature of that scheme or plan indicated, nor was there any attempt to connect that incident to the crime charged.

Having found error, we must determine whether it necessitates reversal. The pertinent standard involves a dual inquiry: (1) Was the error so offensive to the maintenance of a sound judicial system as to require reversal? (2) If not, was the error harmless beyond a reasonable doubt? People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977).

The purpose of the first criterion is to deter prosecutorial and police misconduct. People v Swan, 56 Mich App 22; 223 NW2d 346 (1974). Given the absence of a definitive appellate statement governing the admission of other bad acts evidence, we do not find that the prosecutor deliberately injected the evidence knowing it to be prejudicial and without probative worth.

In applying the second criterion we must decide if it is reasonably possible that in a trial free of the above errors even one juror might have voted to acquit the defendant. People v Ronald Green, 74 Mich App 601; 254 NW2d 788 (1977).

We find the admission of testimony regarding the defendant’s prior conviction harmless because the defendant himself testified at length as to the circumstances underlying it. He did so to support his claim that his unsigned statement referred not to the instant case but to the prior conviction. Thus, regardless of its introduction by the prosecutor, it is certain that the defendant himself would have injected that conviction into the trial in order to explain away an otherwise unchallenged admission of guilt.

We also find the second erroneous admission of evidence harmless on the instant facts because of the strength of the people’s case. The defendant’s inculpatory statement was the most powerful evidence presented against him. His characterization of it as describing another incident was contradicted by the interrogating officer’s testimony that the only case mentioned or discussed was the instant one, and also by a significant item of independent evidence: rebuttal testimony that the pistol in the instant case had in it a spent shell that had failed to eject. That tied the defendant’s confession to this case and corroborated the testimony that only the instant charge had been discussed with the defendant. In view of the eyewitness testimony and the defendant’s statement, we find no reasonable possibility that exclusion of the erroneously admitted evidence would have altered the jury’s verdict.

The defendant’s final contention is that the trial court’s sentence of 4-1/2 to 5 years violated the indeterminate sentence act, MCLA 769.8; MSA 28.1080, as interpreted by People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The trial court construed the statute as inapplicable to the defendant because of his three prior felony convictions. There exists a split of authority on this Court as to whether Tanner applies in these circumstances. Compare, People v Banks, 73 Mich App 492; 252 NW2d 501 (1977), with People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976). We are persuaded that Redwine is the sounder decision, and for the reasons stated therein we modify the trial court’s sentence to 40 months to 5 years imprisonment.

Affirmed as modified.

       The scope of this opinion also includes the judicially created exception allowing such evidence to prove identity. People v Kelly, 386 Mich 330; 192 NW2d 494 (1971). However, the rules hereinafter stated do not apply to the judicial exception admitting other bad acts to show familiarity between a defendant and a person with whom he allegedly committed a sexual offense. That exception is generally used to support the credibility of a complainant in a sex offense case; as such it is premised upon considerations distinct from those governing the admissibility of such evidence in other contexts. See, People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), People v Jenness, 5 Mich 305 (1858).

       However, the defendant’s commission of the other acts need not be established beyond a reasonable doubt. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), People v Allen, 351 Mich 535; 88 NW2d 433 (1958).

       Although the example given involves only intent, the requirement of a connection to the charged offense applies equally to evidence of other bad acts introduced to show any of the facts permitted to be so demonstrated. For illustrations of this principle, compare, e.g., People v Duncan, supra, People v Oliphant, 399 Midi 472; 250 NW2d 443 (1976), People v Allen, supra, People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Morehouse, 328 Mich 689; 44 NW2d 830 (1950), and People v Kalder, 284 Mich 235; 279 NW 493 (1938), with People v Lundberg, 364 Mich 596; 111 NW2d 809 (1961), People v Padgett, 306 Mich 545; 11 NW2d 235 (1943), People v Locke, 275 Mich 333; 266 NW 370 (1936), and People v Dean, 253 Mich 434; 235 NW 211 (1931).

       The result of admitting such evidence without the requisite connection with the charged offense is to admit precisely the kind of evidence condemned in the cases quoted at the beginning of this discussion, i.e., evidence relevant only to the defendant’s propensity to commit the offense. McCormick, Evidence (2d ed), § 190, at 453, Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv L Rev 988, 1007 (1938).

       "[D]esign or plan * * * refers * * * to an antecedent mental condition which evidentially points to the doing of the act planned. Something more than the doing of similar acts is required in evidencing design, as the object is not merely to negative an innocent intent, but to prove the existence of a deñnite project directed toward completion of the crime in question * * * . [TJhe conclusion that the defendant did the act is inferred from a particular design, not from common features.” Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325, 329-330 (1956), citing 2 Wigmore, Evidence (3d ed), §§ 300, 304. (Original footnotes omitted.)

       "[In proving identity with similar facts evidence] one seeks out common features in another crime to point up the likelihood that the accused was the perpetrator of the crime in question.” Id. at 330, citing 2 Wigmore, Evidence (3d ed), §§ 306, 410-413. (Emphasis added.)

       We point out, however, that even where such evidence is admissible in the prosecution’s case in chief, the trial court still must weigh the probative value against the prejudicial impact.

       This exception has been applied to a limited number of crimes: obtaining money or property under false pretenses with intent to defraud, People v Vida, 381 Mich 595; 166 NW2d 465 (1969), People v Bigge, 288 Mich 417; 285 NW 5 (1939), People v Smith, 271 Mich 553; 260 NW 911 (1935), People v Guise, 262 Mich 72; 247 NW 111 (1933), People v Mears, 251 Mich 359; 232 NW 358 (1930), embezzlement, People v McHugh, 286 Mich 336; 282 NW 168 (1938), People v Kennan, 275 Mich 452; 266 NW 468 (1936), People v Hopper, 274 Mich 418; 264 NW 849 (1936), People v Stuart, 274 Mich 246; 264 NW 359 (1936), People v Allan, 263 Mich 182; 248 NW 589 (1933), People v Kolowich, 262 Mich 137; 247 NW 133 (1933), People v Dixon, 259 Mich 229; 242 NW 896 (1932), People v Armstrong, 256 Mich 191; 239 NW 275 (1931), receiving and concealing stolen property, People v Fleish, 306 Mich 8; 9 NW2d 905 (1943), People v Kirillidis, 285 Mich 694; 281 NW 408 (1938), People v Hanenberg, 274 Mich 698; 265 NW 506 (1936), uttering and publishing a false check with intent to defraud, People v Golner, 308 Mich 351; 13 NW2d 846 (1944), bribery, People v Johnston, 328 Mich 213; 43 NW2d 334 (1950).

       Our analysis here is premised on the minimally inflammatory nature of the bad act introduced. If the forbidden evidence had a strong tendency to arouse the jury’s passions against the defendant or to otherwise distract or confuse the jury, we would reverse regardless of the strength of the prosecution’s case because of the likelihood that the jury’s ability to objectively consider the facts would have been compromised.
      "In applying this standard, we may not substitute our independent judgment of the defendant’s guilt or innocence for the jury’s judgment. Instead, we must assess only what effect the error had or reasonably may be taken to have had upon the jury’s decision.” People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977).


author: T. M. Burns, J.

text:
    BANKS v WITTENBERG
    1. Physicians and Surgeons — Malpractice—Expert Witnesses— General Practitioners — Specialists.
    A medical specialist may testify in a trial for medical malpractice as to the standard of care of a general practitioner or answer hypothetical questions about breach of that standard where the specialist has knowledge about the standard of care about which he is testifying.
    2. Trial — Witnesses—Witness Lists — Court’s Discretion — Scope of Testimony — Court Rules.
    A trial court’s decision to allow a witness, who was not listed on the witness list prior to trial, to testify at trial is largely a matter of discretion; the court’s discretion extends as well to the scope of testimony given by the unlisted witness (GCR 1963, 301.10).
    3. Negligence — Physicians and Surgeons — Malpractice—Evidence — Medical Records — Credibility—Impeachment.
    A trial court in an action for damages for malpractice may admit records from a medical clinic which includes history and diagnosis information regarding the plaintiff where the evidence is used to test the credibility of plaintiffs expert, who has relied on the records in making his diagnosis, and to impeach plaintiffs testimony concerning the effect surgery had on him where the records were introduced for impeachment purposes and not to prove the truth of the matters recorded therein.

      References for Points in Headnotes

       61 Am Jur 2d, Physicians and Surgeons §§ 106, 110, 112-116, 202-205.
    Necessity of effort evidence to support an action for malpractice against a physician or surgeon. 81 ALR2d 597.
    Competency of physician or surgeon or school of practice other than that to which defendant belongs to testify in malpractice case. 85 ALR2d 1022.
    Medical malpractice: necessity and sufficiency of showing medical witness’ familiarity with particular medical or surgical technique involved in suit. 46 ALR3d 275.

       81 Am Jur 2d, Witnesses § 74.
    [3, 4, 6] 61 Am Jur 2d, Physicians and Surgeons § 198.

       5 Am Jur 2d, Appeal and Error § 806.

       75 Am Jur 2d, Trial §§ 588-590, 592.

       61 Am Jur 2d, Physicians and Surgeons § 214.

       61 Am Jur 2d, Physicians and Surgeons § 155 et seq.

    Liability of physician or surgeon for extending operation or treatment beyond that expressly authorized. 56 ALR2d 695.
    Mental competency of patient to consent to surgical operation or medical treatment. 25 ALR3d 1439.

      4. Appeal and Error — Evidence—Hospital Records — Malpractice.
    Reversible error was not shown in an action for medical malpractice where the trial court admitted hospital records made by a physician who was not called as a witness where the facts contained in the records were corroborated by a subsequent treating physician who testified for the plaintiff.
    5. Negligence — Pleading—Restatement of Claim — Trial—Jury Instructions — Breach of Contract — Malpractice.
    A trial court properly refused to give a requested instruction on breach of contract, in an action for damages for malpractice, where the plaintiff alleged a breach of contract between a doctor and himself to perform proper and necessary medical care in executing a surgical operation and where the allegations which supported the breach of contract count merely restated a negligence claim and where the complaint and proofs did not support the requested instruction on breach of contract.
    6. Negligence — Malpractice—Evidence—Physicians and Surgeons — Medical Records — Instructions to Jury.
    A plaintiff in an action for medical malpractice is not entitled to an instruction to the jury that the absence of a notation in defendant’s medical record could be considered as evidence that an event did not occur; however, the plaintiff is entitled to argue the effect of the missing notation to the jury.
    7. Physicians and Surgeons — Assault and Battery — Patient’s Consent — Express—Implied.
    A physician commits an assault and battery and may be required to respond in damages where he treats or operates on a patient without consent or where consent has been given but the scope of the consent is exceeded; the necessary consent may be express or implied; courts have resorted to the fiction of implied consent to justify an emergency procedure where there is no opportunity to obtain actual consent and to infer consent from a patient’s action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment.
    Appeal from Wayne, Paul Harvey, J.
    Submitted November 16, 1977, at Detroit.
    (Docket No. 31188.)
    Decided April 3, 1978.
    Leave to appeal applied for.
    Complaint by Clinton V. Banks and Ordella Banks against S. S. Wittenberg, M.D., S. I. Lerman, M.D., and Livernois Clinic, P. C., for damages for malpractice. Judgment for defendants. Plaintiffs appeal.
    Affirmed.

      Turner & Turner, P. C. (by Lee I. Turner and Carol Petsko), for plaintiffs.

      Moll, Desenberg, Purdy, Glover & Bayer, for defendants.
    Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   T. M. Burns, J.

This is a medical malpractice action. A vasectomy was performed on plaintiff Clinton V. Banks by one of the defendant doctors in the Livernois Clinic on an outpatient basis on March 5, 1971. Complications, including a large hematoma, arose after the surgery. The physical problems required that plaintiff be hospitalized and that he undergo further surgery in late March of 1971. Plaintiffs claim of malpractice relates to the surgical procedure and the postoperative care given by these defendants. The jury returned a verdict of no cause of action and plaintiff appeals.

I

Plaintiff challenges the fact that a urologist was allowed to testify about the standard of care for a general practitioner or answer hypothetical questions about breach of that standard. Such testimony is allowed if the specialist knows the standard of care to which he testifies. Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976), Callahan v William Beaumont Hospital, 400 Mich 177; 254 NW2d 31 (1977).

The urologist did not answer questions about the one area he admitted he was unfamiliar with— prescribing medicine over the phone. The remainder of his testimony was properly admitted on the trial court’s finding that the doctor was familiar with the appropriate standard of care.

II

Plaintiff claims on appeal that Dr. Harvey Lewis should not have been allowed to testify because he was not listed on the pretrial summary, GCR 1963, 301.10, and that if properly called, his testimony should have been limited to a denial that he had discussed vasectomies with plaintiff’s expert. Plaintiff’s expert, when asked about the basis of his opinion, had testified that he had discussed vasectomies with other doctors, including Dr. Lewis.

Under the rule, a trial court’s decision to allow an unlisted witness to be called is largely a matter of discretion. Murphy v Sobel, 66 Mich App 122; 238 NW2d 547 (1975), Jamison v Lloyd, 51 Mich App 570; 215 NW2d 763 (1974), lv den, 392 Mich 771 (1974). The court’s discretion extends as well to the scope of testimony given by the unlisted witness. There was no abuse of that discretion here.

III

Over plaintiffs objection that they were inadmissible under MCLA 600.2146; MSA 27A.2146, the trial court admitted records from the Lafayette Clinic which included history and diagnosis. The trial court was correct in accepting these records. The evidence was used to test the credibility of plaintiffs expert (who had relied on these records in making his diagnosis) and to impeach plaintiffs testimony concerning the effect the surgery had on his sex life. Schwartz v Triff, 2 Mich App 379; 139 NW2d 907 (1966), lv den, 378 Mich 720 (1966), Osberry v Watters, 7 Mich App 258; 151 NW2d 372 (1967). The records were not introduced to prove the truth of the matters recorded, but rather, to impeach.

Plaintiff also challenges the admission of a portion of the records from Metropolitan Hospital. The facts contained in these records were corroborated by Dr. Kohler, the subsequent treating physician who testified for plaintiff. There was no reversible error on this point. Shinabarger v Phillips, 370 Mich 135; 121 NW2d 693 (1963).

IV

Plaintiff also challenges the trial court’s refusal to give a requested instruction on breach of contract. The allegations which supported the breach of contract count were repeated in the count alleging negligence. The jury found no negligence. The complaint and proofs did not support the requested instruction on breach of contract. Howell v Outer Drive Hospital, 66 Mich App 142; 238 NW2d 553 (1975), lv den, 397 Mich 871 (1976).

V

Plaintiff claims he was entitled to an instruction that the absence of a notation in defendants’ records could be considered as evidence that the event did not occur. The Supreme Court recently rejected this contention. Siirila, supra, at 594-597. Plaintiff’s attorney was allowed to argue the effect of the missing notation to the jury. That is all he was entitled to do.

VI

Plaintiff claimed at trial that he had not consented to Dr. Lerman’s attempt to drain the hematoma on March 24. In instructing on this point, the trial court stated:

"If you find that the operation performed by the Defendant on March 24, 1971 was performed without the patient’s consent, then the Defendants committed an act of assault and battery for which they are liable in damages as I shall further explain.
"I should say, in this respect, too, that a patient may give consent to the operation in a number of ways. He may expressly consent by oral agreement or by signing a formal written permission or he may give implied authority by his conduct.”

Plaintiff argues that the instruction so far as it included implied consent was erroneous.

If a physician treats or operates on a patient without consent, he has committed an assault and battery and may be required to respond in damages. Likewise, if consent has been given but the scope of the consent is exceeded, there has been an assault and battery. Franklyn v Peabody, 249 Mich 363; 228 NW 681 (1930). The necessary consent may be express or implied, however.

Courts have resorted to the fiction of implied consent to justify an emergency procedure where there is no opportunity to obtain actual consent. But, the same term has been used to describe the consent inferred from the patient’s action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment. See cases collected in Anno: 56 ALR2d 695, §§ 2, 3.

The court’s instruction in this case dealt with the second type of implied consent. The testimony given by plaintiff on cross-examination would support such an instruction. The jury could reasonably infer from that testimony that plaintiff, by presenting himself for further treatment, continuing to complain of the swelling and pain, and because of the different circumstances and acts by the doctor from plaintiff’s previous visits where only an examination had been performed, had given his implied consent to the procedure which followed. The instruction was proper. Kritzer v Citron, 101 Cal App 2d 33; 224 P2d 808 (1950). See also, Mims v Boland, 110 Ga App 477, 481-483; 138 SE2d 902, 906-907 (1964).

Shulman v Lerner, 2 Mich App 705; 141 NW2d 348 (1966), relied upon by plaintiff, does not require a different result. The question in that case was not whether the issue had been properly presented to the jury, but rather, whether the circuit court, sitting as a trier of fact, had erroneously concluded that no consent could be implied. This Court merely held that the lower court’s conclusion was not clearly erroneous.

VII

The other allegations of error made by plaintiff have been examined and found not to require reversal.

Affirmed. Costs to appellees.

       The complaint also included a derivative claim for Mrs. Banks. Plaintiff is used in the singular to describe both claims throughout this opinion.

       Plaintiff places no reliance on Wayne County Circuit Court Rule 12.1.


author: R. B. Burns, J.

text:
    GRUBAUGH v CITY OF ST. JOHNS
    1. Pleading — Loss of Consortium — Amendments—Relation Back— Court Rules.
    A claim for loss of consortium which is brought by an amendment to the pleadings relates back to the date of the original pleading where the loss has arisen out of the same occurrence set forth in the original pleading (GCR 1963, 118.4).
    2. Evidence — Witnesses—Testimony—Relevance—Material Facts —Probative Value.
    Testimony is relevant if it has a legitimate tendency to establish or disprove a material fact; relevant evidence may be excluded if its probative value is outweighed by other factors.
    3. Highways — Defects—Knowledge—Statutes.
    The statute regarding a governmental agency’s liability for defective highways provides that a governmental agency is not liable for an unsafe condition unless it knew or should have known of the unsafe condition (MCLA 691.1403; MSA 3.996[103]).
    4. Highways — Intersections—Evidence—Prior Accidents — Traffic Signs — Relevance—Material Issues.
    The prior accident history of an intersection is a relevant consideration in the determination of whether the intersection should have a traffic sign or signs; such evidence is relevant in an action for damages for injuries sustained in an automobile accident where the plaintiffs’ theory of recovery was that the intersection where the accident occurred was unsafe without signs and where the defendant city conceded that it knew that the intersection had no signs; the city’s notice of the unsafe condition was not a material issue, but whether the intersection was in fact unsafe without the signs was a material issue.

      References for Points in Headnotes

       61 Am Jur 2d, Pleading § 336.

       29 Am Jur 2d, Evidence §§ 249, 251-257.

       39 Am Jur 2d, Highways, Streets, and Bridges §§ 17, 20, 417.

       39 Am Jur 2d, Highways, Streets, and Bridges § 400.
    40 Am Jur 2d, Highways, Streets, and Bridges § 601.
    Admissibility, on issue of defendant’s negligence in respect of condition of place where plaintiff was injured, of evidence of prior accidents or injuries at same place. 70 ALR2d 167.

       40 Am Jur 2d, Highways, Streets, and Bridges §§ 596, 602.
    Admissibility of evidence of absence of other accidents or injuries at place where injury or damage occurred. 31 ALR2d 190.

       39 Am Jur 2d, Highways, Streets, and Bridges §§ 398, 400.

       40 Am Jur 2d, Highways, Streets, and Bridges § 597.
    Safety of condition, place, or appliance as proper subject of expert or opinion evidence in tort actions. 62 ALR2d 1426.

       57 Am Jur 2d, Negligence § 300.

       5 Am Jur 2d, Appeal and Error §§ 630, 713, 719, 721.

      5. Appeal and Error — Highways—Intersections—Lack op Accidents — Traffic Signs — Prior Accidents — Probative Value.
    A trial court properly excluded evidence in an action for damages for injuries sustained in an automobile accident allegedly caused by an unsafe condition on a city’s streets, which evidence would show that the police department of the defendant city had no record of any accident having occurred at the intersection for 12 years prior to the instant accident where the accident history, while relevant, was unnecessary for resolution of the issue of whether the intersection was unsafe and a need for traffic control devices was patent.
    6. Appeal and Error — Abuse of Discretion — Traffic Devices — Intersections — Statutes.
    A trial court did not abuse its discretion in an action for damages for injuries sustained in an automobile accident allegedly caused by an unsafe condition on a city’s streets in admitting into evidence the Manual of Uniform Traffic Control Devices promulgated pursuant to statute to show the availability of signs designed for "T” intersections which would make such intersections more safe, where such evidence would tend to establish that the "T” intersection involved in the instant action was unsafe without such signs (MCLA 257.608; MSA 9.2308).
    7. Witnesses — Expert Witnesses — Highways—Presumptions— Counsel’s Arguments.
    The failure of a defendant city to produce any expert witness to testify regarding the intersection where an accident allegedly caused by an unsafe condition of the city’s streets occurred does not give rise to a presumption that no expert would testify that the intersection was safe; such issue may properly be left to argument by trial counsel.
    8. Trial — Instructions to Jury — Negligence—Contributory Negligence — Evidence.
    A defendant’s request for an instruction regarding a plaintiff’s contributory negligence is properly denied where there is no evidence of conduct which would indicate contributory negligence.
    9. Trial — Instructions to Jury — Objections—Appeal and Error— Invited Errors.
    A trial court’s error in permitting the jury to commence deliberation before the defendant had completed placing its objections to the jury instructions on the record cannot be asserted by the defendant as a basis for reversal on appeal where the error was invited by defense counsel.
    Appeal from Clinton, Leo W. Corkin, J.
    Submitted January 11, 1978, at Lansing.
    (Docket No. 31315.)
    Decided April 3, 1978.
    Leave to appeal applied for.
    Complaint by Bruce Grubaugh against the City of St. Johns for injuries sustained as a result of defendant’s failure to keep its streets in reasonable repair so that they were reasonably safe and fit for public travel. Complaint dismissed. Plaintiff appealed to the Court of Appeals and applied to the Supreme Court for leave to appeal prior to decision by the Court of Appeals. Leave granted. Reversed and remanded for trial, 384 Mich 165 (1970). Prior to trial the trial court granted plaintiff’s motion to amend his complaint to add his wife, Jean Grubaugh, as a party plaintiff and to assert a claim for loss of consortium. On remand, judgment for plaintiffs. Defendant appeals.
    Affirmed.

      Cicinelli, Mossner, Majoros & Alexander, P. C., for plaintiffs.

      Fraser, Trebilcock, Davis & Foster (by Eugene F. Townsend, Jr., and Gregory J. Guggemos), for defendant.

      Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   R. B. Burns, J.

In this negligence action a jury returned a verdict in favor of plaintiffs Bruce Grubaugh and his wife Jean. Defendant city appeals, and we affirm.

This action arose out of an automobile accident which occurred in defendant city on a hazy March night in 1961. Bruce Grubaugh was a passenger in an automobile driven by Richard Grubaugh, northbound on Ottawa Street. Ottawa Street ends in a "T” intersection with Floral Avenue. As Richard approached the intersection, he struck a chuckhole, which splashed water on the windshield. A second or so later the automobile passed straight through the intersection and struck a tree. Richard did not realize the street ended and did not see the tree. Bruce brought suit in 1963 on the theory that the city was negligent in failing to provide a traffic control device to warn of the "T” intersection. Initial procedural difficulties ultimately culminated in a remand for trial by the Supreme Court. Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970). It is from the judgment entered pursuant to the jury verdict in that trial that defendant now appeals.

Prior to trial the trial court granted Bruce Grubaugh’s motion to amend his complaint to add his wife Jean as a party plaintiff and assert loss of consortium, and ruled that the amendment related back to the time the original complaint was filed and was not, therefore, barred by the statute of limitations. Defendant’s argument that the claim for loss of consortium cannot relate back is without merit, the loss having arisen out of the same occurrence set forth in the original pleading. GCR 1963, 118.4, see Matson v Soronen, 57 Mich App 190; 226 NW2d 52 (1974), Plowman v Satkowiak, 22 Mich App 425; 177 NW2d 641 (1970), cf. Hockett v American Airlines, Inc, 357 F Supp 1343 (ND Ill, 1973).

The trial court excluded testimony presented by defendant that its police department had no record of any accident having occurred at the intersection for 12 years prior to the instant accident, citing Larned v Vanderlinde, 165 Mich 464, 468; 131 NW 165, 166 (1911), and McAuliff v Gabriel, 34 Mich App 344, 349-350; 191 NW2d 128, 131 (1971). Defendant argues that this testimony should have been admitted because it was relevant as to the issues of whether it had notice that the intersection was unsafe and as to whether the intersection was in fact unsafe.

Testimony is relevant if it has a legitimate tendency to establish or disprove a material fact. See, e.g., People v Nichols, 341 Mich 311, 331; 67 NW2d 230, 232 (1954), People v Becker, 300 Mich 562, 565; 2 NW2d 503, 505; 139 ALR 1171, 1173 (1942). Defendant was not liable for an injury caused by an unsafe condition unless it knew or should have known of the unsafe condition. MCLA 691.1403; MSA 3.996(103). Defendant contends that the absence of accidents would tend to prove that it was unaware of the unsafe condition. However, plaintiffs’ theory of recovery was that the intersection was unsafe without signs, and defendant conceded that it knew the intersection had no signs. Notice of the unsafe condition was therefore not a material issue. However, whether the intersection was in fact unsafe was a material issue, and, as admitted by plaintiffs’ expert witness, the prior accident history of an intersection is a relevant consideration in the determination of whether an intersection should have a sign or signs. The testimony was therefore relevant.

Relevant evidence may be excluded if its probative value is outweighed by other factors. See, e.g., People v DerMartzex, 390 Mich 410, 415; 213 NW2d 97, 100 (1973). It has long been established in Michigan that evidence of the absence of previous accidents should not be admitted to prove absence of negligence. In Langworthy v Green Twp, 88 Mich 207, 215; 50 NW 130, 132 (1891), the Supreme Court held that the lower court properly excluded testimony as to whether the witness had ever known of anyone being injured previously upon an obstruction, citing Hodges v Bearse, 129 Ill 87; 21 NE 613 (1889), without comment. In Hodges, a lower court’s refusal to admit evidence of an elevator’s accident-free history was upheld, the Court finding such evidence immaterial because it would not rebut evidence of negligent construction and operation, and because it would distract the jury with collateral issues. In Larned v Vanderlinde, supra, our Supreme Court held that testimony that there had been no prior accident in nine years from an allegedly defective stairway was improperly admitted. The Court observed that evidence of previous accidents was not admissible to prove negligence because it would raise collateral issues, and stated that under that rule the converse would also be true — absence of accidents was not admissible to show absence of negligence. In La Due v Lebanon Twp, 222 Mich 301, 306-307; 192 NW 636, 638 (1923), testimony by witnesses that they had never heard of an accident on a hill previously was held properly excluded, the Court characterizing the testimony as negative evidence. This Court also characterized such testimony as negative evidence in McAuliff v Gabriel, supra, but found that evidence that others had safely negotiated an allegedly dangerous area was properly admitted only as to the issue of the condition of the area at the time of the accident.

The above cases indicate that the trial court did not err in the instant case. However, defendant argues that the above cases have been overruled by implication. Larned v Vanderlinde, supra, equated the rule that prior accidents are inadmissible to prove negligence with the rule that absence of accidents is inadmissible to prove absence of negligence. However, the rule that prior accidents are inadmissible to prove negligence has been overruled. See Freed v Simon, 370 Mich 473; 122 NW2d 813 (1963), Sullivan v Detroit & Windsor Ferry Co, 255 Mich 575; 238 NW 221 (1931), Branch v Klatt, 173 Mich 31, 34-35; 138 NW 263, 264 (1912). It is argued that there is no reason for distinguishing the two types of evidence.

We cannot agree that the Langworthy line of cases has been overruled. First, the rule that prior accidents were not admissible to prove negligence was overruled prior to the decision in La Due v Lebanon Twp, supra, and the Court in that case recognized that prior accidents were admissible to prove negligence. The Court nonetheless made the distinction and held that evidence of absence of accidents was inadmissible. Second, evidence of absence of accidents has less probative value than evidence of previous accidents, and thus is more easily outweighed by the factor that the collateral issue will result in jury confusion. Evidence of prior accidents involves positive proof directly tending to establish the existence of a defect, and raises the defendant’s standard of care to that of a person aware of the defect. See Freed v Simon, supra, at 475, fn; 122 NW2d at 814, fn. Evidence of absence of accidents usually involves generally unreliable negative evidence, see La Due v Lebanon Twp, supra, McAuliff v Gabriel, supra, cf. Dalton v Grand Trunk Western R Co, 350 Mich 479; 87 NW2d 145 (1957), and does not tend directly to prove absence of negligence, cf Hodges v Bearse, supra. Thus, evidence that police had no reports of accidents at the "T” intersection in the instant case could mean no more than that no such accidents had been reported or that such accidents had previously been avoided through blind luck. As plaintiffs’ expert testified, accident history, while relevant, was unnecessary for resolution of the issue of whether this intersection was unsafe where the need for traffic control devices was patent. The trial court properly excluded the proffered testimony.

The trial court admitted into evidence the Manual of Uniform Traffic Control Devices, promulgated pursuant to MCLA 257.608; MSA 9.2308, and permitted plaintiffs’ expert to read and rely upon portions thereof. Defendant argues that this evidence was irrelevant because the only material issue was whether the intersection was unsafe without signs, and the manual is only a guide to types of signs and does not indicate whether signs are necessary in any given situation. The availability of signs designed for "T” intersections which would make such intersections more safe would tend to establish that the instant intersection was unsafe without such signs. The trial court did not abuse its discretion. See Winekoff v Pospisil, 384 Mich 260; 181 NW2d 897 (1970), Jarecki v Ford Motor Co, 65 Mich App 78, 83; 237 NW2d 191, 194 (1975).

Defendant did not produce any expert witness, and plaintiffs’ counsel in closing argument asserted that defendant did not do so because no expert would testify that the intersection was safe. Defendant now argues that no adverse inference can arise from its failure to produce an expert witness because no such witness was under its control. The trial court did not instruct that such a presumption had arisen; the issue was properly left to argument by trial counsel. See Barringer v Arnold, 358 Mich 594, 605; 101 NW2d 365, 370 (1960).

Defendant argues that the trial court erred by not instructing on Bruce Grubaugh’s alleged contributory negligence. We agree with the trial court that there was no evidence of conduct by Richard Grubaugh such as would have caused a reasonable man to have refused to ride with him. See Graham v United Trucking Service, Inc, 327 Mich 694, 700-701; 42 NW2d 848, 852 (1950). Defendant failed to preserve for review the trial court’s other alleged instructional error. GCR 1963, 516.2.

Lastly, defendant argues that the trial court erred by permitting the jury to commence deliberation before it had completed placing its objections to the jury instructions on the record. GCR 1963, 516.2, Kirby v Larson, 400 Mich 585, 604-605; 256 NW2d 400, 409-410 (1977). However, it appears that this error was invited by defense counsel, and therefore cannot now be an asserted basis for reversal. GCR 1963, 529.1.

Affirmed. Costs to plaintiffs.


text:
    OOLE v OOSTING
    Docket Nos. 31461-31468.
    Submitted February 9, 1978, at Grand Rapids.
    Decided April 3, 1978.
    Leave to appeal applied for.
    Complaints by Anne and John Oole and by James Carpenter against James and Katrina Oosting for damages for injuries suffered by the plaintiffs when a wooden deck attached to the Oosting’s home collapsed. The complaints were amended to include as defendants E. John Knapp and James G. Terzes, registered architects, Paul Newhof, a registered engineer, and Fred W. Moss and Albert Casemier, the contractors who constructed the deck. The added defendants moved for accelerated judgment based upon a six-year statute of limitations. The Kent County Circuit Court, R. Stuart Hoffius, J., held the statute to be inapplicable and denied the motions. All of the added defendants appeal by leave granted, and the appeals were consolidated for hearing and decision. Held:

    1. The statute of limitations which precludes suit against engineers and architects for damages for injury arising out of a defective or unsafe condition of an improvement to real property more than six years after the improvement is occupied does not extend to contractors.
    2. The statute has no constitutional limitations where the injury arising out of a defective or unsafe condition occurs after the expiration of a six-year period of occupancy.
    Affirmed in part, reversed in part, and remanded.
    1. Action — Claims—Complaints—Accrual of Claim.
    A claim accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.
    References for Points in Headnotes

       1 Am Jur 2d, Actions § 88.

       17 Am Jur 2d, Contracts § 357. 51 Am Jur 2d, Limitation of Actions §§ 64, 65.
    Architect’s liability for personal injury or death from improper plans or design. 59 ALR2d 1081.

       73 Am Jur 2d, Statutes § 185.

       51 Am Jur 2d, Limitation of Actions §§ 27, 28.

      2. Limitation of Actions — Improvement to Real Property — Architects and Engineers — Contractors—Statutes.
    A statute which precludes suit by any party against engineers and architects for damages for injury arising out of a defective or unsafe condition of an improvement to real property more than six years after the time of occupancy of the completed improvement, use or acceptance thereof, does not extend that limitation to contractors, and a review of the history of the statute does not reveal an intent by the Legislature to so include contractors (MCLA 600.5839[1]; MSA 27A.5839[1]).
    3. Statutes — Constitutional Law — Abrogation of Common-Law Right.
    The enactment of a statute which expressly extinguishes a common-law right is a proper exercise of legislative authority (Const 1963, art 3, § 7).
    4. Limitation of Actions — Constitutional Law — Due Process— Statutes of Limitations — Time to Bring Suit.
    Due process requires that a statute of limitations afford a reasonable time within which suit may be brought.
    5. Limitation of Actions — Constitutional Law — Improvements to Real Property — Architects and Engineers — Statutes.
    A statute which provides that a suit against architects or engineers for damages for injuries sustained because of defects in an improvement to real property must be brought within six years of the time of occupancy, use or acceptance of the improvement is constitutional where it prevents an injured person from recovery where the injury occurs after the expiration of the six-year period (MCLA 600.5839[1]; MSA 27A.5839[1]).

      DeGroot, Kalliel, Triant & Conklin, P. C, for plaintiffs.

      Catchick & Dodge, for defendant James G. Terzes.

      Warner, Norcross & Judd (by Peter L. Gustafson), for defendants Fred W. Moss and Albert Casemier.

      Hillman, Baxter & Hammond (by Joel E. Krissoff), for defendant E. John Knapp.

      Allaben, Massie, VanderWeyden & Timmer (by Timothy I. Miner), for defendant Paul Newhof.
    Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   R. B. Burns, J.

Plaintiffs Anne and John Oole and James Carpenter were injured when a wooden deck which was part of the residence of defendants James and Katrina Oosting gave way on July 10, 1973. Suit was brought against the Oostings on January 31, 1975, and plaintiffs subsequently amended their complaints on June 26, 1975, to allege negligence by the designers and builders of the deck. This amendment added as defendants E. John Knapp and James G. Terzes, registered architects, Paul Newhof, a registered engineer, and Fred W. Moss and Albert Casemier, contractors. The added defendants moved for accelerated judgments because the suits were brought more than six years after the residence was occupied by the Oostings in 1966, and therefore allegedly barred by MCLA 600.5839(1); MSA 27A.5839(1). The trial court held the statute was inapplicable, and denied the motions. We granted leave to appeal, and affirm as to Moss and Casemier, but reverse as to Knapp, Terzes and Newhof.

The statute which we must interpret provides:

"No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.” MCLA 600.5839(1); MSA 27A.5839(1).

Subsection (2) provides similar protection for licensed land surveyors.

The trial court, relying by analogy upon American States Insurance Co v Taubman Co, Inc, 352 F Supp 197 (ED Mich, 1972), decided the statute did not apply where plaintiffs had not dealt directly with defendants. In American States Insurance Co insurance companies subrogated to the rights of the owner of a shopping center and its lessees sued defendants who had negligently installed a light fixture which caused a fire eight years later. The applicable negligence statute of limitations required suit to be brought within three years of when the claim first accrued to the subrogor. MCLA 600.5805; MSA 27A.5805. A claim accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint. MCLA 600.5827; MSA 27A.5827, Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). Because the owner had dealt directly with the defendants, a cause of action against the defendants had accrued as soon as the fixture was negligently installed, for the owner had as a result suffered immediate damage; suit was therefore barred. However, the lessees, who had no contractual relationship with the defendants, had no cause of action accrue until the fire occurred, causing the damages; suit was therefore not barred.

Unlike most statutes of limitations, the time period in the instant statute starts to run from the time of occupancy, use or acceptance of the improvement, and not from the time the cause of action accrues. Although direct dealing may be relevant in some cases as to when a cause of action accrues, American States Insurance Co, supra, it is irrelevant when the time period does not begin to run when the cause of action accrues. The plain wording of the instant statute bars actions by all persons who fall within its provisions, and not only those who have dealt directly with the persons who made the improvements.

The Court in American States Insurance Co, supra, at 201, implied in dictum that only architects and engineers enjoy the six-year cut-off in liability under the instant statute. Defendants Moss and Casemier submit that the statute cuts off claims against all persons who make improvements to real property, as well as actions for contribution and indemnity against architects and engineers.

We must look to the Legislature’s intent at the time it passed the statute to determine if it meant to include contractors. A history of the bill indicates that it was first introduced in the Senate February 9, 1967. It read in part:

"A claim based on the improper design planning, supervision or construction of an improvement to real property by state licensed architect or engineer accrues at the time such architect or engineer discontinues such services.”

Contractors were not mentioned and the bill definitely applied only to architects and engineers.

March 31 the Committee on Judiciary reported out the bill favorably with amendments. One amendment stated: "This section shall include registered land surveyors as defined in section

The bill was further amended in the House and returned to the Senate June 15th. June 16th the House amendments were approved by the Senate.

Contractors were not mentioned.

At the present time there is pending in the Legislature Senate Bill No. Ill, introduced February 8, 1977, which would amend the act in question and include contractors.

Therefore, in our opinion the Legislature did not intend to include contractors when the bill was passed in 1967.

Defendants Ross and Casemier have argued that the statute should be interpreted as including within its protection contractors in order to avoid substantial equal protection problems. We feel legislative history cannot support that interpretation. Because Ross and Casemier have not requested in the alternative that the statute be held unconstitutional, we do not reach the merits of the equal protection issue.

Plaintiffs argue that the statute deprives them of property without due process, because their claims were barred before they had an opportunity to sue. Similar arguments have been made to the Supreme Court as to other statutes of limitations.

In Connelly v Paul Ruddy’s Equipment Repair & Service Co, supra, defendants urged the Court to construe MCLA 600.5827; MSA 27A.5827 as providing that a negligence action accrues at the time of the negligent act, and not at the time all of the elements, including damages, are present. Under this construction the statute would abolish a cause of action for negligence if the negligent act was followed by injury within the three-year period. MCLA 600.5805(7); MSA 27A.5805(7). The Court avoided this construction by finding it inconsistent with the intent of the Legislature.

In Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973), the Court interpreted MCLA 600.5838; MSA 27A.5838, which at that time provided that a claim for malpractice accrued at the time of last treatment or service as to the matter out of which the claim arose. The defendants argued that a claim accrued at the date of last treatment whether or not the plaintiff was aware of the malpractice. The Court drew a distinction between statutes intended to abrogate a common-law cause of action and statutes of limitation. A statute which expressly extinguishes a common-law right is a proper exercise of legislative authority. Bean v McFarland, 280 Mich 19; 273 NW 332 (1937). A statute of limitation is one which requires a person who has a cause of action to bring suit within a specified period of time. Due process requires that a statute of limitation afford a reasonable time within which the suit may be brought. Price v Hopkin, 13 Mich 318, 324 (1865).

"Since '[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought * * * ’, Price, supra, a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation. As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a cause of action, this statute has the effect of abolishing his right to bring suit.
"Such a statute, if sustainable at all could be enforced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative intention to accomplish that end. We read it as a statute of limitation which applies in every case except where the plaintiff does not know of his cause of action.” 390 Mich at 746-747; 213 NW2d at 188.

The Court then determined that the Legislature did not intend to abrogate the general rule that a cause of action accrues at the time of injury, and read a discovery provision into the statute.

In the above cases the Court interpreted statutes defining when a cause of action accrues so as to avoid constitutional infirmity. In each situation the statutory definition of accrual appeared to be at variance with the traditional definition of accrual, and the Court was able to determine that the Legislature did not intend to depart from the traditional definition. However, as previously noted, the statutory period in the instant case begins to run at the time of occupancy, not at the time the cause of action accrues. It is doubtful whether a discovery provision could be read into the instant statute, and constitutional issues thus avoided. However, we need not reach this issue, for we find plaintiffs lack standing to make this challenge.

The Court in Dyke v Richard assumed that the statute in that case was either one of limitation or one of repose. The parties in the instant case assume the same thing as to the instant statute, plaintiffs arguing that it is a statute of limitation, and defendants arguing that it is a statute of repose. Whether it is a statute of limitation or repose depends upon what the Legislature intended. See Dyke v Richard, supra.

The language as to the operation of the instant statute is unambiguous, and we assume the Legislature intended exactly what it said. "No person may maintain any action * * * more than 6 years after the time of occupancy * * * As a practical matter, the statute is both one of limitation and one of repose.

As to causes of action which accrue prior to the expiration of six years, the statute is one of limitation, because it requires that the action be brought within a specified period of time. If a cause of action accrued near the end of the six-year period, and a discovery period could not be read into the statute, a person may not have a reasonable period of time within which to bring suit, and the statute may operate to deprive that person of his cause of action without due process. However, plaintiffs’ injuries occurred after the expiration of the six-year period. "One cannot attack [a] statute on the ground that its application denies constitutional protection to others.” Williams & Works, Inc v Springfield Corp, 76 Mich App 541, 547; 257 NW2d 160, 163 (1977).

Because a person may not maintain a cause of action after six years, the statute operates to prevent a cause of action from ever accruing where the injury occurs more than six years after the time of occupancy. The cause of action is abrogated before it comes into existence. Consequently, an injured party cannot be deprived of a cause of action without due process of law. The Court in Dyke v Richard recognized that a statute of limitation which operates to abrogate a cause of action may be sustainable as a statute of repose. The Legislature has the»power to abrogate causes of action. Const 1963, art 3, § 7, Bean v McFarland, supra. A decision by the Legislature that a cause of action should not be abrogated until the passage of a period of time, when proofs grow stale, is not an unreasonable exercise of its authority. Similar acts have been upheld as statutes of repose in other states. See, e.g., Rosenberg v Town of North Bergen, 61 NJ 190; 293 A2d 662 (1972), Freezer Storage, Inc v Armstrong Cork Co, 234 Pa Super 441; 341 A2d 184 (1975). As applied to the instant situation, the statute operates in a constitutional manner.

Affirmed in part, reversed in part, and remanded.