author: Allen, J.

text:
    DISTCO LAMINATING, INC. v UNION TOOL CORPORATION
    1. Sales — Contracts—Rescission of Contracts — Use by Purchaser —"Ownership Like” Use — Finding of Fact — Appeal and Error.
    A finding by a trial court, in an action for rescission of a contract to purchase a laminating machine, that the plaintiffs use of the machine after commencement of the action was not sufficient to bar rescission, although the use was admittedly "ownership like”, will not be set aside where the finding was not clearly erroneous.
    2. Appeal and Error — Findings of Fact — Trial Court.
    Findings of fact by a trial court are given great weight and are not set aside unless clearly erroneous.
    3. Sales — Contracts—Rescission of Contracts — Use by Purchaser —Substantial Use — Remedy of Defects — Statutes.
    A purchaser’s substantial use of a machine following the purchaser’s commencement of a suit to rescind the contract wherein the machine was purchased may not be so substantial as to equal acceptance of the machine through "an act inconsistent with the seller’s ownership”; a buyer’s efforts to remedy defects do not constitute a waiver of the right of rescission (MCLA 440.2606[1] [c]; MSA 19.2606[1] [c]).
    4. Sales — Uniform Commercial Code — Construction—Policies— Statutes.
    The Uniform Commercial Code is to be liberally construed so as to promote its underlying purposes and policies (MCLA 440.1102 et seq.; MSA 19.1102 et seq.).

      References for Points in Headnotes
    [1, 3] 67 Am Jur 2d, Sales §§ 215, 719.
    Use of article by buyer as waiver of right to rescind for fraud, breach of warranty, or failure of goods to comply with contract. 41 ALR2d 1173.

       5 Am Jur 2d, Appeal and Error § 839.

       67 Am Jur 2d, Sales § 19.

       5 Am Jur 2d, Appeal and Error § 566.

       46 Am Jur 2d, Judgments § 142.

       67 Am Jur 2d, Sales § 669.

       46 Am Jur 2d, Judgments § 117.

      5. Appeal and Error — Matters Not Ruled Upon by Trial Court.
    Generally, matters not ruled upon by the trial court will not be acted upon for the first time on appeal.
    6. Motions — Directed Verdict — Judgment Notwithstanding the Verdict — Prerequisites—Court Rules.
    A motion for a directed verdict is a prerequisite to a motion for a judgment notwithstanding the verdict (GCR 1963, 515.2).
    7. Sales — Contracts—Rescission of Contracts — Interest Expenses —Recovery of Interest Expenses — Statutes.
    Interest expenses incurred by a purchaser are not recoverable from the seller in the purchaser’s action to rescind the sales contract because the item purchased failed to meet contract specifications where the seller did not have reason to know of the purchaser’s borrowing to make the purchase (MCLA 440.2714; MSA 19.2714).
    8. Motions — Court of Appeals — Judgment Notwithstanding the Verdict — Evidence—Nonmoving Party.
    The Court of Appeals, in reviewing a motion for a judgment notwithstanding the verdict, should view the evidence in the light most favorable to the party against whom the motion is directed.
    Appeal from Kent, John T. Letts, J.
    Submitted February 9, 1978, at Grand Rapids.
    (Docket No. 31469.)
    Decided March 6, 1978.
    Complaint by Distco Laminating, Inc., against Union Tool Corporation seeking rescission of a contract and for damages for breach of contract. Judgment for plaintiff rescinding the contract and awarding nominal damages. Defendant appeals. Plaintiff cross-appeals.
    Affirmed.

      Murray & Mroz (by James R. Hulbert), for plaintiff.

      Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendant.

      Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   Allen, J.

Defendant appeals of right from a judgment which rescinds a contract for the purchase by plaintiff of a vinyl laminating machine, orders return to the defendant of the machine and orders defendant to return $103,819.50 paid by plaintiff for said machine. Plaintiff cross-appeals from that part of the judgment which awarded plaintiff nominal damages of $1.

Plaintiff is engaged in the vinyl laminating business at Grand Rapids, Michigan. Defendant is a manufacturer of laminating machines at Warsaw, Indiana. On September 24, 1973, plaintiff placed an order with defendant for the purchase of a fully automated machine for $115,335. The machine is some 70 feet long, 9 feet high and 64 inches wide. It is made up of several components allowing it to perform separate but related functions. One part of the machine brushes and cleans substrate boards. Another part applies glue to the separate pieces of substrate boards which travel the length of the machine on a conveyer belt. A third portion of the machine presses vinyl onto the substrate boards. Specifications called for production at a rate from 50 to 150 lineal feet per minute.

Events prior to suit for rescission

When the machine was completed in July 1974, defendant contacted plaintiff who had four of its trucks pick up the machine at defendant’s Warsaw plant and deliver it to Grand Rapids. During August, 1974, it was aligned and anchored, and electrical and compressed air outlets arranged for. In September, an employee of defendant’s plant connected the control panel and commenced test runs. The runs were unsuccessful and there followed some 2-1/2 months of adjustments, changes and various modifications made both by plaintiff and defendant. Though the test runs were unsuccessful, each party blamed the other for the failure of the machine to operate properly. On November 26, 1972, plaintiff wrote defendant threatening rescission and requesting return of the money paid for the machine. Defendant again dispatched technicians to Grand Rapids where additional changes and modifications were made in the machine but all to no avail. On January 29, 1975, plaintiff filed suit for rescission and return of the monies paid on the contract price.

Events following suit for rescission

Following filing of the suit for rescission, plaintiff continued in attempts to make the machine operative. A new electric motor and a new hood were installed on that portion of the machine which performed the cleaning function. The dust collector motor was wired so as to become operative. A witness for plaintiff testified that the machine was used to clean some 1400 substrate boards 49 inches by 104 inches in size. This function was performed with the machine running at 5 to 6 feet per minute. At this speed, the cleaning operation would require 33-1/3 hours to complete. However, had the machine functioned at the speed for which it was designed, the cleaning operation could have been performed in approximately eight hours.

Multiple slits on a newly installed conveyor belt indicated that the machine had been used to laminate vinyl to boards. However, the evidence did not indicate whether such use of the machine was for production or for testing. There was also testimony that plaintiff purchased the machine primarily, though not exclusively, to laminate boards for Herman Miller Corporation but that in October, 1974, Herman Miller Corporation stopped purchasing boards from plaintiff because the boards did not meet fire rating requirements.

Trial was by jury but because of the equitable nature of the suit, the jury was instructed that on the issue of rescission its verdict would be advisory but on the issues of damages its verdict would be controlling. The jury returned a verdict in favor of plaintiff on the claim for rescission and, as to damages, returned a verdict of $1 in favor of plaintiff and denied defendant’s counter-claim for the balance of the purchase price and damages. The comprehensive written opinion of the trial court reads in pertinent part:

"It is also indicated that as late as February 1975 after the commencement of this action there was evidence of equipment being installed on the machine by the plaintiff, subsequent to a request (by the latter) for rescission, and that there was substantial use of the machine by plaintiff after the commencement of this action. The Court is also convinced that the cut marks made in the conveyor belt were caused by the plaintiffs use of tools on material moving over the belt; although, there was conflicting testimony that 'machine has not been used, not to my knowledge’ (testimony of Phillip Bruce Me Keel, an employ [sic] of the plaintiff).
"The Court finds, that although the evidence presented in this case does demonstrate that after plaintiff attempted to rescind his contract with the defendant it did treat the defendant’s machinery in an ownership like manner; such use was not sufficient, in the opinion of this Court, to bar rescission. ” (Emphasis supplied.)

The litigants agree that the present dispute is governed by the Uniform Commercial Code, 1962 PA 174; MCLA 440.1101 et seq.; MSA 19.1101 et seq., but disagree as to which section of the code controls. Plaintiff contends that MCLA 440.2601; MSA 19.2601 which provides that a buyer may reject goods where the goods fail to conform to the contract applies. In support of this position, plaintiff points out that the trial court found that the machine did not conform to the contract. On the other hand, defendant argues that MCLA 440.2606; MSA 19.2606 which provides that a buyer accepts goods when the buyer "does any act inconsistent with the seller’s ownership” governs. Plaintiffs actions following filing of the suit for rescission, says defendant, were so substantial as to constitute legal acceptance. Further, defendant argues, since the trial court itself found the subsequent use "substantial” and not in mitigation of damages, the trial court erred as a matter of law in granting rescission. Our examination of the file and transcript leads us to reject defendant’s skillfully presented arguments.

There was abundant evidence at trial that the laminating machine did not conform to contract specifications. The trial court so found. The trial court also found that plaintiffs use of the machine following commencement of the action for rescission, though admittedly "ownership like”, was not sufficient to bar rescission. We agree. Findings of fact by a trial court are given great weight and are not set aside unless clearly erroneous. GCR 1963, 517.1; Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975). Defendant errs in concluding that whenever a buyer’s conduct over the goods following commencement of rescission is "substantial” and not in mitigation of damages, such conduct as a matter of law becomes "an act inconsistent with the seller’s ownership” as that phrase is used in subsection 606(l)(c) of the Uniform Commercial Code. Post-rescission conduct may still be substantial and yet not be so substantial as to equal acceptance. See Anno: Use of Goods by Buyer as Constituting Acceptance Under UCC § 2-606(1)(c), 67 ALR3d 363. Cases cited in that annotation which hold that use constitutes acceptance involve considerably more use than appears in the instant case.

With the single exception of the cleaning operation of some 1400 substrate boards, plaintiffs post-rescission action was directed towards making the equipment function rather than use of the equipment in production. With over $103,000 invested in the machine it was not abnormal or unusual to make one more effort to make the machine work. A buyer’s efforts to remedy defects do not constitute a waiver of the right of rescission. 46 Am Jur, Sales, § 765, p 897. See also MacLaren v Dermody White Truck Co, 9 Mich App 402; 157 NW2d 459 (1968). The single production run of 1400 boards involving an estimated 33-1/2 hours productive use of the machine is minimal when compared with the reasonably expected lifetime productivity of the machine. Comparatively, it is one spin around the earth of a space capsule designed to orbit the globe a year in time. Plaintiffs purchase of the exhaust fan, enlarged motor and other post-rescission suit equipment modifications involved efforts by the plaintiff to make the equipment perform to contract specifications. Slits in the conveyor belt were not proved to have resulted from vinyl-lamination production as opposed to testing of the machine. Furthermore, plaintiff’s testimony that its business had substantially increased between the date it placed the order for the machine in September 1973, and the date rescission was commenced in January 1975, offset defendant’s argument that plaintiff rejected the machine because of the loss of the Herman Miller account in 1974.

Greater use by the buyer following the buyer’s rejection of the goods or article purchased than appears in the instant case has been found not to constitute acceptance in several Michigan cases. In Valley Die Cast Corp v ACW Inc, 25 Mich App 321; 181 NW2d 303 (1970), defendant continued to use until May a defective car wash system which defendant had notified the seller it was rejecting in January. Our Court held that the buyer’s use after rejection did not necessarily constitute acceptance under MCLA 440.2606; MSA 19.2606 and that the ultimate fact of acceptance or rejection under the facts of that case was for the jury to determine. In Minsel v El Rancho Mobile Home Center, Inc, 32 Mich App 10; 188 NW2d 9 (1971), plaintiff-buyer in September tendered notice of intent to rescind the purchase contract but did not vacate the mobile home until some six weeks later. Our Court first noted that the Uniform Commercial Code was to be liberally construed and then concluded that the mere six weeks of continued occupancy did not legally constitute an exercise of ownership by the buyer of the goods purchased. Similar decisions finding that post-rescission continued use of otherwise defective purchased equipment does not constitute acceptance, are found in Stroh v American Recreation & Mobile Home Corp of Colorado, 35 Colo App 196; 530 P2d 989 (1974), and Moore v Howard Pontiac-American, Inc, 492 SW2d 227 (Tenn App, 1972). In our opinion the comparatively limited use of the laminating machine in the instant case is an act substantially less "inconsistent with the seller’s ownership” than the buyers’ actions in Minsel, Stroh and Moore.

Plaintiff’s cross-appeal for damages

Plaintiff has cross-appealed from the failure of the trial court to rule favorably on plaintiff’s motion for judgment notwithstanding the verdict. According to plaintiff, it is totally inconsistent and against the great weight of the evidence to allow rescission but deny reimbursement for the expenses incurred as a result of defendant’s breach of contract. Expenses of $26,274.02 were presented at trial, of which $12,392.85 was incurred in electrical connections, a dust collection system, an overhead crane and pneumatic power connection costs, and $13,881.17 represented interest paid to the date of trial to the Michigan National Bank for the loan to purchase the machinery. For reasons in part procedural and in part substantive, we reject the cross-appeal.

GCR 1963, 515.2 provides:

"Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the moving party may move * * * to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.”

A motion for a directed verdict is a prerequisite to a motion for judgment notwithstanding the verdict. Smith-Douglass, Division of Borden Chemical v Walch, 391 Mich 201, 204-205; 215 NW2d 142 (1974). In the instant case no motion for a directed verdict was made.

Nor is this a situation falling within the exception to Rule 515.2 where, upon a new trial, no different result could be reached. The necessity for the expenditures made by the plaintiff was sharply contested by the defendant who claimed that plaintiff’s modifications and adjustments totaling $12,392.85 were made without consultation with the defendant’s experts and that in many instances the plaintiff dragged its feet and failed to cooperate with the defendant. On cross-examination, plaintiff’s witnesses admitted that the purchase of the hoist, the panel control wiring and some related expenditures were improvements which could be used in other aspects of plaintiff’s business. It is very possible that the jury believed defendant’s testimony as to damages even though the jury also concluded that the machine failed to meet contract specifications.

For similar reasons we are not persuaded that the jury erred in denying plaintiff a return of interest charges of $13,881.17 on the loan from the bank. Such charges are recoverable as damages under § 2714 of the Uniform Commercial Code, MCLA 440.2714; MSA 19.2714, if the seller had reason to know of the borrowing. Carl Beasley Ford, Inc v Burroughs Corp, 361 F Supp 325 (ED Pa, 1973). Based on the limited testimony in this case we cannot conclude that Union Tool had reason to know Distco required a loan to make payment for the article purchased.

In reviewing a motion for judgment notwithstanding the verdict, this Court must view the evidence in the light most favorable to the party against whom the motion is directed. Savage v Peterson Distributing Co, Inc, 379 Mich 197; 150 NW2d 804 (1967). Even the trial judge found as a fact that plaintiff’s alleged damages resulted from alterations made without prior consultation with defendant. In the fact of such testimony and findings, we cannot find that the trial court erred in failing to grant plaintiff’s motion for judgment notwithstanding the verdict.

Affirmed, no costs, neither party having prevailed in full.

       "Sec. 2606. (1) Acceptance of goods occurs when the buyer
      (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
      (b) fails to make an effective rejection (subsection (1) of section 2602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
      (c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
      "(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.” (Emphasis supplied.) MCLA 440.2606; MSA 19.2606.

       Testimony by plaintiff showed that its gross business for 1973 was $1.75 million; for 1974, $3.0 million; for 1975, $2.4 million and for the first quarter of 1976, $1.1 million.

       In both Stroh and Moore, the court did find that the buyers’ continued use of the mobile home and automobile depreciated the value of the purchased article and allowed the seller an offset in plaintiffs’ damages. In the case before us we do not find that the limited use of the machine for the short period of time involved following suit for rescission depreciated the value of the machine.

       Plaintiff’s motion was not directly ruled upon by the trial court. It was mentioned but never passed upon in the court’s written opinion. It was neither mentioned nor acted upon in the formal order of judgment December 6, 1976, which was drafted by plaintiff’s attorney. Generally, matters not ruled upon by the trial court will not be acted upon for the first time on appeal. Three Lakes Association v Whiting, 75 Mich App 564; 255 NW2d 686 (1977). However, we do not base our rejection of the cross-appeal on this technicality since it is clear to us that, at least inferentially, the trial court did deny plaintiff’s motion.

       See 2 Honigman & Hawkins, Mich Court Rules Annotated, 1977 Supp, p 156.

       Nor are we persuaded that knowledge of borrowing may be imputed under the "it follows from the normal course of events” doctrine set forth in Certain-Teed Products Corp v Goslee Roofing & Sheet Metal, Inc, 26 Md App 452, 473; 339 A2d 302, 314-315 (1975). If the “normal course of events” theory is inapplicable, then the question of whether interest paid on a loan required to pay for the purchase is recoverable is a question entirely for the jury to decide according to the equities of the situation. A & A Masonry Contractors, Inc v Polinger, 259 Md 199; 269 A2d 566 (1970). In the instant case, the jury determined that the interest was not recoverable.


source: Caselaw Access Project

author: Bronson, P. J.

license: Public Domain

text:
    C. I. T. FINANCIAL SERVICES, INC. OF MICHIGAN v LEWIS
    Garnishment — Costs—Attorney’s Fees — Judge’s Discretion — Appeal and Error — Court Rules.
    A trial court in a garnishment action may award a garnishee-defendant reasonable attorney’s fees incurred in filing a disclosure and other necessary costs; the award of such fees and costs is discretionary with the trial court and the Court of Appeals is limited in its scope of review to the question of whether the trial court’s action amounted to an abuse of discretion (GCR 1963, 526.9).
    Appeal from Wayne, James N. Canham, J.
    Submitted November 14, 1977, at Detroit.
    (Docket No. 31543.)
    Decided March 6, 1978.
    C. I. T. Financial Services, Inc. of Michigan secured judgment against Lonnie Lewis for money owing and subsequently obtained judgments of garnishment against his employer, General Motors Corporation. General Motors moved for payment of costs and attorney fees incurred in the garnishment proceedings. A judgment was entered awarding some costs and fees to General Motors. General Motors appeals, contending the award was inadequate.
    Affirmed.

      Wendell R. Tucker, for garnishee-defendant General Motors Corporation.
    References for Points in Headnote
    [1] 6 Am Jur 2d, Attachment and Garnishment § 407.
    Attorneys’ fees: amount of compensation of attorney for services in garnishment proceeding in absence of contract or statute fixing amount. 56 ALR2d 111.

      Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   Bronson, P. J.

Garnishee-defendant General Motors Corporation appeals as inadequate an order awarding it costs in a garnishment proceeding against an employee. General Motors requested costs including attorney fees of $868.81. The trial court awarded General Motors $350.

Plaintiff contested every item of General Motors’ bill of costs in the court below, arguing inter alia that it had paid the requisite disclosure fee, GCR 1963, 738.4(1), that General Motors is required by law to maintain a resident agent for service of process for which plaintiff should not be required to pay, that expenses incurred in discovery were caused by General Motors’ failure to make adequate disclosure and that expenses incurred in moving for costs were not "necessary” expenses.

General Motors, on the other hand, argues that it is an innocent stakeholder, that GCR 1963, 526.9 allows a garnishee to recover "necessary” expenses and that all costs should be awarded unless there is collusion between the garnishee defendant and the principal defendant.

GCR 1963, 526.9 provides in part:

"Costs in Garnishment Proceedings. Costs in garnishment proceedings shall be allowed as in civil actions. The judge in awarding costs may
"(1) in case the issue of the garnishee’s liability to the principal defendant is not brought to trial, award the garnishee as costs against the plaintiff such reasonable attorney’s fees as the garnishee incurred in filing his disclosure and other necessary expenses.”

Costs are discretionary with the trial judge as GCR 1963, 526.9 states that the trial court "may” award "reasonable attorney’s fees” and other "necessary” costs.

In the case at bar, the court, faced with a contested bill of costs, awarded General Motors what it felt was a reasonable amount. While we may have made a different award had we been in the position of the trial court, our scope of review of a discretionary action by a trial court is limited, under these facts, to whether that action amounted to an abuse of discretion.

We believe trial courts should be sensitive to garnishee defendants’ claims for costs. We are troubled by the possibility that large corporate garnishees such as General Motors are being required to underwrite the collection expenses of finance companies such as plaintiff. This is not the result anticipated by GCR 1963, 526.9.

Affirmed. No costs.


author: N. J. Kaufman, J.

text:
    ENGLISH v SAGINAW COUNTY TREASURER McKENZIE v SAGINAW COUNTY DRAIN COMMISSIONER
    1. Drains — Drain Orders — Reimbursement—General Fund — Drain Fund — Statutes.
    The Drain Code of 1956 does not provide a method for the holders of drain orders to make a demand for reimbursement of such orders from the general fund of a county where the drain fund upon which such orders are drawn is insufficient to pay the orders (MCLA 280.244; MSA 11.1244).
    2. Statutes — Amendment—Legislature—Phraseology Changes— Presumptions.
    It is presumed that the Legislature intended to make some change in existing law when the Legislature adopts an amendment to a statute; courts must give some meaning to a legislative amendment; a change of phraseology in a statute raises the presumption that a change of meaning was intended.
    3. Drains — Drain Commissioner — Duty of Reassessment — Drain Fund — Mandamus—Statutes.
    A drain commissioner has a duty to reassess in order to make up any deficiency in a drain fund; an action for a writ of mandamus should be directed against the drain commissioner where a holder of unpaid drain orders seeks a reassessment (MCLA 280.245, 280.280; MSA 11.1245, 11.1280).
    Appeal from Saginaw, Joseph R. McDonald, J.
    Submitted November 2, 1977, at Grand Rapids.
    (Docket Nos. 77-940, 77-941.)
    Decided March 6, 1978.
    Complaints by Volney English and Helen English against the Saginaw County Treasurer, Saginaw County Clerk and the County of Saginaw and by Basil McKenzie against the above-named defendants, the Saginaw County Drain Commissioner and Charles Nagel seeking writs of mandamus directing defendants to make payment on certain drain orders from the general fund of the county and for other relief. Lamar Corporation was permitted to intervene as a plaintiff. The cases were consolidated for trial. Default judgment for plaintiff McKenzie against Nagel. Summary judgment for plaintiffs. Defendants Saginaw County Treasurer, Saginaw County Clerk and the County of Saginaw appeal.

      References for Points in Headnotes
    [1, 2] 25 Am Jur 2d, Drains and Drainage Districts § 53.

       73 Am Jur 2d, Statutes § 236.

       25 Am Jur 2d, Drains and Drainage Districts, §§ 42, 48.

      Reversed.

      Montigel, Mackie & Harris, for plaintiff-appellees English.

      Fortino, Plaxton & Moskal, for appellee McKenzie.

      Porter, Day & Sawdey (by William A. Hubble), for intervening plaintiff-appellee Lamar Corporation.

      Smith Bovill, P. C., for defendant-appellants.

      Amicus Curiae: County of Wayne, Michigan, Aloysius J. Suchy, Corporation Counsel (by Lawrence O. Hinkle).

    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

This appeal involves a rather arcane body of statutory law, The Drain Code of 1921, 1921 PA 64, as amended. On October 2, 1975, Volney and Helen English filed a complaint against the Saginaw County Treasurer, Saginaw County Clerk and County of Saginaw requesting a writ of mandamus directing defendants to make payment on certain drain orders from the general fund of the county. Lamar Corporation was permitted to intervene as a plaintiff on March 31, 1976.

On April 5, 1976, Basil McKenzie filed a complaint against the above-named defendants, the Saginaw County Drain Commissioner, and Charles Nagel also requesting a writ of mandamus directing defendant county officials to make payment on certain drain orders and for other relief.

On September 16, 1976, the two cases were consolidated for trial. Default judgment for plaintiff McKenzie against Charles Nagel was granted on January 17, 1977. Summary judgment for plaintiffs was granted on February 25, 1977. Defendants Saginaw County Treasurer, Saginaw County Clerk and County of Saginaw appeal as of right.

The relevant facts are not in dispute. During 1969, 1970 and 1971, the Saginaw County Drain Commissioner issued drain orders to pay for the construction of a special assessment drain known as the Herman Extension of the King Street Drain. Plaintiffs English and McKenzie are assignees of drain orders issued to Charles Nagel. Intervening-plaintiff Lamar Corporation is an original holder of drain orders.

The drain orders were drawn upon the Herman Extension Drain Fund. Deposits were made to this fund primarily from special assessment taxes collected from property owners benefitted by the new drain.

Special assessment taxes on a 48-acre portion of land affected by the drain were not paid. The property in question was conveyed to the State of Michigan following a tax sale. This property was later conveyed to the County of Saginaw for one dollar.

On May 22, 1972, the Herman Extension Drain Fund became exhausted, leaving the drain orders in question unpaid. Plaintiffs seek payment from the general fund of the county pursuant to MCLA 280.244; MSA 11.1244 of the 1956 drain code, successor to the 1921 drain code.

To determine the validity of plaintiffs’ claims, it is necessary to make an historical analysis of the drain code provision in question.

1921 PA 64 explicitly gave a holder of a drain order the right to demand payment from the general fund of the county where the drain fund was insufficient to pay the order and where the lands on which the taxes have become delinquent have been offered for sale. 1921 PA 64 provided in part as follows:

"That the holder of such order may, if he so desires, have the right to require payment thereof out of any moneys in the general fund of the county treasury that may be available, if the drain fund is insufficient for such purpose because of delinquency in the payment of drain taxes after the lands on which the said taxes shall have become delinquent have been offered for sale. In any such case where payment is made by the county treasurer out of the general fund any and all delinquent drain taxes received by said treasurer thereafter shall be credited to the general fund until the same is reimbursed.”

In 1933 this provision of the drain law was amended "in such manner as to transfer to the county drain commissioner the right to require payment out of the general fund of the county”. Gerweck v Monroe County Treasurer, 317 Mich 53, 64; 26 NW2d 864 (1947). The language which had given a holder of a drain order the right to demand payment from the county general fund was deleted. Language was substituted in its place which gave this right to the drain commissioner. (See 1933 PA 216, § 4.)

In 1949, pursuant to 1949 PA 247, the statute was again amended. The language giving the drain commissioner the right to demand payment from the general fund of the county was deleted. Language giving a holder of a drain order the right to demand payment from the county general fund was not reinstated.

The present statute in dispute, MCLA 280.244; MSA 11.1244, provides in part:

" * * * If the drain fund is insufficient for such purpose because of delinquency in the payment of drain taxes after the lands on which the said taxes shall have become delinquent have been offered for sale, in any such case where payment is made by the county treasurer out of the general fund and all delinquent drain taxes received by said treasurer thereafter shall be credited to the general fund until the same is reimbursed. * * * ”

It should be noted that while there are cases prior to the 1949 amendment there are none since. Graves v Bliss, 235 Mich 364; 209 NW 142 (1926), Gerweck v Monroe County Treasurer, 317 Mich 53; 26 NW2d 864 (1947).

After tracing the various statutes and amendments of the. drain act it is clear that until 1949 the Legislature provided that holders of drain orders would be reimbursed by being paid either by the holders themselves making a request from the general fund or the drain commissioner making a request from the general fund. However, this was eliminated and the 1956 act does not have a method for the holders to make a demand on the county. We cannot reinstate the previous method.

As noted in Jones v Grand Ledge Public Schools, 349 Mich 1, 11; 84 NW2d 327 (1957):

"The language of the statute must be construed as it reads. It is not within the province of this Court to read therein a mandate that the legislature has not seen fit to incorporate. Our duty is to apply the law as we find it.”

Thus, when the Legislature adopts an amendment to a statute, it is presumed that the Legislature intended to make some change in existing law. Courts must give some meaning to a legislative amendment. A change of phraseology in a statute raises the presumption that a change of meaning was intended. Lawrence Baking Co v Unemployment Compensation Commission, 308 Mich 198, 205; 13 NW2d 260 (1944).

In this case, plaintiffs can make no demands on the county. Therefore, defendant county and defendant county officials cannot be compelled to satisfy plaintiffs’ demands by a writ of mandamus. As the trial court improvidently granted a writ of mandamus, its decision must be reversed.

We sympathize, however, with the apparent dilemma in which the trial court found itself. Finding that plaintiffs should get relief, in granting the writ, the trial court was motivated by its concern that:

" * * * a refusal to grant the relief requested by plaintiffs would leave them without a remedy; * * *

However, we do not share that concern because we find that MCLA 280.245; MSA 11.1245, in conjunction with MCLA 280.280; MSA 11.1280, provides for a method of reassessment in order to make up any deficiency. There is a duty upon the drain commissioner to reassess, at some point, in order to make up the deficiency.

We note that in this case reassessment is made more difficult by the second part of MCLA 280.280; MSA 11.1280 which exempts counties from paying any assessment on property used for public purposes.

We specifically do not decide whether the property acquired by the county from the state for $1 is used for public purposes and therefore cannot be assessed. We suggest that immediately prior to reassessing the property (whenever that occurs) in order to make up the deficiency, the public purpose question be decided first. This would comply with the statutory mandate of MCLA 280.280; MSA 11.1280. In that way if the property that the county owns is not assessed under MCLA 280.280; MSA 11.1280, the other people who are assessed will make up the difference, and a single reassessment will suffice. On the other hand, if this question is not decided and it is later found that the county is not liable, another assessment under the provisions of MCLA 280.245; MSA 11.1245 and MCLA 280.280; MSA 11.1280 would be required.

We would finally note that it appears that plaintiffs started their action against the wrong parties. The action for mandamus should be started against the drain commissioner to reassess. While we can understand and sympathize with the trial court’s dilemma, we must administer the statute the way it reads.

Reversed. No costs, a public question being involved.

       On April 19, 1977, this Court permitted Wayne County to intervene as amicus curiae on appeal.

       The only case we could find since 1949 does not deal with the question involved in this case. In Ray v Mason County Drain Commissioner, 48 Mich App 559, 560; 210 NW2d 810 (1973), Judge McGregor aptly noted:
      "At the center of this dispute is the Drain Code of 1956, MCLA 280.1 et seq.; MSA 11.1001 et seq., an exceedingly complex statute, the provisions of which apparently are known by few in the profession and understood by far fewer.”
      We can only say "Amen”.

       MCLA 280.245; MSA 11.1245 reads as follows:
      "All drain orders made by the commissioner shall state the services rendered in brief form, shall be numbered and recorded and signed by the commissioner. Such order, when due, shall be presented to the county clerk and he shall immediately ascertain from the county treasurer if the particular fund on which said order is drawn is sufficient to pay said order. If such fund is sufficient, the county treasurer shall so certify on the back of said drain order and the county clerk shall thereupon issue the usual county warrant upon the county treasurer for the payment of said order, taking said order so certified as his voucher. If such particular fund is insufficient when such order is presented for payment, the county treasurer shall so certify upon such order and such order shall then draw interest at the rate of 6% per annum from the date of presentation until such particular fund is sufficient to pay the same, said interest to be computed and paid with the principal out of the proper fund on which it was drawn, when there are sufficient funds to pay the same. The county treasurer shall keep a record in which he shall note each drain order presented for payment on a drain account which was insufficient to pay such order on the date of presentation. He shall note in such record the amount, number, drain account and the date of original presentation for payment. When there are sufficient moneys in the particular drain account to pay the order, plus interest, the county treasurer shall note the date of such sufficiency on such record and shall transfer sufficient moneys to pay such order and interest then due from the particular drain account and drain fund to a drain order redemption fund and the drain order shall cease to earn interest as of that date. Transfers to the drain order redemption fund shall be made in the order of priority in which the drain orders were originally presented for payment. Payment of such orders, including interest earned as provided herein, shall thereafter be made by the county treasurer from the drain order redemption fund. Drain orders at any time during the year in which such drain order becomes due and payable and for a period of 30 days prior to such year shall be accepted for the payment of drainage taxes. The county treasurer shall report to the commissioner the amount paid as interest on any and all such drain orders. The county treasurer shall at the first of each month furnish the drain commissioner with a report of all drain orders cashed during the preceding month, including the name of the drain upon which the order was drawn, the amount, the number of the order, and the date of payment.”
      MCLA 280.280; MSA 11.1280 reads as follows:
      "If there is not sufficient money in the fund in a particular drain at the time of the maturity of the bonds last to mature, or any drain orders, to pay all outstanding bonds or drain orders with interest, or to reimburse the county for money which it has been obliged to advance pursuant to section 275 of this act, whether such insufficiency is due to the anticipation of installments as provided in section 279, or to failure to sell any lands for delinquent taxes, or to any other cause, it shall be the duty of the commissioner to at once levy an additional assessment as hereinbefore provided in such an amount as will make up the deficiency which shall be spread in not to exceed 7 annual installments; and if the commissioner determines that the entire amount, if spread in 1 year, would be an undue burden or create unnecessary hardship, he may order it spread over any number of years up to but not exceeding 7; and in case bonds or other evidences of indebtedness are issued pursuant to Act No. 13 of the Public Acts of 1932, First Extra Session, as amended, and Act No. 202 of the Public Acts of 1943, as amended, being sections 131.1 to 138.2, inclusive, of the Compiled Laws of 1948, to refund the outstanding indebtedness of a drain district, the governing body of such drain district shall provide, subject to the directions of the municipal finance commission, for such additional levies of assessments prior to the maturity of such refunding obligations as it shall deem necessary to prevent default in payment of interest on such obligations, and the maintenance of a sinking fund for their retirement, and it shall be the duty of every officer charged with the determination of the amount of taxes to be raised, or the levying of such taxes, to make or cause to be made the additional levies as provided. Any surplus remaining after the payment of the bonds and interest shall remain in the county treasury and be used for the maintenance of the drain.
      "Such additional assessments shall only apply to drain orders or bonds issued after the effective date of this act and shall be apportioned, assessed, levied and collected as provided in the first instance. As to deficiency assessments levied for drain orders or bonds issued after the date of this act there shall be no lands exempted therefrom, except those which at the time of such additional assessments are owned or used as follows: First, lands owned by the United States; second, lands owned by the state of Michigan, except licensed homestead lands, and except lands held under land contracts issued pursuant to Act No. 155 of the Public Acts of 1937, as amended, being sections 211.351 to 211.364, inclusive, of the Compiled Laws of 1948; third, lands owned by any county, city, village, township or school district and used for public purposes; fourth, lands used exclusively for burial grounds; fifth, lands dedicated to the public and actually used as a highway or alley, and not used for gain: Provided, That no such additional assessment shall be levied or collected for the purpose of paying the principal or interest upon any bonds or obligations which have heretofore been held to be invalid, nor shall any such additional assessment be apportioned, assessed, levied or collected for the purpose of paying any bonds, interest or obligations for the payment of which assessments have heretofore been made.”


author: D. C. Riley, J.

text:
    PEOPLE v ABDO
    1. Witnesses — Res Gestaé Witnesses — Criminal Láw.
    A res gestae witness is one who was an eyewitness to Some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged olfense.
    2. Witnesses — Res Gestae Witnesses — Prosecutors—Indorsement of Witnesses — Statutes.
    A prosecutor is required to indorse on an information and produce at trial all res gestae witnesses (MCLA 767.40; MSA 28.980).
    3. Witnesses — Res Gestae Witnesses — Criminal Law — Criminal Transaction — Relevance of Testimony.
    A trial court erred in finding that certain witnesses were not res gestae witnesses because they had not witnessed a shooting, where the criminal transaction involved included an altercation in a restaurant, with several participants, followed by the shooting on the street outside the restaurant, and where the only witness to testify as to direct knowledge of the shooting Was the victim; the testimony of the unindórsed witnesses to the events inside the restaurant would be relevant to the questions of identity of the assailant and of motive.
    4. Witnesses — Criminal Law — Res Gestae Witnesses — New Trial.
    A defendant was entitled to a new trial where the evidence upon which he was convicted was not overwhelming, credibility was a key issue, the identity of the defendant as the perpetrator of the crime was contested, and where several witnesses whose testimony if allowed to be presented would have been primarily noncumulative and in support of the defense, were erroneously found at a post-trial hearing not to be res gestae witnesses.

      References for Points in HeadNotes
    [1, 3, 4] 29 Am Jur 2d, Evidence § 708.
    Admissibility, as part of res gestae, of accusatory utterances made by homicide victim after act. 4 AbR3d 149.

       41 Am Jur 2d, Indictments and Informations §§ 55, 56, 60.
    Power of assistant Or deputy prosecuting or district attorney to file information, or to sign or prosecute it in his own name. 80 ALR2d 1067.

       29 Am Jur 2d, Evidence § 711.

       29 Am Jur 2d, Evidence §§ 717-721, 736.

      5. Witnesses — Criminal Law — Res Gestae Witnesses — Indorsement of Witnesses — Cross-Examination.
    The fact that a res gestae witness is called as a defense witness does not excuse the prosecutor’s failure to indorse the witness; part of the purpose of the res gestae rule is to allow the defendant to cross-examine witnesses called as res gestae witnesses.
    Appeal from Wayne, John M. Wise, J.
    Submitted January 16, 1978, at Detroit.
    (Docket No. 28476.)
    Decided March 7, 1978.
    Mohammed D. Abdo was convicted of assault with intent to commit great bodily harm less than murder. Defendant appeals.
    Reversed and remanded.

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

      Gromek & Bendure, for defendant on appeal.
    Before: T. M. Burns, P. J., and M. F. Cavanagh and D. C. Riley, JJ.
   D. C. Riley, J.

Defendant Mohammed Daifullah Abdo, arrested and charged with assault with intent to commit murder, MCLA 750.83; MSA 28.278, was found guilty at a bench trial of assault with intent to commit great bodily harm less than murder, MCLA 750.84; MSA 28.279, and sentenced to a prison term of two and one-half to ten years. He brings the present appeal raising several issues, of which two involve the extensive testimony presented to the trial court.

The incident in question took place during the early morning hours of November 3, 1975, inside and in front of Uncle Sam’s restaurant in Dear-born, Michigan. The complainant, Alan Amen, worked as a special claims investigator for the Michigan Employment Security Commission, concentrating on assisting Arabic-speaking claimants. On November 3, Amen attended a party at the restaurant commemorating the owner’s loss of his liquor license. There were approximately 200 persons at the restaurant party, with a significant number being of various Arabic nationalities.

Amen testified that the incident began when he was approached by Sultan Saleh, who had acted as an interpreter for an unemployment claimant named Quayed Alhidais. Saleh allegedly accused Amen of abandoning Alhidais’ claim and of being anti-Arab. The argument erupted into an attack on Amen, according to his testimony, by various persons including Saleh, Abdullah Nassar, and defendant Abdo. At this point several people, including Houssain (Sam) Mallad, the owner of the restaurant, interceded to break up the fight.

Amen stated that he fled the restaurant when the fighting was quelled. After exiting through the front door, he took two or three steps out into the street in front of the restaurant, and then turned at the sound of activity behind him. He testified that on turning he saw defendant on the sidewalk in front of the restaurant pointing a handgun in his direction, and Sam standing just outside the front door. As he turned back to run, Amen was shot through the arm. He stated that defendant followed him partially across the street and aimed the gun at him again, bút he was not sure if any additional shots were fired.

In addition to Amen, the prosecution presented testimony from four other endorsed witnesses who were present on the night of the shooting. Allen Mallad, the son of Sam Mallad, testified that he saw the start of the fight and eventually wrestled Nassar away from Amen. He did not see or hear the actual shooting, and did not see defendant with a weapon.

Mason Baydoun testified about the argument between Amen and Sultan Saieh, stating that he tried to break up the argument, but that he did not see any fight nor did he see or hear the shooting. He did not remember seeing defendant at the restaurant.

Sultan Saleh admitted arguing with Amen, but denied threatening or striking him. He stated that he left the restaurant by the back door while Amen was still inside. On further examination, it was brought out by the prosecutor that Saleh had been convicted of assault and battery on Amen in Dearborn district court, the charge having arisen from this same incident.

Houssain (Sam) Mallad testified that he had attempted to break up the fight inside of the restaurant. He tried to hold onto Amen but he slipped out of Sam’s grasp and went out the front door. Immediately thereafter several other people also slipped past Mr. Mallad and exited from the building. After Sam finally got the door closed, and while inside of the building, he heard several shots. He then went outside and saw Amen in the middle of the street. He also saw a group of people, including defendant, on the sidewalk to the right of the front door. He did not see anyone with a gün and did not seé Amén shot.

Following all of this testimony, defendant waived the production of several endorsed witnesses, one being Jamal Attareb and the others being police officers and a doctor. The final prosecution witness was Dearborn Police Sergeant Forrest Henry, the arresting officer in charge of the case. Sgt. Henry related the details of defendant’s arrest and the substance of a statement made by defendant following his arrest. In the statement defendant said that he was at the restaurant with Sam Mallad, Jeffery Saleh, Mohsen Said (an alias of Abdullah Nassar), and a David (possibly also an alias of Abdullah Nassar). He stated that he attempted to break up the fight between Sultan Saleh and Amen, and later walked outside with Sam Mallad. He denied having a gun, seeing or hearing Amen shot, or doing the actual shooting.

The defense then presented a number of witnesses. Jeffery Saleh (no relation to Sultan Saleh) stated that he saw defendant attempt to break up the fight between Sultan Saleh and Amen. He did not see defendant strike Amen. Just after Amen left the restaurant he, defendant, and around 10 to 15 other persons left, with he and defendant at the head of the group. As the group was walking down the sidewalk to a different restaurant, they heard shots. Jeffery Saleh did not see any shots fired and did not see defendant with a gun.

This testimony of Jeffery Saleh was essentially corroborated by that of Ali Kahdi, Ali Aboubaker, and Abdul Ali, all of whom testified that they were in the group that left Uncle Sam’s with Jeffery Saleh and defendant. None of these witnesses saw the shooting.

Defendant Mohammed Abdo was the final defense witness. His testimony coincided with the substance of the previous defense testimony. He denied threatening, hitting, or shooting Amen and stated that while he heard shots, he did not know that Amen had been shot until the following day.

Following closing arguments, the trial court made the following findings of fact:

"This Court had no difficulty in understanding the witnesses.
"Many of these witnesses were reluctant to testify to part of the happenings of that morning, testifying that they saw nothing. However, it has been established by the complaining witness, and the testimony, that he was shot by the Defendant whom he had seen earlier in Uncle Sam’s Restaurant and Bar. The complaining witness’s testimony was convincing and forthright. His testimony was substantiated in part by portions of the testimony of both the People’s and the defense’s witnesses, and when interwoven and taken as a whole, leaves no doubt in the Court’s mind.
"I might say that several of the witnesses who testified, such as Sam Mallad and Jeffrey Saleh, who testified for the defense that the Defendant was the first one out of the door after the Complainant had gone out, and there is such other testimony, and the Court does find as a matter of fact, taking into consideration all of the testimony that the People have proven beyond a reasonable doubt, that the Defendant, Mohammed D. Abdo did assault with intent to do great bodily harm less than the crime of murder upon the Complainant, Alan Amen, and does find the Defendant guilty of that offense, the cause having been proven beyond a reasonable doubt as to all the elements of that charge.”

Subsequent to appointment of appellate counsel, the case was remanded by this Court, on defendant’s motion, to the trial court to allow defendant to bring a motion for new trial. This motion was founded on claims that the decision was against the weight of the evidence and that various alleged res gestae witnesses were not endorsed or produced at the trial. Over the course of several hearings, as mandated by People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), testimony was taken from a number of witnesses, including Sgt. Henry, the arresting officer.

Abdullah Nassar (a/k/a Mohsen Said) testified that he did not see the shooting, did not see defendant with a gun, and that he was only contacted to testify after the trial by defendant’s appellate counsel.

He admitted that he did participate in a struggle with Alan Amen, but asserted that the fight was in part precipitated by racial slurs uttered by Amen. Nassar testified that Amen was wearing glasses at the time, that Amen removed his glasses during the fight, and that Amen did not retrieve the glasses prior to leaving the restaurant. It was also brought out that Nassar had been convicted of assault on Amen arising from this incident.

Hussain Dubaishi, Saif Abdullah, Hussain Abdulla and Said Ali all testified that they were at Únele Sam’s on the night of the shooting, but did not see or hear the shots fired. Dubaishi stated that Amen left the restaurant ten minutes before defendant left. Saif Abdullah said that Amen left five minutes before defendant. Hussain Abdulla stated that Amen left the restaurant followed by several people, and then defendant and some others left. Ali testified that he talked to defendant in the restaurant after Amen had left.

Sgt. Henry testified as to the efforts made to locate and endorse res gestae witnesses. No attempt was made to endorse any of the witnesses presented at the Robinson hearing, or to endorse Jeffery Saleh. Sgt. Henry also stated that Quayet Alhidais was not endorsed after he told Henry that he was not at the restaurant on the night of the shooting. Alan Amen had testified at the trial that Alhidais was in Uncle Sam’s on November 3, 1975.

Following the presentation of this testimony, the trial court made the following ruling:

"May I say this, Mr. Gromek, you have indicated possible res gestae witnesses, but the testimony of the parties that came in to testify indicated they were not res gestae witnesses. None of them saw the shooting, none of them heard any shots, none of them knew anything would transpire outside.
"The question involved though, on a Robinson hearing, is whether there are witnesses who should have been indorsed who are res gestae witnesses. On the testimony that I have heard from all the witnesses, I can’t say they are res gestae witnesses to the point where this entitles you to a retrial, so the only thing I can say, you have had a complete hearing, you have had an examination under a Robinson Hearing and I find that all the known res gestae witnesses were endorsed and heard, except those waived by defense counsel at the trial and you were not defense counsel. Any names that would have been called to anyone’s attention, and that, of course, you are not in a position to know because you didn’t try the cause, so you don’t know what situation was [sic], would have been endorsed.
"I don’t see that the witnesses that have been introduced that they can be considered res gestae witnesses, so I will deny your motion.”

As has been often said by this Court, there is no precise definition for a "res gestae witness”. Various tests have been set forth to establish the parameters of the prosecution’s statutory duty to endorse and produce all res gestae witnesses:

"A res gestae witness is one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense.” People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976).
"The prosecutor is required to indorse on the information and produce at trial all res gestae witnesses. MCLA 767.40; MSA 28.980, People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). This Court has broadly defined a res gestae witness to include not only one who witnesses a crime but one who is present at the time and place of the crime, observes the surroundings, and sees nothing; that is, one whose testimony is necessary to protect the defendant against false accusation or without whose testimony any part of the transaction may remain undisclosed. People v Anderson, 64 Mich App 218; 235 NW2d 746 (1975), People v Harrison, supra. Persons present at the time and scene of the crime are presumed to be res gestae witnesses and the prosecutor must prove otherwise. People v Hicks, 63 Mich App 595; 234 NW2d 720 (1975), People v Samuels, 62 Mich App 214; 233 NW2d 520 (1975). Every reasonable doubt should be resolved in favor of indorsing and producing a person as a res gestae witness when a defendant insists on his rights.” People v Abrego, 72 Mich App 176, 179; 249 NW2d 345 (1976).

While it is clear that the term "res gestae” includes all eyewitnesses to an alleged crime, conversely a person need not be an actual eyewitness to be presumed to be a res gestae witness.

The trial court, at the conclusion of the Robinson hearing, held that the witnesses who testified at the hearing were not res gestae witnesses since they neither saw nor heard the actual shooting. Under the broad definitions of res gestae witnesses employed by this Court, we find the trial court’s holding to be clearly erroneous. People v Abrego, supra.

The "continuum” of the criminal transaction in the present case included not only the shooting, which took place outside of the restaurant, but also the argument and fighting inside of the bar which presumably precipitated the shooting. Testimony of witnesses to the events inside of the bar would be relevant to crucial questions of identity and motive. The trial testimony itself is ample evidence of the recognition, at least by the prosecution, of this expanded view of the res gestae of the current offense. Of the six endorsed witnesses presented at the trial only one, Alan Amen, testified as to direct knowledge of the shooting. Four of the prosecution witnesses testified only as to the events occurring inside the bar and to their observations after the shooting. If these four witnesses were res gestae witnesses at the time of the trial, it cannot be said that the witnesses who testified at the Robinson hearing were any less part of the res gestae.

Having found that the trial court erred in failing to hold that the Robinson witnesses were res gestae, the question becomes whether that error mandates a new trial. We believe that it does. The trial evidence against defendant was not overwhelming, consisting for the most part merely of Amen’s identification of defendant as his assailant. In such a situation, where credibility becomes the key issue, the weight of testimony supporting the respective positions can have a telling effect. The Robinson hearing witnesses testified primarily in support of the defense theory. Their testimony at the trial, particularly since it would have been presented by the prosecution, could have had a significant bearing on the decision.

In addition, testimony was elicited at the Robinson hearing that was clearly non-cumulative to the trial evidence. Abdullah Nassar was the only witness who stated that Amen had been wearing glasses while inside of the restaurant but had lost them prior to the shooting. Hussain Dubaishi and Saif Abdullah placed defendant’s departure from the restaurant at five-ten minutes after Amen exited. Hussain Abdulla testified that several people left after Amen but before defendant. All of this evidence was highly relevant on the contested issue of identity. Its absence deprived the trier of fact of a full presentation of the res gestae of the offense:

"The purpose of the statute is to protect defendants from false accusations by requiring disclosure of the whole of the res gestae, by preventing the suppression of testimony favorable to the accused, and by extending to them the benefits of cross-examination.” People v Harrison, 44 Mich App 578, 588; 205 NW2d 900 (1973).

Since the trial court found that the Robinson hearing witnesses were not res gestae, the issues of exceptions to the res gestae rule, such as cumulativeness or exercise of due diligence, were not reached. Under the facts as presented, we do not feel that any purpose would be served by a remand to determine if the prosecution was excused from calling any or all of these witnesses. We have already discussed why much of this new testimony was not cumulative to the trial evidence. Even though no evidence was presented that the prosecution was aware of the identities of all of these witnesses, due diligence does not excuse the prosecution’s failure to endorse. Since the defense discovered some of these witnesses prior to the trial, it must be assumed that a diligent investigation by the police would have resulted in similar discoveries. At least one of the witnesses at the Robinson hearing, Abdullah Nassar, was well-known to the police prior to the trial, since he had already been arrested and convicted for his part in the assault on Mr. Amen. We think it advisable that, after the prosecution endorses all res gestae witnesses on a possible retrial, the questions of exceptions to the res gestae rule, particularly in some areas of cumulativeness, be handled by the trial court.

Defendant’s conviction is reversed and the cause remanded.

       Defendant’s appellate counsel was not also his trial counsel.

       MCLA 767.40; MSA 28.980.

       In addition to the witnesses presented at the Robinson hearing, the four witnesses called by the defense at trial (excluding defendant) meet the tests for res gestae witnesses as set forth in this opinion. The fact that they were called as defense witnesses does not excuse the prosecution’s failure to endorse them. People v Harrison, 44 Mich App 578, 599; 205 NW2d 900 (1973). Part of the purpose of the res gestae rule is to allow the defendant to cross-examine these witnesses. People v Harrison, supra.

       Although our decision on the res gestae witness issue in itself requires reversal of the conviction, we note in connection with this discussion that defendant also challenges the substance of the court’s findings of fact at the trial. We agree with'defendant that the court’s ruling does not fully comport with our reading of the testimony. We do not view the testimony of Hussain (Sam) Mallad and/or Jeffery Saleh as corroborative of complainant’s statements that defendant was the first person out of the bar following him and that, at the moment of the shooting, only himself, defendant, and Sam Mallad were outside of the restaurant. The testimony presented at the Robinson hearing only intensifies the conflict between Amen’s version of the incident and those of the other witnesses.


author: D. E. Holbrook, J.

text:
    DECKER v NORFOLK AND WESTERN RAILWAY COMPANY
    1. Negligence — Instructions to Jury — Railroads—Warning Devices — Statutes.
    Refusal of a trial court to give a defendant’s requested instruction to the jury was proper where the instruction, regarding the issue of whether a railroad breached its duty to maintain a crossing in a reasonably safe condition, would have precluded the jury from considering whether the railroad should have utilized other methods of warning in addition to the sign which was erected at the crossing; a statute which prohibits the erection of warning devices at a crossing without authorization does not abrogate a railroad’s duty to maintain a crossing in a safe condition (MCLA 257.615; MSA 9.2315).
    2. Negligence — Instructions to Jury — Railroads—Warning Devices.
    A trial court properly instructed a jury that they should determine whether in light of all the facts and circumstances reasonable prudence required a defendant railroad to maintain warning devices at a highway crossing in addition to the signs required by law where the evidence showed that the crossing in question was a double-track crossing which intersected the roadway at an angle such that a person in an automobile had to turn his whole body to see down the tracks, and at the time of a collision between a train and an automobile visibility was only 100 to 150 feet, during an evening snowstorm, and the train was traveling at 70 miles per hour.

      References for Points in Headnotes

       Flagman: duty to maintain. 24 ALR2d 1161.
    Signals: failure of signaling device at crossing to operate, as affecting railroad company’s liability. 90 ALR2d 350.
    Railroad crossing: customary or statutory signal from train as measure of railroad’s duty as to warning at highway crossing. 5 ALR2d 112.

       76 Am Jur 2d, Trial §§ 1154-1162.

       5 Am Jur 2d, Appeal and Error § 836.
    22 Am Jur 2d, Damages § 366.
    Constitutional or statutory provision forbidding re-examination of facts tried by a jury as affecting power to reduce or set aside verdict because of excessiveness or inadequacy. 11 ALR2d 1217.

      3. Jury — Jury Verdicts — Inconsistent Verdicts — Negligence— Duty of Care.
    Jury verdicts which have a logical explanation will not be found inconsistent; a verdict in favor of an automobile driver who was injured in a collision with a train, which held the railroad to be negligent but found no cause of action as to the train’s engineer, was not thereby inconsistent because the railroad’s duty of care extended beyond the actions taken by the engineer.
    4. Damages — Jury Verdict — Excessive Damages — Evidence—Just Compensation.
    A jury verdict of damages should not be set aside as excessive so long as the amount awarded is within the range of the evidence and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering.
    Appeal from Wayne, George T. Martin, J.
    Submitted December 14, 1977, at Detroit.
    (Docket No. 30938.)
    Decided March 7, 1978.
    Leave to appeal applied for.
    Complaint by Harvey Decker, Jr., and Delores Decker against Norfolk and Western Railway Company and John B. Miller for damages for injuries received by Harvey Decker, Jr., in an automobile-train collision. Judgment for plaintiffs as against Norfolk and Western only. Norfolk and Western appeals.
    Affirmed.

      Lampert, Fried & Levitt, P. C., for plaintiffs.

      Bodman, Longley, Bogle & Dahling (by Frederick C. Nash), for defendant Norfolk and Western Railway Company.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   D. E. Holbrook, J.

This personal injury action arises from a January 29, 1971, accident at a railroad crossing in Van Burén Township, Wayne County, Michigan, between plaintiffs automobile and defendant’s train. At approximately 8 p.m., plaintiff, Harvey Decker, Jr., was struck by a train owned and operated by defendant, Norfolk and Western Railroad, at the intersection of Martz Road and the Norfolk and Western’s tracks. At the time of the accident, the train was traveling approximately 70 miles per hour. It was dark with a heavy snow falling which made visibility very poor. Because of the poor visibility, the plaintiff testified that he was not able to see more than 100 to 150 feet down the railroad tracks. After trial by jury, a verdict was returned in favor of Harvey Decker, Jr., in the amount of $800,000 and in favor of Delores Decker, his wife, in the amount of $100,000 in her claim for loss of consortium, services and companionship. On October 14, 1976, defendant’s motion for judgment notwithstanding the verdict or for a new trial was denied. Defendant thereupon claimed an appeal to this Court.

The first issue defendant raises is that the trial court erred in refusing to instruct the jury as requested by defendant that there was no duty on the railroad to install advance or automatic crossing protection at the Martz Road crossing at or before the time of the accident.

The defendant requested the following supplemental instruction: "There has been testimony concerning advance or automatic crossing protection. You are instructed that there is no duty upon the Railroad to install such protection in this case and such testimony shall play no part in your deliberations.” The request was denied by the trial court.

This issue was raised by defendant in its motion for judgment notwithstanding the verdict or for a new trial. The trial judge held: "1. Defendant’s supplemental request to charge (No. 1) was not given because it would deprive the jury of its determination of testimony regarding protection at the railroad crossing.”

Defendant maintains that under MCLA 257.615; MSA 9.2315, the railroad was unable to erect devices at the crossing in addition to the crossbuck sign unless authorized to do so by statute or by an authorized public body or official, and no such authorization had been given. Therefore, it was error not to give the requested supplemental instruction.

Defendant cites Masters v Grand Trunk W R Co, 13 Mich App 80, 82-83; 163 NW2d 661 (1968), wherein the Court stated:

"The trial court’s interpretation of the statute [MCLA 257.615; MSA 9.2315] was strict and did not deprive the plaintiff of jury consideration concerning the common-law duties of a railroad to act in a manner that a jury might find reasonable under the circumstances, but merely absolved the railroad from a duty to install additional signs and signals. In addition to giving the substance of plaintiff’s requests on general common-law duties and definitions of negligence, the court instructed the jury in substance that if the crossing was found by them to be unusually dangerous, outlining the facts and circumstances that could make it such, the railroad must meet the peril by commensurate precautions, but that because of the statute it was not required to post additional warning signs.
"The court properly advised the jury that the duty to maintain crossings in a reasonably safe condition was not abrogated by the statute. Such other means might include a ñagman, whistles or other efficient local warnings as discussed in Bauman v Grand Trunk Western Railroad Company (1965) 376 Mich 675 [138 NW2d 285], Unlike that case, however, here the issues were presented to the jury and it found no cause of action. The charge as given fairly reflects the principle that while a railroad is not absolved from its common-law duty of maintaining its crossings in a reasonable manner, it cannot be held accountable for the failure to erect signs where such choice of whether or not to erect is precluded by statute. ” (Emphasis added.)

Therefore, defendant claims that the erection of the signs and traffic control devices, such as flashers and gates, is not one of the ways remaining open to the railroad for carrying out its common-law duty, Defendant cites Masters, supra, and Johnson v Grand Trunk W R Co, 58 Mich App 708; 228 NW2d 795 (1975), and states: "There are unquestionably other ways in which, where the circumstances justify it, the railroad may carry out its common law duty without violating the statute,” i.e. the use of flagmen, whistles or other efficient local warnings.

Defendant’s reliance on the instructions in Masters, supra, is misplaced. In Masters, supra, at 83, the instruction was:

"[T]he court instructed the jury in substance that if the crossing was found by them to be unusually dangerous, outlining the facts and circumstances that could make it such, the railroad must meet the peril by commensurate precautions, but that because of the statute it was not required to post additional warning signs. ” (Emphasis added.)

In the instant case, the defendant asked that the jury be instructed: "There has been testimony concerning advance or automatic crossing protection. You are instructed that there is no duty upon the Railroad to install such protection in this case and such testimony shall play no part in your deliberations.” (Emphasis added.) Defendant in its requested instruction has gone beyond Masters, supra, which held that defendant cannot be required to post additional warning signs. In the instant case, defendant includes "advance or automatic crossing protection”. This is too broad and would have had the effect of directing a verdict to defendant and abrogating the defendant’s duty to maintain the crossing in a reasonably safe condition. The other means available to maintain a safe crossing as mentioned in Masters, supra, and Bauman v Grand Trunk W R Co, 376 Mich 675; 138 NW2d 285 (1965), i.e., a flagman, whistles, etc., would be considered "advance” crossing protection and the jury would be prohibited by such an instruction from considering such means of warning in determining if defendant breached its common-law duty to maintain a safe crossing.

•The trial judge properly refused to give defendant’s supplemental instruction number one and defendant’s issue is without merit.

The next issue defendant raises on appeal is that the trial judge erred in instructing the jury that "The jury must determine whether in light of all the facts and circumstances surrounding the Martz Road crossing, reasonable prudence required the railroad, Norfolk & Western, to maintain devices warning the motorist of its approaching train in addition to the crossbuck signs required by law and present at the crossing”.

The instruction at issue was contained in the following instructions to the jury:

"I charge you, members of the jury, that the railroad’s duty of due care may require it to provide warnings over and above those provided by statutory law or statutory regulations. The test is not whether the conditions were unusually dangerous, but whether what was done under the circumstances met the test of an ordinary prudent man, under the same or similar circumstances.
"I further charge you that compliance with the orders of the Michigan Public Service Commission is among the circumstances and certainly evidence that the jury should consider in determining whether the railroad was negligent, but compliance with the Commission’s order is only one of the circumstances that the jury shall consider.
’’The jury must determine whether in light of all the facts and circumstances surrounding the Martz Road crossing, reasonable prudence required the railroad, Norfolk & Western, to maintain devices warning the motorist of its approaching train in addition to the crossbuck signs required by law and present at the crossing.
"If the jury determines there was such a duty and the railroad failed to provide additional warning devices, the jury must decide whether such failure to provide additional warning devices proximately caused the collision.” (Emphasis added.)

The defendant asserts that this instruction was erroneous in its motion for judgment notwithstanding the verdict or for a new trial. The trial judge held:

"The charge given to the jury by the court as to the railroad’s duty of due care was conditioned upon the jury’s determination from the evidence. The testimony at trial was sufficient to justify the charge. This court relied upon the law stated in Emery v Chesapeake & Ohio Railway Co., 372 Mich 663 [127 NW2d 826 (1964)]; Ebel v Board of County Road Commissioners of the County of Saginaw, 386 Mich 598 [194 NW2d 365 (1972)]; and Johnson v Grand Trunk Western Railroad Co., 58 Mich App 708 [228 NW2d 795 (1975)].”

This Court in Johnson v Grand Trunk W R Co, 58 Mich App 708, 716-717; 228 NW2d 795 (1975), stated:

“It is undisputed that Grand Trunk was in compliance with the 1933 and 1946 MPSC orders. However, compliance with MPSC orders does not preclude a finding of negligence. Emery v Chesapeake & O R Co, 372 Mich 663; 127 NW2d 826 (1964); Ebel v Saginaw Road Commissioners, 386 Mich 598; 194 NW2d 365 (1972). In Ebel, plaintiffs car collided with a flasher warning device installed pursuant to a 1928 MPSC order. In remanding for a new trial because of the trial court’s refusal to instruct the jury on the railroad’s common-law duty to maintain safe crossings, the Court said:
'"In Emery v Chesapeake & O R Co, 372 Mich 663; 127 NW2d 826 (1964), and in Baldinger v Ann Arbor R Co, 372 Mich 685; 127 NW2d 837 (1964), this Court treated extensively of the “unusual conditions” or "special circumstances” and “local warnings” rule, and reaffirmed the long-standing rule that the railroad’s duty of due care may require it to provide warnings over and above those required by statutory law or safety regulations. The test is not whether the conditions were unusually dangerous, but whether what was done under the circumstances met the test of an ordinarily prudent man under the same or similar circumstances.
" 'Compliance with the commission’s orders for the installation and maintenance of certain warning devices are among the circumstances and certainly evidence the jury should consider in determining whether the railroad v/as negligent, but it cannot be said as a matter of law that compliance with such commission’s order is to be equated as freedom from negligence.’ Ebel, supra, 386 Mich 598, 605-606; 194 NW2d 365, 368.” (Emphasis in original.)

Defendant claims that plaintiffs failed to present a prima facie case that defendant had breached its common-law duties, for the reason that there was nothing with respect to the Martz Road crossing from which the jury could reasonably infer that additional safeguards were required. Defendant cites Baldinger v Ann Arbor R Co, 372 Mich 685; 127 NW2d 837 (1964), in support of its position, The Court in Baldinger, supra, at 690 stated:

"Now we must ascertain whether, on due favorable view, the proof entitled plaintiff to an instruction authorizing jury determination of the posed question, that is, whether the circumstances were of such nature as to call for 'some efficient local warning,’ over and above statutory requirements and the requirements of safety regulations promulgated by the public service commission.”

The Court in Baldinger answered this by stating at 691-693:

"Upon such favorably assembled presentation plaintiff claims that the combination of bad weather and the described obstruction of view presented, for jury consideration, question whether the railroad should, under the aforesaid 'dangerous crossing’ rule, have posted 'a flagman or a watchman at the crossing on this day,’ or should have stopped the train to 'send a flagman on ahead to warn traffic before crossing this unusually dangerous crossing.’ To this we are constrained to reply that no respectable authority has been cited holding that, at a typical open country single track rail crossing of a secondary road, where there is a partial obstruction of view of a train approaching from given direction on a straight track, the highway approach being at the same or substantially same level as that of the track and the upper half of the train being day-time visible for a thousand and more of the approach-feet thereof, such circumstances permit submission to the jury of what we may rightly call the 'dangerous crossing’ rule.” (Emphasis added.)

The facts in the instant case are not the same as in Baldinger. In Baldinger there was a single track crossing, but in our case, it was a double track crossing; in Baldinger the upper half of the train was day-time visible for 1,000 feet, but in the instant case, the plaintiff could only see 100 to 150 feet. In Baldinger the tracks intersected with the road at a 90-degree angle allowing a full view both ways down the tracks, but in the case at bar, the tracks intersected at a 40-degree angle and a person had to turn their whole body to see down the tracks; also, in Baldinger the accident occurred at noon on a rainy day in July, whereas this collision occurred during an evening snowstorm; additionally, in Baldinger the train was traveling 37 to 45 miles per hour, but, in the instant case, the train was traveling at 70 miles per hour.

This Court takes notice that the defendant in its closing argument described the Martz Road crossing as a "dangerous crossing” and inferred it was an "exceeding dangerous crossing”. We find it incongruous that the defendant should characterize this crossing as "dangerous” in its closing argument but on appeal argue that the jury should not consider whether additional crossing protection should have been provided.

Thus, there was sufficient evidence to support the instructions to the jury and the issue was properly submitted to them. Defendant’s second issue is without merit.

Next, the defendant alleges that the jury verdict in favor of plaintiffs was inconsistent as a matter of law with the verdict returned in favor of the train engineer.

This issue was raised in defendant’s motion for a judgment notwithstanding the verdict or for a new trial. The trial judge held:

"2. Defendant claims plaintiff Harvey Decker was guilty of contributory negligence as a matter of law. This contention springs from the jury’s verdict of no cause of action as to the defendant railroad engineer. However, defendant railroad’s conclusion does not necessarily follow from the jury’s verdict. There are other interpretations of the no cause verdict than the one favored by defendant railroad.
"Furthermore, such verdict does not dictate that plaintiff Harvey Decker was contributorily negligent, and that such negligence was a proximate cause of the accident. This view is suggested in Cookson v Humphrey, 355 Mich 296 [93 NW2d 903 (1959)].
" 'Jury verdicts which have a logical explanation will not be found inconsistent.’ National Pharmaceutical Services, Inc v Harrison Community Hospital, 67 Mich App 286 [241 NW2d 76 (1976)]. The jury’s verdict in this case has the logical explanation that the engineer was not negligent so as to be a proximate cause of the accident, whereas the defendant railroad was so negligent.”

Defendant is bootstrapping its position in maintaining that because the jury returned a verdict in favor of the train engineer, the jury must have found that the speed of the train was reasonable, that the headlight was properly working, and that the whistle was properly sounding. Therefore, as a matter of law, plaintiff was contributorily negligent in failing to heed the warnings and that such negligence was a proximate cause of the accident. However, this does not necessarily follow. The verdict in favor of the train engineer does not mean that the jury found that the train’s whistle was blowing or that the headlight was shining. It is also possible that the jury may have concluded that the engineer was negligent, but that his negligence was not a proximate cause of the accident. See Johnson v Grand Trunk W R Co, 58 Mich App 708; 228 NW2d 795 (1975).

Defendant’s common-law duty of care extended beyond the actions taken by the engineer. The jury’s verdict as to the engineer does not require that the plaintiff must have been contributorily negligent and that such negligence must have been a proximate cause of the accident. Defendant’s issue is without merit.

The last issue of defendant claims that the damage awards to Mr. Decker of $800,000 and Mrs. Decker of $100,000 are excessive.

Defendant maintains that Mr. Decker’s preexisting conditions of heart disease, ulcers, weight problems and degenerative disc disease would have eventually caused the pain that resulted from the car-train accident. Thus, the myelogram and the two cervical laminectomies would have had to have been performed eventually and the effect of the accident was to accelerate the symptoms which necessitated the operations. Plaintiffs claim that the jury verdict is within the range of evidence and should be upheld.

This Court in the recent case of Pippen v Denison Division of Abex Corp, 66 Mich App 664, 674-676; 239 NW2d 704 (1976), lv den 399 Mich 823 (1977), set out the principles by which this Court will review jury awards for excessiveness. In Pip-pen, supra, the plaintiff, aged 67, lost an arm in a power press. He sued for breach of warranty and negligence. His wife, also 67, sued for loss of consortium. The jury returned a verdict of $1,250,-000 for the husband and $500,000 for the wife. The trial court ordered remittitur. This Court reversed and held:

"Clearly, the trial judge is not empowered to go through de novo review of the verdict returned by the jury. The remittitur power should be exercised with restraint. The courts are even more reluctant to allow jury verdicts in personal injury cases to be disturbed. The rationale for that deference to the jury is found in the early case of Watrous v Conor, 266 Mich 397; 254 NW 143 (1934):
" 'There is and can be no absolute standard by which we can measure the amount of damages in personal injury cases. Individual opinions may differ as to the correctness of awards, even those made by trial judges. It has yet to be determined whether the judgment of a one-man jury is sounder than that of 12. * * * Adopting defendant’s contention that, at best, the showing here is only one of pain and suffering, plus expenses for medical services and hospitalization attention, we still prefer our rule stated in the case of Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)], that the amount allowed for pain and suffering must rest in the sound judgment of the trier of the facts. Assuming even that our verdict might be in a different amount, we are loath to disturb verdicts for personal injuries on the ground that the amount is excessive.’ 266 Mich at 401.

See also, O’Grady v Rydman, 347 Mich 606; 81 NW2d 383 (1957), Cleven v Griffin, 298 Mich 139; 298 NW2d [sic] 482 (1941), Morgan v Engles, 13 Mich App 656; 164 NW2d 702 (1968), shirley [sic] v The Drackett Products Co, 26 Mich App 644; 182 NW2d 726 (1970), and Dillard v Braunstein, 32 Mich App 216; 188 NW2d 203 (1971), for similar reasoning.

"With the extra regard for the jury assessment in personal injury cases, the 'shock the conscience’ test becomes:
"' "As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside.” ’ Stevens v Edward C Levy Co, 376 Mich 1, 5; 135 NW2d 414 (1965).
"The original jury verdict of $1,750,000 for plaintiffs was supported by the record, and does not 'shock’ our 'judicial conscience’. The plaintiff John Pippen testified as to intense pain and suffering from his injuries, and Evelyn Pippen told of the problems that had resulted to their relationship as husband and wife.” Pippen, supra, at 674-676.

See also, Kulhanjian v The Detroit Edison Co, 73 Mich App 347; 251 NW2d 580 (1977), wherein this Court upheld a jury verdict of $1,000,000 as not being excessive. The plaintiff had backed into a hot wire and was seriously injured.

There appears to be no argument with the testimony of Dr. Henderson, an economics professor at Michigan State University, that Mr. Decker’s earning capacity from the date of the accident until the end of his normal life expectancy is $306,823. Mr. Decker’s medical bills were around $20,000 and, therefore, approximately $473,000 was awarded for pain and suffering.

The plaintiff was 38 years of age at the time of the accident. After spending four to five days in the hospital, plaintiff was released. Plaintiff complained of excruciating headaches, dizziness and pains in his arms. He visited his family doctor, whose diagnosis was that plaintiff suffered post concussion syndrome, laceration of the right ear, abrasions and contusions of both knees, hematoma of the left anterior tibial area, hematoma of the right shoulder area, hematoma of the left upper arm and general traumatic right-sided fibro myositis.

Plaintiff was sent to a neurosurgeon whose diagnosis was post cerebral concussion syndrome, which was the result of the injury to the head and the jarring of the brain, post traumatic cervical and epidoural strain, and lypertrophic osteoarthritis of the spine. Plaintiff was then placed in the hospital for three weeks where a myelogram was performed and he was put in traction. After his release from the hospital, plaintiff had to be in traction at home for two out of three waking hours. Plaintiff’s pain continued and another doctor found a pinching of the nerve between the sixth and seventh neck bone. In order to correct this, a cervical laminectomy was performed. This operation is a dangerous one and can result in paralysis or death. The operation seemed to be a success and plaintiff was able to work again. However, the pain returned to plaintiff’s left shoulder and arm and a second cervical laminectomy was performed.

Plaintiff continued to have pains in his arm and shoulder, however, the doctor refused to do a third' laminectomy because the risk was too great. Plaintiff has continued to have headaches and pains in his arms and shoulder since the accident and may continue to have these problems in the future.

In addition, Mr. Decker no longer enjoys the outdoor recreational activities that he had in the past, including hunting and fishing. In the past plaintiff worked with the Boys Scouts, but now is unable to do so because of his nerves. His wife testified as to his change of moods toward her and the children. Also, their sexual relationship is no longer the same.

We agree with the trial judge that a verdict of $800,000 for Mr. Decker and $100,000 for Mrs. Decker was properly returned by the jury and within the range of evidence.

Affirmed, costs to plaintiffs.

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