text:
    SCHMIDT v EGER
    Docket No. 78-3817.
    Submitted October 4, 1979, at Detroit.
    Decided January 9, 1980.
    Leave to appeal applied for.
    Elmer R. Schmidt, doing business as R. C. Schmidt & Sons, leased a parcel of land to a corporation controlled by Frank L. Eger, June A. Eger, Roger P. Eger and Elizabeth Eger in 1968. A portion of the land was improved in 1969, including the installation of a ditch which drained adjoining land which was retained by Schmidt. In 1972, the Egers took title to the land they had been leasing. In 1973, the Egers announced their intention to grade the portion of the property which contained the ditch. Schmidt brought an action against the Egers seeking an injunction to prohibit the Egers from interfering with the drainage ditch. Defendants were granted an accelerated judgment which was reversed by the Court of Appeals, 69 Mich App 457 (1976). The matter was tried and the Macomb Circuit Court, William J. Beer, J., granted judgment in favor of the defendants. Plaintiff appeals, alleging that he has an implied easement in the drainage ditch, that the defendants are bound to accept the drainage from his land under a natural flow theory, and that the lease and deed contained general language conveying the land subject to reserved easements. Held:

    1. The trial court erred by holding that the plaintiff was required to prove strict necessity in order that an easement may be implied. An implied easement requires proof of only a reasonable necessity, and the plaintiff sufficiently established such a reasonable necessity.
    2. An implied easement also requires proof that the easement existed and was apparent at the time of severance of the estate. The time of severance is the date that the possessory interest was transferred, which in this case was the date upon which the defendants obtained the leasehold. Because the ditch was constructed after that time, it was not apparent at the time of severance. Therefore, the plaintiff failed to establish an implied easement.

      References for Points in Headnotes

       25 Am Jur 2d, Easements and License §§ 24, 27 et seq.

    What constitutes unity of title or ownership sufficient for creation of easement by implication or way of necessity. 94 ALR3d 502.

       25 Am Jur 2d, Easements and Licenses § 18.

       25 Am Jur 2d, Easements and Licenses § 33.

       25 Am Jur 2d, Easements and Licenses § 30.

       25 Am Jur 2d, Easements and Licenses §§ 76, 87.

      3. The owner of a lower estate is bound to accept the natural flow of water from the owner of an upper estate, but the owner of an upper estate may not require the owner of a lower estate to accept a greater than natural flow. In this case the plaintiff had developed his land in such a way as to greatly increase the runoff onto the defendants’ land. Under these circumstances the trial court’s ruling that the defendants were not obligated to accept the runoff was not erroneous.
    4. The deed, which listed several specifically defined easements that were reserved to the plaintiff, did not mention the drainage ditch. Therefore, there was no express easement in the ditch.
    Affirmed.
    1. Easements — Implied Easements — Elements.
    Three elements must be shown to establish an implied easement: (1) during the unity of title of an estate, a part of which has been severed, an apparently permanent and obvious servitude was imposed on’one part of the estate in favor of the other, (2) continuity, and (3) the easement is reasonably necessary for the fair enjoyment of the property it benefits.
    2. Easements — Implied Easements — Burden of Proof.
    A party asserting an implied easement has the burden of proving the claim by a preponderance of the evidence.
    3. Easements — Implied Easements — Reasonable Necessity.
    An easement which is implied from necessity requires that the easement be only reasonably, not strictly, necessary.
    4. Easements — Implied Easements — Apparentness — Severance.
    An implied easement must have been apparent at the time of severance of the land; the time of severance is the date on which the possessory interest was transferred, whether by conveyance or by lease.
    5. Easements — Drainage — Natural Flow.
    The owner of a lower or servient estate must accept surface water from an upper or dominant estate in its natural flow; however, the owner of the dominant estate may not require the owner of the servient estate to accept a greater runoff by increasing or concentrating the flow.
    Casey, Cavanaugh & O’Neill, for plaintiff.

      Rogensues, Hacker & Associates, for defendants.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   Per Curiam.

Plaintiff appeals as of right the judgment of the trial court in favor of defendants denying the relief requested in plaintiffs complaint.

Plaintiff leased two lots of an industrial complex to a corporation controlled by the defendants on November 12, 1968. Plaintiff subsequently became the owner of a small area of property at the southern end of the two lots, and this property also became a part of the defendants’ leasehold. In 1969, this new area was developed, a lawn established, and a ditch put in. This ditch carries water off other land owned by plaintiff and is the subject of the instant case. Testimony differed as to when it was first developed; plaintiff testified that the work done in 1969 was a modification of a ditch that had existed prior to the acquisition of the property to the south of the original two lots, although he had previously given answers to written interrogatories stating that the ditch was first put in simultaneously with the other improvements. Defendant Frank Eger testified that the ditch did not exist prior to the establishment of the leasehold, but that it was constructed after he commenced occupation.

A history of litigation between the parties commenced in 1972 when defendants’ corporation brought suit seeking specific performance of an option to purchase the property that was contained in the lease. A consent judgment was entered and defendants took title to the property. On October 9, 1973, defendants announced to plaintiff their intention to grade and level that portion of the property that contained the ditch, a manhole, access structures, and buried drain tile. Plaintiff filed suit seeking an injunction against the defendants prohibiting them from interfering with the drainage ditch. Accelerated judgment was granted to defendants, but this Court reversed and remanded for trial. Schmidt v Eger, 69 Mich App 457; 245 NW2d 90 (1976), lv den 399 Mich 867 (1977). At trial, plaintiff relied on three theories in support of his claim for an injunction. Judgment was for defendants and plaintiff has appealed as of right, raising claims of error in the trial court’s application of each of his three theories.

I.

Plaintiff claims the drainage ditch represents an easement by implied reservation. To establish an implied easement, three things must be shown: (1) that during the unity of title an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another, (2) continuity, and (3) that the easement is reasonably necessary for the fair enjoyment of the property it benefits. Harrison v Heald, 360 Mich 203; 103 NW2d 348 (1960), Rannels v Marx, 357 Mich 453; 98 NW2d 583 (1959), Koller v Jorgensen, 76 Mich App 623, 628; 257 NW2d 192 (1977), lv den 402 Mich 843 (1977). The party asserting the easement has the burden of proving the claim by a preponderance of the evidence. Kahn-Reiss, Inc v Detroit & Northern Savings & Loan Ass’n, 59 Mich App 1, 12; 228 NW2d 816 (1975). The trial court found that the continuity element was established, given the nature of drains, and we agree. Waubun Beach Ass’n v Wilson, 274 Mich 598, 606; 265 NW 474 (1936), Bubser v Ranguette, 269 Mich 388, 392-393; 257 NW 845 (1934), 2 Thompson on Real Property, § 354, p 344. Our discussion is limited to the remaining two elements.

A. Necessity-

On the necessity element, the trial court held that plaintiff needed to establish that the easement was strictly necessary before it would be implied. We hold that this was error, and that plaintiff needed only to establish that the easement was reasonably necessary. We do note, however, that some confusion in this regard is justified, as Michigan law has been less than clear on the point and as easements by implication may arise under different circumstances.

An implied easement may arise in essentially two ways. First, it can be implied from necessity. In this situation, an estate has been severed, leaving the dominant estate without a means of access. Before an easement will be implied in this situation, the party who would assert the easement must establish that it is strictly necessary for the enjoyment of the property. Mere convenience, or even reasonable necessity, will not be sufficient if there are alternative routes, even if these alternatives prove more difficult or more expensive. All implied easements are based on the presumed intent of the parties, but this sort is additionally supported by the public policy favoring the productive and beneficial enjoyment of property. Easements implied from necessity have been recognized in Michigan as requiring a showing of strict necessity. Waubun Beach Ass’n v Wilson, supra, Goodman v Brenner, 219 Mich 55; 188 NW 377 (1922), Moore v White, 159 Mich 460; 124 NW 62 (1909), Birch Forest Club v Rose, 23 Mich App 492; 179 NW2d 39 (1970). This sort of implied easement is not dependent on the existence of any established route or quasi-easement prior to the severance of the estate by the common grantor; it is first established after the severance.

The easement with which we are involved in the instant case is of a different type, what Dean Cribbet refers to as easements implied from quasi-easements. It requires that at the severance of an estate an obvious and apparently permanent servitude already exists over one part of the estate and in favor of the other. It also requires a showing of necessity, but whether that necessity needs to be "strict”, or only "reasonable”, traditionally has depended on whether the easement claimed was an implied grant, or an implied reservation. Aigler, Comment: Real Property — Easements by Implication — Creation of Easements by Implied Reservations in Michigan, 59 Mich L Rev 432 (1961).

It appears to be the position of a majority of jurisdictions that an implied grant of an easement requires only a showing of reasonable necessity, while an implied reservation of an easement in the grantor requires a showing of strict necessity. The difference seems based on the idea that a grantor will not be allowed to derogate from the grant by alleging to retain interests which the deed purports to convey. Because the grantor is not allowed to assert the reservation of an implied easement based on the existence of a pre-existing servitude or quasi-easement, the claim of an implied reservation must, under this view, proceed as if no servitude or quasi-easement existed, and requires a showing of strict necessity as in the case of an easement implied from necessity.

Several Michigan cases have adopted this position, and held that when an implied reservation is involved, as in the instant case, a showing of strict necessity is required. Brown v Fuller, 165 Mich 162; 130 NW 621 (1911), Bubser v Ranguette, supra, von Meding v Strahl, 319 Mich 598, 605-606; 30 NW2d 363 (1948), Kahn-Reiss, Inc v Detroit & Northern Savings & Loan Ass’n, supra, Wilson v Anglin, 72 Mich App 212; 249 NW2d 360 (1976). An apparent minority of jurisdictions hold that there is no difference between a grant and a reservation for the purposes of implying an easement from an existing servitude or quasi-easement, and that only reasonable necessity is required for both. Despite the holdings in the cases cited above, this seems to be the most recent position adopted by our Supreme Court. In Harrison v Heald, supra, the Supreme Court was faced with the question whether the rules governing easements by implied grant also controlled implied reservation of easements. The Court quoted language from Rannels v Marx, supra, which Rannels had in turn quoted from Rischall v Bauchmann, 132 Conn 637; 46 A2d 898; 165 ALR 559 (1946), and noted that the language used, including that referring to an element of reasonable necessity, applied equally to grants and reservations. The Harrison Court was criticized for relying on dicta rather than its own prior holdings in reaching this result, and alternatively for failing to adopt the new course after squarely addressing the issue. While it is true that the Supreme Court in Harrison did not specifically direct itself to the precise issue of what quantum of necessity was to be required in cases of implied reservations, as opposed to implied grants, it is clear that it intended the same rules to apply to each. We thus view Harrison as controlling, and as requiring only a showing of reasonable necessity, regardless of whether a grant or reservation is sought to be implied. To the extent that post -Harrison decisions of this Court may be read to require a showing of strict necessity when an implied reservation is involved, it is our opinion that they were wrongly decided. See, e.g., Wilson v Anglin, supra, Kahn-Reiss, Inc v Detroit & Northern Savings & Loan Ass’n, supra.

Applying a test of reasonable necessity to the facts of the instant case, we hold plaintiff sufficiently established this element. The trial court found that the several alternative drainage plans open to the plaintiff would require considerable work. One of the expert witnesses who testified placed the cost of a new drainage system at between $30,000 and $35,000. Under the facts and circumstances of this case, the effort and expense were great enough for implication of the easement to be reasonably necessary.

B. Apparentness

In order to establish his easement, plaintiff also needs to show that it was apparent at the date of severance. The testimony conflicted as to whether the drain existed prior to November 12, 1968, the date of the lease, but the trial court found that it did not, that it instead came into existence in 1969. The lease contained an option to purchase the property, and on June 22, 1973, the defendants purchased the property they had been leasing. Since the trial court held that the necessity element had not been established, it felt that it was unnecessary to decide the question of when severance took place, but remarked that if called upon to do so, the appropriate date of severance would have been the date of the lease. Since we reach a different result on the necessity element, we must decide the date of severance. If, as the trial court suggested, that date is the date of the lease, then plaintiff has failed to establish the element of apparentness since the drain was found to have first come into existence after the date of the lease. If, on the other hand, the plaintiff is right in asserting that severance did not take place until 1973 when defendants took title to the land, then the easement was apparent and plaintiff will have shown all the elements necessary to the establishment of an implied easement.

We have found no Michigan cases directly on point, but our analysis of the purpose of the severance requirement leads us to conclude that the appropriate date of severance is the date of the lease.

Simply put, a severance is required because it is legally impossible to have an ''easement” in your own land. If a person owns two adjacent tracts of land and imposes a servitude on one tract for the benefit of the other, there exists only a quasi-easement that may ripen into a full easement when one of the tracts is conveyed. A lease is a conveyance of property for a term, and while the grantor retains a reversionary interest in the land, the right to use and possess the land has passed to the lessee. It is for this reason that while an easement cannot exist over one part of a person’s land in favor of another part when both parts remain in that person’s possession, an easement may exist when one part is conveyed to a lessee. See Powers v Harlow, 53 Mich 507; 19 NW 257 (1884), 5 Restatement Property, § 475, p 2976 (Illustration 1). The Restatement’s drafters, when addressing the issue of severance, wisely chose to speak in terms of the severance of a single possessory interest. 5 Restatement Property, § 474, pp 2972-2975. See Koller v Jorgensen, supra, 628. The lessor, having conveyed his possessory interest in a tract of land for a period of time, must establish his right to use an easement in the land conveyed in the manner generally provided for establishing easements. In the instant case the defendants took a possessory interest in the land in 1968. In 1973 they joined with this possessory interest all the other property interests in the land that the deed conveyed. Given the nature and purpose of the severance requirement, we hold that the date of severance cannot be placed in the middle of a continuous possessory interest, but must instead be placed at the point where the possessory interest first arose, which in this case is November 12, 1968, the date of the lease. Because the trial court found that the drain did not come into existence until 1969, we hold that it was not "apparent” as of the date of severance. Plaintiff thus failed to satisfy one of the necessary elements, and the trial court did not err in holding that he failed to establish an implied easement.

II.

Plaintiff also contends that the defendants are bound to accept water drainage from his lands under a natural flow theory. The trial court disagreed, and plaintiff now argues that the trial court’s findings of fact and conclusions of law in this regard are not supported by the record.

It is clear that the owner of the lower or servient estate must accept surface water from the upper or dominant estate in its natural flow, and equally clear that the owner of the dominant estate may not require the owner of the servient estate to accept a greater runoff by increasing or concentrating the flow. Bennett v Eaton County, 340 Mich 330; 65 NW2d 794 (1954), Cranson v Snyder, 137 Mich 340; 100 NW 674 (1904), Lewallen v City of Niles, 86 Mich App 332; 272 NW2d 350 (1978). The testimony in the instant case indicated that as a result of the development of plaintiff’s land, the water runoff onto defendants’ land was greatly increased, perhaps as much as six times the natural flow. Under these circumstances, we see no reason to disturb the trial court’s ruling. This is not an appropriate case for a natural flow theory.

III.

Plaintiff’s final argument that he has an easement because the lease and deed each contained general language conveying the property subject to easements reserved to the grantor is without merit. The deed listed several specifically defined easements that were reserved to the plaintiff, but made no mention of the drain which is the subject of this appeal. There was no express easement in the drain as such, and, as noted above, plaintiff has failed to estáblish an implied easement.

Affirmed.

       See generally, 2 Thompson on Real Property, §§ 351-355, 362-364, pp 308-371, 410-446, Cribbet, Principles of the Law of Property, pp 335-340.

       See note 1, supra.

       An easement by implied grant is not, however, without a similar problem in that it amounts to a conveyance of an interest in land without the writing required by the statute of frauds. Courts have not generally concerned themselves with this point, perhaps viewing the requirements for establishing an implied easement as stringent enough to satisfy the purposes of the statute.

       Aigler, Comment: Real Property — Easements by Implication— Creation of Easements by Implied Reservations in Michigan, 59 Mich L Rev 432 (1961).
      The Court’s response to this criticism in Ketchel v Ketchel, 367 Mich 53, 58; 116 NW2d 219 (1962), is of little help, first, because it seems to miss the point, and second, because it is difficult to tell whether Ketchel involved an implied grant or an implied reservation. The parties originally held the land jointly, and split it between themselves by exchanging quit-claim deeds to different halves of the property.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v SUN
    Docket Nos. 78-3930, 78-3931, 78-3932, 78-3933.
    Submitted September 4, 1979, at Lansing.
    Decided January 9, 1980.
    Leave to appeal applied for.
    Defendant, Dr. Kwoh Cheng Sun, M.D., was convicted of four counts of violation of the Controlled Substances Act in the Lenawee Circuit Court, Rex B. Martin, J. The charges arose out of seven separate visits to defendant’s office by four police officers posing as patients. Defendant appeals. Held:

    It does not follow that, because a physician is prohibited from trafficking in drugs, he can be prosecuted for simple departures from generally accepted standards of professional practices and ethics. In order to convict a physician of a violation of the Controlled Substances Act the evidence must show more than mere carelessness, bad judgment or malpractice. The facts adduced at trial failed to establish defendant’s intent to traffic in drugs and distribute them in bad faith for a nonmedical purpose.
    Reversed.
    Drugs and Narcotics — Controlled Substances Act —■ Physicians and Surgeons — Evidence.
    It does not follow that, because a physician is prohibited from trafficking in drugs, he can be prosecuted for simple departures from generally accepted standards of professional practices and ethics; in order to convict a physician of a violation of the Controlled Substances Act the evidence must show more than mere carelessness, bad judgment or malpractice.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Unit), for the people.

      Richard L. Roble, for defendant.
    Reference for Points in Headnote
    61 Am Jur 2d, Physicians and Surgeons § 91.

      Before: M. J. Kelly, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

Defendant was charged with and convicted of four counts of violation of the Controlled Substances Act, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). From that judgment and subsequent sentence of five years probation and $250 costs per charge defendant appeals by right.

The evidence shows that at the times in question defendant was a duly licensed physician practicing from his office in Addison, Michigan. The defendant, Dr. Sun, was a native of China who spoke very little English; for this reason he relied upon his secretary/receptionist to a significant degree in effecting communications between himself and his patients.

Four separate agents of the state visited defendant in his office and obtained prescriptions for various drugs listed in the Controlled Substances Act, MCL 335.301 et seq.; MSA 18.1070(1) et seq. The first agent made three visits to the defendant’s office, while the other three agents all made one. On his initial visit, the first agent told the receptionist that he had insurance through the Teamsters International and that he had a hay fever allergy. He then told defendant that he had a prescription to refill and refused the defendant’s suggestion that he receive a B-12 injection after defendant had noted that the prescription was for diet medication. The agent informed defendant that he needed the pills to stay awake since he worked a straight 24 hours on occasion and defendant prescribed the refill of the noncontrolled substance, charging $10. Altogether, some twenty minutes elapsed during this visit.

The agent returned to defendant’s office one week later per defendant’s suggestion and asked for another refill. While defendant telephoned for the prescription refill, the agent additionally requested Seconal. Defendant prescribed four Seconal tablets and, in response to the agent’s request for a greater number, he instructed the receptionist to mark the prescription for a refill.

The agent’s third visit occurred three days later. At that time he requested a refill for the Seconal prescription, but defendant suggested Doriden. The agent stated that if he couldn’t obtain Seconal he would like to get quaaludes. Defendant would not prescribe quaaludes and the agent agreed to receive Doriden. The agent then stated that he wanted some Valium too, and defendant included a prescription for Valium with that for the Doriden.

Another agent visited defendant’s office and stated that he needed some medication. The receptionist ascertained from him that he was taking antibiotics and Valium at that time. She asked him at least twice why he was taking Valium and he said that he did not know. She then inquired as to whether he was seeing another doctor and he told her that a doctor in Lansing had prescribed the antibiotics and medicine for his cold. Defendant also inquired through the receptionist as to why the agent was taking Valium, and the prescription was subsequently prepared.

In the final instance, another agent testified that he entered defendant’s office, gave defendant his name, address and age and then stated, "There’s really nothing wrong with me, but I just wanted to get some [Tjuinal”. Defendant replied that Tuinal was a bad drug, and suggested that he use Doriden instead. The agent agreed and defendant wrote him a prescription for six Doriden pills.

On all of these occasions, defendant performed no physical examination and charged $10 for each visit. Given these facts, defendant urges this Court to find that he prescribed the medications in good faith while acting within the lawful practice of his profession and should, therefore, be exempt from prosecution under the act. MCL 335.341(l)(b); MSA 18.1070(41)(l)(b).

There are few cases from this jurisdiction that deal with this matter. The most recent and controlling decision is People v Alford, 405 Mich 570; 275 NW2d 484 (1979). There, the Supreme Court held that a physician may be prosecuted for unlawful delivery of controlled substances which are dispensed outside of the course of professional practice or research. Whether or not the physician was acting in good faith in. the course of professional practice or research is a question of fact. Alford, pp 585-589.

The defendant doctor in Alford, supra, was charged with having unlawfully delivered 120 capsules containing amphetamine and 103 capsules containing barbiturate. The defendant doctor in People v Berg, 85 Mich App 639; 272 NW2d 167 (1978), lv den 406 Mich 900 (1979), was charged with having unlawfully delivered 1,000 phendimetrazine tablets for $500, 1,000 amphetamine capsules for $500 and 7,000 amphetamine capsules for $3,350. On appeal in both the Berg and Alford cases, denial of the motion to quash the information was affirmed.

The crucial determination in this case was whether or not defendant was acting in good faith in the course of his professional practice when he made these contested prescriptions. The evidence in this case is not comparable to that produced in the above-cited cases. On more than one occasion Dr. Sun prescribed drugs in a less potent dosage, or else he prescribed a less harmful and altogether different drug than what was requested, and, the prescriptions were few in number and quite small in amount. Moreover, defendant has pointed out that the alleged ailments for which he prescribed medicine were of such a nature that physical examinations would provide little help. Some of the prescribed medicines are commonly used to treat nervousness and insomnia, problems for which a clinical evaluation would ordinarily be employed. Defendant has contended that he made such clinical evaluations. Given this evidence, we are constrained to agree with Justice Levin’s opinion in Alford, supra, that, "It does not follow that because a physician may not traffic in drugs he can be prosecuted for simple departures from generally accepted standards of professional practice and ethics”. Alford, p 593. We recognize that at some point, the failure to maintain professional standards may constitute more than "simple departures” from accepted standards in the medical profession. And, while we discourage and disapprove of those practices of the defendant herein which approach that degree of laxity, we hold that the evidence produced in this case does not establish defendant’s intent to traffic in drugs and distribute them in bad faith for a nonmedical purpose. Because the people’s case failed in this respect, the trial court erred reversibly in denying defendant’s motion for a directed verdict.

Reversed.


text:
    PEOPLE v OAKS PEOPLE v MAPLES
    Docket Nos. 78-4863, 78-4864.
    Submitted November 7, 1979, at Lansing.
    Decided January 9, 1980.
    David R. Oaks and Ronald B. Maples, following a joint trial, were convicted of breaking and entering an occupied dwelling with intent to commit larceny, Washtenaw Circuit Court, William F. Ager, Jr., J. Oaks, Maples and codefendants Larry Maples and Terry Scutchfield were arrested for removing furniture from the residence of Mary Garrett in a van. Bonita Benswinger was Ms. Garrett’s babysitter and resided with her. Bonita testified at preliminary examination that she had known the defendants for several months. She had two or three telephone conversations with Larry Maples wherein he said he wanted to come and take everything out of the house and wanted her to leave the house with the doors open. She would then be told when she could return to the house. At trial, Bonita Benswinger asserted her privilege against self-incrimination to avoid testifying. The prosecution offered her preliminary examination testimony. Defendant objected claiming the use of this testimony would deny defendants their constitutional right to confront witnesses against them. The court ruled that the testimony was admissible. Defendants appeal. The cases have been consolidated on appeal. In addition to the claim of constitutional error, defendants allege that Ms. Benswinger’s prior testimony contained inadmissible hearsay. Held:

    1. Prior testimony is admissible where a witness is unavailable or refuses to testify if the transcript of the testimony reveals that the testimony was fairly taken and the witness was cross-examined. Ms. Benswinger asserted her Fifth Amendment privilege and thus refused to testify at defendants’ trial. The preliminary examination transcript reveals that she was cross-examined by defendants’ attorney. The cross-examination was comprehensive and there was no attempt by the magistrate to hurry or cut short the questioning. The court did not err in permitting the use of Ms. Benswinger’s preliminary examination transcript in defendants’ trial.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 758.

       29 Am Jur 2d, Evidence §§ 496, 738, 739, 749.

       16 Am Jur 2d, Conspiracy § 46 et seq.

       29 Am Jur 2d, Evidence §§ 497, 650.

      2. Prior testimony regarding an account of a conversation with a defendant is admissible as an exception to the hearsay rule where the witness is unavailable at trial and the testimony resulted from direct, cross, or redirect examination at a preliminary examination of the defendant. Ms. Benswinger’s earlier testimony was admissible under this rule and it was immaterial that Larry Maples was available to testify. His statements were not hearsay as they were made by a coconspirator during the course and in furtherance of the conspiracy.
    3. Furthermore, even if Larry Maples’ statements could be deemed hearsay, they would still be admissible as a declaration of an existing state of mind, whether or not he was available to testify.
    Affirmed.
    1. Witnesses — Criminal Law — Availability of Witnesses — Prior Testimony — Recalcitrant Witness — Statutes.
    A statute authorizes the use of prior testimony whenever the witness giving such testimony cannot be produced at trial; a person is unavailable for purposes of the statute when he refuses to testify (MCL 768.26; MSA 28.1049).
    2. Witnesses — Criminal Law — Preliminary Examination — Testimony — Constitutional Law — Fifth Amendment — Recalcitrant Witness — Cross-Examination — Admissibility.
    The preliminary examination testimony of a witness, who asserted the Fifth Amendment privilege and thus refused to testify at trial, is admissible where the transcript reveals that the witness was cross-examined by opposing counsel, that the cross-examination took up approximately 14 pages of the transcript and that there was no attempt by the magistrate to hurry or cut short the questioning.
    3. Witnesses —• Criminal Law —■ Prior Testimony ■— Hearsay Rules — Availability of Witness — Cross-Examination ■— Rules of Evidence.
    Testimony regarding an account of a conversation with the defendant given by a witness at a prior preliminary examination is admissible at a subsequent trial as an exception to the hearsay rule where the witness is unavailable as a witness at trial and the party against whom the testimony is offered had an opportunity and similar motive at the preliminary examination to develop the testimony by direct, cross, or redirect examination (MRE 804[b][l]).
    4. Witnesses — Criminal Law — Coconspirators — Prior Statements — Hearsay Rule — Hearsay Exceptions —Rules of Evidence.
    Any statement by a coconspirator of a party which was made during the course and in furtherance of the conspiracy is not hearsay and is admissible at a subsequent trial (MRE 801[d][2][E]).
    5. Witnesses — Criminal Law — Declarations •— State of Mind — Hearsay Rule — Hearsay Exceptions — Availability of Declarant — Rules of Evidence.
    A declaration of an existing state of mind which shows the declarant’s intent, plan, motive or design is admissible as an exception to the hearsay rule; under this exception availability of the declarant is irrelevant (MRE 803[3]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Neil J. Juliar, Assistant Prosecuting Attorney, for the people.

      Raymer & Rekshan, P.C., for defendants on appeal.
    Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey,  JJ.

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

   Per Curiam.

David Russell Oaks and Ronald Boyd Maples were jointly tried before a jury, together with one Terry Scutchfield. They were convicted of the charged offense of breaking and entering an occupied dwelling with intent to commit larceny therein, MCL 750.110; MSA 28.305. Another codefendant, Larry Maples, later pled nolo contendere to the same charge. Defendant Oaks was sentenced to a prison term of 5 to 15 years. Defendant Ronald Maples was given a 180-day prison sentence and 3 years probation. Both defendants appeal and the appeals have been consolidated due to the identity of the issues raised.

On the afternoon of February 2, 1978, as a result of a telephone call by an informant to the Washtenaw County Sheriffs Department surveillance was established at the Wood Creek Apartments in Ypsilanti Township. A moving van was observed parked in front of the apartment. The van left the apartments between 7 p.m. and 7:30 p.m. and proceeded to a house at 7107 Platt Road. The van remained parked for 10 or 15 minutes, and the police observed several persons moving furniture from the house into the van. The police followed the van and stopped it on Golfside Road in Ypsilanti. They then arrested David Oaks who was driving, Ronald Maples who was in the passenger seat, and Larry Maples and Terry Scutchfield, who were in the cargo compartment of the van.

Mary Garrett resided at the house in question with her two children and Bonita Benswinger, the babysitter. On February 2, 1978, Ms. Garrett had left the house to go to work. She returned to find the living room furniture, draperies, pictures, and Ms. Benswinger’s stereo missing. The furniture in the van was identified as belonging to Ms. Garrett.

At trial, Ms. Benswinger asserted her privilege against self-incrimination to avoid testifying. The prosecution then offered as evidence the testimony given by Ms. Benswinger at the preliminary exam-. ination. Defense counsel objected to the admission of this testimony, claiming that the use of the preliminary examination transcript would deny the defendants their constitutional right to confront witnesses against them. The trial court ruled that the testimony was admissible.

At the preliminary examination, Ms. Ben-swinger testified that she had known the defendant for several months. She had two or three telephone conversations with Larry Maples, wherein he said that he wanted to. come and take everything out of the house and wanted her to leave the house with the doors open. She would be told when she could return to the house.

The defendants’ first issue on appeal is whether the use of Ms. Benswinger’s testimony at the preliminary examination denied the defendants their constitutional right to confront witnesses against them.

MCL 768.26; MSA 28.1049 authorizes the use of prior testimony where a witness cannot be produced at trial. Several cases have stated that a person is "unavailable” for purposes of the statute when he refuses to testify. People v Pickett, 339 Mich 294; 63 NW2d 681 (1954), cert den, 349 US 937; 75 S Ct 781; 99 L Ed 1266 (1955), People v Szeles, 18 Mich App 575; 171 NW2d 550 (1969), People v Goldman, 349 Mich 77; 84 NW2d 241 (1957).

In People v Walter Moore, 78 Mich App 294; 259 NW2d 351 (1977), the defendant and a codefendant named Houston were charged with felony murder and armed robbery in separate warrants and were bound over in separate preliminary examinations. An accomplice named Rakestraw testified at the defendant’s preliminary examination, then refused to testify at trial despite the fact that he had already pled guilty and had been sentenced for his role in the crime. Despite defendant’s objections, Rakestraw’s testimony at the preliminary examination was admitted, even though codefendant Houston and his attorney had not been present at that examination and never had an opportunity to cross-examine the witness. The Court upheld the use of Rakestraw’s preliminary examination transcript, saying that there had been a fully adequate opportunity for cross-examination. The defendant’s cross-examination took up 12 pages of transcript, and the examining magistrate made no attempt to hurry or cut short the questioning. This was held sufficient to satisfy the requirements of the Sixth Amendment confrontation clause.

In People v Castaneda, 81 Mich App 453; 265 NW2d 367 (1978), an informant named Velasquez testified at that defendant’s preliminary examination concerning an alleged sale of heroin. Velasquez subsequently repudiated his preliminary examination testimony. At the trial, Velasquez claimed his Fifth Amendment privilege because of pending perjury charges against him arising out of the repudiation of his testimony. The Court upheld the trial judge’s ruling admitting the use of the preliminary examination transcript under MCL 768.26; MSA 28.1049, saying that defendant took advantage of the opportunity to examine Velasquez at the hearing. The Court added that the prosecutor was not required to grant Velasquez immunity under MCL 780.701; MSA 28.1287(101), citing People v Towlen, 66 Mich App 577, 579-580; 239 NW2d 668 (1976).

In the case at bar, Ms. Benswinger asserted her Fifth Amendment privilege and refused to testify at trial. The preliminary examination transcript reveals that she was cross-examined by the attorney for defendants Ronald Maples and Oaks and then by the attorney for Scutchfield. The cross-examination took up approximately 14 pages of transcript and there was no attempt by the magistrate to hurry or cut short the questioning. The prosecutor was not required to offer the witness immunity in exchange for her testimony. We therefore find no error in the use of Ms. Benswinger’s preliminary examination transcript.

The defendants’ second allegation on appeal is that Ms. Benswinger’s preliminary examination testimony was erroneously admitted because it contained inadmissible hearsay, consisting of an account of a conversation between the witness and Larry Maples. Defendants contend that this hearsay does not fall under any exception to the hearsay rule, since Larry Maples was present and available to testify at the trial, as he had never asserted his privilege against self-incrimination.

This contention is without merit. The declarant of the hearsay was Bonnie Benswinger, who became unavailable by asserting her Fifth Amendment privilege. Her preliminary examination testimony was admissible under MRE 804(b)(1). It was immaterial that Larry Maples, the participant to this telephone conversation, was available at trial. His statements were not hearsay under MRE 801(d)(2)(E), which excepts from the hearsay definition any statement by a coconspirator of the party which was made during the course and in furtherance of the conspiracy. See generally, People v Stewart, 397 Mich 1; 242 NW2d 760 (1976), modified on other grounds, 400 Mich 540; 256 NW2d 31 (1977). The telephone conversations between Larry Maples and Ms. Benswinger were designed to facilitate the removal of Ms. Garrett’s furniture, and were therefore in furtherance of the conspiracy. In any case, even if we deem Larry Maples’ statements to be hearsay, they would be admissible under MRE 803(3) to show the declarant’s intent, plan, motive, or design. The availability of the declarant is immaterial for the purpose of MRE 803. See People v Paintman, 92 Mich App 412; 285 NW2d 206 (1979).

Affirmed.


author: Per Curiam. M. J. Kelly, J.

text:
    PEOPLE v LEWIS
    Docket No. 78-4968.
    Submitted October 17, 1979, at Detroit.
    Decided January 9, 1980.
    Leave to appeal applied for.
    Kenneth Lewis was charged with second-degree murder and with possession of a firearm during the commission of or attempt to commit a felony. At trial, the jury was instructed on several lesser included offenses under the second-degree murder count. None of the instructions on lesser included offenses dealt with attempts. The jury returned a verdict of not guilty of second-degree murder and of all the lesser included offenses, but found the defendant guilty on the felony-firearm charge. Recorder’s Court of Detroit, Robert Lorion, J., granted the defendant’s motion to dismiss the felony-firearm conviction. The prosecution appeals. Held:

    The trial court properly dismissed the felony-firearm conviction. It would be impossible to explain rationally how the defendant could be convicted of having carried or possessed a gun in the commission of or attempt to commit a felony when he was simultaneously acquitted of any wrongdoing with respect to the underlying felony. Moreover, there was insufficient evidence to sustain the felony-firearm conviction since one of the required elements, the commission of or attempt to commit a felony, was specifically rejected by the jury.
    Affirmed.
    M. J. Kelly, J., dissented. He would hold that, since the jury was not instructed on any attempt offense as lesser included offenses to the second-degree murder count, the jury could have based the felony-firearm conviction on a determination that the defendant was in possession of a firearm while attempting to commit a felony. The jury’s finding that the defendant was not guilty of any of the offenses under count one does not serve as a rejection of the defendant’s possible attempt to commit a felony. Judge Kelly would reverse the trial court’s dismissal of the defendant’s conviction.

      References for Points in Headnotes

       76 Am Jur 2d, Trial §§ 1154, 1156, 1157.
    Inconsistency of criminal verdict as between different counts of indictment or information. 18 ALR3d 259.

       75 Am Jur 2d, Trial § 876 et seq.

      1. Criminal Law — Inconsistent Verdicts — Rational Basis.
    Inconsistent verdicts cannot stand unless they can be explained on a rational basis.
    2. Criminal Law — Evidence — Felony-Firearm.
    There was insufficient evidence to sustain a defendant’s conviction for possession of a firearm in the commission of or attempt to commit a felony where the existence of a required element, the defendant’s commission of or attempt to commit a felony, was specifically rejected by the jury.
    Dissent by M. J. Kelly, J.
    3. Criminal Law — Felony-Firearm — Inconsistent Verdicts — Attempts.

      A defendant may be properly convicted of possession of a ñrearm in the commission of or the attempt to commit a felony, even though the jury has found the defendant not guilty of the charged felony offense and of the lesser included offenses on which the jury was instructed, where the jury could have been instructed on certain attempt offenses as lesser included offenses had the defendant so requested and the jury’s ñnding of guilt on the felony-ñrearm charge could have been based on a determination that the defendant possessed a firearm during an attempt to commit a felony.

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

      James D. O’Connell, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.

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

   Per Curiam.

Defendant was charged with second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of or attempt to commit a felony, MCL 750.227b; MSA 28.424(2). Upon agreement by the parties, the following lesser included offenses were also charged: voluntary manslaughter; involuntary manslaughter — gross negligence; involuntary manslaughter — death resulting from the intentional aiming of firearm; and careless, reckless or negligent use of firearm causing death. The jury returned a verdict of guilty for the felony-firearm charge, but not guilty of all the other charges listed under the second-degree murder count. The trial court granted defendant’s motion to dismiss the felony-firearm conviction and the prosecution claimed this appeal.

The prosecution argues that the inconsistent verdict rule of Michigan has scant support in Michigan law, that it has been rendered plainly inappropriate by People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), and that Michigan should join the overwhelming majority of jurisdictions in holding that criminal verdicts need not be consistent.

The prosecution’s reliance on People v Chamblis, supra, is misplaced. There, our Supreme Court addressed the ability of a jury to ignore evidence of a greater charge and convict a defendant of a lesser offense. People v Chamblis, supra, 425-427.

It is granted that various jurisdictions do differ with respect to an "inconsistent verdict rule”. See Anno: Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR3d 259. And it is apparent that the prosecution’s citation of People v Chamblis, supra, was primarily for its reference to Dunn v United States, 284 US 390; 52 S Ct 189; 76 L Ed 356 (1932), perhaps the most prominent case to reject conviction reversals due to inconsistent verdicts.

We note that there are many varying factual circumstances in which claims of inconsistent verdicts may arise, but we feel that it is sufficient to restate the rule recognized in this Court that, "In this jurisdiction, inconsistent verdicts cannot stand unless they can be explained on any rational basis”. People v Goodchild, 68 Mich App 226, 237; 242 NW2d 465 (1976), lv den 397 Mich 830 (1976). In the present case it is impossible to rationally explain how the defendant could be convicted of having carried or possessed a handgun in the commission of or attempt to commit a felony when he was simultaneously acquitted of any wrongdoing in the death of the decedent. People v Vaughn, 92 Mich App 742; 285 NW2d 444 (1979).

Moreover, there is a fatal flaw in the felony-firearm conviction in that one of the required elements, viz., the commission of or attempt to commit a felony, was specifically rejected by the jury verdict on the other count. Consequently, there was insufficient evidence to sustain the conviction. People v Johnson, 83 Mich App 1, 18; 268 NW2d 259 (1978).

Dismissal of the conviction is affirmed.

M. J. Kelly, J.

(dissenting). As the majority notes, by agreement of the parties, the lesser included offenses under count I did not include attempt charges on any of the listed felonies. Nor, we are told at oral argument, was an attempt defined for the jury in connection with the felony-firearm charge because it was not requested. The defendant attaches to his brief the jury instructions in connection with count II, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2):

"(1) The defendant is also charged with having committed the separate offense of committing or attempting to commit a felony while carrying or having in his possession a firearm.
"(2) A firearm is defined as any weapon from which a dangerous projectile may be propelled by using explosives, gas or air, as a means by propulsion.1
"(3) Before you may convict, you must be convinced of the following beyond a reasonable doubt:
"(4) First, that the defendant committed or attempted to commit (the felony) (or one of the felonies I have previously defined).
"(5) Second, that at the time of (the felony) (or one of the felonies I have previously defined) he carried or had in his possession a firearm.2
"USE NOTE 1: When relevant the following language should be included, 'Except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BBs not exceeding .177 calibre by means of spring’. MCLA 8.3t [MSA 2.212(20)].
"2: Where there is some question on possession an instruction on the meaning of possession should be prepared.”

The principal argument of the prosecutor is that the jury wanted to exercise its power of lenity in favor of this 17-year-old defendant and therefore arrived at a compromise verdict. The majority says there was a fatal flaw in that "the commission of or attempt to commit a felony, was specifically rejected by the jury verdict on the other count”. This is not, as I view the record, correct. The jury did not have before it the question of attempt in count I. Why are we compelled to expressly reject the reasonable implication that the jury predicated its finding on count II on the grounds that defendant attempted to commit a felony, one of the felonies charged in count I?

It seems to me that the rational basis rule relied on by the majority would bear reexamination by the Supreme Court as it may be obsolete. I do not think it can be convincingly argued that the defendant would not have been entitled to instructions on attempts as to included and cognate offenses if they were requested. In the Court’s reasoning in People v Chamblis, 395 Mich 408, 426; 236 NW2d 473 (1975), the juries’ broad latitude was noted:

"Juries in criminal cases often find defendants not guilty or find persons who have committed the charged greater offense guilty of only a lesser offense in the face of the evidence for reasons satisfactory to them.”

It seems to me that the question of inconsistency ought to be reexamined by the Supreme Court, perhaps in the light of Emerson’s admonition about consistency. The automatic instruction (sometimes called laundry list) rules which have developed since People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), and Chamblis, supra, have increased the potential for inconsistent verdicts by increasing the scope of alternatives.

I am aware of the recent decision of a panel of this Court in People v Vaughn, 92 Mich App 742; 285 NW2d 444 (1979), which reversed a jury verdict of guilty of felonious assault for inconsistency because the same jury had returned a not guilty verdict on the felony-firearm count. I would respectfully record my disagreement with the decision in that case. I believe it far more logical to assume that 12 jurors were unable to vote unanimously on the felony-firearm charge because one or more was philosophically opposed to the felony-firearm statute than to assume they agreed on the nonexistence of the firearm as a predicate for the not guilty verdict on that count. The verdict on the felonious assault count was clearly supported by the evidence and would have been unassailable had it been tried before the effective date of the felony-firearm statute. Can we not take judicial notice that some jurors will on occasion refuse to follow instructions? The Chamblis court quoted Justice Holmes in Dunn v United States, 284 US 390, 394; 52 S Ct 189; 76 L Ed 356 (1932):

" 'That the verdict may have been the result of compromise, or of a mistake on the part of the jury is possible. But verdicts cannot be upset by speculation or inquiry into such matters.’ ” 395 Mich at 426.

The Dunn court affirmed the conviction and I would do likewise in this case.


text:
    PEOPLE v PEREZ
    Docket No. 43394.
    Submitted November 7, 1979, at Lansing.
    Decided January 9, 1980.
    Fernando Perez was convicted, on his plea of guilty, of delivery of heroin, Bay Circuit Court, John X. Theiler, J. At the sentencing hearing, defendant denied allegations that he was a major heroin dealer and that he had been engaged in dealing in heroin for some time, said allegations appearing in a letter from the prosecutor’s office which was in the court file and in the presentence report. The trial judge, while indicating that he felt it necessary to impose a serious penalty because of the seriousness of the charge, did not indicate what weight, if any, he gave in his determination of the sentence to the allegations of defendant’s greater involvement in heroin dealings. Defendant was sentenced to 3 to 20 years in prison. Defendant appeals, arguing that the trial court abused its discretion in considering the unfounded allegations of éxtensive heroin dealings. Held:

    The failure of the trial court to exercise its discretion by affirmatively dealing with the disputed allegations as to defendant’s long term involvement in heroin dealings mandates a remand for resentencing before a different judge.
    Remanded.
    Appeal and Error — Criminal Law — Presentence Report — Disputed Information — Judges — Discretion — Prejudice.
    The failure of a sentencing court to exercise its discretion by affirmatively dealing with disputed allegations contained in the court file and presentence report before imposing sentence mandates a remand for resentencing, since it is impossible for the Court of Appeals to ascertain the truthfulness of the allegations and/or what weight, if any, was ascribed to those allegations by the trial court in determining the sentence imposed.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, and George B. Mullison, Prosecuting Attorney, for the people.

      Reference for Points in Headnote
    5 Am Jur 2d, Appeal and Error § 976.

      Jerome E. Burns, for defendant on appeal.
    Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey, JJ.

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

   Per Curiam.

On October 11, 1978, defendant, Fernando Perez, was convicted, on his plea of guilty, of delivery of heroin, contrary to MCL 335.341; MSA 18.1070(41). He was sentenced, on December 26, 1978, to an imprisonment term of 3 to 20 years, and appeals as of right.

At the sentencing proceeding, defendant’s attorney pointed out that a letter sent by the Bay County prosecutor’s office and made part of the court’s file stated that defendant had been a major heroin dealer for some time in the city of Saginaw. Defense counsel also stated that the Department of Corrections indicated in the presentence report that defendant had been dealing in heroin for some time in the city of Saginaw. The allegations were denied by the defendant and challenged by his attorney. The judge, however, never stated what weight he ascribed to the letter from the Bay County prosecutor’s office or to the statements of the Department of Corrections in determining defendant’s sentence.

Defendant contends that the trial court abused its discretion in considering the unfounded allegations in sentencing the defendant. Our perusal of the sentencing transcript, however, fails to reveal whether the sentencing judge considered the accusations. In People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975), this Court found error where the trial judge relinquished his discretion by failing to respond in any way to the defendant’s contention that the presentence report contained inaccurate or improper information. The Court held that, although the judge was not required to hold an evidentiary hearing, he could utilize other methods to deal with the situation, such as ascertaining that the disputed material is not relevant to his decision. See also People v Horace Williams, 77 Mich App 402; 258 NW2d 737 (1977).

In the instant case, the trial judge did not exercise his discretion to deal with defendant’s contention that the allegations contained in the letter of the Bay County prosecutor’s office and the statements of the Department of Corrections were untrue. Although the trial judge stated that it was "necessary to impose serious penalties on such a serious charge”, it is unclear from the record whether this was the only consideration behind the sentence imposed. We, therefore, remand for resentencing before a different judge.


text:
    WILLIAMS v CITIZENS MUTUAL INSURANCE COMPANY OF AMERICA
    Docket No. 44142.
    Submitted November 6, 1979, at Lansing.
    Decided January 9, 1980.
    Leola Williams brought an action against Citizens Mutual Insurance Company of America seeking recovery for lost wages and the costs of psychiatric care which she was forced to undergo upon her daughter’s death. The plaintiffs daughter was killed when an automobile in which she was riding was involved in an accident. The vehicle was insured by the defendant. At the time of the accident, the plaintiff did not own a vehicle which was insured, nor was there any co-domiciled relative who owned an insured vehicle. Prior to the time of the accident, the daughter had been residing with the plaintiff. Jackson Circuit Court, James G. Fleming, J., granted the defendant’s motion for summary judgment, holding that the defendant was not liable because the plaintiff was not personally involved in the use, operation or maintenance of the motor vehicle which gave rise to the daughter’s death. The court also noted that there was no analogous tort recovery since the plaintiff did not see the accident occur or view a body within minutes of the accident. The plaintiff appeals. Held:

    The causal relationship between the automobile accident and the plaintiffs injury was sufficiently remote to warrant denial of liability. In Michigan a plaintiff may recover for mental disturbance resulting in physical harm when an immediate family member is injured or exposed to injury by a negligent tortfeasor if the plaintiff is present at the time of the accident or peril or the shock is fairly contemporaneous with it. However, a plaintiff cannot recover when informed of the matter at a later date.
    Affirmed.
    1. Insurance — Automobiles — No-Fault Insurance — Words and Phrases — Statutes.
    The term "arising out of’ in the provision of the no-fault automobile insurance act which imposes liability upon a no-fault insurer for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle does not necessitate a finding that the injury was directly caused by the use of an automobile; however, the injury must be foreseeably identifiable with the normal use of a vehicle (MCL 500.3105[1]; MSA 24.13105[1]).

      Reference for Points in Headnotes

       New Topic Service, No Fault Insurance § 18.

      2. Insurance — Automobiles — No-Fault Insurance — Psychiatric Care.
    The causal relationship between an automobile accident and a plaintiff’s injury was sufficiently remote to warrant denial of liability on the part of the no-fault insurer of the automobile where the plaintiff sought recovery for lost wages and costs for psychiatric care necessitated by the death of her daughter who was a passenger in the automobile and who was killed in the accident and where the plaintiff was not present at the time of the accident and was not informed of the accident at a time fairly contemporaneous with the accident.

      Best, Arnold, Gleeson & Best, P.C. (by Robert P. Ladd), for plaintiff.

      Rosenburg, Stanton, Bullen & Nelson, P.C., for defendant.
    Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey,  JJ.

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

   Per Curiam.

Plaintiff Leola Williams appeals as of right from a February 23, 1979, order of the Jackson County Circuit Court granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(3).

On October 1, 1978, plaintiffs daughter, Monica Faye Williams, was a passenger in a car involved in an accident and suffered injuries resulting in her death. The automobile in which she was riding was insured by a no-fault automobile policy issued by defendant Citizens Mutual Insurance Company of America. At the time of the accident, plaintiff did not own a vehicle which was insured, nor was there any co-domiciled relative who owned such a vehicle. Prior to the time of the accident, Monica Faye Williams had been residing with plaintiff at her home in Jackson, Michigan.

Plaintiff made demand for reimbursement of her lost wages and costs of psychiatric care which she was forced to undergo upon her daughter’s death. When defendant denied liability, suit was filed in Jackson County Circuit Court seeking recovery of the lost wages and costs of psychiatric care.

The lower court held that defendant was not liable because plaintiff was not personally involved in the use, operation, or maintenance of the motor vehicle which gave rise to plaintiff’s daughter’s death. The court further noted that there was no analogous tort recovery since plaintiff did not see the accident occur or view a body within minutes of the accident.

We agree with the trial court’s ruling. According to MCL 500.3105(1); MSA 24.13105(1):

"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.”

Plaintiff’s injury did not arise out of the "ownership, operation, maintenance or use of a motor vehicle”. Rather, her injury arose out of the death of her daughter which in turn arose out of the operation of a motor vehicle.

We note that the term "arising out of’ does not necessitate a finding that the injury was directly and proximately caused by the use of the vehicle. On the other hand, it cannot be extended to something distinctly remote. Each case depends on its own facts. Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301 (1979). As a general rule, the injury must be foreseeably identifiable with the normal use of the vehicle. O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979), Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975).

In the instant case, we find the causal relationship between the auto accident and plaintiffs injury sufficiently remote to warrant denial of liability. We take into consideration the fact that there is no analogous tort recovery available to plaintiff. In Michigan, a plaintiff may recover for mental disturbance resulting in physical harm when an immediate family member is injured or exposed to injury by a negligent tortfeasor if the plaintiff is present at the time of the accident or peril or the shock is fairly contemporaneous with it. The plaintiff, however, cannot recover when he is informed of the matter at a later date. See Gustafson v Faris, 67 Mich App 363; 241 NW2d 208 (1976), Perlmutter v Whitney, 60 Mich App 268; 230 NW2d 390 (1975). In affirming the lower court’s decision, we do not reach the issue of whether plaintiff would have a right to recovery under the no-fault act had she witnessed the accident or became aware of it at a time fairly contemporaneous with it.

Affirmed.


text:
    RICHTER v MONARCH STAMPING COMPANY
    Docket No. 78-3787.
    Submitted June 20, 1979, at Detroit. —
    Decided November 14, 1979.
    Marvin J. Richter suffered a hernia in April of 1974 while employed by Townsend & Bottum, Inc., for which he received benefits until September, 1974. He had previously been employed, through June, 1973, by Monarch Stamping Company.
    ' During treatment of the hernia it was discovered that Richter also suffered from emphysema. In September of 1974 he filed a petition for benefits with the Bureau of Workmen’s Compensation, claiming entitlement to further benefits from Townsend & Bottum and its insurer for the hernia, from Monarch and its insurer for the lung condition, and from several other employers and their insurers, who were dismissed. Copies of the petition were mailed to the employers in December, 1974. The administrative law judge disallowed any further benefits for the hernia and found no compensable injury arising from the employment with Monarch. Richter appealed and the Worker’s Compensation Appeal Board affirmed as to the claim against Townsend & Bottum and reversed as to the claim against Monarch, finding that Richter did suffer a work-related disability, but denied benefits for failure to comply with the requirement that a claimant must notify an employer of an occupational disease within 120 days of the disablement. Richter appeals by leave granted. Held:

    Richter’s uncontradicted testimony indicated that it was more than 120 days after he first learned of the compensable nature of his lung disability when notice was first given to the employer. The burden of sending timely notice is upon the injured employee, not upon the Bureau of Workmen’s Compensation. Richter failed to meet the notice requirement.
    Affirmed.
    1. Workmen’s Compensation — Worker’s Compensation Appeal Board — Findings of Fact — Appeal and Error.
    Findings of fact made by the Worker’s Compensation Appeal Board are binding on the Court of Appeals if there is evidence on the record in support of those findings.

      References for Points in Headnotes

       82 Am Jur 2d, Workman’s Compensation § 552.

       82 Am Jur 2d, Workman’s Compensation § 442 et seq.

      2. Workmen’s Compensation — Notice of Injury -— Claim for Benefits.
    The burden of sending notice of an injury to an employer and of submitting a claim for worker’s compensation benefits is upon the injured employee; employees cannot rely on the Bureau of Workmen’s Compensation to discharge what has traditionally been a claimant’s responsibility.

      Benjamin & Goldñne, for plaintiff.

      Patrick J. Dugan, for Monarch Stamping Company and Employers Mutual Liability Insurance Company.

      Sommers, Schwartz, Silver & Schwartz, P.C. (by John F. Vos, III), for Townsend & Bottum, Inc. and Michigan Mutual Insurance Company.

      Conklin, Benham, McLeod, Ducey & Ottaway, P.C. (by Martin L. Critchell), for Ralph M. Parsons Company and American Motorists Insurance Company.
    Before: Bashara, P.J., and D. E. Holbrook, Jr. and J. C. Daner, JJ.

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

   Per Curiam.

Plaintiff appeals from a Worker’s Compensation Appeal Board ruling denying him benefits for failure to comply with the 120-day notice requirement of MCL 418.441; MSA 17.237(441).

Plaintiff was employed by defendant Townsend & Bottum from May 1970 to April 1974 as a carpenter’s helper. He was also employed by the defendant Monarch from 1965 to June 1973 as a press operator and parts finisher.

In April of 1974, plaintiff suffered a hernia. Compensation benefits were paid through September of 1974, however, plaintiff never returned to work due to a layoff. It was during treatment of the hernia that plaintiff’s physician discovered he had emphysema.

On September 16, 1974, plaintiff filed a petition with the Bureau of Workmen’s Compensation claiming a personal injury against Townsend and a lung disability against Monarch. The petition was not mailed to the defendants by the bureau until December 17, 1974.

Testimony indicated that plaintiff had conferred with his attorney concerning his lung problems and the working conditions at both Monarch and Townsend one month prior to filing the petition. However, plaintiff’s counsel avers that the date was September 10, 1975.

At the hearing, the administrative law judge disallowed any further compensation for the hernia with respect to Townsend, and found no personal injury arising from the course of employment with Monarch.

The appeal board reversed the decision as to Monarch, finding that plaintiff’s lung condition constituted a work-related disability, but ruled that plaintiff was not entitled to benefits for failure to comply with the 120-day notice requirement.

Plaintiff argues that such a ruling violates his fundamental due process rights since it was the procrastination of the Bureau of Workmen’s Compensation which was responsible for the late notice.

The question of notice of injury is one of fact and the findings of the appeal board are binding on this Court if there is evidential support. Smith v Kelsey-Hayes Co (After Remand), 404 Mich 70, 73; 273 NW2d 1 (1978).

Plaintiffs uncontradicted testimony at the hearing was that he conferred with his attorney approximately a month before the petition was filed.

Plaintiffs argument that a timely claim submitted pursuant to MCL 418.381; MSA 17.237(381) satisfies the notice requirement is also without merit. Section 381 provides that no proceeding for compensation shall be maintained unless notice has been given to the employer within three months and unless the claim is made within six months.

The burden to send notice within the requisite time period is that of the plaintiff-employee. Lewis v Chrysler Corp, 394 Mich 360; 230 NW2d 538 (1975), Ramos v Production Steel Co, 87 Mich App 30; 273 NW2d 578 (1978).

Employees cannot rely on the Bureau of Workmen’s Compensation to discharge what has traditionally been a claimant’s responsibility. Thomas v Griffin Wheel Co, 8 Mich App 35, 55; 153 NW2d 387 (1967).

Affirmed.

       This Court cannot consider the sworn affidavit of counsel since it was filed for the first time on appeal. Spartan Asphalt Paving Co v Tri-Cities Construction, Inc, 68 Mich App 305, 309; 242 NW2d 565 (1976) .


author: Per Curiam. Beasley, J.

text:
    OPDYKE INVESTMENT COMPANY v NORRIS GRAIN COMPANY
    Docket No. 78-4280.
    Submitted June 11, 1979, at Detroit.
    Decided November 21, 1979.
    Opdyke Investment Company brought an action against Norris Grain Company, Detroit Hockey Club, Inc., and Olympia Stadium Corp., to enforce an alleged contract. The suit was based on a letter entitled: "Letter of Intent Re Construction and Operation of 18,000 Seat Arena”. The letter stated in part:
    "The actual implementation of all agreements will await the drafting and execution of the contracts and leases that will be required to cover the proposed transaction. This letter will serve to express the intention of both parties to seek, in good faith, as soon as practical, the drafting and execution of such documents as may be required to cover all the matters herein expressed and such other matters as may be mutually agreed.
    "It is the intention of the signatories to enter into such agreements that would provide essentially the following * *
    "If this letter properly reflects your understanding of the spirit and intent of what the parties are attempting to achieve, would you please so indicate by signing and returning one copy of this Letter of Intent”.
    Oakland Circuit Court, Francis X. O’Brien, J., granted accelerated judgment to defendants finding that the letter was not a contract but an unenforceable agreement to agree. Plaintiff appeals. On appeal, plaintiff contends there was a genuine issue of material fact as to whether the letter of intent was to be ah unenforceable agreement to agree or a binding contract. Held:

    1. Plaintiffs complaint based on contract should have been disposed of by a motion for summary judgment instead of a grant of accelerated judgment. The Court of Appeals may treat a defendant’s improper motion for accelerated judgment as a motion for summary judgment where there is no objection and no prejudice to plaintiff. Plaintiff has not objected on appeal and there appears to be no prejudice by treatment of this issue in terms of summary judgment.

      References for Points in Headnotes

       61 Am Jur 2d, Pleading § 235.
    73 Am Jur 2d, Summary Judgment § 12 et seq.

       17 Am Jur 2d, Contracts §§ 1, 18, 26.

       73 Am Jur 2d, Summary Judgment § 5.

      2. The language of the letter of intent clearly shows it was not intended to be a binding contract but operated only as an unenforceable agreement to agree. The trial court was correct in finding it to be an unambiguous, unenforceable agreement to agree rather than a binding contract.
    Affirmed. .
    Beasley, J., dissented. He would hold that the letter of intent was not free from ambiguity because there were conflicting approaches to the parties’ meaning which should have been resolved in a trial. He would reverse the granting of accelerated and/or summary judgment and remand for trial of these issues on the merits.
    Opinion of the Court
    1. Judgment — Motions — Summary Judgment — Accelerated Judgment — Court Rules.
    The Court of Appeals may treat a defendant’s improper motion for accelerated judgment as a motion for summary judgment where there is no objection and no prejudice to the plaintiff (GCR 1963, 116.1, 117.2).
    2. Contracts — Incomplete or Indefinite Agreements — Intent to be Bound.
    The law will not make a contract where the parties intended none, nor will the law regard an arrangement as completed which the parties regard as incomplete; however, an instrument is enforceable as a contract even though incomplete or indefinite in some of its terms if it is established that the parties intended to be bound by the agreement.
    Dissent by Beasley, J.
    3. Contracts — Ambiguities — Judgment — Summary Judgment — Accelerated Judgment — Court Rules.

      Conñicting approaches to the parties’ meaning, in determining whether or not a contract exists, are the stuff of which ambiguity is made and if■ there is ambiguity it is not a case for accelerated or summary judgment under the court rules (GCR 1963, 116.1, 117.2).

      Vestevich, Dritsas, McManus, Evans, Payne &

      Devine, P.C. and Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by William P. Hampton), for plaintiff.

      Aaron J. Kramer and Beier, Howlett, McConnell, Googasian & McCann, for defendants.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   Per Curiam.

Plaintiff appeals as of right from the trial court’s grant of accelerated judgment in favor of defendants which dismissed two counts of plaintiff’s complaint. Plaintiff alleged that a March 11, 1977, letter of intent formed the basis for an enforceable contract between it and defendants. The trial court found the March 11, 1977, letter was not a contract but an unenforceable agreement to agree.

On appeal, plaintiff argues there was a genuine issue of material fact as to whether the parties intended the March 11, 1977, letter of intent to be an unenforceable agreement to agree or a binding contract. We disagree.

We first note that defendants raised the argument of dismissing plaintiff’s complaint by a motion for accelerated judgment pursuant to GCR 1963, 116.1. Although the two counts of plaintiff’s complaint based on contract should have been disposed of by means of a motion for summary judgment under GCR 1963, 117.2(3), plaintiff has not objected on appeal, and it does not appear to us that plaintiff will suffer any prejudice by this Court’s treatment of this issue in terms of summary judgment. See Warvel v Michigan Commu nity Blood Center, 74 Mich App 440, 444; 253 NW2d 791 (1977).

Since plaintiff has come forward with no extrinsic evidence raising an ambiguity, it must be determined if the March 11, 1977, letter of intent is ambiguous on its face so as to give rise to a genuine issue of material fact. The law will not make a contract where the parties intended none, nor will it regard an arrangement as completed which the parties regard as incomplete. Central Bitulithic Paving Co v Village of Highland Park, 164 Mich 223, 228; 129 NW 46 (1910). On the other hand, an instrument is enforceable as a contract even though incomplete or indefinite in some of its terms if it is established that the parties intended to be bound by the agreement. J W Knapp Co v Sinas, 19 Mich App 427, 431; 172 NW2d 867 (1969).

Our review of the March 11, 1977, letter of intent convinces us the trial court was correct in finding it to be an unambiguous, unenforceable agreement to agree. The letter was entitled: "Letter of Intent Re Construction and Operation of 18,000 Seat Arena”. In its introductory paragraphs the letter stated:

"The actual implementation of all agreements will await the drafting and execution of the contracts and leases that will be required to cover the proposed transaction. This letter will serve to express the intention of both parties to seek, in good faith, as soon as practical, the drafting and execution of such documents as may be required to cover all the matters herein expressed and such other matters as may be mutually agreed.
"It is the intention of the signatories to enter into such agreements that would provide essentially the following * * *.”

The body of the letter was couched throughout in tentative language indicating what the parties contemplated agreeing to in the future rather than language indicating present promises and obligations. A number of essential terms were expressly left to future agreement, or were simply lacking. The final paragraph of the letter read:

"If this letter properly reflects your understanding of the spirit and intent of what the parties are attempting to achieve, would you please so indicate by signing and returning one copy of this Letter of Intent.”

In our opinion, the language of the March 11, 1977, letter of intent clearly shows it was not intended to be a binding contract but operated only as an unenforceable agreement to agree. See Professional Facilities Corp v Marks, 373 Mich 673, 679; 131 NW2d 60 (1964), Socony-Vacuum Oil Co, Inc v Waldo, 289 Mich 316, 322-324; 286 NW 630 (1939).

Our resolution of this issue renders any discussion of the other issues raised on appeal unnecessary.

Affirmed.

Beasley, J.

(dissenting). I respectfully dissent.

In response to defendants’ motion for accelerated and/or summary judgment, the trial court filed a carefully prepared, written opinion indicating the reasons and supporting authorities for its ruling. The majority affirms the trial court’s ruling.

The trial court denied the motion for accelerated judgment based on alleged lack of execution of the March 11, 1977, letter of intent, indicating there were issues of fact. I agree. The trial court granted the motion for accelerated judgment on counts one and two, believing that the letter of intent was too indefinite to be enforceable as a contract, even if found to be signed or "accepted”. I disagree, for reasons hereinafter recited.

The trial court granted the motion for summary judgment under GCR 1963, 117.2(3), asserting absence of acceptance of the letter of intent by delivery back. I disagree.

Last, the trial court denied the motion for summary judgment on count three under GCR 1963, 117.2(1). I agree.

I do not find the March 11, 1977, letter of intent free from ambiguity. The facts regarding the parties’ face-to-face negotiations may shed light on their intentions. It should be noted that the interpretation of the letter of intent urged on the trial court and on this Court by defendants-appellees seems to strip the written instrument of any contractual significance. By the same token, it is altogether clear that the letter of intent does not include many matters which would have gone to the heart of the contemplated final contract. These conflicting approaches to the parties’ meaning are the stuff of which ambiguity is made. If there is ambiguity, this is not a case for accelerated or summary judgment.

It is possible that, after hearing all the proofs, a fact finder might conclude that the parties intended their March 11, 1977, letter of intent to provide reimbursement to plaintiff for expenditures made in furtherance of the project in the event defendant arbitrarily and unilaterally terminated the project.

Such a fact issue does not lend itself to determination by accelerated and/or summary judgment. It may well be that a fact finder would eventually reject plaintiff’s claims, but to so find in response to defendants’ motion seems premature.

Experience teaches that in actual trial lawsuits take some unusual turns. It is unwise for judges, whether trial or appellate, to try and anticipate all of the proofs regarding this issue. Yet, only by doing so, that is, speculating about the full impact of the proofs, can this part of plaintiffs claim be disposed of and dismissed on motion for accelerated and/or summary judgment.

Consequently, I would reverse the granting of accelerated and/or summary judgment and remand for trial of these issues on the merits.


text:
    PEOPLE v HILL
    Docket No. 78-3593.
    Submitted October 12, 1979, at Detroit.
    Decided December 10, 1979.
    Arthur Hill was charged with murder in the first degree and with possession of a firearm in the commission of a felony and was found guilty of second-degree murder and possession of a firearm in the commission of a felony, Recorder’s Court of Detroit, Susan D. Borman, J. The trial court instructed the jury that malice was shown if they found that the defendant "intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would cause death”. Defendant appeals arguing that the trial court erred in instructing the jury that the necessary element of malice could be established if they found that defendant knowingly created a high risk of death with knowledge that death would probably ensue, rather than instructing the jury that they must find that defendant had an actual intent to kill. Held:

    In a prosecution for second-degree murder, the element of malice may be established by proof beyond a reasonable doubt that the defendant knowingly undertook activities involving a high risk of death with the knowledge that death would probably ensue. In a prosecution for second-degree murder, it is unnecessary to prove that the defendant had an actual intent to kill. The trial court did not err in instructing the jury that malice could be established upon a finding that the defendant "knowingly created a high risk of death with knowledge that it probably would cause death”.
    Affirmed.
    Homicide — Second-Degree Murder — Malice.
    The element of malice in a second-degree murder prosecution may be established by proof beyond a reasonable doubt that the defendant knowingly undertook activities involving a high risk of death with the knowledge that death would probably ensue; it is not necessary to prove that the defendant had an actual intent to kill.
    Reference for Points in Headnote
    40 Am Jur 2d, Homicide § 53.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: Allen, P.J., and Bash ara and Beasley, JJ.
   Per Curiam.

Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to 15 to 25 years imprisonment for the murder conviction and to a consecutive two-year term in prison for the felony-firearm conviction. Defendant appeals as of right.

Defendant contends that the trial court erred by charging the jury that it could find defendant guilty of murder without finding that defendant had the intent to kill the decedent. Defendant assigns as error, the emphasized portions of the instructions given to the jury at the close of defendant’s murder trial set forth below:

"There are two kinds of murder, first degree and second degree and I am going to instruct you as to both.
"Murder of either degree is the killing of one person by another with malice. Malice is a term with a special meaning in the law. Malice means that the Defendant intended to kill or that he knowingly created a very high risk of death with the knowledge that it probably would cause death, and that he did so under circumstances which did not justify, excuse or lessen the crime to manslaughter.
"First degree and second degree murder are the same crime, except that first degree murder has the additional elements of premeditation and deliberation. That is, the Defendant must have premeditated and deliberated his intent to kill and that is the difference between first and second degree murder. The premeditation and deliberation.
"I am first going to instruct you on murder of the second degree. Keep in mind that all the elements of second degree murder are necessary to prove ñrst degree murder, except that ñrst degree murder requires the additional elements of premeditation and deliberation.
"To establish second degree murder the Prosecution must prove each of the following elements beyond a reasonable doubt:
"Fourth, for murder you must find that the Defendant consciously and knowingly performed the act which caused death. The Defendant must have either intended to kill, that is he must have done the act intending that it result in death, or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.
"The degree of risk for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person’s life and the Defendant must have been conscious of that risk.
"For murder of the ñrst degree the Prosecution must prove beyond a reasonable doubt the four elements of second degree murder which I have just described to you. In addition he must prove beyond a reasonable doubt the fifth element which raises the crime to first degree murder.
"If all the evidence does not convince you beyond a reasonable doubt, that the Defendant either intended to kill or consciously created a very high degree or risk of death, this knowledge of the probable consequences, then you must find the Defendant not guilty of the crime of murder.
"If the evidence does not convince you beyond a reasonable doubt that the Defendant intended to kill, you must consider whether he acted with unreasonable disregard for human life. It is sufficient for murder of the second degree if the Defendant consciously created a very high risk of death and if he had knowledge of the probability of those consequences.
"However, if you find that the Defendant’s acts did not amount to such a criminal purpose and against life, you must find the Defendant not guilty of murder and consider whether or not he is guilty of manslaughter.
"When a certain intent is a necessary element in a crime, and it is in the crime of murder in the ñrst degree, that is the intent to kill, the crime cannot have been committed when the intent did not exist.” (Emphasis supplied.)

Defendant claims that these instructions are defective because "they allow the jury to convict of either first- or second-degree murder without having found the element of intent to kill being proven beyond a reasonable doubt”. The prosecutor responds that the essential element of second-degree murder is malice and, since malice can be established if the defendant had either the actual intent to inflict great bodily harm or the intent to engage in behavior the natural tendency of which is to cause death or great bodily harm, the trial court’s instruction to the jury on this issue was proper, citing People v Davis, 76 Mich App 187, 189; 256 NW2d 576 (1977), lv den 402 Mich 865 (1978).

The Supreme Court has held that:

"Malice requires an intent to cause the very harm that results or some harm of the same general nature, or an act done in wanton or wilful disregard of the plain and strong likelihood that some such harm will result. It requires also on the negative side the absence of any circumstance of justification, excuse, or recognized mitigation.” People v Hansen, 368 Mich 344, 350-351; 118 NW2d 422 (1962).

Thus, while a person accused of murder must have caused the death of the decedent, the prosecution need only establish that the defendant possessed an accompanying "malicious” state of mind in causing the defendant’s death. Naturally, if it is established that the defendant premeditated and deliberated prior to the killing (first-degree murder) or stated just prior to an unplanned and unprovoked killing that he would "kill the decedent” (second-degree murder), the element of malice is easily met. In such a case, the defendant’s malice, i.e., intent to kill, is said to be either express or actual, regardless of whether this intention is proved by direct evidence or by circumstantial evidence.

At the same time, the law also acknowledges that the requisite malice aforethought, i.e., the defendant’s malicious state of mind accompanying defendant’s death-causing activities, is established if it is proved that the defendant possessed the actual intent to cause great bodily harm or that he consciously created a very high degree of risk of death at the time of his death-causing activities. People v Haack, 396 Mich 367, 375-376; 240 NW2d 704 (1976). Guilty Plea Cases (People v Nicholson), 395 Mich 96, 131; 235 NW2d 132 (1975). In Wellar v People, 30 Mich 16, 19 (1874), the Supreme Court recognized that it is not always necessary that the defendant intend to take life and limited the requisite intent to that which "shall be equivalent in legal character to a criminal purpose aimed against life”. Thus, in People v John Willie Williams, 26 Mich App 218, 225, fn 8; 182 NW2d 347 (1970) (a second-degree murder case), this Court observed:

"The people discharge their burden when they prove that the defendant killed the victim intentionally or acted so recklessly as to be the equivalent of actual intent to kill.” (Emphasis added.)

Therefore, in any second-degree murder case "malice aforethought” is proved if it is established that defendant either intended to kill (i.e., did the act intending that it result in death or in great and serious bodily injury) or knowingly created a very high risk of death with the knowledge that it probably would cause death. People v Davis, supra, 189. People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971).

Defendant’s argument that this rule is no longer valid lacks merit. In brief, defendant contends that since nonfelony first-degree murder requires proof of defendant’s specific intent to kill, People v Garcia, 398 Mich 250, 259; 247 NW2d 547 (1976), and since the elements of second-degree murder are the same as those for nonfelony first-degree murder, absent premeditation and deliberation, People v Carter, 395 Mich 434, 437-438; 236 NW2d 500 (1975), it follows that second-degree murder requires proof of defendant’s specific intent to kill. We disagree.

The basis for the Supreme Court’s declaration that nonfelony first-degree murder requires a specific intent to take a life is that the state is "motivated by a concern that the more culpable forms of murder should be punished more severely”. People v Garcia, supra, 258. Since first-degree murder is statutorily defined as a "wilful, deliberate and premeditated killing” (MCL 750.316; MSA 28.548), the prosecution must prove the defendant’s "intent to accomplish the result of death” in order to support a conviction for first-degree murder. People v Garcia, supra, 259, 2 Wharton’s Criminal Law (14th ed), § 138, p 172. In contrast, and as indicated by the foregoing discussion, the degree of culpability required to form the requisite "malice” required to sustain a second-degree murder conviction traditionally has been less. Thus, while a conviction for first-degree murder requires proof that defendant had the specific intent to kill, a second-degree murder conviction can be sustained if there is proof of defendant’s "intent to cause the very harm that results or some harm of the same general nature, or an act done in wanton or wilful disregard of the plain and strong likelihood that some such harm will result”. People v Hansen, supra, 350. Accordingly, a second-degree murder conviction does not require proof of defendant’s specific intent to kill. The trial judge’s instructions fully comport with the foregoing principles of law and are, therefore, upheld.

We have carefully reviewed defendant’s other allegations of error and find them to be without merit.

Affirmed.