text:
    PUTNEY v GIBSON
    Docket No. 78-2681.
    Submitted June 15, 1979, at Lansing.
    Decided August 24, 1979.
    Stanley M. Putney was killed when the motorcycle which he was driving was struck by an automobile driven by Paul S. Gibson. Loretta J. Putney, individually and as administratrix of the decedent’s estate, and others commenced an action with the counts against Paul Gibson and Judith M. Gibson sounding in negligence and the counts against Charles Good, d/b/a Hoover Corner Bar, and Allen and Sharol Haskins, d/b/a Melody Bar being brought under the dramshop act. On the first day of trial, prior to the empaneling of the jury, plaintiffs settled with defendant Good, d/b/a Hoover Corner Bar, for $8,000, giving in exchange a convenant not to sue. On the second day of trial, plaintiffs informed the trial court that they had settled with the Gibsons for $40,000 in exchange for plaintiffs’ convenant not to sue. The Saginaw Circuit Court, Eugene Snow Huff, J., determined that the Gibsons should be retained as parties defendant throughout the trial and that the Gibsons’ attorney should do what he considered to be appropriate without attempting to hurt or help either side. While the Gibsons’ attorney examined several witnesses, he neither participated in the examination of Paul Gibson nor presented any proofs on behalf of the Gibsons. Upon conclusion of proofs, the Gibsons’ attorney requested that the jury be informed that the Gibsons were no longer interested parties in the suit. The attorney for the Haskins, d/b/a Melody Bar, requested that the participation of the Gibsons be continued through the closing arguments and the jury deliberation. The trial court, finding that there was no collusion between the plaintiffs and the Gibsons and that continued trial participation would discourage future settlements in similar cases, ruled that he would inform the jury of the fact that the Gibsons were no longer parties to the suit. Melody Bar moved to dismiss plaintiffs’ suit against it. The motion to dismiss was denied. Prior to closing arguments, the trial court informed the jury that it need not concern itself with plaintiffs’ suit against the Gibsons. The jury returned a verdict in favor of the plaintiffs Of $25,000.

      References for Points in Headnotes

       45 Am Jur 2d, Intoxicating Liquors §§ 561, 562, 590.

       45 Am Jur 2d, Intoxicating Liquors § 612.
    Right of one liable under Civil Damage Act to contribution or indemnity from intoxicated person, or vice versa. 31 ALR 3d 438.

      Defendant Melody Bar proposed that the judgment should set off against the jury’s verdict both the $8,000 Hoover Corner Bar settlement and the $40,000 Gibson settlement. The trial court permitted the $8,000 Hoover Corner Bar settlement to be set off against the jury’s verdict, but refused to set off the $40,000 Gibson settlement against the jury’s verdict. A judgment was entered consistent with that determination, Eugene Snow Huff, J. Defendant Melody Bar appeals, urging error on the part of the trial court by reason of the court’s denial of the motion to dismiss which was made after plaintiffs failed to name and retain Paul Gibson as a defendant throughout the trial and by reason of the court’s denial of the setoff of the Gibson settlement against the jury’s verdict. Held:

    1. Since the dramshop act is remedial in nature, the "name and retain” provision of that act will be construed liberally so as to give effect to the purpose of that provision; that being, to eliminate the common practice of collusive acts in a dramshop action by the plaintiff and the intoxicated person following a token settlement between those parties. The trial court properly denied defendant Melody Bar’s motion to dismiss, since the settlement between plaintiffs and defendants Gibson did not violate the name and retain provision, that settlement being clearly not collusive, not for a mere token sum and without detriment to the interests of defendant Melody Bar.
    2. Since a dramshop defendant cannot seek contribution from an intoxicated tortfeasor, defendant Melody Bar cannot assert a right to set off against the verdict in the dramshop action the amount of the settlement between the plaintiffs and the Gibsons, for to permit such a setoff would allow the dramshop defendant to secure indirectly that which could not be secured directly.
    Affirmed.
    1. Intoxicating Liquors — Dramshop Act — Name and Retain — Statutory Construction — Purpose of the Act.
    The dramshop act, being remedial in nature, should be liberally construed; thus, the "name and retain” provision of the dram-shop act should be construed to give effect to the legislative purpose for that provision, that being to eliminate the common practice of collusive acts by the plaintiff and the intoxicated person whereby the intoxicated person enters into a settlement with the plaintiff for a token sum and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner (MCL 436.22; MSA 18.993).
    2. Intoxicating Liquors — Dramshop Act — Name and Retain — Purpose of the Act.
    The purpose of the "name and retain” provision of the dramshop act is satisfied, even though the trial court permits termination by settlement of a plaintiffs action against the intoxicated person prior to the end of trial of a dramshop action, where the trial court determines that the settlement with the intoxicated person was not for a token sum, there was no collusion between the plaintiff and the intoxicated person and the dramshop defendant suffered no detriment by the termination of the action against the intoxicated person (MCL 436.22; MSA 18.993).
    3. Intoxicating Liquors — Dramshop Act — Damages — Settlement of Intoxicated Person — Setoff by Dramshop Defendant.
    A dramshop defendant cannot seek contribution from the intoxicated defendant; therefore, a dramshop defendant cannot assert a right to set off against the verdict in a dramshop action the amount of the settlement between the plaintff and the intoxicated tortfeasor, for to permit such a setoff would allow the dramshop to indirectly secure contribution from the intoxicated tortfeasor.

      Cicinelli, Mossner, Majoros & Alexander, P.C. (by Eugene D. Mossner and William S. Pearson), for plaintiffs.

      Smith & Brooker, P.C. (by A. T. Lippert, Jr., and Thomas A. Connelly), for defendants.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

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

   Per Curiam.

This case involves an action brought under the Michigan dramshop act, MCL 436.22; MSA 18.993, which arose out of a fatal car-motorcycle collision. Decedent, Stanley M. Putney, was killed on October 2, 1973, when the motorcycle he was driving was struck from the rear by an automobile driven by Paul S. Gibson.

On April 5, 1974, plaintiffs commenced the instant suit alleging that the negligent actions of defendants Paul S. Gibson and Judith M. Gibson, who, respectively, were the driver and the owner of the automobile involved in the accident, had been a proximate cause of the death of Stanley M. Putney. Plaintiffs also alleged in this same suit that the defendant taverns, the Melody Bar and the Hoover Corner Bar, and their respective owners, had sold or furnished alcoholic beverages to defendant Paul S. Gibson while he was visibly impaired in violation of the Michigan dramshop act. On the first day of trial, December 6, 1977, prior to selection of the jury, counsel for plaintiffs announced that the action against Charles Good, d/b/a Hoover Corner Bar, had been settled by these parties. Under the terms of the settlement Good was to pay plaintiffs $8,000 in exchange for a covenant not to sue. Counsel for plaintiffs made clear on the record that the settlement involved only Good and that plaintiffs had reserved their rights against all other defendants. Following this, the jury was impaneled, the remaining parties made their opening statements and plaintiffs called their first witness.

On the morning of the second day of trial, December 7, 1977, counsel for plaintiffs informed the court that plaintiffs’ suit against defendants Paul S. and Judith M. Gibson had been settled for $40,000 in exchange for a covenant not to sue.

Following the announcement of this second settlement, counsel for the defendant Melody Bar and its owners inquired of the court as to how trial should proceed in light of the requirement of the dramshop act that a plaintiff in a dramshop action name and retain throughout trial as a defendant the alleged intoxicated person. MCL 436.22, MSA 18.993. Following this query as to how trial should proceed, counsel for plaintiffs and counsel for defendant Melody Bar engaged in the following exchange:

"MR. CICINELLI: [Attorney for plaintiffs] I don’t see how Mr. Lippert’s client could be hurt because this case is separate and apart from the interests of the Gibsons; totally divorced from it. But if he wants to we would agree, if he doesn’t want to retain and proceed as that Buckton case states, we would agree that we could proceed as we used to before that legislature, that legislation was passed in name and retain legislation, and just given — have the defendants out of the case as of now and let the jury be informed of that. And they could deduct any sum received by way of settlement if they should render a verdict against the Haskins and Melody Bar.
"MR. LIPPERT: [Attorney for Melody Bar] We would be willing to do that. I was close to that. And, in fact, Judge, he put his finger on what I suggested and that was that we retain them, and Mrs. Gibson, to the point of calling Mr. Gibson as ope of the next witnesses. I don’t know what Mr. Cicinelli’s order of proofs are, but perhaps as a next witness following this that the jury be instructed that that part of the case has been concluded but without any remarks as to what conclusion was reached. I don’t think that is any concern of the jury, that’s a judicial matter, a judicial matter only. We then continue with the case against the bar Only. And we bring it as a Dram Shop case.
"But I think before we do that Mr. Gibson’s testimony ought to be put on the record and treated as a defendant within the scope of that name and retained provision. Following this we just continue with the bar case. Ahd if the jury returns a verdict in favor of the plaintiffs individually here, then the amount of settlement will be deducted by the Court.”

Subsequently, the trial judge determined that the Gibsons should be retained as parties defendant throughout trial and he instructed their attorney to "do what you consider appropriate without attempting to hurt or help either side”.

The trial proceeded with the presence of counsel for the Gibsons. Although the examined several witnesses, he did not participate in the examination of defendant Paul Gibson nor did he present any proofs on behalf of the Gibsons.

At the conclusion of the proofs, but prior to the trial court’s instructions to the jury, counsel for the Gibsons requested that the trial judge inform the jury that the Gibsons were no longer interested parties in this suit. Counsel for plaintiffs concurred in this request. Counsel for the defendant Melody Bar requested that the trial judge require the continued trial participation of the Gibsons through closing arguments and jury deliberation in spite of the settlement between plaintiffs and defendants Gibson. Finding that there had been no collusion between plaintiffs and the Gibsons and that the $40,000 settlement was not a mere token settlement, the trial judge concluded that to require continued trial participation by the Gibsons would amount to an injustice and would discourage future settlements in similar cases. Therefore, the trial judge ruled that he would inform the jury that the Gibsons were no longer parties in this suit. Counsel for the defendant Melody Bar thereupon made a motion to dismiss plaintiffs’ suit against his client. The motion to dismiss was denied.

In accord with this ruling, and prior to final arguments of the parties to the jury, the trial court informed the jury that it was to no longer concern itself with plaintiffs’ suit against the Gibsons:

"The Court will say further to the Jurors that the case of Loretta J. Putney, Individually and as Administratrix of the Estate of Stanley H. Putney, Deceased, against the defendant Paul Gibson and Judith M. Gibson, has been dismissed. And you are no longer to concern yourselves with that particular case. You need not speculate about the reasons for this action. We will simply go ahead at this point to complete the trial of the case of the remaining defendants.
"That is to say the individual plaintiffs Curtis G. Putney, Curtis G. Putney, Jr., and Loretta J. Putney, against the defendants Allen H. Haskins and Sharol A. Haskins, individually and doing business as the Melody Bar. That is the case which will be submitted to you for your decision.”

The jury was then instructed, and, after deliberation, it returned a verdict in favor of plaintiffs for $25,000. The damages assessed against defendant Melody Bar were apportioned among the plaintiffs by the jury: plaintiff Loretta J. Putney, $10,000; plaintiff Curtis G. Putney, $10,000; plaintiff Steven B. Putney $5,000; and plaintiff Curtis Putney, Jr., $50.

On December 22, 1977, plaintiffs filed a motion for a new trial or, in the alternative, additur. On January 9, 1978, counsel for defendant Melody Bar submitted a proposed judgment to the trial court that would have set off against the jury’s verdict both the $40,000 that plaintiffs received from the Gibsons and the $8,000 that plaintiffs received from the Hoover Corner Bar.

On May 8, 1978, the trial court heard arguments on plaintiffs’ bifurcated motion and on defendant Melody Bar’s proposed judgment. On June 5, 1978, the trial court rendered an oral opinion denying defendant Melody Bar’s proposed judgment with respect to setting off against the jury’s verdict the $40,000 received by plaintiffs from the Gibsons. The trial judge held that defendant Melody Bar was not entitled to have the Gibson settlement set off against the verdict because the liability of the Gibsons to plaintiffs arose out of the wrongful death act whereas the liability of defendant Melody Bar to plaintiffs arose out of the dramshop act. Thus, the trial judge reasoned that defendant Melody Bar was not entitled to this setoff because the parties to the wrongful death action were not the same as those in the dramshop action and, further, the measures of damages under these two actions were not identical. The trial judge did permit defendant Melody Bar to set off against its liability the $8,000 received by plaintiffs from the Hoover Corner Bar. The trial judge held that the liability of both of these taverns to plaintiffs arose out of the dramshop act and that the money received by plaintiffs from the Hoover Corner Bar represented compensation for the same injuries that plaintiffs recovered in the jury’s verdict. Therefore, in order that plaintiffs would not be paid twice for the injuries, the trial judge granted this part of the setoff requested by defendant Melody Bar in its proposed judgment.

Defendant Melody Bar now appeals of right and claims as error the rulings of the trial judge denying its motion to dismiss for failure of plaintiffs to name and retain as a defendant the alleged intoxicated person throughout trial and denying its proposed judgment with respect to the requested setoff of the settlement reached by plaintiffs with the Gibsons against the jury’s verdict.

We first consider defendant Melody Bar’s claim of error by the trial judge in denying its motion to dismiss for failure of plaintiffs to name and retain the alleged intoxicated person throughout trial.

The so-called "name and retain” provision of the dramshop act, MCL 436.22; MSA 18.993, provides:

"No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”

The name and retain requirement has withstood broad constitutional attack on the basis of due process and equal protection. Rowan v Southland Corp, 90 Mich App 61; 282 NW2d 243 (1979).

However, the name and retain provision is not without its exceptions. In Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976), the Michigan Supreme Court held that the name and retain requirement of the dramshop act did not apply to a plaintiff who, after exercising due diligence in attempting to ascertain the identity of the alleged intoxicated person, was unable to do so. Our Supreme Court set forth the purpose of the "name and retain” amendment as follows:

" 'The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provisions will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act, which has now been recognized by the Legislature and corrected through this amendment.’ 57 Mich App 367, 372; 226 NW2d 101 (1975).
"In determining whether plaintiffs in this case are barred from suing under the dramshop act, we must keep in mind the fundamental rule of statutory construction that departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” Salas, supra, 108-109.

Also see Woobeck v Curley, 85 Mich App 605, 608; 272 NW2d 152 (1978).

In Scholten v Rhoades, 67 Mich App 736; 242 NW2d 509 (1976), this Court held that the name and retain provision did not require a plaintiff parent to name and retain a child as a defendant in a dramshop action against a tavern. The Court held that the Legislature could not have intended the contrary result, because Michigan law did not recognize a parent’s right to recovery against a child; and, therefore, the plaintiff parent could not have maintained a suit against his child.

Following the rule laid down in Eddy v Courtright, 91 Mich 264, 267; 51 NW 887 (1892), this Court stated in the case of Dickerson v Heide, 69 Mich App 303, 309; 244 NW2d 459 (1976), as follows:

"Although in derogation of common law, our Courts have, stressing the remedial nature of the act, construed the statute liberally and eschewed 'any strained or narrow construction’ of its words.”

In Dickerson the Court held that the name and retain provision did not bar a suit by the plaintiff parents against the dramshop owner who allegedly made an illegal sale of alcohol to the intoxicated driver of a car in which their son was killed. In that case, the defendant argued that the plaintiff parents had failed to name and retain the intoxicated driver as a defendant. The plaintiffs responded that they could not name and retain the driver as a defendant because the only cause of action existing for survivors of a decedent had to be predicated on the wrongful death act. MCL 600.2922; MSA 27A.2922. Because the wrongful death act permits such actions to be brought only by the personal representative of the deceased, which the plaintiff parents in Dickerson were not, the plaintiff parents argued that the name and retain provision of the dramshop act did not preclude their suit. On appeal, this Court affirmed the lower court’s denial of the defendant’s motion for summary judgment, holding that, although it was in derogation of common law, the dramshop act was also remedial in nature and should be given a liberal construction. The Court also noted that a literal interpretation of the dramshop act would cause an unfortunate and unintended result in the case before it and that a rejection of its literal wording would further the intent of the statute.

In Buxton v Alexander, 69 Mich App 507; 245 NW2d 111 (1976), lv den 399 Mich 827 (1977), this Court reversed a trial Court’s grant of accelerated judgment in favor of a dramshop defendant and gave the name and retain provision of the dram-shop act further interpretation. In Buxton the plaintiffs entered into an indemnification agreement with the alleged intoxicated tortfeasor four days prior to trial. In consideration of $19,000, the plaintiffs agreed to hold the intoxicated driver harmless from any damages that the jury might award above this amount. As part of the agreement the intoxicated driver was to continue as a named defendant in the dramshop suit. The defendant tavern owner argued that the indemnification agreement constituted a settlement and thus a nonretention under the name and retain provision. The trial court found in favor of the defendant and granted the defendant’s motion for accelerated judgment. On appeal this Court reversed, finding that the plaintiffs had "retained in the action” the intoxicated driver as a named defendant within the usual meaning of the word "retain”. The Court then continued to balance the purpose of the name and retain provision against the public policy encouraging settlement of litigation, as follows:

"The statute is not intended to prohibit settlement between a plaintiff and his intoxicated tortfeasor except where claims against tavern owners are first or simultaneously settled. On the contrary, the language of the statute indicates only an intention to require the intoxicated tortfeasor to be retained as a defendant. In enacting this "special interest legislation” the Legislature has manifested an intention to prohibit a plaintiff from going to a jury with only a claim versus a tavern. The plaintiff must not only name but must retain the tortfeasor in the lawsuit. But that is all the statute requires. To prohibit a plaintiff from a "hold harmless” type settlement, as was used here, would impede the prompt disposition of litigation and force trials of cases that would otherwise be settled. In so holding, this Court recognizes the power of the trial court to control the course of trial; for example, a trial court might, at the option of a tavern owner, prohibit any reference at trial to the settlement. Thus, the legislative purpose could be amply carried out.
"In this case the effect of the trial court’s ruling was to prohibit settlement between plaintiffs and the allegedly intoxicated defendant, except after or simultaneously with settlement between plaintiffs and the tavern owners. As indicated, this goes beyond the purpose and language of the statute.” Buxton, supra, 511.

In the recent case of Rowan v Southland Corp, supra, our Court cited Buxton for the proposition that a plaintiff may bring an action against an alleged intoxicated person and tavern owner and without impairing rights against one settle with the other:

"Plaintiffs argue that they should be exempted from compliance with the name and retain provision because it would be a futile act to join the allegedly intoxicated person at this stage. Plaintiffs earlier brought an action against the alleged intoxicated person, and reached a settlement with him. If joined in the present action, the putative drunk could successfully move for dismissal, raising the prior action as a bar. We find this argument unpersuasive. Plaintiffs are not free to circumvent the requirements of the dramshop act by waiting until they have reached settlement with the drunken driver before bringing an action against the liquor licensee. They were free to bring an action against both the defendants herein and the alleged drunk, as required by the act, and then to reach a settlement with one or both parties, Buxton v Alexander, 69 Mich App 507; 245 NW2d 111 (1976). They chose not to do so. We are not disposed to relieve them of the consequences of that freely-made choice.” Rowan v Southland Corp, supra, 69.

We rule under the authorities hereinabove cited that the trial court acted properly in denying defendant Melody Bar’s motion to dismiss. The settlement by plaintiffs with the Gibsons did not violate the legislative intent in the name and retain provision, because that settlement was not for a mere token sum. Under the facts in this case there could not have been any collusion between plaintiffs and the Gibsons to the detriment of the Melody Bar. Further, the Melody Bar has not pointed to any prejudice that it may have suffered by the trial court’s refusal to dismiss the suit.

We consider next defendant Melody Bar’s claim of error by the trial court in denying its request to set off against the jury’s verdict the amount of money plaintiffs received in their settlement with the Gibsons.

The right of a tavern keeper to contribution from the intoxicated person under the dramshop act was answered in the negative in the case of Virgilio v Hartfield, 4 Mich App 582, 584-585; 145 NW2d 367 (1966), wherein Judge, now Justice, T. G. Kavanagh, speaking for the Court, stated:

"Since no other basis for liability to the third-party plaintiff is asserted, the question for our determination is whether a bar owner who serves an intoxicated person intoxicants is a joint tort-feasor in a tort committed by the intoxicated person. We hold he is not.
"The obligation of a bar owner is created by the dram shop act and allows for recovery of both actual and exemplary damages, said liability being purely statutory. Any obligation of the driver exists by virtue of some other reason and not by virtue of this statute.
"The actions of the intoxicated driver have given rise to a separate suit against him on the theory of gross negligence. The defendant tavern keeper’s liability is not grounded on any theory of negligence but arises because of violation of the statute. An active wrongdoer and persons liable by reason of statutory enactment are not joint tort-feasors even though there is a single indivisible injury. See Geib v Slater (1948), 320 Mich 316; Boucher v Thomsen (1950), 328 Mich 312 (20 ALR2d 1038); and Varano v Express Freight Lines, Inc. (ED Wis 1959), 176 F. Supp 71.
"Among joint tort-feasors there is the right of contribution since their liability arises under the common theory of negligence. If a judgment is obtained against one tortfeasor, the other is liable to him for his pro rata share. Such is not the case here. The statute imposes liability solely on the tavern keeper and his surety and he has no right to contribution from the intoxicated driver. The tavern keeper is not jointly liable to the plaintiff in tort, therefore, he cannot be a joint tortfeasor. Husted v Consumers Power Company (1965), 376 Mich 41.” (Footnote deleted.)

Within two years thereafter this Court considered the question of whether a tavern owner sued under the dramshop act may properly implead and seek contribution from another tavern owner claimed to have made a sale unlawful under that act which was causally connected with plaintiff’s injury. That query was answered in the affirmative in Duncan v Beres, 15 Mich App 318, 323-324; 166 NW2d 678 (1968), wherein Judge, now Justice, Levin, speaking for the Court, stated:

"Contribution may be enforced, however, only among persons whose equities are equal. That requirement is satisfied when the parties are under a common burden, obligation or liability to the plaintiff, statutorily or otherwise imposed or assumed.
"In this case, both the claim asserted by the plaintiffs against the third-party plaintiff and that asserted by the third party plaintiff against the third party defendant arise under a common theory of liability to the plaintiffs. It is asserted that both the third-party plaintiff and third-party defendant made sales to the allegedly intoxicated person after he became intoxicated, sales that were causally connected with plaintiff’s injuries.
"If this is true, if violations of the dramshop act by both the third-party plaintiff and the third-party defendant contributed to plaintiff’s loss, then plaintiffs may recover all their damages from either of them. Franklin v Frey (1895), 106 Mich 76, 77, 78; Larabell v Schuknecht (1944), 308 Mich 419, 423. Thus would arise a common burden of liability under the dramshop act on the part of both tavern owners and distinguishes this case from Virgilio v Hartfield (1966), 4 Mich App 582.” (Footnote deleted.)

In the case of Barton v Benedict, 39 Mich App 517; 197 NW2d 898 (1972), it was ruled that it is necessary to allow mitigation of a dramshop judgment for "actual” damages by a wrongful death settlement for "pecuniary” damages, but that any "exemplary” damages in the dramshop action would not be mitigated, since "exemplary” damages are penal in nature and differ in kind from the wrongful death damages.

We believe, however, that the dissenting opinion sets forth the proper rule as to setoff and mitigation, in it Judge Targonski stated:

"A careful reading of my colleagues’ prevailing opinion indicates that we must concur in the conclusion reached therein by reversing but must respectfully disagree with that portion of the opinion which says that for purposes of avoiding redundancy it is necessary to allow mitigation of the dramshop judgment for "actual” damages by the wrongful death settlement for "pecuniary” damages. I believe that that conclusion seeks to do by indirection that which cannot be done directly. There is no question that the dramshop defendant could not sue for contribution from the car driver. Yet by setting off the recovery from the car driver against the dramshop-defendant judgment, there appears to be such indirect contribution. We concur in part in the result as indicated above.” Barton, supra, 525.

But see, Reno v Heineman, 56 Mich App 509; 224 NW2d 687 (1974).

The majority in the Barton case placed reliance on the authority of a 1953 decision of the intermediate appellate court of Illinois, DeLude v Rimek, 351 Ill App 466; 115 NE2d 561 (1953). It now appears that DeLude is open to question in the State of Illinois. In the case of Wessel v Carmi Elks Home, Inc, 54 Ill 2d 127; 295 NE2d 718 (1973), the plaintiff alleged that the defendant tavern owners had served a person, who, while intoxicated, drove an automobile through the side of a house, killing one occupant and injuring another. The defendant tavern owners denied liability and filed a third-party action seeking indemnity from the intoxicated driver in the event that any damages were assessed against the defendant tavern owners. The trial court dismissed the third-party complaint for indemnity, which action was affirmed by the Illinois Court of Appeals. The Illinois Supreme Court also affirmed, holding that one who may incur liability under the dramshop act has no right to seek indemnification from the intoxicated person whose activity is alleged to be the primary or active cause of the damages.

In reaching its decision, the court declared that policy considerations were of substantial importance. First, the court noted that the dramshop act is designed to temper the consumption of alcoholic liquors and to protect the health, safety and welfare of the general public. The dramshop statute disciplines dramshop operators and owners for their indiscriminate sale of liquor and for the evils which would result therefrom. Part of the discipline of the dramshop act, stated the court, was of an indirect nature arising from the owners’ or operators’ fear of cancellation of insurance or prohibitive premiums. The court also stated in part as follows:

"We believe that by permitting the extension of the right of indemnity in this case, the public policy expressed in the statute would be frustrated and its disciplinary feature diminished. Absent a clear legislative mandate to the contrary, the case accruing for a violation of the statute should be borne by those profiting from the sale of liquor to the public who enter such commercial enterprises with full knowledge of this attendant liability.” 54 Ill 2d at 131-132; 295 NE2d at 721. (Emphasis supplied.)

By this opinion, the Supreme Court of Illinois ruled that those who incur liability under the Illinois dramshop act may not seek indemnity from the intoxicated person causing the injury.

In a more recent decision of the Illinois Supreme Court in the case of Lein v Pietruszewski, 61 Ill 2d 350; 335 NE2d 772 (1975), the issue was given further consideration. Plaintiffs decedent in that case was fatally stabbed, and his widow, as administratrix of his estate, filed a two-count complaint. Count one was based on a violation of the Illinois dramshop act, and count two was brought under the Illinois wrongful death act against the assailant who attacked the decedent. A trial was held and the jury found for the plaintiff on Count two for the wrongful death of the decedent and set damages at $15,000. A verdict was returned in favor of plaintiffs in the dramshop actions on count one in the amount of $135,000. Since recovery under the Illinois dramshop act was limited to a maximum of $20,000, the trial court reduced the verdict against the tavern owner to this amount. On appeal to the Supreme Court of Illinois, the defendant tavern owners argued that the elements for dramshop damages, loss of “means of support”, were included within “pecuniary” damages recoverable under the Illinois wrongful death act, and therefore, the dramshop recovery could equal but not exceed damages allowed under the wrongful death act, and requested the Supreme Court to reduce the judgment against them from $20,000 to $15,000. In rejecting the defendants’ contentions, the court stated:

"Review of the various appellate court opinions cited by defendants reveals numerous attempts by those subjected to potential liability under the Dramshop Act to preclude or mitigate damages rendered thereunder. Explication of these cases is unnecessary. It is sufficient to note that none of the appellate court decisions concern the precise issue presented in this appeal.” 61 Ill 2d at 352; 335 NE2d at 773.

The court then noted the purposes and objectives of the wrongful death and dramshop statutes were essentially different, reviewing a number of previously decided cases, and in continuing stated:

"We further stated that the statutory enactments 'are not only separate and distinct but are based upon different powers of the state. The rights created by the two statutes do not rest upon the same basis.’ * * * These conclusions were reaffirmed in Izzo [Knierim v Izzo, 22 Ill 2d 73; 174 NE2d 157 (1961)] where it was further observed that the bases of liability are not the same in these statutory causes of action. As pertinent to this appeal, we said in Izzo 'that the nature and amounts of damages provided for in the Liquor Control Act are not to be limited [citation] or expanded [citation] by the provisions of the Wrongful Death Act.’ ” 61 Ill 2d at 352; 335 NE2d at 773.

The court concluded as follows:

"Even though there may be a common element as to damages, there exist substantial differences between wrongful death and dramshop actions which militate against affording dramshop defendants the opportunity to limit liability by the fortuitous circumstances presented in this case.” 61 Ill 2d at 353; 335 NE2d at 773-774.

It seems to us under these recent Illinois Supreme Court decisions that Illinois has rejected the concept that a dramshop violator should be able to escape the consequences of his wrongful conduct by shifting the responsibility for paying damages to someone else — such as the intoxicated tortfeasor. It also appears that the citation in Barton v Benedict, supra, to the Illinois appellate civil case of DeLude v Remick, 351 Ill App 466, 473; 115 NE2d 561, 564-565 (1953), would be inappropriate now, at least as to the facts in the present case.

In the case of Mason v Lovins, 24 Mich App 101, 117-119; 180 NW2d 73 (1970), this Court was faced with a fact situation similar to that in the instant case. There, plaintiffs brought a dramshop action against two taverns and a wrongful death action against an alleged intoxicated driver. Plaintiffs settled the wrongful death action and the dram-shop act claim against one of the tavern owners. The remaining dramshop defendant requested a jury instruction to the effect that any award to plaintiffs should be reduced by the amount of plaintiffs’ settlements with the alleged intoxicated driver and other tavern owner. The trial judge granted this request with respect to the settlement reached by plaintiffs with the tavern owner but denied it with respect to the settlement reached by the plaintiffs with the alleged intoxicated driver.

On appeal, this Court affirmed, finding that the right of the plaintiffs to recover under the dram-shop act was separate and distinct from the right of recovery under the wrongful death act.

In Bohannon v Campbell, 38 Mich App 422; 196 NW2d 836 (1972), the plaintiff was injured by an intoxicated driver. The dramshop defendant sought to diminish plaintiff’s judgment against it by $13,365.68 the amount the plaintiff recovered under his uninsured motorist policy. It was the dramshop defendant’s contention that this sum should be deducted from the $17,500 judgment against it, in order to prevent double recovery. Quoting from an earlier Supreme Court case, Motts v Michigan Cab Co, 274 Mich 437, 445; 264 NW 855 (1936), Judge R. B. Burns reiterated that:

"1 "We See no reason why one whose acts have caused injury to another should reap the entire benefit that comes from the payment of wages made by an employer, either as a gratuity to a faithful employee or because such payments are required by contract. Such payments do not change the nature of the injury which the employee sustains through the wrongful acts of the tortfeasor. If either is to profit by the payments made by the employer, it should be the person who has been injured — not the one whose wrongful acts caused the injury.” ’ (Emphasis supplied.)” Bohannon, supra, 426.

The trial judge in the instant case permitted the defendant Melody Bar to properly set off the settlement amount of $8,000 received by the plaintiffs from the Hoover Corner Bar from the verdict rendered against it. Duncan v Beres, supra.

Under the decision of our Court in the case of Virgilio v Hartfield, supra, the dramshop defendant could not require contribution from the intoxicated driver defendant. This is still the law in Michigan.

To permit the defendant herein to set off from the verdict against it the sum that the plaintiffs received in settlement from the Gibsons would, in effect, permit indirectly that which it could not do directly, i.e., require contribution from the intoxicated driver. It would also be an unfair precedent resulting in the Melody Bar and others in like positions being relieved of responsibility to deserving plaintiffs under the dramshop act.

It would also be incongruous with the public policy of our state which has mandated the control of the sale of alcoholic beverages by the enactment of the dramshop act for the protection of the health, safety, and welfare of the public.

We hold that the statute should be effective making every guilty tavern owner liable, in keeping with the intent of the act. This should be especially true Under the facts in this case where a young lad of 16 years lost his life as a result of the unlawful sale by defendant tavern owner.

We therefore affirm the trial court.

Costs to plaintiffs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v HASTINGS
    Docket No. 78-1711.
    Submitted June 19, 1979, at Lansing.
    Decided November 9, 1979.
    Douglas Hastings pled guilty to conspiracy to bring marijuana into Jackson Prison, his fourth felony, and in exchange for the plea of guilty was allowed to plead guilty to being a third felony offender. He withdrew these pleas, proceeded to trial on the conspiracy charge, and during that trial again pled guilty to the conspiracy charge. Subsequently, he was tried on a supplemental information for being a fourth felony offender and was convicted of that charge, Jackson Circuit Court, Russell E. Noble, J. Defendant appeals, alleging several errors. Held:

    1. The trial court did not err by informing the jury of the conviction of conspiracy to bring marijuana into prison. The elements for jury determination in a trial to determine habitual offender status are the existence of any prior convictions. The bringing of the supplemental information assumed conviction of the offense giving rise to the bringing of that supplemental information.
    2. The prosecutor questioned the defendant about his withdrawn plea of guilty of being a third felony offender. Such questions were improper, but reversal is not mandated because the questions were not objected to at trial and there is no showing of manifest injustice.
    3. Reversal is not mandated by the prosecutor’s statement that the jury had an obligation to convict the defendant, where the trial court twice instructed the jury that the defendant’s guilt was a factual determination to be made by them and where the prosecutor’s argument was based on the evidence produced at trial.
    4. Defendant was not prejudiced by his appearance in court wearing handcuffs and prison clothes.
    Affirmed.
    References for Points in Headnotes

       39 Am Jur 2d, Habitual Criminals and Subsequent offenders §6 et seq.

       29 Am Jur 2d, Evidence §§ 320, 321, 333.

       75 Am Jur 2d, Trial §§ 166, 193, 194.

       75 Am Jur 2d, Trial §§ 261, 263.

      1. Criminal Law — Habitual Offenders — Elements of Offense.
    The elements for jury determination in a trial held to determine a defendant’s habitual offender status are the existence of any prior convictions; the fact of the bringing of a supplemental information charging habitual offender status assumes conviction of the offense giving rise to the bringing of the supplemental information.
    2. Criminal Law — Evidence — Plea of Guilty — Vacated Plea.
    Evidence of a vacated guilty plea is inadmissible at a subsequent trial of the defendant, whether the fact of the vacated plea is introduced as evidence of guilt or as impeaching evidence.
    3. Appeal and Error — Criminal Law — Prosecutors — Improper Questioning.
    Reversal of a defendant’s conviction based upon improper questioning by the prosecutor is required only upon a finding of manifest injustice where no objection to the questioning was made at trial.
    4. Criminal Law — Prosecutors — Instructions to Jury.
    A prosecutor’s statement that a jury had an obligation to convict the defendant does not require reversal where the trial court twice instructed the jury that the question of the defendant’s guilt was a factual determination to be made by them and where the prosecutor’s argument was based on the evidence produced at trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and. John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Daniel J. Wright, Assistant State Appellate Defender, and Mardi E. Crawford, Research Attorney, for defendant on appeal.
    Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

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

   Per Curiam.

Defendant Douglas Hastings was convicted by a Jackson County Circuit Court jury of being a fourth felony offender, contrary to MCL 769.12; MSA 28.1084. He was sentenced to 7-1/2 to 15 years imprisonment, and appeals as of right.

On October 28, 1977, defendant pled guilty to conspiracy to bring marijuana into the State Prison of Southern Michigan, contrary to MCL 750.157(a); MSA 28.354(1). In return for his plea of guilty, defendant was permitted to plead guilty to being a third felony offender, contrary to MCL 769.11; MSA 28.1083. On December 16, 1977, defendant withdrew these guilty pleas.

On January 18, 1978, a trial was held and the prosecutor presented several witnesses to establish that defendant committed the offense charged. Following the prosecutor’s proofs, defendant changed his plea from not guilty to guilty of conspiracy to smuggle marijuana into Jackson Prison. Defendant was subsequently tried on a supplemental information for being a fourth felony offender.

Defendant first contends that the trial court erred in informing the jury of defendant’s fourth felony conviction, conspiracy to smuggle marijuana into the State Prison of Southern Michigan. Prior to jury voir dire, the trial judge told the prospective jurors that, "The Defendant here, Mr. Douglas Charles Hastings, was charged with the crime of conspiracy to bring a drug, namely, marijuana, into the State Prison of Southern Michigan. That charge resulted in a conviction of January 16, 1978.” The prosecutor referred to this statement in his opening argument.

Defendant points out that a trial judge may not usurp á defendant’s right to a jury determination on an essential element of a crime charged. Plaintiff, however, argues that once a defendant is convicted of an offense, trial on a supplemental information charging defendant under the habitual offender statute is solely concerned with proving the existence of prior convictions.

We agree with plaintiff that in a trial held to determine a defendant’s habitual offender status, the elements for jury determination are the existence of any prior convictions. The statute setting forth the procedure relative to an habitual offender prosecution, MCL 769.13; MSA 28.1085, provides in part:

"If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, in his discretion, may file a separate or supplemental information in such cause accusing the said person of subh previous convictions. Whereupon the court in which such conviction was had shall cause the said person whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations, contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not”. (Emphasis supplied.)

The statute contemplates trial on the issue of the existence of prior convictions. The fact of the bringing of a supplemental information charging habitual offender status assumes conviction of the offense giving rise to the bringing- of the supplemental information.

Further support for this position can be found in People v Covington, 70 Mich App 188, 191; 245 NW2d 558 (1976):

"The procedure to be followed in a habitual offender prosecution is set forth in MCL 769.13; MSA 28.1085. Under this statute, the people must prove in a trial proceeding both the fact of the alleged prior convictions and the identity of the defendant as the person who had committed those previous offenses.” (Emphasis supplied.)

We thus conclude that reversible error did not occur here.

Defendant next contends that the prosecutor erred in questioning defendant during cross-examination about his withdrawn plea of guilty to being a third felony offender.

According to this Court in People v George, 69 Mich App 403; 245 NW2d 65 (1976), evidence of a vacated guilty plea is inadmissible at a subsequent trial, regardless of whether the vacated plea is introduced as evidence of guilt or as impeaching evidence. The Court noted that withdrawal of a guilty plea is a "poor privilege” if it may be used as evidence in a subsequent trial. See also People v Trombley, 67 Mich App 88; 240 NW2d 279 (1976).

Although we regard as improper the prosecutor’s questions as to the withdrawn guilty plea, we do not deem reversal mandatory in the instant case. Since the question was not met with an objection, reversal is required only upon a finding of manifest injustice. See People v Jackson, 77 Mich App 392; 258 NW2d 89 (1977). Manifest injustice is clearly lacking in the instant case. Defendant admitted on direct examination to pleading guilty to three prior felonies. He specifically stated that he pled guilty to certain offenses in 1967, 1968, and 1972. Further, the question did not have a prejudicial effect upon defendant’s primary defense, which was that the prosecutor was proceeding against defendant because he chose to exercise his constitutional rights associated with a trial. During closing argument, the defense counsel stated: "We don’t have any so-called defense. In fact Mr. Hastings readily admitted that he was convicted of those prior crimes.” Thus, because the improper questions of the prosecutor were not prejudicial, we find no reversible error here.

Defendant next argues that the prosecutor committed error by stating in his closing argument that the jury had an obligation to convict defendant. We find no reversible error here. The trial judge twice instructed the jury that the question of defendant’s guilt was a factual determination to be made by them. Further, the prosecutor’s argument was based on the evidence and testimony produced at trial. See People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978).

Finally, we find no merit in defendant’s contention that he was prejudiced by his appearance in court wearing handcuffs and prison clothes. See People v Harris, 80 Mich App 228; 263 NW2d 40 (1977).

Affirmed.


text:
    RUBINO v CITY OF STERLING HEIGHTS
    Packet No. 78-2482.
    Submitted April 4, 1979, at Detroit,
    Decided November 13, 1979.
    Leave to appeal applied for.
    Marco Rubino was injured while working on a water main construction project for the City of Sterling Heights when a pipe plug he was removing exploded and hit his leg. A complaint was filed against Sterling Heights by Marco Rubipo and his wife Anna Rubino. Prior to trial defendant filed a motion for summary judgment on the ground that the city was immune from liability under the governmental immunity statute. Plaintiffs filed a motion to amend their complaint to include counts of nuisance and breach of contract. The motion for summary judgment was granted and the motion to amend was denied, Macomb Circuit Court, Edward J. Gallagher, J. On rehearing the tried judge affirmed his prior rulings and defendant’s motion for summary judgment was reaffirmed. Plaintiffs appeal. Held:

    1. Governmental functions, to be immune from tort liability, must consist of an activity which due to its unique character or governmental mandate can be effectively accomplished only by government. Governmental activities are also immune from tort liability where liability would be an unacceptable interference with government’s ability to govern. The operation of a municipal water system is not a governmental function because the public’s demand for water can be met by privately owned companies, property owners associations, private wells and other entities which do not require tax funding or mandatory citizen participation. A water distribution system is of such a nature that potential liability may be tfiken into consideration as a cbst of domg business; therefore, tort liability dbeS not result in an impermissible interference with government’s ability to govern. The trial court erred in granting summary judgment on the ground of governmental immunity,

      References for Points in Heapnotes

       61 Am Jur 2d, Pleadings §§ 229, 230.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 27, 30, 31.
    Municipal immunity from liability for torts. 60 ALR 26 1198.

       78 Am Jut 2d, Waterworks and Water Companies § 4.
    [4; 5] 61 Am Jur 2d, Pleadings §§ 309-311,

      2. Amendments to pleadings should he freely allowed when justice so requires. The trial judge made no specific findings as to why justice required denial of plaintiffs’ motion to amend their complaint. Defendant’s statements that the counts lacked merit and were filed late are uttpersuasive. The counts of nuisance and breach of contract were legally sufficient and mere lateness in moving to amend is an insufficient reason to deny the motion where there is no unfair prejudice to the opposing party. Discovery is not precluded merely because a pretrial conference has occurred, A court rúle permits the court to order subsequent discovery on written notice for good cause shown. The added counts did not involve complex legal and factual issues. Plaintiffs’ motion to amend should have been granted.
    Reversed and remanded.
    1. Judgment — Summary Judgment — Failure to State a Claim — Pleading — Allegations and Conclusions — Application of Law — Appeal and Error — Court Rules,
    The Court of Appeals, on review of a motion for summary judgment on the ground that the opposing party has failed to state a claim upon which relief can be granted, accepts a$ true the nonmoving party’s factual allegations as well as any conclusions which can reasonably be drawn therefrom; thereafter, the Court is required to determine whether the nonmoving party’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).
    2. Torts — Government Agencies — Governmental Immunity — Governmental Function.
    The crux of the governmental essence test for deciding whether a governmental agency is immune by statute from liability for a tort should be an inquiry whether the purpose, planning and carrying out of the activity, due to its unique character of governmental mandate, can be effectively accomplished only by government; unless liability would be an unacceptable interference with the government’s ability to govern, activities that fall outside the guideline, although performed by a governmental agency, are not governmental functions and therefore the agency is not immune.

      3. Torts — Governmental Agencies — City Water Supplies — Governmental Functions — Government Immunity.
    The operation of a municipal water system is not a governmental function which will relieve a city from tort liability on the ground of governmental immunity because supplying public water is not an activity which due to its unique character can only be accomplished by government; the public demand for water can be met by privately owned companies or associations, such systems can be supported by fees charged to users and their maintenance does not necessarily require tax funding; citizen participation in a government operated water system is not mandatory, a property owner may use a private well and is not required to hook up to a public water supply and a water distribution system is of such nature that potential liability may be taken into consideration as a cost of doing business.
    4. Pleading — Amendment of Pleading — Leave of Court —' Justification for Amendment — Prejudice — Statement by Trial Court — Court Rules.
    Leave to amend a pleading should be freely given when justice so requires and although the decision whether to allow the amendment is within the trial court’s discretion, as a general rulé, leave should be granted absent unfair prejudice to the opposing party; where a motion to amend is denied, the court should state specific reasons why justice would not be served by granting the amendment.
    5. Pleading — Complaint — Motion to Amend — Sufficiency of Motion — Late Motions — Discovery — Court Rules.
    A trial judge may deny a motion to amend a complaint where the complaint is legally insufficient on its face; mere lateness in moving to amend, absent unfair prejudice to the opposing party, is an insufficient reason to deny the motion; lack of discovery is also an insufficient reason to deny a motion to amend because a pretrial conference does not preclude subsequent discovery on written notice for good cause shown (GCR 1963, 301.7).

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Barry P. Waldman), for plaintiffs.

      Kerr, Wattles & Russell (by C. Kenneth Perry, Jr.), for defendant.

      Before: T. M. Burns, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Per Curiam.

Marco Rubino was injured on February 9, 1972, while working on a water main construction project for defendant City of Sterling Heights when a pipe plug he was removing exploded and hit his leg. Subsequently, Marco Rubino and Anna Rubino, his wife, brought an action for damages against the City of Sterling Heights. On August 4, 1977, the defendant moved for summary judgment on the ground of governmental immunity. Plaintiffs made a motion seeking to amend their complaint to include counts alleging nuisance and breach of contract. Plaintiffs appeal as of right the granting of summary judgment in favor of defendant and the denial of their motion to amend.

Plaintiffs contend that the trial court erred in granting summary judgment in favor of defendant on the ground of governmental immunity. When reviewing the granting of a motion for summary judgment under GCR 1963, 117.2(1), we assume as true the plaintiffs factual allegations as well as any conclusions reasonably drawn therefrom. We then determine whether the plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can permit recovery. Antkiewicz v Motorists Mutual Insurance Co, 91 Mich App 389; 283 NW2d 749 (1979).

Tort liability of a governmental agency is dealt with in MCL 691.1407; MSA 3.996(107), which provides in part:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and discharge of a governmental function.”

In Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), the Michigan Supreme Court dealt with the construction of the term "governmental function”. Justices Fitzgerald, Kavanagh, and Levin stated that the term was limited to activities that are "of essence to governing”. In a separate opinion, Justice Moody reached the following conclusion:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” (Emphasis supplied.) 404 Mich at 200.

We conclude that, under Parker, the operation of a municipal water system is not a governmental function. Since the government is not the only entity involved in supplying the public with drinking water, it is not an operation that can be effectively accomplished only by the government. The public’s demand for water is additionally met by various privately owned companies, property owners’ associations, and other entities. The existence of privately run water distribution systems indicates that their maintenance does not necessarily require tax funding; such systems can be supported by the fees charged to users.

Further, it is significant that citizen participation in a government operated water system is not mandatory. A property owner already receiving water from a private well is not required to hook up to an available public water supply.

Finally, tort liability does not result in an impermissible interference with the government’s ability to govern. A water distribution system is of such nature that potential liability may be taken into consideration as a cost of doing business. Thus, because the operation of a water distribution system is not a governmental function, the trial court erred in granting summary judgment in favor of defendant on the ground of governmental immunity.

Plaintiffs’ other contention is that the trial court erred in failing to grant their motion to amend their complaint to include the counts of nuisance and breach of contract. We agree.

GCR 1963, 118.1 permits a party to amend its pleading by leave of court, which "shall be freely given when justice so requires”. Although the decision whether to allow amendment is within the trial court’s discretion, Leahy v Henry Ford Hospital, 84 Mich App 719, 722; 271 NW2d 34 (1978), as a general rule, leave should be granted absent unfair prejudice to the opposing party. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 71 Mich App 177; 247 NW2d 589 (1976), rev’d on other grounds, 400 Mich 184; 253 NW2d 646 (1977). When denying a motion to amend, the court should state specific reasons why justice would not be served by granting the amendment. Goldsmith v Moskowitz, 74 Mich App 506; 254 NW2d 561 (1977).

In the instant case, the trial court made no specific findings as to why justice required denial of the motion to amend. Our only clue as to possible reasons are statements by defendant’s attorney that the counts sought to be added lack merit and that the motion is made at a late date. Neither of these reasons sufficiently supports denial of the motion. A judge may deny a motion to amend based on the merits only if the complaint is "legally insufficient on its face”. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 660; 213 NW2d 134 (1973). This is not the case here, as the counts of nuisance and breach of contract are legally sufficient.

Mere lateness in moving to amend is an insufficient reason to deny the motion, absent unfair prejudice to the opposing party. Spartan Asphalt v Mobile Home Park, supra. In the instant case, defendant is not prejudiced by the addition to the complaint of the counts of nuisance and breach of contract. Discovery is not precluded merely because a pretrial conference has occurred. GCR 1963, 301.7 permits the court to order subsequent discovery "on written notice for good cause shown”. Nor does sufficient prejudice exist because the added counts involve complex legal and factual issues.

Because justice is not served by denying plaintiffs’ motion to amend, the motion is hereby granted pursuant to GCR 1963, 820.1(7).

Reversed and remanded.


text:
    PEOPLE v CARTER
    Docket No. 30029.
    Submitted June 6, 1979, at Lansing.
    Decided December 7, 1979.
    Leave to appeal applied for.
    Alvin D. Carter was convicted in Jackson Circuit Court, Charles J. Falahee, J., of unarmed robbery, extortion, and two counts of conspiracy, arising from an incident in which Carter and others composed a threatening note which Carter then used to obtain money from the complainant. Defendant appeals, alleging a violation of his right not to be placed in double jeopardy. Held:

    1. The convictions of both unarmed robbery and extortion, arising from the single act of obtaining the money from the complainant, constitute double jeopardy.
    2. The convictions of both extortion and- conspiracy to commit extortion do not constitute double jeopardy; the crime of conspiracy is distinct from the substantive offense.
    The convictions of unarmed robbery and conspiracy to commit unarmed robbery are reversed; the convictions of extortion and conspiracy to commit extortion are affirmed.
    1. Criminal Law — Double Jeopardy — Single Offense.
    A single criminal offense may not be divided into several parts and separate prosecutions and separate punishments be based upon the various divisions of the single crime; in such a situation the prohibition against double jeopardy applies unless the Legislature has intended that one occurrence give rise to two separate violations.
    2. Robbery — Extortion — Conspiracy — Double Jeopardy.
    A defendant who obtained money from a complainant by means of a threatening note may not be convicted of both unarmed robbery and extortion, nor of two counts of conspiracy for the planning of the single criminal act.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 184.

       67 Am Jur 2d, Robbery § 48.

       16 Am Jur 2d, Conspiracy § 37.

      3. Extortion — Conspiracy — Double Jeopardy.
    ' A defendant’s convictions of extortion and of conspiracy to commit extortion do not constitute double jeopardy; the crime of conspiracy is distinct from the substantive offense, and the fact that the same evidence was used to establish the two separate offenses does not violate the proscription against double jeopardy.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Bruce A. Barton, Special Prosecuting Attorney, for the people.

      Norris J. Thomas, Jr., Assistant State Appellate Defender, and Nancy Bosh, Research Attorney, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   Per Curiam.

In this case defendant appeals from his jury convictions of unarmed robbery, MCL 750.530; MSA 28.798, conspiracy to commit unarmed robbery, MCL 750.157a; MSA 28.354(1), extortion, MCL 750.213; MSA 28.410, and conspiracy to commit extortion, MCL 750.157a; MSA 28.354(1). The defendant raises numerous issues for our review, only one of which we find meritorious.

On December 19, 1975, Peggie Johnson, a worker in the customer service office of the Consumers Power Company in Jackson, Michigan, was robbed by a man who handed her a note threatening her three sons unless she gave him money. Mrs. Johnson testified that she complied with the request because she feared that the man might injure her and her three sons if she did not. Edward Kimble, an inmate at the state prison, testified that he and defendant had planned the robbery the night before. At that time, they and a third person, Diane Potter, wrote the note which was used in the robbery. Kimble’s testimony was corroborated by Diane Potter who identified defendant as helping prepare the note which was used subsequently.

On appeal, defendant argues that his right not to be placed in jeopardy twice was violated by his convictions of extortion and unarmed robbery. He further argues that conviction of a substantive crime under the aiding and abetting statute and conviction for conspiracy to commit that crime is likewise a violation of the double jeopardy clause.

In People v Martin, 398 Mich 303; 247 NW2d 303 (1976), Martin was charged and convicted of both delivery and possession of heroin. There was no dispute that each count covered the same heroin. The only possession shown by the evidence was that incident to its delivery. As a result, the Supreme Court reversed the conviction for delivery on double jeopardy grounds.

Martin was followed by People v Stewart, (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), where the Court described the facts of the case as follows:

"There is no dispute in the instant case that the same heroin was allegedly possessed and sold by the defendant in a single continuous transaction.’ There was no evidence of possession distinct and apart from the overall sale sequence.” Id. at 547.

Both cases relied on State v Allen, 292 A2d 167 (Me, 1972). As in Martin and Stewart, the rationale of Allen is directly on point with the instant case:

"It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime.” State v Allen, supra, at 172.

Double jeopardy applies in such situations unless the Legislature intended that one occurrence give rise to two separate violations. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Looking to the facts of this case, it is obvious that both of defendant’s convictions of the substantive offenses stem from the same set of facts. Defendant extracted money from the complainant by means of a threatening note. This one occurrence was used to convict him of both unarmed robbery and extortion. In addition, the planning of this one criminal act gave rise to defendant’s conviction on the two counts of conspiracy. Moreover, it does not appear that the Legislature clearly intended to punish twice one instance of this type of criminal conduct. Hence, defendant’s convictions for unarmed robbery and extortion and conspiracy to commit both would appear to fall within the proscription of Martin/Stewart. See e.g. People v Anderson, 83 Mich App 744; 269 NW2d 288 (1978). Accordingly, we reverse defendant’s convictions of unarmed robbery and conspiracy to commit unarmed robbery. See People v Stewart, supra, 550.

Defendant also argues that his conviction for the substantive crime of extortion and conspiracy to commit extortion also constitute double jeopardy. We disagree.

The crime of conspiracy has been found to be distinct from the substantive offense. People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975). This is true in a factual sense as well. The crime of conspiracy punishes the planning of an unlawful event by two or more people. People v Berry, 84 Mich App 604; 269 NW2d 694 (1978). The substantive offense punishes the actual commission of the crime. Hence, we have two distinct factual occurrences. Although defendant alleges that the same evidence at trial was used to establish two separate acts punishable under different statutes, "the double jeopardy clause does not forbid two inferences from the same evidence”. People v Gonzales, 86 Mich App 166, 170; 272 NW2d 227 (1978). Accordingly, defendant’s convictions for extortion and conspiracy to commit extortion are affirmed.

Reversed in part and affirmed in part.


author: Per Curiam. M. F. Cavanagh, J.

text:
    PRECOPIO v CITY OF DETROIT
    Docket No. 78-2336.
    Submitted April 5, 1979, at Detroit.
    Decided December 10, 1979.
    Leave to appeal applied for.
    Robert Precopio was injured when an automobile owned by him and his wife was struck in the rear by a DSR bus operated by an employee of the City of Detroit. Mr. Precopio was the sole occupant of the automobile at the time of the collision. Subsequently, Mr. and Mrs. Precopio brought an action against the City of Detroit for damages for personal injuries. The matter was tried before a trial judge sitting without a jury. Plaintiff Robert Precopio was awarded damages in the amount of $436,-085 and a judgment of no cause of action was entered as to plaintiff Vaughna K. Precopio on her collateral claim for damages for loss of consortium, Wayne Circuit Court, Charles Kaufman, J. The trial court later denied the defendant’s motion for a new trial and granted the plaintiffs’ motion to amend the ad damnum clause of the complaint. The defendant appeals, alleging that 1) the court’s finding of liability was against the clear preponderance of the evidence, 2) the amount of damages awarded was excessive, and 3) the trial court erred in allowing the amendment of the ad damnum clause to conform to the court’s finding. Held:

    1. In a bench trial, the judge’s finding of fact is "clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been made. There was sufficient evidence to support the inference of the defendant’s negligence. There was no error on this issue.
    2. The defendant has failed to demonstrate that the judge’s decision was based on improper conduct by plaintiff Robert Precopio, prejudice or sympathy. Nor does the amount of damages shock the judicial conscience. There was no error in the size of the award.

      References for Points in Headnotes

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

       22 Am Jur 2d, Damages §§ 109, 367.

       22 Am Jur 2d, Damages § 299.

       5 Am Jur 2d, Appeal and Error § 836.

       22 Am Jur 2d, Damages § 276.

      3. Under the present rules, a party is allowed to recover an amount in excess of that originally requested in the ad damnum clause. The plaintiff must seek an amendment to the pleadings and the award must have been supported by the evidence. Here the plaintiffs sought an amendment and it was fully considered by the court before it was granted. The award was supported by the evidence.
    Affirmed.
    M. F. Cavanagh, J., dissented. He would hold that tbe amount of damages awarded was clearly excessive in light of the evidence on damages presented at trial and is shocking to the judicial conscience. He would reverse and remand for a new trial.
    Opinion of the Court
    1. Appeal and Error — Findings of Fact — Bench Trial.
    A finding of fact by a court sitting in a bench trial is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed (GCR 1963, 517.1).
    2. Damages — Excessive Damages — Pain and Suffering.
    The size alone of an award for damages for pain and suffering does not make the award excessive, nor does a difference of opinion with respect to the value of an injury necessarily indicate that a lower value is correct.
    3. Damages — Excessive Damages — Pain and Suffering — Appeal and Error.
    Allowance for pain and suffering rests in the sound discretion of the trier of the facts and a verdict therefor which has not been secured by improper methods, prejudice or sympathy and which is not so great as to shock the judicial conscience will not be disturbed on appeal.
    4. Damages — Pleading — Ad Damnum Clause — Court Rules.
    A plaintiff is allowed to recover an amount in excess of that originally requested in the ad damnum clause of his complaint; however, the plaintiff must seek an amendment to the pleadings and the award must be supported by the evidence (GCR 1963, 518.3).

      Dissent by M. F. Cavanagh, J.
    5. Damages — Excessive Damages — Appeal and Error.

      The Court of Appeals should not substitute its judgment for that of the factñnder as to the amount of an award for damages unless, after the Court of Appeals has reviewed the facts and criteria that are available, the amount of damages awarded is grossly disproportionate to the evidence and is shocking to the judicial conscience,

      Zeff & Zeff, for plaintiffs.

      Roger E. Craig, Corporation Counsel, and Ronald W. Rice, Assistant Corporation Counsel, for defendants.
    Before: T. M. Burns, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Per Curiam.

The plaintiffs, Mr. and Mrs. Robert Precopio, brought this action against the City of Detroit to recover for injuries sustained when a DSR bus struck the rear of plaintiffs’ car. Mr. Precopio was the sole occupant of the car at the time of the collision. Trial was to the court without a jury. The court found in favor of Mr. Precopio and awarded damages of $436,085. A judgment of no cause of action was entered as to Mrs. Precopio for a failure of proof. The trial court subsequently denied the city’s motion for a new trial and granted plaintiffs’ motion to amend the ad damnum clause of the complaint.

I

The city first claims that the court’s finding of liability is against the "clear preponderance of the evidence”. The standard under which appellate courts review a trial court’s finding is the clearly erroneous standard of GCR 1963, 517.1. Under this standard, " '[a] finding is "clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed’ Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), quoting United States v United States Gypsum Co, 333 US 364, 395; 68 S Ct 525; 92 L Ed 746 (1948).

In ruling on defendant’s motion for new trial, the court stated this was a relatively simple rear end collision. Giving due deference to the trial court’s superior position to judge credibility, we are constrained to agree. The court’s conclusion that plaintiff had been sitting at a red light for at least three seconds before being struck by the bus is sufficient to support the inference of negligence. We find no error in this issue.

II

By far, the more difficult issue is raised by the city’s claim that the damages awarded were excessive. A large percentage (approximately 92%) of the award is for prospective damages. $375,000 was allocated to compensate plaintiff for past, present and future pain and suffering. We agree that the award is a large one, but the size of the award alone does not make it excessive. The rules we must apply were well stated in Watrous v Conor, 266 Mich 397, 401-402; 254 NW 143 (1934):

"There is and can be no absolute standard by which we can measure the amount of damages in personal injury cases. Individual opinions may differ as to the correctness of awards, even those made by trial judges. It has yet to be determined whether the judgment of a one-man jury is sounder than that of 12. The parties seemed to prefer the judgment of one and waived a jury. Now appellant suggests that the judgment of eight is better than either method. Adopting defendant’s contention that, at best, the showing here is only one of pain and suffering, plus expenses for medical services and hospitalization attention, we still prefer our rule stated in the case of Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)], that the amount allowed for pain and suffering must rest in the sound judgment of the trier of the facts. Assuming even that our verdict might be in a different amount, we are loath to disturb verdicts for personal injuries on the ground that the amount is excessive. Cawood v Earl Paige & Co, 239 Mich 485 [214 NW 402 (1927)]. We do not substitute our judgment on this question unless a verdict has been secured by improper methods, prejudice or sympathy. Michaels v Smith, 240 Mich 671 [216 NW 413 (1927)]. No such showing has been made, nor were the verdicts so great as to shock the judicial conscience. Sebring v Mawby, 251 Mich 628 [232 NW 194 (1930)].”

Defendant has failed to demonstrate that the judge’s decision was based on improper conduct by plaintiff, prejudice or sympathy. Nor are we willing to say that the amount of the award shocked our collective judicial conscience.

Insofar as defendant argues that the size of the mediation panel’s suggestion and the amount which would have been acceptable in settlement as set out in plaintiffs’ pretrial statement are evidence of an excessive judgment, the short answer is these amounts were never accepted by both parties. What defendant fails to recognize is that differences of opinion with respect to the value of an injury do not necessarily indicate that the lower value is correct. The judge’s assessment came after a full trial. This evaluation was, in time, when the severity and possible permanency were subject to a greater degree of proof. We find no error in the size of the award.

Ill

When the complaint was originally filed in 1973, plaintiffs sought $200,000 as full compensation for their injuries. Defendant claims error in allowing an amendment to the ad damnum clause to conform with the court’s finding.

Under the present rules, a party is allowed to recover an amount in excess of that originally requested in the ad damnum clause. GCR 1963, 518.3. Gibeault v Highland Park, 49 Mich App 736; 212 NW2d 818 (1973), aff’d 391 Mich 814; 217 NW2d 99 (1974). The plaintiff must seek an amendment to the pleadings and the award must have been supported by the evidence. Gibeault v Highland Park, supra, Tomei v Bloom Associates, Inc, 75 Mich App 661; 255 NW2d 727 (1977).

In this case plaintiffs sought an amendment and it was fully considered by the court before it was granted. In line with our holding on the previous issue, we conclude that the award was supported by the evidence.

Affirmed. Costs to appellee.

M. F. Cavanagh, J.

(dissenting). I agree with the majority’s evaluation that the defendant’s excessive damage claim is the only issue of merit. The amount of damages awarded here in a nonjury trial, however, shocks my judicial conscience and I cannot affirm the award.

Plaintiffs’ counsel has argued that where, as here, there is some 33 years of life expectancy, the amount of special damages is unimportant. I disagree. They should by no means control, but they are important. They provide the trier of fact and an appellate court with objective criteria upon which a fair and just award might be based. It is after a thorough review of these special damages and all the testimony that I conclude the judgment of the trial court should be reversed.

The court below described this accident as a "relatively simple” rear-end collision. Although liability was closely contested, the trial court found that defendant’s bus struck the rear of plaintiffs’ vehicle, causing some $600 in property damage. This amount of property damage cannot be termed inconsequential, but by the same token, can hardly be classified as extensive.

For the some five years intervening between the accident and the date of trial plaintiff Robert Precopio periodically was treated by his physician, incurring a bill for medical treatment in the amount of $535. He expended, at the rate of $8 to $10 per month, another $550 for medication during the same period. No hospitalization was ever required.

From the date of accident until the time of trial, Robert Precopio’s hourly wage rose in stages from $4.49 to $7.01. He claimed his injuries prevented him from working from October 3, 1972, to June 19, 1973, some eight months. He worked from June 19, 1973, to January 14, 1975, when he again missed eight more months of work. Thereafter, in 1976, he missed approximately three months, returned to work on October 22, 1976, and was working through the time of trial. Robert Precopio alleged all of the time missed was due to this accident and estimated some $31,400 in wages were lost.

Based upon the foregoing, the trial court awarded this plaintiff Robert Precopio the sum of $436,085. This was computed as follows:

Property Damage $ 650

Past Medical 535

Past Wage Loss 31,400

Future Wage Loss $ 20,000

Future Medications 8,500

61,085

Past and Future Pain and Suffering $375,000

$436,085

Based on this categorization of Robert Precopio’s award, it is apparent that at least part of the computation of the special damages is faulty. Despite Robert Precopio’s testimony that for five years he expended roughly $8 to $10 per month for medication and a total of $535 for medical treatment, he was only compensated for the cost of treatment. However, $8,500 was awarded for future medications. Therefore, if this latter amount represents the same yearly average cost of medications as was incurred in the five years prior to trial, then Robert Precopio would be assured of receiving these costs for the next 85 years. Even if the designated future medications award also includes the projected costs of medical treatment based on the pretrial average, he would still receive the same yearly averages for both categories for the succeeding 42-1/2 years. It has been pointed out that his life expectancy was only 33 years. But, more importantly, there was no evidence submitted to establish that his costs in these areas would remain constant in the future. On the contrary, his expert’s testimony suggested that these costs would decline.

I am not unaware of the lack of objective standards which would enable an appellate court to fix with accuracy the limits of excessiveness. It is for this very reason that such wide latitude is afforded the judgment of the trier of fact. We ought not to substitute our judgment for that of the factfinder unless, after we have reviewed the facts and criteria that are available, the amount of the award is grossly disproportionate to the evidence and shocks us. See Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976), Watrous v Conor, 266 Mich 397; 254 NW 143 (1934), Haidy v Szandzik, 46 Mich App 552; 208 NW2d 559 (1973).

Plaintiff Robert Precopio’s doctor diagnosed the accident-related injuries to plaintiff as an acute dorsal-cervical sprain with recurrent pain, as well as fibromyositis, inflammation of the muscle and fibrous tissue formation. The medical treatment that Robert Precopio received for the five years following the accident consisted of the periodic application of heat to the back of his neck accompanied by various medications to relax muscles and diminish pain. Robert Precopio’s doctor would not testify positively that the injuries were permanent; his most encouraging response for plaintiff Robert Precopio’s case in this regard was, "[p]erhaps”. As to whether there was permanent damage to Robert Precopio’s muscular tissue, his doctor stated: "At that time [of the accident] I think he had damage to his musculature. I think in time he will have healed up.” Accordingly, the doctor testified that he had indicated that Robert Precopio could return to work on June 19, 1973. And, the doctor further testified that a severe injury of the type which Robert Precopio complained of would affect a person’s reflexes; however, upon examination on the date of the accident, Robert Precopio’s reflexes were normal. It should also be noted that the trial court awarded no damages to plaintiff Vaughna Precopio for her loss of consortium claim. In light of these factors, I must conclude that the trial court’s award to plaintiff Robert Precopio was shockingly excessive. Compare the cases compiled in Anno: Excessiveness or adequacy of damages awarded to injured person for injuries to head or neck, 11 ALR3d 370, 590.

Moreover, there are additional facts which, while they are not determinative, may assist in the evaluation of the award. Plaintiff Robert Precopio’s pretrial settlement demand amounted to $35,000; and the figure sought by him at trial, as evidenced by his ad damnum clause, was $200,000, even though his counsel requested $1,750,000 in final argument. (It was some eight months after trial, following announcement of the trial court’s award, that Robert Precopio moved to amend his ad damnum clause upward.) A mediation board had also previously determined the damages to be$14,500. Haidy v Szandzik, supra, at 556. See Tomei v Bloom Associates, Inc, 75 Mich App 661; 255 NW2d 727 (1977).

For these reasons, I am persuaded the award below was excessive and clearly erroneous. I would reverse and remand for a new trial.


text:
    PEOPLE v AUGUSTUS JONES
    Docket No. 78-2723.
    Submitted November 6, 1979, at Detroit.
    Decided December 10, 1979.
    Defendant, Augustus Jones, was convicted of possession of an unregistered gun in 1966. In 1977 defendant moved the court to set aside his conviction by way of a new trial and for a dismissal of the charge because he had not been involved in any criminal activity in the interim and his conviction hindered him in obtaining employment. The Recorder’s Court of Detroit, George W. Crockett, III, J., granted defendant’s motion. The people appeal. Held:

      A new trial may be granted only for certain legally cognizable reasons. Defendant asserts no such reasons. A statute authorizing a new trial where "it shall appear to the court that justice has not been done” is to be construed as limited to circumstances where the defendant has been denied a fair trial.
    ' That was not the allegation here. Further, a court has authority to dismiss charges over prosecutorial objection only where permitted by statute or where there is an insufficiency of evidence. Neither applies here.
    Reversed and remanded with instructions.
    1. Criminal Law — New Trial.
    A new trial may be granted only for certain legally cognizable reasons; assertions by a criminal defendant that he had not been involved in any criminal activity for 11 years and that he was not able to obtain suitable employment because of his prior record are not bases for a new trial.
    2. Criminal Law — New Trial — Statutes.
    A statute authorizing a new trial where "it shall appear to the court that justice has not been done” is to be construed as limited to circumstances where the defendant has been denied a fair trial (MCL 770.1; MSA 28.1098).
    References for Points in Headnotes

       58 Am Jur 2d, New Trial § 29 et seq.

       58 Am Jur 2d, New Trial § 31.

       21 Am Jur 2d, Criminal Law § 517.

      3. Criminal Law — Criminal Charges — Dismissal.
    A court has authority to dismiss charges over prosecutorial objection only where permitted by statute or where there is an insufficiency of evidence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Robert T. Monk, Assistant Prosecuting Attorney, for the people.
    Before: Bashara, P.J., and J. H. Gillis and W. VanValkenburg, JJ.

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

   Per Curiam.

The people appeal from a December 27, 1977, order of the Detroit Recorder’s Court, granting defendant’s motion for new trial and. a dismissal of the charge.

Between 1948 and 1966, the defendant compiled a criminal record of nine convictions. One of those convictions was for possession of an unregistered pistol, MCL 750.228; MSA 28.425. The remaining convictions related to misdemeanor gambling offenses.

In 1977, the defendant moved to set aside these convictions by way of new trials and dismissal of the charges. The defendant alleged that he sought expungement of the convictions because he was being hindered in obtaining employment. The lower court granted the defendant’s motions ordering the nine convictions set aside and the underlying charges dismissed. The people appeal in the case of the unregistered gun.

The power of a court to dismiss or expunge is specifically spelled out in MCL 780.621; MSA 28.1274(101). Two of the prerequisites to the invocation of the statute are that the defendant may have but one conviction and the offense underlying that conviction must have been committed prior to the defendant’s 21st birthday. Here, the defendant was convicted of nine offenses subsequent to attaining 21 years of age. Accordingly, the subject statute will not support the lower court’s action.

The question becomes whether the conviction could properly be set aside by the grant of a motion for a new trial and a dismissal of the charge. The answer is that it could not.

A new trial may be granted only for certain legally cognizable reasons, GCR 1963, 527, Haidy v Szandzik, 46 Mich App 552; 208 NW2d 559 (1973). The defendant did not assert any of these reasons as. bases for obtaining a new trial. Rather, he merely alleged that he had not been involved in any criminal activity since 1966 and that he was unable to obtain suitable employment due to his prior record. Such facts are extraneous to a motion for a new trial.

Furthermore, although MCL 770.1; MSA 28.1098, authorizes a trial court to grant a new trial when "it shall appear to the court that justice has not been done”, the statute has been construed as limited to those circumstances where the defendant has been denied a fair trial. See People v Upshaw, 91 Mich App 492; 283 NW2d 778 (1979). The defendant has not alleged that he was denied a fair trial. The grant of a new trial was erroneous. A trial court cannot accomplish indirectly, by granting a new trial pursuant to MCL 770.1, what it cannot accomplish directly. People v John Williams, 65 Mich App 531; 237 NW2d 545 (1975).

We note that even had the new trial been properly granted, the dismissal of the underlying charge was erroneous. Only when permitted by statute or when there is an insufficiency of evidence does the court have the authority to dismiss over prosecutorial objection. People v Morris, 77 Mich App 561, 563; 258 NW2d 559 (1977). Neither condition exists here.

The trial court’s order granting defendant’s motion for a new trial and dismissing the charge is reversed. Remanded with instructions that the lower court reinstate the defendant’s conviction.