text:
    NORTON SHORES v CARR
    1. Nuisance — Use of Property — Zoning—Conforming Uses — Nonconforming Uses — Structures and Plots — Words and Phrases.
    The term "nonconforming use” in zoning cases comprehends the physical characteristics, dimensions, or location of a structure as well as the functional use thereof or of the premises on which it is located, and is used as a generic term that includes nonconforming use of conforming structures and plots, nonconforming use of nonconforming structures and plots, and conforming use of nonconforming structures and plots.
    2. Zoning — Nonconforming Use — Expansion—Ordinances.
    Generally, a nonconforming use may not be expanded; one of the goals of zoning is the eventual elimination of nonconforming uses so that growth and development sought by ordinances can be achieved.
    3. Zoning — Nonconforming Uses — Continuation.
    The continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance; therefore, a nonconforming use is restricted to the area that was nonconforming at the time the ordinance was enacted.
    References for Points in Headnotes

       82 Am Jur 2d, Zoning and Planning §§ 3, 178 et seq.

       82 Am Jur 2d, Zoning and Planning §§ 179, 180, 196-199.

       82 Am Jur 2d, Zoning and Planning § 188 et seq.

       5 Am Jur 2d, Appeal and Error §§ 703, 772.

       82 Am Jur 2d, Zoning and Planning §§ 184, 215, 216.

       82 Am Jur 2d, Zoning and Planning §§ 3, 186.

       82 Am Jur 2d, Zoning and Planning § 3.

       58 Am Jur 2d, Nuisances §§ 11-13.

       82 Am Jur 2d, Zoning and Planning §§ 3, 191-207.

       58 Am Jur 2d, Nuisance §§ 136-139, 173, 174.

       5 Am Jur 2d, Appeal and Error §§ 703, 772.

       58 Am Jur 2d, Nuisance § 150 et seq.

       58 Am Jur 2d, Nuisance § 151.

       82 Am Jur 2d, Zoning and Planning § 178 et seq.

      4. Equity — Appeal and Error — De Novo Review — Trial Court Findings — Agreement—Different Result.
    The Court of Appeals reviews equity cases de novo; however, the findings of the trial judge will not be disturbed on appeal unless the appellate court can conclude that it would have arrived at a different result had it been in the position of the trial court.
    5. Zoning — Nonconforming Prior Use — Evidence—Intent— Abandonment.
    The necessary elements of abandonment of a nonconforming use are the intent to abandon and some act or omission on the part of the owner or holder which clearly manifests his or her voluntary decision to abandon.
    6. Nuisance — Zoning—Nonconforming Prior Use — Vested Rights —Trial Court Findings.
    The existence of a vested right to a prior nonconforming use does not preclude a court from finding that the nonconforming use constitutes a nuisance.
    7. Nuisance — Private Nuisance — Public Nuisance — Definitions.
    Nuisances may be private or public or both: a private nuisance is a civil wrong based on a disturbance of defendants’ neighbors’ rights in their land; a public nuisance results from an interference with the rights of the community at large.
    8. Nuisance — Nuisance in Fact — Nuisance Per Se — Circumstances — Location and Surroundings.
    A nuisance in fact and a nuisance at law, or per se, are distinguishable; a nuisance in fact is that which becomes a nuisance by reason of circumstances and surroundings and a nuisance per se is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.
    9. Nuisance — Nonconforming Use — Changes in Use — -Extension of Nonconforming Use.
    Changing the nature and size of a nonconforming use constitutes an extension of a prior nonconforming use and is therefore a nuisance.
    10. Nuisance — Nuisance in Fact — Trial Court Findings — Evidence — Clear Error Rule.
    A finding of a nuisance in fact is not clearly erroneous where there is sufficient credible evidence to support the trial court’s conclusion.

      11. Appeal and Error — Limited Review — Court Decided Issues.
    The Court of Appeals is limited on review to issues decided by the trial court.
    12. Nuisance — Equity—Abatement of Nuisance — Judicial Policy.
    An equity court has the power to enjoin a nuisance; however, it is the policy of the courts to tailor the remedy to the problem and where possible to abate a nuisance without completely destroying the business in which the nuisance originates.
    13. Equity — Nuisance—Abatement—Continuing Business — Objectionable Features — Infringement on Rights.
    Equity will not abate a lawful continuing business as a nuisance when it is possible to eliminate objectionable features which infringe upon the ordinary rights of others.
    14. Municipal Corporations — Regulatory Ordinances — Zoning Ordinances — Nonconforming Use — Prior Nonconforming Use — Expansion of Use.
    A regulatory ordinance, unlike a zoning ordinance, is not encumbered by a nonconforming use provision and while a preexisting nonconforming use may exist despite a zoning ordinance, a regulatory ordinance envisions no similar exceptions; therefore, neither an original nonconforming use, nor an expansion of it, excuses the enforcement of a regulatory ordinance.
    Appeal from Muskegon, Charles A. Larnard, Jr., J.
    Submitted January 4, 1978, at Grand Rapids.
    (Docket No. 77-611.)
    Decided March 7, 1978.
    Leave to appeal applied for.
    Complaint by Norton Shores, a municipal corporation, and others against Cornelius Carr and Rose I. Carr seeking abatement of a public and private nuisance and an injunction requiring the defendants to conform to certain ordinances. Judgment for plaintiffs. Defendants appeal.
    Affirmed.

      Parmenter, Forsythe & Rude (by Steven G. Schember), for plaintiff.

      Bunker & Rogoski, for defendant.

      Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   Per Curiam.

Defendants appeal the judgment of the trial court holding defendants’ landscaping business, which constitutes a nonconforming use, to be a nuisance. The court ordered it enclosed by a fence. Defendants’ junkyard business, which is also a nonconforming use, was restricted to a certain portion of the defendants’ property. Finally, the trial court found that defendants’ used car business — another nonconforming use — had been abandoned.

On July 24, 1972, plaintiffs filed a complaint charging defendants with violation of a city junkyard ordinance, a zoning ordinance, and an abandoned-vehicle ordinance, and with maintaining a public and private nuisance. Defendants own a parcel of land in Norton Shores which they purchased in 1945. Defendants deal in junk, that is, they buy and sell scrap iron, rags, batteries, used equipment and machinery. They also carry on a landscaping business for which they store top soil (black dirt), shrubbery, and other nursery items.

In 1949, Norton Shores Township, predecessor of the City of Norton Shores, adopted a junkyard resolution. At that time defendants had already acquired a vested right to continue operation of the junkyard in the same manner in which it had been conducted before adoption of the resolution.

On January 1, 1955, the township of Norton Shores adopted its first zoning ordinance which provided for the continuance of nonconforming uses and buildings. In 1962, the township amended the zoning ordinance, as a result of which the west 200 feet of defendants’ lot was zoned commercial. It was stipulated that during the time immediately before the adoption of the Norton Shores zoning ordinance, defendants operated heavy machinery in conducting their business.

Defendants charge that the trial court erred in failing to conclude that defendants have a vested right to continue the use of their real estate in the manner in which it was used before the adoption of the Norton Shores zoning ordinance. The restrictions imposed by the court, defendants argue, are repugnant to their vested right.

Contrary to defendants’ contention, the trial court did hold that defendants’ nonconforming uses could be continued as they were practiced before adoption of the Norton Shores zoning ordinance in 1955. That was not an issue at trial. All agreed defendants had a valid nonconforming use. The issue was whether defendants had unlawfully expanded their use beyond the scope that existed at the time the zoning ordinance was adopted- The judgment restricted use of the eastern 200 feet of defendants’ property solely to the landscaping business; this line of demarcation was established in accordance with trial testimony which disclosed that in 1955 defendant had no other business operations except landscaping on the eastern 200 feet of their property.

" 'A "nonconforming use” comprehends the physical characteristics, dimensions, or location of a structure as well as the functional use thereof or of the premises on which it is located, and is used as a generic term that includes nonconforming use of conforming structures and plots, nonconforming use of nonconforming structures and plots, and conforming use of nonconforming structures and plots.’ (Footnotes omitted.) 82 Am Jur 2d, Zoning and Planning, § 178, p. 685.” Long Island Court Homeowners Association v Methner, 74 Mich App 383, 387; 254 NW2d 57 (1977).

Expansion of a nonconforming use is severely restricted. One of the goals of zoning is the eventual elimination of nonconforming uses, so that growth and development sought by ordinances can be achieved. Generally speaking, therefore, nonconforming uses may not expand. Fredal v Forster, 9 Mich App 215; 156 NW2d 606 (1967), Hillsdale v Hillsdale Iron & Metal Co, Inc, 358 Mich 377; 100 NW2d 467 (1960). The policy of the law is against the extension or enlargement of nonconforming uses, and zoning regulations should be strictly construed with respect to expansion.

" '[I]t is the law of Michigan that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance.’ ” Dearden v Detroit, 70 Mich App 163, 169; 245 NW2d 700 (1976), Township of White Lake v Lustig, 10 Mich App 665, 674; 160 NW2d 353 (1968).

The nonconforming use is restricted to the area that was nonconforming at the time the ordinance was enacted. Township of Commerce v Rayberg, 5 Mich App 554; 147 NW2d 453 (1967).

In 1955, the trial court opined, the eastern 200 feet of defendants’ property was not being used for a junkyard as it was 20 years later. In accordance with Michigan law on the expansion of nonconforming uses, the trial judge restricted defendants’ use of the eastern 200 feet and held it could only be used for defendants’ landscape business which had been in operation when the zoning ordinance was adopted. While this Court reviews equity cases de novo, it will not disturb the findings of the trial court unless it would have arrived at a different result had it been in the position of the trial court. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969).

We cannot say we would have reached a conclusion different from that of the trial court. Defendants had a valid nonconforming use in 1955, but they had no right to expand that nonconforming use beyond its 1955 scope. The trial court acted properly in restricting the use of the eastern 200 feet of defendants’ land.

Also at issue are the trial court’s other rulings: (1) that defendants had abandoned their rights to deal in used cars; (2) that defendants had created a nuisance by causing black dirt dust to emanate from their property; and (3) that plaintiffs were entitled to injunctive relief from the alleged dissemination of black dirt.

Turning first to defendants’ abandonment of their used car sales: the necessary elements of abandonment of a nonconforming use are intent and some act or omission on the part of the owner or holder which clearly manifests his or her voluntary decision to abandon. Rudnik v Mayers, 387 Mich 379; 196 NW2d 770 (1972). The trial court’s ruling as to abandonment was not without grounds. An examination of defendants’ tax returns for several years showed "no indication of used car sales operation.” Nor did any witnesses at trial testify to any used car sales. On these bases the court found the used car operation had been abandoned. We cannot say that had we been sitting as the trial court we would have reached a different result. The finding was not clearly erroneous.

The trial court also held that defendants’ soil farm operations on their property caused black dirt dust to blow onto the property of abutting owners, thus creating a nuisance. Defendants claim this finding is repugnant to their vested right to continue their nonconforming use. But the existence of a vested right to a prior nonconforming use does not preclude a court from finding that the nonconforming use constitutes a nuisance. Dusdal v City of Warren, 387 Mich 354; 196 NW2d 778 (1972).

Nuisances may be private or public. Awad v McColgan, 357 Mich 386; 98 NW2d 571 (1959). The nuisance at issue here is both: a civil wrong based on a disturbance of defendants’ neighbors’ rights in their land and an interference with the rights of the community at large. Williams v Primary School District #3, Green Township, 3 Mich App 468; 142 NW2d 894 (1966). A nuisance in fact must be distinguished from a nuisance at law, also called a nuisance per se. A nuisance in fact is that which becomes a nuisance by reason of circumstances and surroundings. A nuisance per se is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Buddy v Department of Natural Resources, 59 Mich App 598; 229 NW2d 865 (1975), Marshall v Consumers Power Co, 65 Mich App 237; 237 NW2d 266 (1975).

Changing the nature and size of a nonconforming use constitutes an extension of a prior nonconforming use and is therefore a nuisance. Township of White Lake v Lustig, supra. In the instant case, the trial judge concluded that defendants’ nonconforming use had been expanded. Such expansion is a nuisance per se. Township of White Lake v Lustig, supra.

The trial testimony also supports a finding of nuisance in fact. Plaintiffs presented credible evidence sufficient to prompt a court to conclude that the black dirt dust emanating from defendants’ property and being carried to neighbors properties was a nuisance in fact. Again, we are not able to say nor have defendants persuaded us that the trial court was clearly erroneous.

Defendants also contend that plaintiffs were estopped from seeking injunctive relief and that the trial court therefore erred in granting it. Reliance is placed on Mackenzie v Frank M Pauli Co, 207 Mich 456; 174 NW 161 (1919). Defendants’ reliance is misplaced. The Court in Mackenzie, in fact, found that a nuisance existed but limited the scope of the injunction to the offensive features of defendants’ business. The Court held that expansion of defendants’ business, regardless of whether it was in the area before the plaintiffs were, constituted a nuisance. The plaintiffs in Mackenzie were not estopped from seeking injunctive relief, as defendants here contend. Mackenzie, if anything, supports the plaintiffs’ position.

Defendants present a final charge of error. They claim the trial court was unwarranted in requiring defendants to build a fence around their property and in obliging them to acquire a junkyard license. Defendants argue that the judgment precludes them from using their land to the same extent as others owning land and thereby denies them equal protection.

The issue of equal protection was not raised in the pleadings nor at trial. Pursuant to GCR 1963, 801, these issues cannot be heard on appeal. The Court of Appeals is limited on review to issues decided by the trial court. Hernandez v Consumers Power Co, 51 Mich App 288; 214 NW2d 846 (1974), Behlen Manufacturing Co v Andries-Butler, Inc, 52 Mich App 317; 217 NW2d 125 (1974).

Defendants’ argument that the trial court had no power to require them to build a fence is without merit. An equity court has the power to enjoin a nuisance. Township of. White Lake v Lustig, supra. It is the policy of our courts, however, to tailor the remedy to the problem, to abate the nuisance without completely destroying the business in which the nuisance originates. Hills-dale v Hillsdale Iron & Metal Company, Inc, supra, Mackenzie v Frank M Pauli Co, supra. Equity will not abate a lawful continuing business as a nuisance when it is possible to eliminate objectionable features which infringe upon the ordinary rights of others. Kurrle v Walker, 56 Mich App 406; 224 NW2d 99 (1974). The remedy fashioned by the trial court was tailored to fit the particular nuisance at issue. The fence will both screen the junkyard from view and help prevent the blowing of black dirt and dust.

The contention that the court had no power to require defendants to obtain a junkyard license is also without merit. Defendants claim that because they operated the junkyard as a nonconforming use before the licensing ordinance was passed they cannot be required to obtain a license. The defendants thereby equate a regulatory ordinance with a zoning ordinance.

While a preexisting nonconforming use may exist despite a zoning ordinance, a regulatory ordinance envisions no similar exceptions. A use, albeit nonconforming, is still subject to regulatory ordinances. Casco Township v Brame Trucking Co, Inc, 34 Mich App 466; 191 NW2d 506 (1971). Neither the defendants’ original nonconforming use, nor their expansion of it, excuses them from the licensing ordinance. A regulatory ordinance is not encumbered by a nonconforming use provision.

In fashioning the remedy in this case, the court was mindful of the interests of both sides: the nuisance is abated and yet the' defendants are not completely foreclosed from operating their businesses. The remedy as fashioned suitably meets the needs of each party without destroying either side’s rights.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILKERSON v SEDER
    1. Statutes — Criminal Statutes — Civil Remedy — Legislative Intent — Private Duty — Public Duty.
    Legislative intent to provide a common-law civil remedy based on a criminal statute may be inferred from the statute where the statute creates a private duty for the benefit of particular individuals or a class rather than a duty to the public.
    2. Usury — Criminal Law — Public Obligation — Statutes—Civil Actions.
    The criminal usury act creates a public obligation not to engage in usurious loan transactions and provides for remedies where the statute is violated; therefore, no civil cause of action may be based on the criminal usury act (MCLA 438.31c, 438.32, 438.41, 438.42; MSA 19.15[1] [c], 19.15[2], 19.15[51], 19.15[52]).
    3. Usury — Judgment—Summary Judgment — Issue of Fact — Court Rules.
    Summary judgment was properly granted to a defendant who allegedly drafted a usurious promissory note where the note and mortgage which it represents did not on their face disclose a usurious interest rate and where none of the pleadings, affidavits or depositions contained facts raising an issue as to the defendant’s knowledge of the interest rate (GCR 1963, 117.2[3]).
    Appeal from Clare, Robert H. Campbell, J.
    Submitted January 9, 1978, at Lansing.
    (Docket No. 77-1413.)
    Decided March 7, 1978.
    Leave to appeal denied, 402 Mich 950b.
    Complaint by Joseph Wilkerson and Vesta Wilkerson against James Seder and John J. Hermann to set aside a foreclosure of a mortgage, to clear title to real estate, and for damages for violation of the usury law. Summary judgment in favor of defendant Hermann. Plaintiffs appeal.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes § 300.

       45 Am Jur 2d, Interest and Usury § 307.

       61 Am Jur 2d, Pleadings § 230.

      Affirmed.

      Donald W. Grant and Richard P. King, for plaintiffs.

      John J. Hermann, for defendants.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   Per Curiam.

This appeal involves a complaint against an attorney (Hermann) seeking damages based on his alleged preparation of a promissory note specifying a usurious rate of interest. The trial court granted summary judgment for Hermann on the basis that the complaint failed to state a cause of action, see GCR 1963, 117.2(1), and that plaintiffs had failed to raise an issue of fact as to his knowledge of a usurious interest rate, see GCR 1963, 117.2(3).

The trial court correctly held that plaintiffs failed to state a cause of action.

Plaintiffs contend that a private civil action may be maintained on the basis of the criminal usury statute, MCLA 438.41, 438.42; MSA 19,15(51), 19.15(52). The existence of a civil cause of action based on a criminal statute is based on the presumed intention of the Legislature. See 1 CJS, Actions, § 12, p 996, Intent to provide a common-law civil remedy may be inferred from a penal statute creating a private duty for the benefit of particular individuals or a class, as opposed to a duty to the public, Taylor v Lake Shore & Michigan Southern R Co, 45 Mich 74 (1881), Also relevant is the absence of a statutory remedy, See B F Farnell Co v Monahan, 377 Mich 552, 555-556; 141 NW2d 58 (1966), cf. National Bank of Detroit v Eames & Brown, Inc, 396 Mich 611; 242 NW2d 412 (1976).

We find that the criminal usury act does not create a private duty toward certain individuals, but a public obligation not to engage in usurious loan transactions. Furthermore, the statute itself provides for remedies, including a defense to an action for interest, fees and costs, MCLA 438.32; MSA 19,15(2) and injunctive relief, MCLA 438,31c; MSA 19,15(l)(c). Thus, we hold that no civil cause of action may be based upon the criminal usury statute. Summary judgment under GCK 1963, 117,2(1) was proper.

We also find that plaintiff failed to raise a genuine issue as to Hermann's knowledge of the alleged usurious interest rate. The promissory note and mortgage do not on their face disclose a usurious interest rate. Furthermore, in none of the pleadings, affidavits or depositions filed are there facts raising an issue as to Hermann's knowledge of the interest rate. See Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Summary judgment under GCR 1963, 117.2(3) was also proper.

Affirmed. Costs to appellees.

       The complaint alleged that a one-year note for $24,000 was executed in consideration for a $15,000 loan.
      MCLA 438.41; MSA 19.15(51) provides:
      "A person is guilty of criminal usury when, not being authorized or permitted by law to do so, he knowingly charges, takes or receives any money or other property as interest on the loan or forbearance of any money or other property, at a rate exceeding 25% at simple interest per annum or the equivalent rate for a longer or shorter period. Any person guilty of criminal usury may be imprisoned for a term not to exceed 5 years or fined not more than $10,000.00, or both.”
      MCLA 438.42; MSA 19.15(52) provides:
      "A person is guilty of possession of usurious loan records when, with knowledge of the contents thereof, he possesses any writing, paper, instrument or article used to record criminally usurious transactions prohibited by this act. Any person guilty of possession of usurious loan records may be imprisoned for a term not to exceed 1 year or fined not more than $1,000.00, or both.”


text:
    GIFFELS ASSOCIATES, INC. v DEPARTMENT OF TREASURY
    Taxation — Corporations—Franchise Fees — Deficiencies—Computation of Fee — Acceptance of Annual Reports — Protest— Statutes.
    Computation of franchise fees and acceptance of a corporation’s annual report exhausts the Treasury Department’s authority under the franchise fee act; therefore, payment of any deficiency assessed after the computation of the fee and acceptance of the annual report, based on unauthorized field audits, is not required of a taxpayer under the act and refund of amounts paid under protest is proper (MCLA 450.310; MSA 21.210[1], since repealed).
    Appeal from Corporation Tax Appeal Board.
    Submitted January 11, 1978, at Lansing.
    (Docket No. 77-1514.)
    Decided March 7, 1978.
    Petition by Giffels Associates, Inc., to the Corporation Tax Appeal Board for refund of a franchise fee deficiency paid under protest. Refund granted. Defendant, Department of Treasury, appeals by leave granted.
    Affirmed.

      Boyd E. Chapin, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard R. Roesch and Charles E. Liken, Assistants Attorney General, for the Department of Treasury.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.
    Reference for Points in Headnote
    71 Am Jur 2d, State and Local Taxation § 270.

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

   Per Curiam.

Plaintiff, Giffels Associates, Inc., filed annual reports and paid franchise fees for the years 1968 to 1971. The reports were accepted by defendant. In 1973, defendant conducted a field audit of plaintiff’s books and assessed a franchise fee deficiency of $49,585.29, including interest, for the years 1968-1971, which was paid under protest. Two years later, in Clark Equipment Co v Department of Treasury, Revenue Division, 394 Mich 396; 230 NW2d 548 (1975), the Supreme Court held that the Franchise Fee Division of the Department of Treasury was without authority to conduct field audits and recompute franchise fees after it had once computed the tax and accepted and filed the annual reports. See, also, Borden, Inc v Department of Treasury, 391 Mich 495; 218 NW2d 667 (1974). Plaintiff then sought a refund, which was refused. On appeal, the Corporation Tax Appeal Board, in a 2-1 decision, ordered the refund. Defendant appeals by leave granted.

The question ‘^presented js whether plaintiff is entitled to a refund of franchise fees paid because the department was without authority to conduct a field audit and recompute the franchise fee due.

The statute under which plaintiff sought a refund provided:

"Any corporation subject to the provisions of this act which has paid to the department of treasury an amount in excess of that which it considers to have been legally due from it for any year, within 3 years from the date of such alleged overpayment and not after, may file with the department a written petition to have refunded to it the amount claimed to have been overpaid. If on the petition and the information and proof filed in support thereof, the department determines that the payment of the fee, tax or charge, or any part thereof, was not required of the petitioner by the provisions of this act, it shall cause a refund thereof to be made or, at the option of the corporation, shall credit any such excessive payment to the account of the corporation for application to any franchise fee liability such corporation may incur thereafter. If the department is of the opinion that the payment made by the petitioner was proper it shall deny the request for refund.” MCLA 450.310; MSA 21.210a).

Resolution of this case depends on whether payment of the additional tax was "not required * * * by the provisions of this act” or whether it was "proper”.

In Clark and Borden, supra, the Supreme Court held that under the franchise fee act, computation of the fee and acceptance of the annual report exhausted the Treasury Department’s authority. Therefore payment of any deficiency assessed after that time based on unauthorized field audits was "not required of the petitioner by the provisions of this act”. MCLA 450.310; MSA 21.210(1). Refund of amounts paid under protest was proper.

We note also that this accords with the result reached by this Court in another case involving identical facts. See St Clair-Macomb Consumers Cooperative, Inc v Department of Treasury, 78 Mich App 287; 259 NW2d 462 (1977).

Affirmed. Costs to appellee.

       MCLA 450.304-450.310; MSA 21.205-21.210(1) were repealed by 1975 PA 230, although those sections remain in effect in proceedings involving fees paid before the repeal. See, also, 1975 PA 13, amending MCLA 450.310; MSA 21.210(1).


text:
    PEACOCK TOWNSHIP v PANETTA
    1. Zoning — Interpretation op Ordinances — Restrictions—Property Owners.
    The language of a zoning ordinance must be interpreted, for purposes of determining the extent of a restriction upon the use of property, in favor of the property owner where doubt exists as to the intention of the legislative body.
    2. Zoning — Ordinances—Construction op Ordinances — Campground — Uses Permitted — Townships.
    A township zoning ordinance should be construed to allow the operation of a primitive campground upon land zoned agricultural where the zoning ordinance permits all uses in an agricultural district that are permitted in a commercial-residential district and where the ordinance allows any recognized "mercantile business” in the commercial-residential districts but fails to define the term "mercantile business”, thus leaving it unclear as to what types of uses the drafters of the ordinance intended to permit.
    3. Zoning — Ordinances—Construction op Ordinances — Conditions of the Area.
    It is permissible to inquire into the conditions of the area where a zoning ordinance is intended to operate when construing a zoning ordinance.
    4 Zoning — Townships—Implications—Permissible Uses — Campgrounds — Express Prohibitions.
    An implication arises that a campground is a permissible use of property in sections of a township where they are not expressly prohibited where the township’s zoning ordinance expressly prohibits the construction of campgrounds in certain sections of the township.
    References for Points in Headnotes

       82 Am Jur 2d,Zoning and Planning §§ 66-68.

       82 Am Jur 2d, Zoning and Planning §§ 121,122.

       82 Am Jur 2d, Zoning and Planning §§ 25, 27.

       82 Am Jur 2d, Zoning and Planning § 45.

       82 Am Jur 2d, Zoning and Planning § 186.

      5. Zoning — Ordinances—Validity—Presumptions—Burden of Proof.
    A zoning ordinance is presumed valid and the burden is on a party attacking an ordinance to establish its invalidity.
    6. Zoning — Ordinances—Townships—Governmental Interests— Fire Hazards — Safety Concerns.
    A township’s interim zoning ordinance prohibiting the establishment, alteration or extension of campgrounds within the township for a period of one year advances a reasonable and rational governmental interest where the ordinance was passed in order to allow the township time to evaluate the fire hazards and safety concerns incidental to the large number of campers present in the township during motorcycle rallies.
    7. Zoning — Prior Nonconforming Uses — Reasonableness—Vested Rights.
    A prior nonconforming use is a vested right to continue the lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance; though the ordinance be reasonable, it cannot operate to oust the property owner of his vested right; to establish a nonconforming use it is essential to show nonconformance in a reasonably substantial manner.
    Appeal from Lake, Charles A. Wickens, J.
    Submitted February 7, 1978, at Grand Rapids.
    (Docket No. 77-2010.)
    Decided March 7, 1978.
    Complaint by the Township of Peacock against Louis R. Panetta, Marilyn Panetta and Robert A. Haas for an injunction prohibiting defendants from using their property as a primitive campground. Injunction granted. Defendants appeal.
    Reversed.

      Krolczyk & Danielson, for plaintiff.

      VanKula, Woodruff & Wernette, for defendants.
    Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   Per Curiam.

Defendants appeal as of right from an injunction entered by the Lake County Circuit Court prohibiting defendants from using their property as a primitive campground.

The record reveals the following facts. Plaintiff, Peacock Township, adopted a comprehensive zoning ordinance that went into effect on September 22, 1970. The ordinance established four types of zoning districts: Residential A, Residential B, Commercial-Residential, and Agricultural.

Defendants own a 10-acre parcel of land, of which part is zoned commercial-residential and the remainder is zoned agricultural. Defendants operated a primitive campground on that part of their property that was zoned agricultural. The campground was used primarily by motorcyclists who attended off-the-road rallies at nearby locations. However, other people camped on the property on a regular basis.

On June 17, 1975, plaintiff passed an interim campground and mobile home ordinance. The ordinance provided that no campgrounds could be established, altered or extended for a period of one year.

Defendants continued to allow people to camp upon their property since the ordinance did not prohibit the continued use of an established campground.

Finally, on May 27, 1976, plaintiff amended its comprehensive zoning ordinance to permit campgrounds only in certain sections of the township. Defendants’ property did not lie within one of these designated sections. Accordingly, when defendants announced their intention to continue to allow motorcyclists to camp on their property, plaintiff instituted proceedings which resulted in the issuance of an injunction which prevented defendants from using their property as a primitive campground.

Defendants first contend that the original comprehensive zoning ordinance enacted in 1970 does not prohibit the operation of a primitive campground on their property.

Peacock Township Zoning Ordinance, art VIII, § 1 provides as follows:

"(a) All uses permissible in the Residential 'A’ and 'B’ Districts are permissible in the Commercial-Residential District.
"(b) In addition, any generally recognized mercantile business, including, but not by way of limitation, banks, professional offices, dressmaking and millinery shops, grocery and meat markets, drug stores, sales and showrooms, parking lots, restaurants, rental business, studios, gas stations, hotels, motels and room rentals are permitted.” (Emphasis supplied.)

Peacock Township Zoning Ordinance, art IX, § 1, defines the uses permitted in an agricultural district. This district permits all uses which are permitted in a commercial-residential district. This district also permits uses which are normally associated with farming and agriculture along with light industry.

As the ordinance states, any recognized "mercantile business” is allowed in the commercial-residential districts. The ordinance fails to define the term "mercantile business”, hence, it is unclear as to what types of uses the drafters of the ordihance intended to permit.

"In interpreting the language of the ordinance to determine the extent of the restriction upon use of the property, the language must be interpreted, where doubt exists as to the intention of the legislative body, in favor of the property owner.” 8 McQuillin, Municipal Corporations (3d ed), 1974 Cum Supp, § 25.71, p 50.

Hence, the ordinance in question should be construed to allow defendant to use their property for a primitive campground.

Other factors support this conclusion. When construing a zoning ordinance it is permissible to inquire into the conditions of the area where the ordinance is intended to operate. Peacock Township is sparsely populated. It has about 198 registered voters. More than 60 percent of the township is public land on which persons may camp. In view of these facts, it is reasonable to believe that campgrounds are a use intended to be included in the commercial-residential district. The situation might be otherwise if the ordinance was intended to operate in a metropolitan area.

It should also be noted that art X of the ordinance expressly . prohibits the construction of campgrounds in certain sections of the township. However, defendants’ property is not within one of the prohibited areas. Hence, an implication arises that a campground is a permissible use of property in sections of the township where they are not expressly prohibited.

Therefore, we conclude that defendants’ operation of a campground on their property was a permissible use under the 1970 Peacock Township Zoning Ordinance.

Defendants next contend that the interim zoning ordinance enacted by plaintiff was unconstitutional in that it was not reasonably related to any tenable township interests.

A zoning ordinance is presumed valid. Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976). The burden is on the party attacking the ordinance to establish its invalidity.

Defendants failed to establish that the ordinance did not promote the health, safety or general welfare of the residents of Peacock Township.

Our review of the record indicates that the ordinance was passed in order to allow plaintiff time to evaluate the fire hazards and safety concerns incidental to the large number of campers present in the township during the motorcycle rallies. Such an ordinance advances a reasonable and rational governmental interest.

Also, since the ordinance only prohibited the expansion of current campgrounds and the establishment of new campgrounds, it had no effect on defendants’ continued operation of their campground at its present capacity.

Defendants finally claim that the comprehensive zoning ordinance passed by plaintiff in 1976 cannot prohibit defendants from using their property as a primitive campground since they have already established such a use prior to the effective date of the ordinance.

"A prior nonconforming use is a vested right to continue the lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance. Though the ordinance be reasonable, it cannot operate to oust the property owner of his vested right.” Dusdal v City of Warren, 387 Mich 354, 359-360; 196 NW2d 778 (1972).
"[T]o establish a nonconforming use it is essential to show nonconformance in a reasonably substantial manner.” Township of Fruitport v Baxter, 6 Mich App 283, 285; 148 NW2d 888 (1967).

Prior to the effective date of the 1976 ordinance, defendants had twice used their property as a campsite for hundreds of people attending motorcycle rallies. They also had weekend campers on a regular basis. The record reveals that four persons camped on the property on a year-round basis.

On the basis of this record, it is the opinion of this Court that defendants established the use of their property as a primitive campground prior to the effective date of the 1976 ordinance which prohibited such a use of defendants’ property. Accordingly, defendants should be allowed to use their property as a primitive campground in accordance with their past practices as a prior nonconforming use. The injunction is dissolved.

The other issues raised on appeal do not merit discussion by this Court.

Reversed. No costs, a public question being involved.

       A primitive campground is one which provides only fresh water and lavatory facilities.

        See, People v Detroit Citizens’ R Co, 116 Mich 132, 137-138; 74 NW 520 (1898).


text:
    AUMAN v FEDERAL INSURANCE COMPANY
    1. Insurance — Duty—Good Faith — Negotiating Settlements— Damages.
    An' insurance company has a duty to act in good faith with respect to the interest of the insured when negotiating settlements, and if it fails so to act, the insured may bring an action for the damages he suffers as a result.
    2. Judgment — Summary Judgment — Failure to State Claim — Appeal and Error — Court Rules.
    Summary judgment was improperly granted to a defendant on the ground that the plaintiff had failed to state a claim upon which relief could be granted where the plaintiffs complaint properly stated a valid cause of action (GCR 1963, 117.2[1]).
    3. Judgment — Summary Judgment — Issues of Material Fact— Benefit of Doubt — Genuine Issues of Material Fact — Court Rules.
    Summary judgment was improperly granted to a defendant on the ground that there was no genuine issue as to any material fact where it is clear, interpreting the pleadings and affidavits to give the benefit of reasonable doubt to the plaintiff, that there existed a genuine issue of material fact (GCR 1963, 117.2[3]).
    Appeal from Crawford, William A. Porter, J.
    Submitted November 1, 1977, at Lansing.
    (Docket No. 31417.)
    Decided February 27, 1978.
    Leave to appeal applied for.
    Complaint by Donald R. Auman against the Federal Insurance Company for damages for breach of defendant’s duty to defend the plaintiff from claims arising out of the operation of a motor vehicle insured Under a policy issued by defendant. Summary judgment for defendant. Plaintiff appeals.

      References for Points in Headnotes

       44 Am Jur 2d, Insurance §§ 1530, 1531, 1533.

       73 Am Jur 2d, Summary Judgment §§ 22, 23.

       73 Am Jur 2d, Summary Judgment § 32.

      Reversed and remanded.

      Dreyer & Braevtninger, for plaintiff.

      Plunkett, Cooney, Butt, Watters, Stanczyk & Pedersen (by B. J. Watters and Christine jD. 01-dani), for defendant.
    Before: J. H. Gillis, P. J., añd Báshará and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Plaintiff appeals from the trial court’s order granting summary judgment to defendant.

Plaintiff in his complaint alleged that he was damaged by defendant’s breach of its duty to defend plaintiff in good faith from claims arising out of operation of a motor vehicle insured under a policy issued by defendant. Plaintiff was operating an insured motor vehicle when it was involved in an accident. Defendant negotiated a settlement for $100,000, the amount of the policy limits, with third parties who suffered damages as a result of that accident. In exchange for the settlement, the claimants signed an agreement not to sue defendant and its policyholder, but preserved their rights against plaintiff, which rights they are seeking to enforce in an action for damages in excess of $500,000.

In moving for summary judgment, defendant called the attention of the trial court to the provision in the insurance policy excusing defendant from defending claims filed after the policy limits have been exhausted. The trial court held that defendant, having paid the amount of the policy limits in the settlement, had fulfilled its contractual obligation. Accordingly, he granted summary judgment to defendant.

An insurance company in negotiating settlements has a duty to act in good faith with respect to the interest of the insured, and if it fails so to act, the insured may bring an action for the damages he suffers as a result, City of Wakefield v Globe Indemnity Co, 246 Mich 645; 225 NW 643 (1929), Citizens Mutual Insurance v Nationwide Insurance, 29 Mich App 91; 185 NW2d 99 (1970). Because plaintiff’s complaint properly stated a valid cause of action, summary judgment was improper under GCR 1963, 117.2(1).

The trial court’s action in granting summary judgment to defendant is also not proper under GCR 1963, 117.2(3). The affidavit filed in support of defendant’s motion for summary judgment does not assert that defendant acted in good faith in negotiating the settlement, a matter put in issue by plaintiff in his complaint. It is clear, interpreting the pleadings and affidavits to give the benefit of reasonable doubt to plaintiff, that there exists a genuine issue of material fact, Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). There must therefore be a trial.

Reversed and remanded for trial on the merits. Costs to plaintiff.


text:
    PEOPLE v EDMOND
    1. Bail — Pretrial Release — Standard of Review — Abuse of Discretion — Court Rules.
    The standard of review of a pretrial release or bail decision is abuse of judicial discretion; a trial judge’s exercise of discretion in such matters is guided by nine enumerated factors set out in the pretrial release court rule (GCR 1963, 790.5, 790.7[b], [d]).
    2. Bail — Pretrial Release — Transcript—Motion for Review— Court Reporters — Priority—Court Rules.
    A party seeking review of a bail decision under the pretrial release court rule must file with the Court of Appeals a certified copy of the transcript of the pretrial release hearing at the same time the motion for review is filed; therefore, although not addressed in the rule, it is obvious that court reporters must give immediate priority to the preparation of bail decision transcripts (GCR 1963, 790).
    3. Bail — Amount of Bail — Discretion of Trial Court — Appeal and Error — Court Rules.
    Remand to circuit court for reconsideration of the amount of bail is necessary where there is an absence in the record of particularized consideration of the amount of money bail with specific reference to the nine factors enumerated in the pretrial release court rule and where because of the absence of reasons stated on the record for the decision to require the amount of bail established in the case, the Court of Appeals is unable to review the trial court’s exercise of discretion in setting the amount of bail (GCR 1963, 790).
    4. Bail — Pretrial Release — Amount of Bail — Constitutional Law —Excessive Bail — Assuring Defendant’s Presence — Court Rules.
    A magistrate or arraigning judge in determining which form of release to use under the pretrial release rule and the amount of bail to be required should keep in mind that pretrial release of an accused is a matter of constitutional right and is the state’s favored policy under the pretrial release rule; money bail is excessive if it is in an amount greater than reasonably necessary to adequately assure that the accused will appear when his presence is required (GCR 1863, 790).

      References for Points in Headnotes
    [1, 2] 8 Am Jur 2d, Bail and Recognizance §§ 48, 53, 54.

       8 Am Jur 2d, Bail and Recognizance §§ 58, 68.

       8 Am Jur 2d, Bail and Recognizance §§ 71-73.

       8 Am Jur 2d, Bail and Recognizance § 12 et seq.

      5. Bail — Dangerousness op Accused — Pretrial—Release Decision —Obstruction op Justice — Intimidation of Witnesses — Statutes.
    An accused’s dangerousness to the community in general may not be considered in a pretrial release decision; however, if the accused has made threats agaihst witnesses in the prosecution for which he is being held or otherwise indicates an intention to obstruct the prosecution, that factor may be considered in a pretrial release decision either under the Bail Reform Act of 1966 or as a matter of the court's inherent right to protect the integrity of the judicial process; but the pretrial release decision may not take into consideration allegations that the accused intimidated witnesses or attempted to obstruct justice on a previous occasion, not related to the prosecution for which he is being held, where the accused was never prosecuted for the alleged Intimidation or obstruction of justice (18 USC 3146).
    6. Bail — Appeal and É8H9R — Appeal as op Right.
    There is no appeal as of right to review an order on a bail decision (GCR 1963, 790).
    Appeal from Ingham, Michael G. Harrison, J.
    Submitted January 10, 1978, at Lansing.
    (Docket No. 78-35.)
    Decided March 14, 1978.
    Percy A. Edmond was indicted on one count of conspiracy to deliver heroin and 13 counts of delivery of heroin or possession with intent to deliver heroin. At arraignment on the indictment bail was set at $625,000 and later reduced to $205,000. Defendant appeals.
    Appeal dismissed and the matter remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk,
      Prosecuting Attorney, and John E. Steele, Assistant Prosecuting Attorney, for the people.

      H. Eugene Bennett, for defendant.
    Before: Danhof, C. J., and Bronson and Beasley, JJ.
   Per Curiam.

Defendant has filed a claim of appeal from, and a motion to review, a bail decision, pursuant to GCR 1963, 790.7(b). The prosecuting attorney has filed a motion to dismiss the claim of appeal and, in answer to the motion, contends that the amount of the money bail should be increased because of evidence presented at the pretrial release hearing (but not considered by the trial court in his bail decision) that on a prior occasion defendant solicited the testifying witness to kill a possible witness against defendant’s brother in judicial proceedings apparently not related to the present indictment. No prosecution arose from that alleged solicitation.

Defendant is presently incarcerated in county jail under indictment by an Ingham County Citizens Grand Jury which charges him with one count of conspiracy to deliver heroin and with 13 counts of delivery of heroin or possession with intent to deliver heroin. At arraignment on the indictment, the circuit court set bail in the amount of $625,000 surety bond: $300,000 on the conspiracy count and $25,000 for each additional count contained in the indictment. At a later hearing for pretrial release under GCR 1963, 790, the circuit court considered the nine factors enumerated in subsection 5 of the rule and determined that defendant could be released only on money bail. However, he agreed to reduce the amount of the bail and require surety bond in the amount of $205,000: $75,000 on the conspiracy count and $10,000 on each of the other counts.

The pretrial release rule, which became effective December 20, 1977, provides for review of a circuit court bail decision in this Court by motion. GCR 1963, 790.7(b). The standard of review under subsection 7(d) of the rule is abuse of judicial discretion. Under subsection 5 of the rule, a bail judge’s exercise of discretion is guided by nine enumerated factors. In light of the standard of review set out in the rule and the several factors which must be considered by the bail judge, this Court is unable to perform its role on review of a bail decision without a transcript of the pretrial release hearing. Accordingly, a party seeking review of a bail decision pursuant to GCR 1963, 790.7(b) must file with this Court a certified copy of the transcript of the pretrial release hearing at the same time the motion for review is filed. Although not addressed in the rule, it is obvious that court reporters must give immediate priority to the preparation of bail decision transcripts.

In the present case, defendant contends that the circuit court abused its discretion under the rule by requiring excessive bail. Defendant does not contend that the trial court abused its discretion by requiring money bail, rather than releasing defendant on his own recognizance or on conditional release. Our own review of the record and the nine factors enumerated in subrule 790.5 satisfies us that the trial court did not abuse its discretion in requiring money bail.

On the other hand, we are not able to determine whether the trial court exercised proper judicial discretion in fixing the amount of the bail. It appears that the trial court considered the enumerated factors with reference to the type of release to allow and stated the reasons for its decision on the record. However, the trial judge did not give particularized consideration to those factors with specific reference to the amount of the money bail to be required. We read rule 790 as requiring the bail court to consider the nine factors with reference both to the type of release to be employed and the amount of money bail, if that type of release is determined to be necessary to assure defendant’s appearance. Subrule 790.5 provides, in pertinent part:

"In deciding which release to use and what terms and conditions to impose, the court shall consider available information on [the nine enumerated factors].
"Unless the defendant is released on his own recognizance, the court must state the reason for its decision on the record. ” (Emphasis added.)

In the absence of particularized consideration of the amount of money bail with specific reference to the nine factors enumerated in the rule and in the absence of reasons stated on the record for the decision to require a $205,000 bail in this case, we are unable to review the trial court’s exercise of discretion in this regard. We remand the cause to the circuit court for reconsideration of the amount of bail.

In determining which form of release to use under the pretrial release rule and the amount of money bail to be required, the magistrate or arraigning judge should keep in mind that pretrial release of an accused is a matter of constitutional right and the state’s favored policy under rule 790. Money bail is excessive if it is in an amount greater than reasonably necessary to adequately assure that the accused will appear when his presence is required. Stack v Boyle, 342 US 1; 72 S Ct 1; 96 L Ed 3 (1951).

New rule 790 is silent on the question whether a judge may specifically consider the fact that the accused might be dangerous to society because of threats against witnesses or attempts to obstruct the prosecution. Since rule 790 is modeled on the Bail Reform Act of 1966, 18 USC 3146, and the ABA Standards Relating to Pretrial Release (Approved draft, 1968), we look to those sources for guidance. The Bail Reform Act is similarly silent on the point and Congress apparently deliberately intended to avoid the question of pretrial detention in the act. United States v Wind, 527 F2d 672, 674 (CA 6, 1975). However, Federal cases under the former Federal rule and the Bail Reform Act establish some useful principles. An accused’s dangerousness to the community in general may not be considered in a pretrial release decision. See, for example, United States v Bigelow, 544 F2d 904 (CA 6, 1976), United States v Leathers, 134 US App DC 38; 412 F2d 169 (1969). However, if the accused has made threats against witnesses in the prosecution for which he is being held or otherwise indicates an intention to obstruct the prosecution and, in that sense, is a danger to the community, that factor may be considered in a pretrial release decision either under the Bail Reform Act of 1966 or as a matter of the court’s inherent right to protect the integrity of the judicial process. See, for example, United States v Wind, supra, United States v Gilbert, 138 US App DC 59; 425 F2d 490 (1969). However, the pretrial release decision may not take into consideration allegations that the accused intimidated witnesses or attempted to obstruct justice on a previous occasion, not related to the prosecution for which he is being held, where the accused was never prosecuted for the alleged intimidation or obstruction of justice. To do so would in effect be to deny bail on untried charges which ordinarily cannot be done.

Under the Standards Relating to Pretrial Release, threats to witnesses are not to be considered in the decision to release. However, they may be considered in imposing conditions on release. See ABA Standards, supra, Commentary, p 59, and Standard 5.5, p 65. Under GCR 1963, 790.5, similar conditions can be imposed. Under those guidelines, the circuit court in this case, in deciding what form of release to allow, properly declined to consider evidence that defendant allegedly solicited the testifying witness to kill a witness against defendant’s brother in an unrelated transaction.

Finally, we conclude that a bail decision is not appealable as of right to this Court by claim of appeal. Rule 790.7(b) specifically provides that a bail decision is reviewable by motion. An appeal as of right was never available, nor is it now under GCR 1963, 790, to review an order on a bail decision. Such an order is an interlocutory order and has always been appealable on its own by application for leave. The prosecutor’s motion to dismiss defendant’s claim of appeal is granted.

This cause is remanded to the circuit court for reconsideration of the amount of money bail in light of the nine factors enumerated in subrule 790.5 and for a statement on the record of the court’s reasons for his decision on the amount of bail. The court may make the determination from the present record or may conduct such further evidentiary hearing as he deems necessary, Proceedings on remand shall be conducted within seven days.


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

text:
    PEOPLE v CROSBY
    1. Criminal Law — Automobiles—Necessarily Included Lesser Offenses.
    Unlawful use of an automobile is a necessarily included lesser offense of unlawfully driving away an automobile.
    2. Criminal Law — Instructions to Jury — Necessarily Included Lesser Offenses — Requested Instructions.
    Failure of a trial court to give a requested instruction on a necessarily included lesser offense is reversible error.
    3. Criminal Law — Automobiles—Necessarily Included Lesser Offenses — Instructions to Jury — Prosecutor’s Option.
    A conviction of unlawfully driving away an automobile should be reversed and the case remanded for entry of conviction of unlawful use of an automobile where a trial judge failed to give a requested instruction on unlawful use of an automobile as a necessarily included lesser offense of the charge of unlawfully driving away of an automobile; however, if the prosecutor is persuaded that the ends of justice would be better served, upon notification to the trial judge before resentencing, the trial court should vacate the judgment of conviction and grant a new trial on the original charge.
    Appeal from Kent, George V. Boucher, J.
    Submitted February 7, 1978, at Grand Rapids.
    (Docket No. 25761.)
    Decided March 20, 1978.
    Leave to appeal applied for.
    Danny L. Crosby was convicted of unlawfully driving away an automobile. Defendant appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer,
      Prosecuting Attorney, and Donald A. Johnston III, Chief Appellate Attorney, for the people.

      Reference for Points in Headnotes
    [1-3] 75 Am Jur 2d, Trial §§ 876-882.

      George S. Buth, for defendant on appeal.
    Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   J. H. Gillis, P. J.

On May 13, 1975, defendant was found guilty by a jury of unlawfully driving away an automobile. MCLA 750.413; MSA 28.645. Defendant was sentenced to a prison term of from 3 years, 4 months, to 5 years on August 4, 1975. He appeals as of right.

Defendant raises this issue: Whether unlawful use of an automobile is a necessarily lesser included offense of unlawfully driving away an automobile.

The elements of the crime of unlawfully driving away an automobile, MCLA 750.413; MSA 28.645, are as follows:

1) The motor vehicle must have belonged to another.

2) Possession of the motor vehicle must have been taken.

3) Defendant must have driven or taken away the motor vehicle.

4) The taking of possession and the driving or taking away must have been done without authority.

5) Defendant must have intended to take unlawful possession of the vehicle and drive or take it away, knowing that he had no authority to do so. See People v Shipp, 68 Mich App 452, 455; 243 NW2d 18 (1976).

The elements of unlawful use of an automobile, MCLA 750.414; MSA 28.646, are as follows:

1) The motor vehicle must have belonged to another.

2) Defendant must have taken or used the motor vehicle.

3) The taking or using must have been done without authority.

4) Defendant must have intended to take or use the vehicle, knowing that he had no authority to do so.

MCLA 750.414; MSA 28.646 uses the phrase "without intent to steal”. The absence of an intent to steal is not an element that the people must show beyond a reasonable doubt. This language merely indicates that the statute applies even though there is no intent to steal.

Taking possession of a motor vehicle without authority is prohibited by MCLA 750.413; MSA 28.645. Taking possession of a motor vehicle without authority is not prohibited by MCLA 750.414; MSA 28.646. Otherwise, the two statutes prohibit the same conduct and have the same elements. See People v Blocker, 45 Mich App 138, 142; 206 NW2d 229 (1973).

"Lawful possession” is not an element of the offense of unlawful use of an automobile. It is just that "unlawful possession” does not have to be shown to support a conviction for unlawful use of an automobile. Confusion concerning lesser offenses often results from an analysis which treats the absence of an element as a positive element of a crime. See People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975).

Unlawful use of an automobile is a necessarily lesser included offense of unlawfully driving away an automobile. Failure of the trial court to give a requested instruction on a necessarily lesser in-eluded offense is reversible error. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).

Conviction of unlawfully driving away an automobile is reversed and the case is remanded for entry of judgment of conviction of unlawful use of an automobile. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the original charge. See People v Lank Thomas, 399 Mich 826; 249 NW2d 867 (1977).

We note that this case was tried before People v Ora Jones, supra, and we note that Judge Boucher is not clairvoyant, but in People v Lank Thomas, supra, defendant was convicted November 8, 1974, long before People v Ora Jones was released, and his conviction was reversed.

Remanded to the trial court for proceedings consistent herewith.


author: Danhof, C. J.

text:
    LeBLANC v LENTINI
    1. Physicians and Surgeons — Malpractice—Specialists—General Practitioners — Standard op Care — Statutes.
    Two separate common law standards are applied in evaluating medical care in a malpractice action; specialists are held to the degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge with no geographical limitations, while general practitioners are held to the standards of professional competence of general practitioners existing in their local community or in similar communities in light of the state of the art.
    2. Physicians and Surgeons — Specialists—General Surgeons— Standard of Care — Professional Competence — Witnesses— Expert Testimony.
    A "general surgeon” is not a specialist and does not fall within the category which must be judged by the standard of specialists in specific areas of the practice of medicine; rather, his liability must be determined on the basis of any deviation from the standard of professional competence, and the exercise thereof, in his community or communities sufficiently similar thereto to constitute a proper basis for the expression of qualified expert opinion testimony as to that standard.
    3. Physicians and Surgeons — Malpractice—Standard of Care— Expert Testimony — Admissibility—Judge’s Discretion — Credibility — Jury Question.
    A specialist, in a malpractice action, may testify as to the standard of care of a general practitioner as long as the witness is knowledgeable about the general practitioner’s standard of care; the qualifications of a surgeon testifying as an expert may be based upon the fact that he was a man of experience who had performed similar operations which were not very unusual and who had heard defendant’s testimony as to the practice of surgery in that locality even though he was not from the same area; however, the admissibility of such testimony is within the discretion of the trial court and, if admitted, the credence to be given such testimony is for a jury to determine.

      References for Points in Headnotes

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 110, 111, 116,119.
    Malpractice testimony: competency of physician or surgeon from one locality to testify, in malpractice case, as to standard of care required of defendant practicing in another locality. 37 ALR3d 420.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 199-201, 205-207.

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

       41 Am Jur 2d, Husband and Wife § 451.
    61 Am Jur 2d, Physicians, Surgeons and Other Healers § 216.

      4. Appeal and Error — Mistrial—Prejudicial Questions — Cure of Prejudice — Judge’s Discretion — Miscarriage of Justice.
    A trial court’s denial of a defendant’s motion for mistrial based upon unanswered improper and prejudicial questions will not be disturbed by the Court of Appeals where prompt and forceful action by the trial judge cured the prejudice and there was no miscarriage of justice.
    5. Witnesses — Proper Questions — Cross-Examination—Judge’s Discretion — Trial—Mistrial—New Trial.
    A trial court’s refusal to declare a mistrial or to grant a new trial on the basis of an alleged improper question was not an abuse of discretion where counsel had a reasonable basis for asking the question which was proper cross-examination attempting to show the bias of an expert witness.
    6. Divorce — California Law — Judgment Nunc Pro Tunc — Retroactive Divorce — Validation of Marriage — Damages—Marital Consortium — Prejudice.
    A nunc pro tunc divorce judgment, retroactive to a date when a final divorce judgment could have been obtained but was not may be entered in California for the purpose of validating a subsequent marriage; a validation of a marriage entered into before a divorce was final by means of a California nunc pro tunc divorce judgment is a basis to support a claim for damage to marital consortium, in a new Michigan marriage, arising from malpractice where there has been no showing that the defendant would be unfairly prejudiced thereby.
    Appeal from Cheboygan, Philip J. Glennie, J.
    Submitted December 6, 1977, at Grand Rapids.
    (Docket No. 28449.)
    Decided March 20, 1978.
    Leave to appeal applied for.
    Complaint by Samuel LeBlanc and Beverly LeBlanc against Nicholas Lentini, M.D., for damages for medical malpractice. Judgment for plaintiffs. Defendant appeals.
    Affirmed.

      Richard H. Scholl, for plaintiffs.

      Clark, Stroup, Brown, MacKenzie & Pointner, for defendant.
    Before: Danhof, C. J., and T. M. Burns and M. J. Kelly, JJ.
   Danhof, C. J.

Plaintiffs filed suit in circuit court on August 16, 1973, alleging medical malpractice by the defendant, and others, in connection with surgeries performed by the defendant on plaintiff Samuel LeBlanc on January 22, 1973, and January 25, 1973, in a hospital in Cheboygan, Michigan.

On December 18, 1975, a jury returned verdicts in favor of both plaintiffs, Samuel LeBlanc was awarded $225,000 and Beverly LeBlanc was awarded $25,000. Judgment was subsequently entered on these verdicts. Defendant’s motions for judgment notwithstanding the verdict and for relief from judgment, or in the alternative, for a new trial were denied by the circuit court. Defendant appeals as of right.

Plaintiffs’ third amended complaint filed June 12, 1975, alleged that Samuel LeBlanc had consulted with Dr. Lentini in January of 1973 because of digestive system disorders and as a result, Dr. Lentini had had Mr. LeBlanc admitted to a hospital on January 9, 1973. The complaint further alleged that Dr. Lentini diagnosed plaintiff’s condition as esophageal hiatus hernia and duodenal ulcer and, essentially, that defendant committed medical malpractice by performing unnecessary surgery on January 22, 1973, when conservative medical treatment was the only treatment indicated for Mr. LeBlanc’s condition; by performing the January 22, 1973, surgery without plaintiffs’ informed consent; by negligently leaving an 18" X 18" surgical sponge inside Mr. LeBlanc at the conclusion of the January 22, 1973, surgery; and by failing to properly close the surgical wound at the conclusion of a second surgery performed on January 25, 1973, to remove the sponge. The complaint further alleged various resulting injuries and damages suffered by Mr. LeBlanc including permanent weakening of the incisional area resulting in several incisional herniae requiring still further surgeries for correction, and loss of consortium by Beverly LeBlanc.

Defendant raises eight issues on appeal. We affirm.

I

Defendant states his first issue as follows:

"Was the testimony of plaintiffs’ expert witness, Dr. George W. Miller, properly admitted against defendant Lentini, a general practitioner, even though Dr. Miller was admittedly unfamiliar with the medical standards of the Cheboygan community, and improperly based his testimony on a supposed national standard of care applicable to all general practitioners? No. ”

This issue involves two separate questions: The proper standard of care to be applied in this case, and the competency of Dr. Miller to testify as to the applicable standard of care. In general, in Michigan there are two separate standards applied in evaluating medical care in a malpractice action. Specialists are held to the degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge with no geographical limitations, while general practitioners are held to the standard of professional competence of general practitioners existing in their local community or in similar communities in light of the state of the art.

The plaintiffs argued in the trial court that defendant Dr. Lentini was a specialist subject to a national standard of care because he had held himself out as a surgeon. In effect, the plaintiffs equated surgeon with specialist. The trial court ruled that the standard of practice applicable to Dr. Lentini "is one of locality, * * * governed by the standard of practice in Cheboygan and of similar communities”. In an attempt to justify the admission of Dr. Miller’s testimony, plaintiffs have reiterated to this Court their argument that Dr. Lentini was a surgeon or held himself out to be a surgeon and was therefore to be judged as a surgeon. Wood v Vroman, 215 Mich 449, 465-466; 184 NW 520 (1921). Consequently, argue plaintiffs, Dr. Lentini was a specialist subject to a "national” standard of care under the holding of Naccarato v Grob, 384 Mich 248, 253-254; 180 NW2d 788 (1970), which reads in part:

"The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a speciality. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a speciality. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony.”

Dr. Lentini testified that he was both a physician and a surgeon practicing in the Cheboygan, Michigan, area and was a fellow of the International College of Surgery. Dr. Lentini further testified that he designated himself as a physician and a surgeon, an M.D. and F.I.C.S. He further testified that he was not "board certified” as a surgeon and not a member of the American College of Surgeons, that he did have extensive surgical privileges at the local hospital and that most of the surgeries he performed were on patients generated within his own general practice. This testimony shows that the trial court applied the correct standard of care in this case. The defendant was not a specialist. Defendant was a general practitioner who performed a large number of difficult surgeries. He had not specialized as a surgeon, nor as a practitioner of any particular type of surgery. In Abbe v Woman’s Hospital Association, 35 Mich App 429, 433-434; 192 NW2d 691 (1971), this Court found that a "general surgeon” was not a specialist and that

"He does not fall within the category which must be judged by the standard of specialists in specific areas of the practice of medicine. Rather, his liability must be determined on the basis of any deviation from the standard of professional competence, and the exercise thereof, in his community or communities sufficiently similar thereto to constitute a proper basis for the expression of qualified expert opinion testimony as to that standard.”

The defendant in the instant case was both a general practitioner and a surgeon. The plaintiff failed to demonstrate that the defendant was a specialist in a specific area of medical practice. Therefore, the holding of Naccarato v Grob, supra, does not apply here.

The "locality” rule has been variously stated by Michigan courts. In Miller v Toles, 183 Mich 252, 257; 150 NW 118 (1914), the Court stated:

"In treating a broken or diseased limb, the implied contract between the surgeon and patient is not to restore it to its natural condition, but to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities, giving due consideration to the state of the art at the time. 30 Cyc. p. 1573, n. 35; 39 Cent. Dig. title Physicians and Surgeons,’ § 23.”

In Morgan v Engles, 13 Mich App 656, 661; 164 NW2d 702 (1968), this Court stated:

"In a negligence action, a qualified medical practitioner should be subject to liability if he fails to exercise an established standard of care and skill. The standard is not determined by the particular physician’s actual or constructive knowledge of treatments, but rather by the customary practice in the local medical community and an area coextensive with the medical and professional means available in centers readily accessible for appropriate treatment of the patient.”

In Lince v Monson, 363 Mich 135, 140-141; 108 NW2d 845 (1961), the Court also pointed out the necessity for expert testimony in order to establish most medical malpractice claims:

"In a case involving professional service the ordinary layman is not equipped by common knowledge and experience to judge of the skill and competence of that service and determine whether it squares with the standard of such professional practice in the community. For that, the aid of expert testimony from those learned in the profession involved is required. As this Court said in Zoterell v. Repp, 187 Mich 319, 330 [153 NW 692 (1915)]:
" 'As to those matters of special knowledge strictly involving professional skill and attention, unskillfulness, negligence, or failure to do that which ought to be done must be shown by the testimony of those learned in such matters.’
" 'In conduct, like that of a surgeon, resting upon judgment, opinion, or theory, the ordinary rules for determining negligence do not prevail. Luka v. Lowrie, 171 Mich 122 [136 NW 1106 (1912)] (41 LRA NS 290); The Tom Lysle (WD Pa), 48 F 690; Brown v. French, 104 Pa 604; Williams v. LeBar, 141 Pa 149 (21 A 525). One reason for the rule is that when one acts according to his best judgment in an emergency, he is not chargeable with negligence. Luka v. Lowrie, supra; Staloch v. Holm, 100 Minn 276 (111 NW 264, 9 LRA NS 712); Williams v. Poppleton, 3 Or 139; 30 Cyc, p 1587; Sherwood v. Babcock, 208 Mich 536 [175 NW 470 (1919)].
" 'In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.’ Delahunt v. Finton, 244 Mich 226, 229, 230 [221 NW 168 (1928)].”

See also Perri v Tassie, 293 Mich 464, 469-471; 292 NW 370 (1940).

Several Michigan cases have dealt with the test to be used in determining the competency of an expert medical witness to testify as to the applicable standard of care. Sampson v Veenboer, 252 Mich 660, 666-667; 234 NW 170 (1931), reads in part:

"It is claimed that Dr. Thexton did not have the qualifications of an expert, and that his testimony should have been excluded. He was permitted to testify as to the practice of surgery in Grand Rapids and similar communities in western Michigan.
"He never visited the hospitals or practiced medicine or surgery in the State of Michigan.
"The fact that he was a man of experience and had performed somewhat similar operations, even though not the identical one in question, and the further fact that it was not shown that this was a very unusual operation, and the further knowledge that he obtained in the court-room listening to defendant’s testimony in regard to the practice of surgery in Grand Rapids, were sufficient to qualify him as an expert. The jury was sufficiently informed so as to be able to judge the extent of his qualifications and to decide how much credence should be given to the testimony. At times it may become necessary to secure the expert testimony of one who resides some distance from the home of a defendant accused of malpractice, for it may be difficult to obtain a witness to testify against one who bears the very high professional reputation of defendant. If it would always be necessary to secure an expert from the vicinity of the home of a defendant who might be the only practitioner there, it would be impossible to secure such testimony at all. What credence should be given to the expert’s statements is another matter. That was the province of the jury.”

In Siirila v Barrios, 398 Mich 576, 597; 248 NW2d 171 (1976), the Court concluded that:

"[A] specialist may testify as to the standard of care of a general practitioner as long as the witness is knowledgeable about the general practitioner’s standard of care.”

More recently, in Callahan v William Beaumont Hospital, 400 Mich 177, 180; 254 NW2d 31 (1977), in discussing the standard for determining the competence of a witness to testify as to the local standard of care, the Court stated:

"The question is not whether the proffered expert witness ever practiced in the same geographical area in which the defendant practiced or in a similar area. Rather, the determinative question is whether the proposed expert witness knew what the practice was.”

Pertinent excerpts from the testimony of the plaintiffs’ expert witness, Dr. Miller, include:

"A. I am familiar with the standard of care for duodenal ulcer in the entire United States, which would include, I believe, Cheboygan.
"Q. Now, your testimony regarding the treatment of this disease, do you know whether this, or what the standard of practice is in a medical community including Cheboygan, Michigan, with regard to your testimony—
"MR. STROUP: Again, for the benefit of the record, your Honor, I have an objection. I understand the Court previously ruled against me on that point, but I want the record to reflect—
"THE COURT: First of all, let us see whether the answer to the question, first of all, is yes or no. That will determine the objection.
"A. The standard of practice — I’m sorry—
"THE COURT: Do you know the standard of practice?
"A. The answer is yes, sir.
"THE COURT: Objection is overruled. He may answer.
"Q. [sic] The standard practice for hiatus hernia is well known throughout this country, as was indicated yesterday in preliminary examination, or whatever the term is. We are not living in the days where people in Cheboygan should get less care than the people who are living in Manhattan.
"Q. (By Mr. Scholl, continuing) All right.
"A. And that the transmission of medical knowledge is so broad and diffuse that there is a national standard of care.
"Q. With respect to the treatment—
"A. Of hiatus hernia.
"Q. Dr. Miller, do you have an opinion whether or not Dr. Lentini’s performance of surgery on 1/22/73 for hiatal hernia and duodenal ulcer on Mr. LeBlanc constituted a deviation from the standard of practice for the City of Cheboygan?
"MR. STROUP: I object, your Honor, on the grounds which the Court previously ruled on as to this witnesses] competency to pass upon the standard of care in Cheboygan. Further, I think the question is overly broad and calls for a conclusion of the witness and invades the province of the jury.
"THE COURT: I’ll permit the doctor to answer. Objection overruled.
"Q. (By Mr. Scholl, continuing) You may answer the question, Doctor. Do you have an opinion?
"A. I do, sir.
"Q. And what is your opinion?
"A. My opinion is that this disease is so common throughout the entire United States, the bed of knowledge is so well proven, and the indications for surgical intervention are so well recognized, there are absolutely —or unfortunately, I can find no indications for surgery being performed on Mr. LeBlanc.
"Q. So my question to you once again then is, did the performance of surgery by Dr. Lentini on January 22, 1973, doing surgery on a hiatus hernia and duodenal ulcer, violate the standard of practice as it should be practiced in the City of Cheboygan?
"A. It is my best medical opinion that it did, sir.
"Q. (By Mr. Scholl, continuing) Doctor, do you know what the standard of practice is among general practitioners or surgeons who may engage in surgery, in a community of the size of Cheboygan, or of Cheboygan, or community of similar size in the State of Michigan, concerning the question of informed consent?
"A. Yes, I believe I do, sir.
"Q. Doctor, do you have an opinion as to whether or not though, after the search that I’ve indicated to you previously that was made for the sponge, whether it was consistent with good surgical practice — standard of good surgical practice in a community such as Cheboygan, to sew the patient up when the sponge was unaccounted for, and the patient’s vital signs were not alarming insofar as this patient’s well being was concerned?
"A. I think it’s a large deviation from the standard of practice to close a patient up when there is a deviation of the sponge count.”

Defendant argues that the trial court, by allowing Dr. Miller’s testimony to get to the jury, extended the national standard of care to general practitioners thereby committing clear error. We disagree. The trial court correctly ruled that the locality standard applied but that in some cases, local standards might be uniform throughout the United States:

" 'THE COURT: Well, the Court is prepared to rule. I’m going to rule, of course, that the test is one of locality, that the standard of practice insofar as Dr. Lentini is concerned is governed by the standard of practice in Cheboygan and of similar communities. However, there are certain areas in connection with medicine that are so well known that I think that any expert could testify as to that standard of practice, and so I think what we’ll do, I’ll permit you to go forward with your questioning and subject, of course, to any further objection, but as I state, there are areas of medicine so well known and taught, and they are commonplace in every locality, every community both large and small in the entire United States, and if this is one of those situations, then of course, I will permit the doctor to testify.’
" 'THE COURT: Let me decide it as far as this case is concerned. As I state, at this point, the standard of practice is the practice within the area of Cheboygan and other similar communities of like size, and so on. That will be the standard. It’s been stated so many times by the Michigan Supreme Court.’ ” (Emphasis added.)

While the burden was on the plaintiffs to establish that their expert, Dr. Miller, knew the applicable standard of care, the admissibility of Dr. Miller’s testimony was a matter within the discretion of the trial court. Siirila v Barrios, supra, at 591. Our careful review of the extensive record in this case convinces us that the trial court did not abuse its discretion in admitting the testimony of Dr. Miller.

Dr. Miller’s testimony included the following: That he had been present throughout the testimony given by the defendant, Dr. Lentini, when the defendant was called as plaintiffs’ first witness; (This testimony by Dr. Lentini dealt with his treatment of Samuel LeBlanc and generally with his practice in Cheboygan including defendant’s assertions that he was a general practitioner who had performed hundreds of surgical operations of the same magnitude as the ones performed on Samuel LeBlanc, and that he spent approximately two weeks per year attending post graduate courses in various parts of the United States); he, Dr. Miller, received his M.D. degree in Massachusetts in 1951, spent four years in surgical residency there, he thereafter practiced (primarily surgery with 20% to 30% general practice) in Norway, Maine and South Paris, Maine, for a three-year period (1957-1960) at a community hospital, that these communities were of a size which we note is similar to that of Cheboygan; that he became board certified in general surgery while practicing in Norway and has since regarded himself as a surgical specialist; that he became a fellow of the American Cancer Society and practiced extensive heroic cancer surgery for two years at the Sloan-Kettering Institute in New York; that he then came to Detroit, Michigan, to work in industrial medicine and did consultant work for Blue Shield; that since 1965, when he underwent an unsuccessful back operation, he has not practiced surgery, but since 1967, he has engaged in general practice, devoting a substantial portion of his time to legal matters including giving expert testimony, currently practicing in St. Clair Shores, Michigan, and Grosse Pointe Farms, Michigan; that he was familiar with the applicable standard of practice in those cities; that he was familiar with the standards of practice for general practitioners with respect to the diagnosis and treatment of duodenal ulcers and hiatal hernias in Norway, Maine, at the time of his practice there and that the general standard of treatment for duodenal ulcers had not changed significantly since that time and that the known causes and basic treatment of the two conditions had remained unchanged from the time he practiced in Norway, Maine, and that the standard of practice in treating duodenal ulcers is the same throughout the United States; that he has treated duodenal ulcer and hiatus hernia patients in his own practice; and that duodenal ulcer and hiatal hernia "is one of the most popular subjects that are discussed, because it is one of the most frequent and common recurring symptoms in our society”.

Considering the background of the witness and the nature of the medical conditions involved, we believe that Dr. Miller was sufficiently qualified to testify as an expert on the applicable standard of care in Cheboygan or similar communities at the time in question, even though he had never treated a patient in Cheboygan and was generally unfamiliar with the area. How much credit to give to his testimony was for the jury to decide. Sampson v Veenboer, supra.

II

Defendant also contends that the trial court erred "in refusing to grant defendant’s motion for mistrial regarding improper cross-examination by plaintiffs’ counsel questioning defendant as to why his attorney made an objection”.

Defendant testified in his own behalf during the trial. While cross-examining the defendant, plaintiffs’ counsel asked the defendant why defense counsel had objected to certain questions asked of other witnesses. Defense counsel objected and moved for a mistrial. The objection was sustained, the mistrial denied and the jury was instructed that defense counsel "is not the agent of defendant in this case” and that arguments, statements and remarks of attorneys are not evidence. Plaintiffs’ counsel then asked, the same question again in slightly altered form. The trial court ordered the question stricken from the record and directed plaintiffs’ counsel not to pursue it any further. The questions went unanswered. Assuming arguendo that the questions themselves were improper and prejudicial, we believe that the prompt and forceful action of the trial court cured the prejudice and that no miscarriage of justice resulted from the trial court’s exercise of discretion in denying the mistrial. Therefore, we will not disturb that ruling. Kucken v Hygrade Food Products Corp, 51 Mich App 471, 473; 215 NW2d 772 (1974).

III

Defendant also contends that the trial court erred in refusing to declare a mistrial after plaintiffs’ counsel, while cross-examining, asked one of defendant’s expert witnesses, Dr. Rankin, the following question:

"Q. Under your oath, did you make a remark yesterday out here in the door to Mrs. MacKenzie, like this, 'Don’t worry about it. We’ll shove it to him’?”

Dr. Rankin’s answer and subsequent testimony were:

"A. I don’t recall that.
"Q. You don’t recall that, sir?
"A. No.
"Q. Are you saying that you did not make that remark?
"A. I didn’t say that. I said I do not recall that.
"Q. Is that why you are so evasive to this question, Doctor?
"A. I am not being evasive. I am only trying to answer what’s on the record.
"THE COURT: The jury will step out a moment.”

After the jury was excused, Dr. Rankin testified that he had not made the statement. Mrs. MacKenzie, defense counsel, also testified out of the presence of the jury that she did not recall such a statement having been made. With the jury still excused, Linda Gilbo, a friend of the plaintiffs and a spectator at the trial, testified that she had overheard the remark being made by Dr. Rankin to Mrs. MacKenzie on the previous day and had informed plaintiffs’ counsel that the statement had been made.

Defense counsel asked for a mistrial, which was not granted. No cautionary instruction was requested and none was given. Defendant cites Sullivan v Deiter, 86 Mich 404; 49 NW 261 (1891), and People v Rice, 136 Mich 619; 99 NW 860 (1904), to support his contention that the question put to Dr. Rankin was improper. Both of these cases are clearly distinguishable. The record in the instant case shows that plaintiffs’ counsel had a reasonable basis for asking the question which was proper cross-examination attempting to show the bias of the witness. Hayes v Coleman, 338 Mich 371, 380-381; 61 NW2d 634 (1953). See also Snyder v Mathison, 196 Mich 378, 387; 163 NW 104 (1917). Since the question was not improper, no error was committed in refusing to declare a mistrial. The trial court’s refusal to grant a new trial based on its finding of lack of error was also a proper exercise of its discretion. See Willett v Ford Motor Co, 400 Mich 65, 70-71; 253 NW2d 111 (1977).

IV

Defendant also argues that the judgment in favor of Beverly LeBlanc "for damage to the marital consortium is unsupportable in fact and fraudulently procured and accordingly ought to be set aside”. The plaintiffs, Samuel and Beverly LeBlanc, consistently maintained prior to and during trial that they were married to each other. Samuel LeBlanc had been previously married, he and his first wife were granted an interlocutory judgment of divorce in California on September 8, 1965. However, the final judgment of divorce was not granted until February 2, 1967. Plaintiffs were married to each other in Detroit, Michigan, on December 17, 1966. Defendant argues that Samuel LeBlanc was under a legal disability to contract the second marriage due to his prior subsisting marriage to his first wife and that therefore the second marriage was a nullity. MCLA 552.1; MSA 25.81.

On March 19, 1976, upon application by Samuel LeBlanc to the Orange County California Superior Court, the February 2, 1967, divorce order was set aside and a final judgment of divorce nunc pro tunc to May 2, 1966, was granted. Plaintiffs argue that this nunc pro tunc order validated the second marriage. In ruling on this issue the circuit court stated:

"Upon review of the testimony and the matters alleged, this Court is of the opinion that Samuel LeBlanc did not commit fraud on the Court. He was served with a copy of the Interlocutory Judgment and may well have believed that such divorce was final. In any event, Samuel LeBlanc’s former wife did not secure the final Judgment until many months after the time when such Judgment could have been entered by the Court in Orange County, California. Since the trial of this cause, such Judgment has been finalized nunc pro tunc, a procedure which is recognized in the State of California and by this Court.”

California law provides for granting such nunc pro tunc judgments retroactively to a date when a final divorce judgment could have been, but was not, obtained for the purpose, among others, of validating subsequent marriages. Validation of the marriage between the plaintiffs, effective from the original date of that marriage, is within the scope of the California law. Armstrong v Armstrong, 85 Cal App 2d 482; 193 P2d 495 (1948). See also Waller v Waller, 3 Cal App 3d 456; 83 Cal Rptr 533 (1970), and In re Marriage of Frapwell, 53 Cal App 3d 479; 125 Cal Rptr 878 (1975), for additional discussion of the California law.

Defendant argues that the nunc pro tunc order cannot "retroactively validate the fraudulent judgment entered in favor of Beverly LeBlanc in the instant case”. We agree that the retroactive validation of the marriage does not necessarily affect the rights of the defendant acquired prior to March 19, 1976. However, absent any showing that the defendant would be unfairly prejudiced thereby, we hold that the retroactive validation of the plaintiffs’ marriage provides a sufficient basis for the judgment in question.

V

Defendant’s other allegations of error either present issues not properly preserved for appellate review or are without merit.

Affirmed. Costs to plaintiffs.

       In his “to concur” opinion in Siirila v Barrios, 398 Mich 576, 634; 248 NW2d 171 (1976), Justice Williams argued for a modified rule and concluded:
      "We would hold that the test in Michigan henceforth shall be that a general practitioner is under duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class, acting under the same or similar circumstances, having in mind (a) the state of the art for the particular medical situation, (b) whether a specialist should reasonably have been consulted and (c) such local factors as might be pertinent.”
      Subsequently, however, in enacting MCLA 600.2912(a); MSA 27A.2912(1), the Legislature has established the following:
      "In an action alleging malpractice the plaintiff shall have the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:
      "(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
      "(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.”

       The parties apparently agree that an exception to this general rule existed as to the sponge issue and that the jury in the instant case could have considered, even absent expert testimony, whether the defendant was negligent in leaving the surgical sponge in the body of the plaintiff for several days. See LeFaive v Asselin, 262 Mich 443; 247 NW 911 (1933), and Winchester v Chabut, 321 Mich 114, 119; 32 NW2d 358 (1948).

       Dr. Miller testified that "Norway, and South Paris, * * * are communities of about five to eight thousand”. In defendant’s brief the 1970 population of the City of Cheboygan is given as 5,533.