author: J. H. Gillis, J.

text:
    SHEMMAN v AMERICAN STEAMSHIP COMPANY
    Docket No. 77-2239.
    Submitted January 16, 1979, at Detroit.
    Decided April 5, 1979.
    Leave to appeal applied for.
    References for Points in Headnotes

       32 Am Jur 2d, Federal Employers’ Liability and Compensation Acts §§ 39, 40, 73.

       32 Am Jur 2d, Federal Employers’ Liability and Compensation Acts § 71.
    Applicability of state practice and procedure in Federal Employers’ Liability Act actions brought in state courts. 79 ALR2d 553.

       32 Am Jur 2d, Federal Employers’ Liability and Compensation Acts §§ 51, 53.
    70 Am Jur 2d, Shipping §§ 412-414.

       32 Am Jur 2d, Federal Employers’ Liability and Compensation Acts § 52.
    70 Am Jur 2d, Shipping § 530.
    Shipowner’s liability for injury or death of seaman resulting from failure to furnish him adequate assistance for work on or connected with vessel—Federal cases. 18 L Ed 2d 1497.

       75 Am Jur 2d, Trial §§ 193, 194, 274, 307-314.
    Supreme Court’s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L Ed 2d 886.
    Prejudicial effect of argument or remark that adversary was attempting to suppress facts. 29 ALR2d 996.
    Prejudicial effect, in argument or summation in civil case, of attacks upon opposing counsel. 96 ALR2d 9.

       75 Am Jur 2d, Trial § 306.

       29 Am Jur 2d, Evidence §§ 251-254, 309.
    30 Am Jur 2d, Evidence § 1121.
    32 Am Jur 2d, Federal Employers’ Liability and Compensation Acts §54.

       29 Am Jur 2d, Evidence § 661.

       30 Am Jur 2d, Evidence §§ 927, 930, 931, 933, 945, 950.
    What constitutes books of original entry within rule as to admissibility of books of account. 17 ALR2d 235.
    Verification and authentication of slips, tickets, bills, invoices, etc., made in regular course of business, under the Uniform Business Records as Evidence Act, or under similar "Models Acts.” 21 ALR2d 773.

       29 Am Jur 2d, Evidence §§ 251-256.

       75 Am Jur 2d, Trial § 651.

      Ahmed S. Shemman brought an action for damages for personal injuries against American Steamship Company in Wayne Circuit Court. The injuries were allegedly sustained by plaintiff while he was performing his duties as a fireman aboard a coal-fired steamer owned by the defendant. Judgment for plaintiff, John H. Hausner, J. The defendant appeals alleging: 1) that there was insufficient evidence to submit the issue of negligence to the jury, 2) that the issue of the seaworthiness of the vessel was improperly submitted to the jury, 3) that reversal is mandated because the conduct of the plaintiff’s attorney was inflammatory and prejudicial, 4) that the trial court erred in denying the defendant the opportunity to present evidence of the plaintiff’s physical condition at the time he left the ship as well as evidence of subsequent alleged malpractice, 5) that the trial court improperly refused to admit a time card signed by the plaintiff indicating that he had worked his regular watch plus an hour of overtime on the day of the alleged injury, 6) that the trial court improperly instructed the jury that adverse inferences could be drawn from the defendant’s failure to record in the engine room log the event of plaintiff’s injury, from the defendant’s failure to produce records concerning the coal purchased for use aboard the vessel and from the defendant’s failure to produce, at trial, a film taken by the defendant’s investigator, and 7) that the trial court erred in refusing to instruct the jury that it should disregard inflation in making any award for loss of future earnings.
    The plaintiff cross-appeals, alleging that interest should have been awarded from the date of the filing of the complaint rather than from the date of judgment. Held:

    1. The Federal act covering actions for damages for personal injuries by seamen against shipowners (Jones Act) requires only the slightest negligence on the part of a shipowner for a finding of liability. In addition, in actions based on the Jones Act, the burden of proof on a plaintiff to prove proximate cause is very light. Applying these standards, the plaintiff produced sufficient evidence to go to the jury on the issue of negligence.
    2. The plaintiff’s allegation that the defendant failed to give adequate training to the plaintiff for his duties and the evidence introduced were sufficient to send the issue of unseaworthiness to the jury. In determining the seaworthiness of a vessel, there is no reason to distinguish between a shipowner’s failure to provide a seaman with adequate gear or adequate shipmates and failure to provide him with adequate training for the job at hand.

       75 Am Jur 2d, Trial § 767.

       29 Am Jur 2d, Evidence § 801.
    75 Am Jur 2d, Trial § 769.
    Use of motion pictures as evidence. 62 ALR2d 686.

       32 Am Jur 2d, Federal Employers’ Liability and Compensation Acts § 75.

       45 Am Jur 2d, Interest and Usury §§ 96-98.
    Date of verdict or date of entry of judgment thereon as beginning of interest period on judgment. 1 ALR2d 479.

      3. The plaintiffs attorney did engage repeatedly in improper arguments and innuendos and the cumulative effect was so highly prejudicial to the defendant as to deny the defendant a fair trial. The proper remedy is to remand for a new trial.
    4. The defendant’s attempts to present evidence of the plaintiffs condition at the time he left the ship as well as evidence of alleged subsequent medical malpractice were an effort to support the defendant’s contention that the plaintiffs disk pathology was not caused by his injury aboard the ship but was the result of medical malpractice and to show that the medical malpractice was not causally related to the original injury. The trial judge erred in refusing to admit this evidence.
    5. The trial court’s determination that the circumstances surrounding the plaintiffs signing of the time card prevented the time card from being admissible as an adoptive admission will not be disturbed. However, the time card was independently admissible as a business record and was highly relevant. The trial court abused its discretion in refusing to admit the time card into evidence.
    6. The trial court’s instruction indicating that an adverse inference could be drawn from the defendant’s failure to record in the engine room log the event of the plaintiffs injury was error because there was no proof supporting the instruction.
    7. The amount or type of coal involved was irrelevant to the issue of liability. Giving an adverse inference instruction based on the defendant’s failure to produce records when the records were of no relevance was prejudicial to the defendant.
    8. It was error for the trial court to give an adverse inference instruction concerning the defendant’s failure to develop the film because, given the date and time of day that the film was taken, the defendant’s contention that there was insufficient lighting to make developing the film worthwhile was reasonable.
    9. In cases such as the present case the entire proceeding, including the measure of damages, is governed by principles of maritime law. Accordingly, the damages must be reduced to present value, as the trial court instructed in this case. The trial court did not err in refusing to give the instruction requested by the defendant that inflation be disregarded in measuring damages.
    10. The Jones Act incorporates the Federal Employers’ Liability Act. The allowance of interest on such a judgment is a matter of Federal substantive law. The trial court was correct in denying prejudgment interest.
    Reversed and remanded for a new trial.
    1. Seamen — Shipowners — Negligence — Contributory Negligence — Assumption of Risk — Federal Statutes.
    Even the slightest negligence on the part of a shipowner suffices under a Federal statute for a finding of liability for personal injuries suffered by a seaman; if such negligence is found, neither contributory negligence nor assumption of risk will defeat a seaman’s claim (46 USC 688).
    2. Seamen — Shipowners — Negligence — Proximate Cause — Burden of Proof — Federal Statutes.
    The burden of proof on a seaman-plaintiff in an action brought under a Federal statute, for personal injuries sustained as a result of the negligence of a shipowner-defendant, to prove proximate cause is very light, even featherweight; the test in a jury case is whether the proofs justify with reason the conclusion that the shipowner’s negligence played any part, even the slightest, in producing the injury for which damages are sought (46 USC 688).
    3. Negligence — Seamen — Shipowners — Seaworthiness.
    A shipowner has an absolute duty to furnish a seaworthy ship; he is not required to provide an accident-free ship, but must furnish a vessel and appurtenances reasonably fit for their intended use.
    4. Negligence — Seamen — Shipowners — Seaworthiness.
    No liability for the unseaworthiness of a ship can exist where there is no defective condition of the equipment, appurtenances, crew, cargo or gear of the ship.
    5. Negligence — Seamen — Shipowners — Seaworthiness — Ship’s Crew — Machines.
    There should be no distinction between men and machines in determining whether a vessel is either insufficiently or defectively equipped; the failure to provide an adequate crew may render a vessel unseaworthy; an inadequate crew may be due either to insufficient manning or an incompetent crew.

      6. Negligence — Seamen — Shipowners — Seaworthiness — Inexperienced Crew — Proper Supervision.
    The inexperience of a ship’s crew member does not necessarily create an unseaworthy condition on a ship; properly supervised, an inexperienced, untrained individual may learn to become competent.
    7. Seamen — Negligence — Shipowners — Seaworthiness — Inadequate Training.
    The rationale behind the unseaworthiness doctrine is to protect seamen from dangerous conditions beyond their control; therefore, there is no reason to distinguish between a shipowner’s failure to provide a seaman with adequate gear or adequate shipmates and failure to provide the seaman with adequate training for the job at hand, as the same risks are created by all three.
    8. Trial — Fair Trial — Attorney Misconduct.
    A party defending against a lawsuit has been denied a fair trial where counsel for the plaintiff 1) interjected irrelevant, prejudicial material throughout the trial in an obvious attempt to divert the jury from the merits of the case, 2) engaged in unwarranted attacks upon the defendant, its attorneys and its witnesses, accusing some of the defendant’s witnesses of lying and of concocting stories, without any basis, and implying that defendant’s counsel had suborned perjury, and 3) was involved in a highly questionable meeting with one of the defense witnesses on the day before trial.
    9. Trial — Attorney Misconduct — Credibility of Client — Code of Professional Responsibility — Disciplinary Rules.
    It is improper for an attorney, during the course of a trial, personally to vouch for his client’s credibility; such conduct is prohibited by the Code of Professional Responsibility (DR 7-106[C][4]).
    10. Evidence — Seamen — Negligence — Medical Malpractice — Causal Connection to Injury.
    It was improper for a trial judge to refuse to allow a defendant to introduce evidence of a plaintiffs condition shortly after the plaintiff suffered an injury aboard the defendant’s ship and to • refuse to allow introduction of alleged subsequent medical malpractice where it was the defendant’s position that there was no causal connection between the back strain suffered by the plaintiff on the ship and the disk pathology for which he was operated upon.

      11. Evidence — Admissions — Adoptive Admissions.
    An adoptive admission is the express adoption of another’s statement as one’s own on the part of a party which manifests circumstantially that party’s assent in the truth of a statement made by another. .
    12. Evidence — Hearsay — Exceptions — Business Records — Statutes.
    An employee’s time card may be admissible as evidence under the business record exception to the hearsay rule (MCL 600.2146; MSA 27A.2146).
    13. Evidence — Relevance — Trial — Discretion.
    The determination of the relevance of evidence is within the sound discretion of the trial court.
    14. Trial — Judges — Instructions to Jury — Instructions Without Evidentiary Support.
    It is reversible error for a trial court to give an instruction unsupported by the proofs.
    15. Trial — Judges — Instructions to Jury — Inferences — Failure to Produce Records — Evidence — Relevance.
    An instruction to a jury informing them that they could draw an adverse inference from a defendant-shipowner’s failure to produce records concerning the amount and type of coal purchased for use aboard the defendant’s vessel was an improper instruction where those records were of no relevance to the issues.
    16. Trial — Instructions to Jury — Inferences — Evidence — Failure to Produce.
    An instruction to a jury that they could draw an inference adverse to a defendant from the defendant’s failure to produce at trial a film taken by the defendant’s investigator was improper where 1) the investigator testified that he filmed the plaintiff walking without crutches at a specific time, using only a cane, 2) the investigator testified that he discarded the film without developing it because of the poor lighting conditions during the filming, 3) when plaintiff testified in rebuttal, he admitted using only a cane on that day, 4) the doctor who the plaintiff went to see that day confirmed that plaintiff was using a cane, and 5) in view of the date and time of day at which the film was taken it was completely reasonable that there was insufficient lighting to make developing of the film worthwhile.

      17. Negligence — Seamen — Shipowners — Damages — Maritime Law — Present Value.
    The entire proceedings, including the measure of damages, in an action against a defendant-shipowner for injuries caused to a plaintiff while working aboard a vessel owned by the defendant are governed by principles of maritime law; therefore, in such an action, damages must be reduced to present value and instructions along those lines are proper.
    18. Damages — Interest — Seamen — Shipowners — Federal Law.
    The allowance of interest on a judgment against a shipowner for damages for personal injuries suffered by a seaman while aboard ship is a matter of Federal substantive law; such interest is awarded from the date of judgment, not from the date of the filing of the complaint.

      Leonard C. Jaques, P.C., for plaintiff.

      Fred H. Keidan, and Cadwalader, Wickersham & Taft (by John A. Sullivan), for defendant.
    Before: D. C. Riley, P.J., and J. H. Gillis and MacKenzie, JJ.
   J. H. Gillis, J.

Plaintiff brought suit for injuries allegedly sustained while he was performing his duties aboard the coal-fired steamer, Harris N. Snyder. From a jury verdict in favor of plaintiff for $750,000, defendant appeals.

Plaintiff was employed as a fireman. His duties included cleaning the grates upon which the coal burned. The grates on the Snyder were movable. A 3 to 4 foot metal bar was inserted into the front of the grate mechanism which released a catch, allowing the grates to drop and dump the ash into a pit. The lever would then be pulled back, raising the grates until they locked shut.

As part of the cleaning procedure, it was often necessary to break up clinkers. A clinker is a solid mass of noncombustible material left over after coal has burned. Plaintiff was provided with a number of tools to assist him in breaking up clinkers and cleaning the grates.

Plaintiff testified that on September 4, 1973, he was on the midnight to 4 a.m. watch. He was pulling the lever to close the grates when a clinker jammed them. He then pulled harder and upon doing so experienced a pain in his back.

It is disputed whether plaintiff finished bis watch. In any event, he was subsequently taken ashore and given medical treatment. He has not worked since and it is agreed that he is currently unfit for duty as a seaman.

Defendant raises a number of issues for our consideration. We address, seriatim, those issues meriting discussion.

I. Negligence

Defendant first contends that there was insufficient evidence to submit the issue of negligence to the jury.

Plaintiff brought suit alleging liability under both the Jones Act, 46 USC 688, and on principles of unseaworthiness. The Jones Act provides:

"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railroad employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.” 46 USC 688.

Under this act, even the slightest negligence on the part of the shipowner suffices for a finding of liability. If such negligence is found, neither contributory negligence nor assumption of risk will defeat a seaman’s claim. Spinks v Chevron Oil Co, 507 F2d 216, 223 (CA 5, 1975). In addition, the burden of proof on the plaintiff to prove proximate cause in actions based upon the Jones Act is very light, even "featherweight”. Davis v Hill Engineering Inc, 549 F2d 314, 329 (CA 5, 1977), Landry v Two R Drilling Co, 511 F2d 138 (CA 5, 1975). The test of a jury case is whether the proofs justify with reason the conclusion that the shipowner’s negligence played any part, even the slightest, in producing the injury for which damages are sought. Varveris v United States Lines Co, 249 F2d 89 (CA 2, 1957).

Plaintiff contended that defendant was negligent in purchasing poor quality coal which was more likely to form clinkers and that plaintiff was not given adequate training in the proper procedure for dealing with such clinkers.

Plaintiff produced sufficient evidence to go to the jury on the issue of negligence. While plaintiff had worked as a fireman for a number of years, he had always worked on ships with stationary grates. During plaintiff’s first watch defendant had the preceding fireman stay over 2 hours and the succeeding fireman come on duty 2 hours early to show plaintiff what to do. However, a jury could reasonably infer from the evidence that plaintiff was not given adequate instruction on the proper procedure for using the dump grate mechanism when numerous clinkers formed. Hence, the issue of negligence was properly put to the jury.

II. Seaworthiness

The issue of seaworthiness is entirely distinct from Jones Act liability. The shipowner has an absolute duty to furnish a seaworthy ship. He is not required to provide an accident-free ship, but must furnish a vessel and appurtenances reasonably fit for their intended use. Mitchell v Trawler Racer, Inc, 362 US 539; 80 S Ct 926; 4 L Ed 2d 941 (1960). Where there is no defective condition of the equipment, appurtenances, crew, cargo, or gear of the ship no liability for unseaworthiness can exist. Earles v Union Barge Line Corp, 486 F2d 1097, 1103 (CA 3, 1973).

In the instant case the unseaworthiness claim appears to be based upon the same allegations as the negligence claim; that the shipowner failed to provide adequate training on the proper method for removal of heavy clinkers.

A classic case of unseaworthiness exists when the vessel is either insufficiently or defectively equipped. In addition, the United States Supreme Court has held that there should be no distinction between men and machines. Hence, failure to provide an adequate crew may also render a vessel unseaworthy. Waldren v Moore-McCormick Lines, Inc, 386 US 724; 87 S Ct 1410; 18 L Ed 2d 482 (1967), Anderson v Great Lakes Dredge & Dock Co, 509 F2d 1119 (CA 2, 1974). An inadequate crew may be due either to insufficient manning or an incompetent crew. Orient Mid-East Lines, Inc v A Shipment of Rice, 496 F2d 1032 (CA 5, 1974).

In Orient, supra, the Court stated that the inexperience of a crew member does not necessarily create an unseaworthy condition. Properly supervised, an inexperienced untrained individual may learn to become competent. Id., at 1040.

We conclude that the allegation that defendant failed to give adequate training to plaintiff in the use of the grate mechanism when dealing with large clinkers and the evidence introduced were sufficient to send the issue of unseaworthiness to the jury. The rationale behind the doctrine of seaworthiness is to protect seamen from dangerous conditions beyond their control. Waldren, supra. We see no reason to distinguish between a shipowner’s failure to provide a seaman with adequate gear or adequate shipmates and failure to provide him with adequate training for the job at hand. The same risks are created by all three.

III. Prejudicial conduct

Defendant contends that the conduct of plaintiffs attorney was so inflammatory and prejudicial that reversal is mandated. Upon an extensive review of the record we conclude that defendant is correct and a new trial is required.

In Wayne County Board of Road Comm’rs v GLS LeasCo, 394 Mich 126; 229 NW2d 797 (1975), the Supreme Court held that the defendant in that case was denied a fair trial due to the actions of the board’s attorney. His conduct consisted of repeatedly belittling LeasCo’s witnesses and lawyer by innuendo and unfounded accusations in an attempt to prejudice the jury.

In Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339; 273 NW2d 75 (1978), the Court held that plaintiff was deprived of a fair trial when defense counsel injected improper innuendos of a conspiracy between plaintiffs counsel and expert witnesses. The Court there found a "studied purpose to prejudice the jury and divert the jurors’ attention from the merits of the case”. Id., at 354.

While the following quotation is taken from a criminal case involving prosecutorial misconduct, we believe it reflects what our review of the record has disclosed:

" 'It is sometimes said that error "crept” into the trial of a lawsuit. Not so in the case at bar. It marched in like an army, with banners, and trumpets. It was escorted, and emphasized, and aggravated by the attorney for the State.’ ” People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), quoting from State v Tolson, 248 Iowa 733; 82 NW2d 105 (1957).

From his opening statement and throughout the entire trial, plaintiffs counsel injected irrelevant, prejudicial material in an obvious attempt to divert the jury from the merits of the case. He also engaged in unwarranted attacks upon defendant, its attorneys, and its witnesses. He accused some of the defense witnesses of lying and "concocting” stories without any basis and implied that defense counsel had suborned perjury. Plaintiff’s counsel was also involved in a highly questionable meeting with one of the defense witnesses on the day before trial.

We do not think it is necessary for us to detail every impropriety contained in the record. However, we note the following items to demonstrate the wide range of this prejudicial conduct.

Perhaps the most blatant example of the injection of irrelevant, prejudicial material came during plaintiff’s closing argument when he stated:

"You know, you keep reading in the paper PBB. You know all about that, don’t you? You see that in the paper all the time. You know, if you used a system, and you turned over that feeding situation in the Department of Agriculture to this ship owner, do you know what they would do? They would put that feed on the market, and see whether or not those cows died before they would make a determination whether or not that feed was bad feed, and poisonous, because they are saying, in effect, we don’t know, and there is no way for us to know, how that coal is just by looking at it by our naked eye, and you can’t tell whether or not that PBB is in that feed by the naked eye. You know that too. Now, we are going to have to wait until we consume it so that we can find out whether or not it is any good. Now, what good is that? How are you going to protect the lives of anybody by waiting until it is consumed?”

PBB had absolutely no relevance to any issue in the case. This argument was extremely prejudicial and was obviously designed for the sole purpose of inflaming the jury.

Moreover, plaintiffs attorney did not restrict himself to local matters such as the PBB controversy. He also managed to mention the involvement of attorneys in the Watergate scandal in an attempt to discredit Mr. Parker, one of the defense attorneys.

Plaintiffs counsel also repeatedly belittled the defense witnesses and openly accused one defense witness of fabricating testimony:

"Q Captain, did you concoct this story? Did you and somebody—who put you up to saying this?
"Mr. Busch: Objection, Your Honor.
”Q Who put you up to saying this?
"Mr. Busch: Objection, Your Honor.
”Q I am asking you then, who put you up to coming in here and concocting a story about a ventilator. Now, who put you up to that?
"A Nobody did.”

In Wayne County Board of Road Comm’rs, supra, at 134, the Court stated:

"These comments represent more than the mere reproof of recalcitrant witnesses. They constitute unjustified, direct attacks on the integrity and honesty of LeasCo’s witnesses. There is no evidence that these witnesses testified falsely, withheld information when stating that they did not know the answer to counsel’s questions, or manufactured false evidence.
"Witnesses should not be subjected to personal attacks and unsubstantiated insinuations. Each party is entitled to present its case on the merits, free from remarks of opposing counsel which may prejudice the jury and divert its attention from the real issues.”

Plaintiffs counsel did just what the Court in the above case condemned. He also tried to prejudice the jury by making repeated references to the defendant as a big corporation, interested only in profits and willing to devote "millions for defense, but not one cent for tribute”.

Plaintiffs counsel attempted to prejudice the jury by referring to the fact that defendant was represented by a 130-member Wall Street law firm and implied that they were willing to suborn perjury in order to win the case.

In this same vein, appeals were made to the jury to the effect that the defense attorneys were a bunch of New York lawyers trying to pull the wool over the eyes of midwestern folks. Defense counsel was accused of "trickery” and the defense was characterized as "bogus” and "ludicrous”.

Finally, we note that plaintiffs counsel personally vouched for his client’s credibility:

"You know about his character, his veracity character. You know this fellow. You know, he has been on the stand a long time, but you saw him. I tried to, really—one thing about it—believe me, you know, nobody in this world wants anybody around him, certainly I don’t, who is feining [sic], who is faking or anything like that, and if there was one ounce of fake in that man, I wouldn’t be here representing him. Well, there isn’t.” (Emphasis supplied.)

Such an assertion is completely improper and is prohibited by the Code of Professional Responsibility, DR 7-106(C)(4).

The cumulative effect of the improper arguments and innuendos made by plaintiff’s counsel was so highly prejudicial that we conclude defendant was denied a fair trial. The proper remedy is to remand for a new trial. Wayne County Board of Road Comm’rs, supra, Kern, supra.

TV. Evidence of plaintiff’s physical condition and subsequent medical treatment

Defendant contends the trial court erred in denying the defendant the opportunity to present evidence of plaintiff’s physical condition at the time he left the ship as well as evidence of subsequent alleged malpractice.

Defendant sought to introduce evidence to show that plaintiff suffered only a back strain on board the ship and that any disk pathology was specifically ruled out when plaintiff was examined shortly after the injury occurred. Plaintiff was operated upon in January, 1974, for a disk problem and following this operation developed drop foot. It was defendant’s position that there was no causal connection between plaintiff’s injury on the ship and the disk pathology for which he was operated upon.

The trial court excluded all such evidence relying upon Stahl v Southern Michigan R Co, 211 Mich 350, 355; 178 NW 710 (1920). That case held that where a person receives an injury through the negligent act of another, and the injury is afterward aggravated by an accident not the result of the victim’s own negligence, he may recover for the entire injury sustained, as the law regards the probability of such aggravation as a consequent and material result likely to flow from the original injury. While this is a correct statement of the law, it does not necessarily require the exclusion of the proffered evidence in the instant case. Plaintiff presented evidence that the injury could have produced the disk pathology for which plaintiff was operated upon. Thus the jury could reasonably conclude that any malpractice at that time was merely an aggravation of the initial injury. Under Stahl, supra, defendant would then be liable for plaintiff’s entire injuries.

On the other hand, from the evidence defendant sought to introduce, the jury could conclude that the injury had not caused any disk pathology and that the alleged malpractice was not causally related to the original injury. In other words, it was defendant’s contention that there was a break in the chain of causation.

We conclude the trial judge erred in refusing to admit this evidence. The jury could have been adequately instructed upon the applicable law. See McAuliff v Gabriel, 34 Mich App 344; 191 NW2d 128 (1971).

V. Exclusion of time and wage records

Plaintiff testified that he was injured less than halfway through his four-hour watch and that he was unable to complete the watch. Defendant sought to introduce a time card signed by plaintiff indicating he had worked his regular watch plus an hour of overtime on the day of the alleged injury.

Defendant attempted to introduce the card as an admission and as a business record. The trial court refused to admit it because it was not sure plaintiff had read or could understand what he had signed.

In Durbin v K-K-M Corp, 54 Mich App 38; 220 NW2d 110 (1974), the Court indicated that merely signing a document is insufficient to find an admission. Rather, the circumstances must be examined to determine whether there was adoptive approval of the other’s statement.

"An adoptive admission is the express adoption of another’s statement as one’s own. It is conduct on the part of a party which manifests circumstantially that party’s assent in the truth of a statement made by another. The mere fact that a party had declared that he or another person made the statement is not in and of itself sufficient for a finding of adoption. In order to find adoptive approval of the other’s statement the circumstances surrounding the other’s declaration must be examined. McCormick (2d ed), § 269, p 649. Mrs. Childs stated that she signed the statement only at the request of her husband. The circumstances do not suffice for a finding of an adoptive admission and, moreover, in the normal course of affairs, adoptive admissions refer only to party-opponents.” Id., at 50.

In the instant case the trial court examined the circumstances surrounding plaintiffs signing of the card and determined that there was an insufficient basis for concluding that it was an adoptive admission. We will not disturb the court’s ruling on that point.

However, we conclude the evidence was independently admissible as a business record. MCL 600.2146; MSA 27A.2146 provides in part:

"Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admisssible in evidence in all trials, hearings and proceedings in any cause or suit in any court, or before any officer, arbitrators, or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility.”

A record made in the regular course of business showing the hours worked on a particular day would seem to be a prime example of the business entry exception to the hearsay rule. In Siewek v F Joseph Lamb Co, 257 Mich 670; 241 NW 807 (1932), books were held to be admissible to show the amount of time put in by men on a construction job. In that case the entries were taken from the original time cards. In the instant case defendant sought to introduce the time card itself, which would seem to be even more reliable than book entries taken from such a card.

Furthermore, the evidence was highly relevant.. Plaintiff had testified that following his injury he was unable to complete his shift. The time card would suggest that if plaintiff was able to complete his shift and put in overtime any injury was much less severe than plaintiff contended. While the determination of relevance is within the sound discretion of the trial court, People v Miller, 78 Mich App 336; 259 NW2d 877 (1977), in the instant case we find the court abused that discretion.

VI. Adverse inferences

In giving the charge to the jury the trial court indicated that an adverse inference could be drawn from the failure of defendant to record the event of plaintiff’s injury in the engine room log.

There was no factual basis for this instruction. Chief Engineer Crane specifically testified that no such entry would be made. Plaintiff relies upon the testimony of Captain Molnar. Captain Molnar testified that he filled out a report of injury or sickness form. He also stated that the normal practice was to have someone in the engine department fill out this form. However, there was no testimony to indicate that an entry would be made in the engine room log. Giving an instruction unsupported by proof is error. See Embrey v Weissman, 74 Mich App 138; 253 NW2d 687 (1977).

The trial court also instructed the jury that they could draw an adverse inference from defendant’s failure to produce records concerning the coal purchased for use aboard the vessel.

James DeWitt, the manager of defendant’s Cleveland office, testified that he had records of the amount of fuel taken on board the ship and the type of fuel, i.e., stoker coal. There was no record kept of the quality of coal received.

The amount or type of fuel was irrelevant to the determination of liability. Giving an adverse inference instruction when the records were of no relevance was prejudicial to defendant.

Finally, the trial court instructed the jury that they could draw an inference adverse to defendant from the failure to produce film taken by Mr. Whitehead, defendant’s investigator.

Mr. Whitehead testified that he filmed plaintiff walking without crutches, using only a cane, on November 18, 1976, between 5:26 p.m. and 5:41 p.m. The investigator testified that he discarded the film without developing it because of the poor lighting conditions.

When plaintiff testified in rebuttal he admitted using only a cane on that day. The doctor whom plaintiff went to see that day confirmed that plaintiff was using a cane.

In view of the date and time it is completely reasonable that there was insufficient lighting to make developing the film worthwhile. Moreover, since plaintiff admitted using a cane on that day and the doctor confirmed this fact, we find it was error to give the instruction.

VIL Inñation

Defendant’s final argument is that the trial court erred in refusing to charge the jury that it should disregard inflation in making any award for loss of future earnings. We find no error.

In cases such as the instant one the entire proceedings, including the measure of damages, are governed by principles of maritime law. Petition of United States Steel Corp, 436 F2d 1256, 1278 (CA 6, 1970). Accordingly, damages must be reduced to present value, as the trial court instructed in the instant case. Id., at 1280. However, the trial court did not err in refusing to give the proposed instruction. See Bach v Penn Central Transportation Co, 502 F2d 1117, 1122 (CA 6, 1974).

VIII.

Plaintiff cross-appeals raising one issue for our consideration. It is plaintiff’s contention that interest should have been awarded from the date of filing the complaint pursuant to MCL 600.6013; MSA 27A.6013. The trial court rejected this claim and awarded interest from the date of judgment.

The trial court was correct in denying prejudgment interest. The Jones Act incorporates the Federal Employers’ Liability Act. Garrett v Moore-McCormack Co Inc, 317 US 239, 244-245; 63 S Ct 246; 87 L Ed 2d 239 (1942). The allowance of interest on such judgments is a matter of Federal substantive law. Louisiana & A R Co v Pratt, 142 F2d 847 (CA 5, 1944). See also Hanley v Erie R Co, 81 NYS2d 100 (1948).

Defendant’s other claims of error are without merit and do not need discussion.

Reversed and remanded for a new trial. Costs to appellant.

        "Mr. Jaques [plaintiffs counsel]: They even did what is very much unorthodox, and we know the circumstances surrounding it. They had a meeting in New York and it is one of those things like a command decision was made, say, okay, may day, may day. What are we going to do? Well, let’s bring Parker in and let’s get Parker to come in and to testify in behalf of the ship owner, well, recognizing that this is so unorthodox that the Bar Association frowns upon it. It shouldn’t be. And he recognizes. Mr. Parker himself said, 'Yes, I am aware of such Canons of Ethics. I am aware of the Bar Association.’ He said I know something about it. He said, T don’t know much about it, but I know something.’ You remember that? He said he knew something about that. A real springer. A real—you know—you know what he was. Now, here is a great outfit. You know, you have to look at motives. You know people—I guess it is a competitive world. No doubt it is, but here is a fairly young fellow, moved up, born in Georgia, moved on up up there in New York and he is with a great big firm, 130 lawyers Cadwalader, Wickersham & Taft. And they are all dead. He said, yes, they are all dead, all those fellows but that law firm, a Wall Street Law Firm, you take a look and you won’t see his name on there, but you will see on this letterhead, you are going to see the big boys, one of whom is John Sullivan, and that’s his boss; the command decision made, okay, let’s bring him in and the idea, let’s get him—

        "Mr. Busch: Objection, Your Honor. Beyond the scope of the evidence.

        "The Court: Overruled.

        "Mr. Jaques: And so, what they do, they bring him in and they bring in this man, they say, now you get up there and you testify. Now, I feel badly because, you know, all lawyers, we are brothers, all lawyers. Now, what he testified to we know can’t be true. There is no way it can be true.”

       "When he came back in here, he came back in here as a coached witness, but how in the world do they think they can pull the wool over your eyes when he had already indicated that in no way could this—in no way did he have any information pertaining to some ventilator or blower is beyond me. They’ve got to think that you are not very bright people in order to bring something like that before you. Maybe they think us mid-western folks aren’t bright. I don’t know. I don’t know what they think.
      "And they can go back to New York and tell them anything they want to. That New York outfit, those New York attorneys, they can go back and tell them that we are not that green in the midwest and we are not that kind of person where wool can be pulled over our eyes in such a tactical way.”


source: Caselaw Access Project

author:
D. E. Holbrook, Jr., J.
      T. M. Burns, J.

license: Public Domain

text:
    PEOPLE v DAVENPORT
    Docket No. 77-1261.
    Submitted November 8, 1978, at Lansing.
    Decided May 1, 1979.
    William Davenport was charged with carrying a firearm with unlawful intent and carrying a concealed weapon. He was tried on both counts. At the close of the people’s proofs, defendant moved for directed verdicts of acquittal on both counts, which were denied. Defendant was convicted of both counts, Bay Circuit Court, John X. Theiler, J. Defendant appeals, contending primarily that the convictions for both offenses violates double jeopardy. Held:

    1. The motions for directed verdicts of acquittal were properly denied, since some evidence was introduced as to each element of the charged offenses.
    2. The constitutional guarantee against double jeopardy protects against multiple punishment for the same offense, and the test to determine whether there was multiple punishment for the same offense is whether each charge requires proof of a fact that the other charge does not require.
    3. The constitutional guarantee against double jeopardy does not preclude convictions for both carrying a firearm with unlawful intent and carrying a concealed weapon, because, although each offense has the common element of carrying a firearm, each offense requires proof of a fact that is not required for conviction of the other.
    4. Carrying a firearm with unlawful intent and carrying a concealed weapon are not cognate lesser included offenses of each other, in that neither is a lesser offense of the other, and each statute was enacted to meet a different legislative purpose.
    Affirmed.
    References for Points in Headnotes

       75 Am Jur 2d, Trial § 553.

       21 Am Jur 2d, Criminal Law §§ 182, 188, 189.

       79 Am Jur 2d, Weapons and Firearms §§ 7, 8,15.
    Offenses of carrying concealed weapon as affected by manner of carrying or place of concealment. 43 ALR2d 490.

      T. M. Burns, J., dissented. He would hold that the double jeopardy prohibition against multiple punishment attached, in that, on the proofs presented, the jury necessarily would have had to convict on the concealed weapon charge before convicting on the carrying a firearm with unlawful intent charge. He would vacate the conviction for carrying a concealed weapon.
    Opinion of D. E. Holbrook, Jr., J.
    1. Criminal Law — Motions — Directed Verdict — Acquittal — Evidence.
    A motion for a directed verdict of acquittal is properly denied where some evidence was introduced as to each element of the charged offense.
    2. Criminal Law — Evidence — Burden of Proof — Innocent Theories — Directed Verdict.
    The prosecution is not required to negate every possible innocent theory in order to avoid a directed verdict of acquittal.
    3. Constitutional Law — Double Jeopardy — Multiple Punishments.
    The constitutional guarantee against double jeopardy protects against multiple punishment for the same offense, and the test to determine whether there was multiple punishment for the same offense is whether each crime requires proof of a fact that the other crime does not require.
    4. Constitutional Law — Double Jeopardy — Carrying a Firearm with Unlawful Intent — Carrying a Concealed Weapon — Statutes.
    The constitutional guarantee against double jeopardy does not preclude convictions for both carrying a firearm with unlawful intent and carrying a concealed weapon, because, although each offense has the common element of carrying a firearm, each offense requires proof of a fact that is not required for conviction of the other (MCL 750.226, 750.227; MSA 28.423, 28.424).
    5. Criminal Law — Lesser Included Offenses — Cognate Offenses — Carrying a Firearm with Unlawful Intent — Carrying a Concealed Weapon.
    Carrying a firearm with unlawful intent and carrying a concealed weapon are not cognate lesser included offenses of each other, in that neither is a lesser offense of the other, and each statute was enacted to meet a different legislative purpose.

      Partial Dissent by T. M. Burns, J.
    6. Constitutional Law — Double Jeopardy — Factually Included Offenses.

      The constitutional guarantee against double jeopardy prohibits separate convictions for two offenses where, on the speciñc facts presented, conviction on one offense necessarily requires a conviction of the other offense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney,. George B. Mullison, Chief Assistant Prosecuting Attorney, and Peter F. Dahm, Assistant Prosecuting Attorney, for the people.

      Michael E. Turner, Assistant State Appellate Defender, for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

On June 30, 1976, defendant was convicted by a jury of carrying a firearm with unlawful intent, MCL 750.226; MSA 28.423, and carrying a concealed weapon, MCL 750.227; MSA 28.424. Given concurrent sentences of 2-1/2 to 5 years in prison, he appeals as of right.

A deputy sheriff testified that he was in the Pickle Barrel Bar with two other deputies. While at the bar, he observed defendant enter the premises with two other individuals. At that time he saw the outline of a handgun in defendant’s right-hand pants pocket. When defendant and the two other individuals left the building, the three deputies followed. The three deputies caught defendant once, but he got away. Upon catching him the second time, one deputy testified that defendant put his right hand in his right pants pocket. Once this occurred, all three deputies immediately grabbed defendant’s right arm and removed the weapon. Testimony was elicited that when defendant’s hand was forcibly removed from his right-hand pocket the gun was not in it. A patrolman testified that defendant had his hand in his right front pocket and that, 'T could see the outline of a gun and he had his hand on the grip”.

Following conclusion of the people’s case, defendant rested without presenting any proof, making motions for directed verdicts on both counts. Defendant contends that the motions for directed verdict were improperly denied. A directed verdict may only be granted where there is no evidence, either direct or circumstantial, on each material element of the offense. People v Maliskey, 77 Mich App 444, 448; 258 NW2d 512 (1977), People v Hodo, 51 Mich App 628, 639; 215 NW2d 733 (1974). A review of the record indicates that there was some evidence introduced on each material element of both offenses. Defendant correctly argues that there were possible innocent theories concerning why his hand was in his pocket at the time of his arrest, however the prosecution is not required to negate every possible innocent theory in order to avoid a directed verdict of acquittal. People v Edgar, 75 Mich App 467; 255 NW2d 648 (1977).

Defendant’s primary contention, however, is that a conviction for both offenses violates double jeopardy. The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections. It protects against the second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). It is the protection against multiple punishments for the same offense that is at issue in this case. In Brown v Ohio, 432 US 161, 166; 97 S Ct 2221; 53 L Ed 2d 187 (1977), the United States Supreme Court reiterated the test applicable to multiple punishments:

"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v United States, 284 US 299, 304; 76 L Ed 306; 52 S Ct 180 (1932): 'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether they are two offenses or only one, is whether each provision requires proof of a fact which the other does not * * V This test emphasizes the elements of the two crimes. 'If each requires proof of the fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes * * *’ Iannelli v United States, 420 US 770, 785, n 17; 483 L Ed 2d 616; 95 S Ct 1284 (1975).”

The elements of carrying a firearm with unlawful intent, MCL 750.226; MSA 28.423, are that the defendant be armed with a firearm, that at the time he was so armed he intended to use the firearm, and that he intended to use the firearm unlawfully against the person of another. CJI 11:2:01. The elements of carrying a. concealed weapon, MCL 750.227; MSA 28.424, as far as this case is concerned, are that the defendant merely carried a pistol and that the pistol was concealed on or about his person. CJI 11:1:01. Each charge has the common element that defendant carried a pistol, but the carrying the concealed weapon charge requires proof that the pistol was concealed on or about the person of the defendant, and the going armed with the firearm with unlawful intent requires proof that the defendant intended to use the pistol unlawfully against the person of another. Since each requires proof of a fact the other does not, the Blockburger test is satisfied, and punishment for both offenses would not violate double jeopardy.

Defendant argues that the evidence which proved him guilty of carrying a firearm with unlawful intent necessarily proved him guilty of carrying a concealed weapon. This argument is based upon the Michigan Supreme Court’s holding in People v Ora Jones, 395 Mich 379, 387-389; 236 NW2d 461 (1975), which held that lesser included offenses in Michigan include both necessarily included lesser offenses and those lesser offenses that are related and hence cognate. The Court stated:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law & Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate’ or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in a higher offense.
"The failure to advert to the nature of the 'cognate’ lesser included offense has caused confusion. The fact that a lesser offense, within the same category as the greater charged offense, has an element not included within the greater does not preclude the lesser from being included within the greater.” (Footnote omitted, emphasis in original.)

It is arguable Brown v Ohio, supra, held that a lesser included offense and a greater offense are the same under Blockburger. It is also arguable that the expansive definition of lesser included offenses found in Ora Jones, precludes conviction for cognate lesser included offenses, as well as for necessarily lesser included offenses, after a conviction of the greater offense. But see People v Risher, 78 Mich App 431; 260 NW2d 121 (1977), Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978). Defendant cites People v Martin, 398 Mich 303; 247 NW2d 303 (1976), and People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), as supporting his argument that a cognate lesser included offense is treated identically with a necessarily lesser included offense in Michigan. Defendant’s reliance is inappropriate, since neither case relies upon the Ora Jones definition of cognate lesser included offenses, but rather, held, on the facts of each case, that the possessions for which the defendants were convicted constituted necessarily included offenses.

The greatest difficulty with defendant’s position is that no case can be found holding that carrying a concealed weapon is a lesser offense to carrying a weapon with unlawful intent, or that carrying a weapon with unlawful intent is a lesser offense of carrying a concealed weapon. Significantly, both offenses are felonies punishable by imprisonment in the state prison for not more than five years, or by a fine of not more than $2,500. The mere fact that two offenses have one similar element, in this case possession of the pistol, does not make one the lesser offense of the other. Clearly these two statutes were enacted in an attempt to remedy two separate problems. People v Johnnie W Jones, 12 Mich App 293, 295-296; 162 NW2d 847 (1968), indicates:

" 'The purpose of all concealment statutes is clear. At the time they were enacted, the open carrying of weapons upon the person, was not prohibited. The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from drawing concealed weapons and using them without prior notice to the victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume he was unarmed.’ People v Raso, (1958) 9 Misc 2d 739 (170 NYS 245, 251).”

The statute prohibiting the carrying of a firearm with unlawful intent is an attempt to civilize our society. Const 1963, art 1, § 6, clearly states that every person has a right to keep and bear arms for the defense of himself and the state. This constitutional provision clearly indicates that it is permissible for individuals to carry weapons. In an attempt to discourage the open carrying of weapons, it was made a felony to go about armed with the intent to use the same unlawfully against the person of another. Since the statutory purposes of both charged offenses are different, they are not cognate offenses. See People v Ora Jones, supra, at 389.

In view of the foregoing we hold that carrying a firearm with unlawful intent, MCL 750.226; MSA 28.423, and carrying a concealed weapon, MCL 750.227; MSA 28.424, are not lesser offenses of each other. Each requires proof of a fact that the other does not, and conviction of both offenses does not violate double jeopardy.

Affirmed.

D. F. Walsh, P.J., concurs in result.

T. M. Burns, J.

(dissenting in part). I agree with all of Judge Holbrook, Jr.’s, conclusions except his last. In my view, it is a violation of the Michigan double jeopardy protection against double punishment for the "same” offense to allow both the conviction for carrying a concealed weapon, MCL 750.227; MSA 28.424, and going armed with a weapon with intent to use it unlawfully against another, MCL 750.226; MSA 28.423, to stand on the facts of this case.

The protection against double punishment prohibits imposing two sentences, even concurrent sentences, for legally distinct offenses where the fact finder must necessarily find the defendant guilty of one crime in finding guilt on another. If the factual analysis in a particular case shows that one act "blends together” with another, it may only be punished once. People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976). See also, People v Anderson, 83 Mich App 744; 269 NW2d 288 (1978).

In the present case, the evidence shows that the weapon carried by defendant was at all times concealed in his pocket. The weapon was removed by the police after they had arrested defendant. Therefore, the same evidence which supported the carrying a firearm with unlawful intent charge also supported the carrying a concealed weapons charge. On the specific facts of this case, it was necessary for the jury to convict of carrying a concealed weapon before it could convict of going armed with unlawful intent.

I would vacate the conviction for carrying a concealed weapon.

       Const 1963, art 1, § 15.


text:
    PEOPLE v FLORES
    Docket No. 77-3035.
    Submitted March 13, 1979, at Lansing.
    Decided May 1, 1979.
    Leave to appeal applied for.
    Joseph Flores was found guilty in Bay Circuit Court, John X. Theiler, J., of delivery of heroin and conspiracy to deliver heroin. At trial, testimony was admitted concerning prior attempts by the police undercover agents to gain admittance to defendant’s house, prior heroin purchases made at defendant’s house from persons other than defendant and prior heroin sales by defendant to one of the alleged co-conspirators. Defendant was sentenced to 8 to 20 years in prison. Subsequently defendant’s wife was convicted of possession with intent to deliver heroin and conspiracy to deliver heroin, and was placed on probation for a period of five years. Defendant appeals claiming that certain evidence was improperly admitted, double jeopardy and discrimination against him in his sentence because of his sex. Held:

    1. Admission of evidence of prior attempts to gain admittance to defendant’s house and of prior heroin purchases made at defendant’s house from persons other than defendant, while not probative of any matter at issue in defendant’s trial for delivery and conspiracy to deliver heroin, was harmless error where there is no indication that the prosecutor deliberately tried to inject prejudice into the trial and the evidence of guilt is overwhelming.
    2. Evidence of prior sales of heroin by defendant to an alleged co-conspirator was properly admitted for the purpose of establishing the specific intent necessary to prove conspiracy to deliver heroin, where the trial court properly informed the jury of the limited use of such evidence.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 803.
    25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 46, 47.
    Admissibility in prosecution for illegal sale of narcotics, or evidence of other sales. 93 ALR3d 1097.

       29 Am Jur 2d, Evidence §§320, 324, 326. 75 Am Jur 2d, Trial §747.

       21 Am Jur 2d, Criminal Law § 182. 25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 27.13, 40.

       21 Am Jur 2d, Criminal Law § 527.

       21 Am Jur 2d, Criminal Law § 582.

      3. Convictions for both conspiracy to deliver heroin and delivery of heroin do not violate the constitutional protection against double jeopardy.
    4. The fact that the sentencing court felt that community interests outweighed other factors does not render a sentence improper, where the court considered many factors, including defendant’s background, and where the sentence is within the statutory limits.
    5. Disparity in sentences on the basis of discrimination based on sex is not established where the record indicates the sentencing court, in giving different sentences to defendant and his spouse, based the sentences upon factors other than sex.
    Affirmed.
    1. Drugs and Narcotics — Heroin — Delivery of Heroin — Conspiracy to Deliver Heroin — Evidence — Admission of Evidence — Harmless Error.
    Admission of evidence of prior attempts to gain admittance to defendant’s house and of prior heroin purchases at the house from persons other than defendant, while not probative of any matter at issue in defendant’s trial for delivery and conspiracy to deliver heroin, was harmless error where there is no indication that the prosecutor deliberately tried to inject prejudice into the trial and the evidence of guilt is overwhelming so that it was not reasonably possible that, absent the claimed error, even one juror might have voted to acquit.
    2. Conspiracy — Heroin — Evidence — Admission of Evidence — Prior Sales to Co-conspirator.
    Evidence of prior sales of heroin by a defendant to an alleged co-conspirator in a trial for conspiracy to deliver heroin is properly admitted for the purpose of establishing the specific intent necessary to prove the conspiracy where the trial court properly informs the jury of the limited use of such evidence (MCL 768.27; MSA 28.1050).
    3. Constitutional Law — Double Jeopardy — Conspiracy to Deliver Heroin — Delivery of Heroin.
    Convictions of both conspiracy to deliver heroin and delivery of heroin do not violate the constitutional protection against double jeopardy.

      4. Criminal Law — Sentencing — Factors Considered — Community Interests.
    The fact that the sentencing court felt that community interests outweighed other factors does not render a sentence improper, where the court considers many factors, including defendant’s background, and the sentence is within the statutory limits.
    5. Criminal Law — Sentences — Sexual Discrimination.
    Disparity in sentences on the basis of discrimination based on sex is not established where the record indicates that the sentencing court, in giving different sentences to defendant and to his spouse who was separately convicted of conspiracy to deliver heroin and possession of heroin, based the sentences upon factors other than sex.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and James M. Hammond, Assistant Prosecuting Attorney, for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: Cynar, P.J., and J. H. Gillis and N. A. Baguley, JJ.

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

   J. H. Gillis, J.

Defendant was convicted by a jury of delivery and conspiracy to deliver a controlled substance, heroin. MCL 335.341; MSA 18.1070(41) and MCL 750.157a; MSA 28.354(1). He was sentenced to serve 8 to 20 years in prison and appeals as of right.

The charges against defendant were based upon certain events which took place on March 23, 1976. Thomas Cadieux, a police informant, contacted Edward Emmons, seeking to purchase some heroin. Emmons called defendant’s house and spoke with Paul Sobeck to arrange a sale. Cadieux then picked up Emmons and the two drove to defendant’s house where they were admitted by a woman and sent to the basement. Emmons went upstairs and returned with Paul Sobeck. Cadieux then arranged for the purchase of a gram of heroin. Sobeck went back upstairs and subsequently returned with defendant. Defendant was carrying a tinfoil packet in his hand. He handed this to Sobeck who in turn gave it to Cadieux. Cadieux handed defendant $80 to pay for the substance which was later analyzed as heroin.

Initially defendant, Sobeck, Emmons, and Guadalupe Flores, defendant’s wife, were all charged in this matter. Following the preliminary examination Sobeck, Emmons and defendant were bound over on conspiracy and delivery charges. Mrs. Flores was bound over on conspiracy and possession with intent to deliver charges.

The first issue raised by defendant concerns the admissibility of certain evidence. There was testimony that witness Cadieux and undercover Officer DeFeyter had gone to defendant’s house on a number of times prior to March 23, 1976, and been denied admittance. There was also testimony that Officer DeFeyter had made heroin purchases at the house from persons other than defendant.

We agree the evidence that entrance to the house was denied was not probative of any matter in issue. In addition, it is questionable whether there was sufficient circumstantial evidence to link defendant with the sales by other persons. See People v Samuel Smith, 85 Mich App 404; 271 NW2d 252 (1978). However, we find any error in the admission of this evidence to be harmless.

There is no indication that the prosecutor deliberately tried to inject prejudice into the trial, People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), and no basis for finding an error so offensive to the maintenance of a sound judicial system as to require reversal. In addition, the evidence of guilt was overwhelming and it was not reasonably possible that, absent the claimed error, even one juror might have voted to acquit. Hence, the error was harmless. People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).

Defendant also claims it was error to admit evidence of prior transactions wherein defendant sold heroin to one of the alleged co-conspirators, Emmons. These transactions took place in defendant’s basement over a four-month period prior to the date of the incident in question.

In order to prove conspiracy, it was necessary for the prosecutor to establish specific intent. In People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974), the Court explained this element as follows:

" 'A conspiracy is a partnership in criminal purposes’, United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910). A twofold specific intent is required: a combination with others to do what is unlawful. Conspiracy, 28 La L Rev 534, 535 (1968); see also 1 Wharton, Criminal Law & Procedure, 183-184.
"Intent to conspire,
" '[w]hile it is not identical with mere knowledge that another purposes unlawful action * * * is not unrelated to such knowledge. Without the knowledge, the intent cannot exist. United States v Falcone [311 US 205; 61 S Ct 204; 85 L Ed 128 (1940)] [footnote omitted]. Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal. Ibid. This, because charges of conspiracy are not to be made out by piling inference upon inference * * Direct Sales Co v United States, 319 US 703, 711; 63 S Ct 1265; 87 L Ed 1674 (1943).
"Therefore, defendant’s intent to sell marijuana must be established in the present case, and to establish that intent, there must be evidence of knowledge of the unlawful purpose of sale. To prove the crime of conspiracy, however, it must further be proven that that intent, including that knowledge, was possessed by more than one individual since there can be no conspiracy without a combination of two or more persons.”

Where intent is material, other acts of the defendant which may tend to show his intent in doing the act in question may be proved notwithstanding that such proof may tend to show the commission of another crime by the defendant. MCL 768.27; MSA 28.1050.

In the instant case it was necessary to show that defendant had intent to deliver and was aware of the unlawful purpose of this delivery. Evidence that he had engaged in prior heroin transactions was admissible to show that defendant was not an innocent conduit for the delivery of heroin on March 23, 1976.

While this evidence may have been prejudicial to defendant, it was highly probative on the issue of intent. In addition, both the prosecutor and the trial judge properly informed the jury of the limited use to which this evidence could be put. We find no reversible error in its admission.

Defendant also argues that under the facts of this case convictions of both conspiracy to deliver heroin and delivery of heroin violated the double jeopardy clause. We reject this argument on the authority of People v Gonzales, 86 Mich App 166; 272 NW2d 227 (1978).

Defendant next contends that he was illegally sentenced according to a county program of mandatory prison sentences for heroin dealers.

The record indicates the trial court took a number of factors into consideration in imposing sentence, including the potential for rehabilitation, the recommendations given by members of the community, defendant’s background, and the interests of the community. The fact that the court felt the interests of the community outweighed the other factors does not render the sentence improper. People v Gonzales, supra, People v Van Epps, 59 Mich App 277; 229 NW2d 414 (1975). The sentence was within the statutory limits and not based upon any impermissible considerations.

Defendant also argues that in imposing sentence the trial court impermissibly discriminated against him on the basis of his sex.

Defendant received an 8 to 20 year term. His wife, who was convicted of conspiracy to deliver heroin and possession of heroin with intent to deliver, received probation. Defendant contends this disparity in sentencing was the result of discrimination on the basis of sex.

It is true that different treatment in sentencing can not be based upon some arbitrary classification such as race or religion. People v Dupuie, 52 Mich App 510; 217 NW2d 902 (1974). Disparity based upon sex has also been found constitutionally deficient. United States v Maples, 501 F2d 985 (CA 4, 1974).

An examination of the transcripts indicates that the sentences were not the result of any impermissible discrimination based upon sex. Defendant was sentenced on May 31, 1977. At that time his wife had not been convicted of any offense. As noted above, the trial court felt that the interests of society outweighed factors operating in defendant’s favor and sentenced him to 8 to 20 years in prison.

Mrs. Flores was convicted on January 6, 1978, and sentenced on January 23 of that year. The trial court noted that she was not convicted of delivery of heroin as was her husband. It also felt that her involvement in drugs was somewhat peripheral to that of her husband and that with his influence removed she would not engage in future illegal activities or present a threat to the community. Finally, the judge stated that because one parent was already in jail and there were five minor children depending upon Mrs. Flores, he would put her on probation for five years. It is evident that the trial court’s decisions regarding sentencing were based upon the circumstances of each person at the time of sentencing and not due to sex. Hence, defendant’s claim is without factual support.

Defendant’s other contentions of error merit no discussion.

Affirmed.


author: Beasley, J. M. F. Cavanagh, P.J.

text:
    HELZER v METZGAR CONVEYOR COMPANY
    Docket No. 77-3220.
    Submitted March 8, 1978, at Grand Rapids.
    Decided May 1, 1979.
    Lawrence G. Helzer was discharged from his employment by Metzgar Conveyor Company. He applied for unemployment benefits and was found by a referee of the Employment Security Commission to have been discharged for misconduct connected with his work and that he was therefore disqualified from receiving benefits for a period of six weeks. The referee’s decision was upheld by the Employment Security Commission Appeal Board and Helzer sought review in the Kent Circuit Court, which upheld the denial, George R. Cook, J. Helzer appeals. Held:

    The referee’s finding that Helzer had engaged in a pattern of misconduct was supported by the evidence, and the decision that the misconduct was sufficient to disqualify Helzer from receiving benefits for the statutory period was in conformance with both the law and the evidence.
    Affirmed.
    M. F. Cavanagh, P.J., dissented. He would hold that the circuit court erred by failing to review the issue of misconduct, and that neither of the two acts complained of were sufficient to bring Helzer’s activities within the definition of misconduct under the statute. Likewise, he would hold that the two acts viewed together did not constitute a pattern of misconduct sufficient to deprive Helzer of unemployment compensation benefits. He would reverse.
    Opinion of the Court •
    1. Unemployment Compensation — Discharge of Employee —- Misconduct — Statutes.
    An employee who is discharged for misconduct may be disqualified from receiving unemployment compensation where the misconduct evinces such wilful or wanton disregard of the employer’s interests as is found in deliberate violations or disregard of standards of behavior rightfully expected by the employer, or carelessness or negligence of such degree as to manifest equal culpability, wrongful intent or evil design, or to show intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations (MCL 421.29[1][b]; MSA 17.531[1][b]).

      References for Points in Headnotes

       76 Am Jur 2d, Unemployment Compensation §§ 52-54.
    Work-connected inefficiency or negligence as "misconduct” barring unemployment compensation. 26 ALR3d 1356.

       2 Am Jur 2d, Administrative Law § 549.

       76 Am Jur 2d, Unemployment Compensation § 6.

      Dissent by Cavanagh, P.J.
    2. Administrative Law — Employment Security Commission — Appeal and Error — Standard for Review — Statutes.

      An order of the Employment Security Commission may be reversed by a reviewing court only if the decision is contrary to law or is unsupported by competent, material evidence on the whole record; where no dispute exists as to the underlying facts the question presented is the proper application or interpretation of the law (Const 1963, art 6, §28; MCL 421.38; MSA 17.540).

    3. Unemployment Compensation — Disqualification — Employee Misconduct — Statutes.

      An employee’s action in breaking down a door in the employer’s place of business did not constitute misconduct sufficient to justify disqualification from payment of unemployment beneñts where the action was neither a breach of duty endangering human life and property nor was it fundamentally disruptive of orderly conduct of work and of the employer’s right to direct the work (MCL 421.29[l][bj; MSA 17.531[l][bj).

    4. Unemployment Compensation — Remedial Purpose — Liberal Construction.

      The unemployment compensation act is remedial in purpose and must be liberally construed.

    5. Unemployment Compensation — Master and Servant — Employee Misconduct — Pattern of Misconduct.

      The fact that two instances of misconduct of an employee are distant in time from one another does not prevent a ñnding of a pattern of misconduct sufficient to disqualify the employee for unemployment compensation; however, such a determination should be based on the "total picture" to consider the consistency, duration and gravity of the employee’s conduct, and where the behavior was not so continuous and egregious that it

      evidences his utter disregard for the employer’s interests a ñnding of a pattern of misconduct is erroneous (MCL 421.29[1][b]; MSA 17.531[1][b]).

      Michael Nelson, Legal Aid & Defender Association of Kent County, for plaintiff.

      Miller, Johnson, Snell & Cummiskey (by Brent D. Rector), for defendant Metzgar Conveyor Company.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James H. White, Assistant Attorney General, for the Employment Security Commission.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook and Beasley, JJ.
   Beasley, J.

Plaintiff appeals from a determination by a referee for the Michigan Employment Security Commission (MESC) disqualifying him from unemployment benefits for a six-week period. The referee found that the plaintiff had been discharged for "misconduct connected with his work” pursuant to MCL 421.29(1)(b); MSA 17.531(1)(b). This decision of the referee, which was affirmed by both the appeal board and the circuit court, is supported by competent, material evidence on the whole record. The referee made the following findings of fact after hearing the contradictory testimony regarding a two-by-four thrown through a window on April 18, 1974, and damage to a cafeteria door on December 30, 1974:

"The claimant worked approximately one year for this employer as a machinist. On or about December 30, 1974 while in the plant, he came through one of the doors with such force that the hinges were bent, two bolts were knocked out, and the portion of the air stopper on the door attached to the frame was pulled out. This is a Union shop, and he was terminated and subsequently filed a grievance, which was to no avail.
"The claimant contends he just opened the door and that someone prior to that had loosened the bolts, and to the best of his knowledge there was no damage. The employer witness stated it took him 1 1/2 to 2 hours of labor, plus two bolts, and he straightened the door out with a hammer and a vise. The witness stated no one actually saw the claimant push the door, but the witness who testified that when he heard the noise, he witnessed the claimant charging in after the door was pushed open by him. The witness also testified that when he was a foreman, on or about April 18, 1974, the claimant was given a reprimand for throwing a 2x4 through the window. The claimant states this was accidental as he meant to throw it in the wood pile as another employee threw it at him. The claimant was terminated on December 30, 1974 by the foreman, and the reason given him was 'abuse of company property.’ The Referee notes this was identical to the notice given to the claimant (Ex. #11) on April 18, 1974.”

In support of his decision, the referee cited Miller v F W Woolworth Co, and concluded that plaintiff could be disqualified from receiving unemployment compensation benefits under the misconduct provision of the act for a discharge which resulted from a "pattern of misconduct”.

The standard for disqualifying misconduct is enunciated in Carter v Employment Security Comm as:

"limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.”

Applying this definition to this case, we find that the referee’s decision was in conformance with both the law and the evidence.

Affirmed.

D. E. Holbrook, J., concurred.

M. F. Cavanagh, P.J.

(dissenting). Plaintiff appeals from a determination by a referee for the Michigan Employment Security Commission (MESC) disqualifying him from unemployment benefits for a six-week period. The referee found that the plaintiff had been discharged for "misconduct connected with his work” pursuant to MCL 421.29(1l)(b); MSA 17.531(1)(b). This decision was affirmed by the MESC Appeal Board, with one member dissenting; the circuit court also upheld the referee’s determination on the grounds that competent, material and substantial evidence existed in the record to support his findings.

The facts are essentially not in dispute. Plaintiff was discharged by his employer as the result of an incident in which he came through a metal cafeteria door with sufficient force to break two sets of bolts connected to the door’s closing mechanism, as well as damaging the door’s hinges and frame. The reason given for the discharge was abuse of company property, in violation of company rules. At the hearing, testimony showed that the plaintiff was reprimanded for a similar incident in which he threw a board towards a wood pile without looking. By misdirection, the board broke a window. The referee found that these two incidents, which taken individually may not have constituted misconduct, established a pattern of misconduct under Miller v F W Woolworth Co, 359 Mich 342, 354; 102 NW2d 728 (1960), sufficient for disqualification under MCL 421.29(1)(b); MSA 17.531(1)(b).

The first issue raised by the plaintiff concerns the proper standard for review of administrative decisions. This standard is well established. The reviewing court has the power to consider questions of law and fact, but may reverse an order of the MESC referee or appeal board only if the decision is contrary to law or is unsupported by competent, material evidence on the whole record. Const 1963, art 6, § 28; MCL 421.38; MSA 17.540. Where no dispute exists as to the underlying facts, the question presented is the proper application or interpretation of the law. Thomas v Employment Security Comm, 356 Mich 665; 97 NW2d 784 (1959), Baker v General Motors Corp, 74 Mich App 237, 244-245, fn 2; 254 NW2d 45 (1977). The scope of this review clearly includes the soundness of the MESC’s interpretation of misconduct. Wickey v Employment Security Comm, 369 Mich 487, 492; 120 NW2d 181 (1963). The trial court therefore erred in failing to review the issue of misconduct.

Plaintiff, in addition to disputing the MESC finding of a pattern of misconduct sufficient to disqualify him for unemployment benefits under Miller v F W Woolworth Co, supra, also asserts that the single incident involving the door did not constitute misconduct.

It is clear, first of all, that while this incident may have justified the plaintiffs discharge for a breach of company rules, not every such breach rises to the level of misconduct sufficient to disqualify the employee for unemployment benefits. Reed v Employment Security Comm, 364 Mich 395; 110 NW2d 907 (1961).

To justify the finding of misconduct in the instant case, the plaintiffs conduct must fall within the definition set out in Carter v Employment Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961):

"The term 'misconduct’ * * * is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct’ within the meaning of the statute.”

Although the plaintiffs force in opening the door was under the circumstances negligent and unsatisfactory conduct, I cannot conclude that it was misconduct within the meaning of the statute. His act was not a breach of duty endangering human life and property, Bell v Employment Secu rity Comm, 359 Mich 649; 103 NW2d 584 (1960) (misconduct found where a boiler tender, charged with responsibility for a potentially dangerous piece of machinery, fell asleep on the job). Nor was his conduct "fundamentally disruptive of orderly conduct of work and of an employer’s right to direct” it as was the employee’s disobedience of a foreman’s direct order and threat of violence in Carter, supra, 542. In fact, the referee implicitly found that the incident involving the door, standing alone, was insufficient to establish misconduct. Rather, he felt it necessary to rely on plaintiffs prior conduct in order to justify his conclusions. In my view, the incident of the two-by-four provided even less justification for the referee’s decision than did the acts that finally caused plaintiffs discharge. I therefore conclude that this single incident is insufficient to meet the standards of misconduct in Carter, supra. In so concluding, I am mindful of the remedial purpose of the unemployment compensation act. To effectuate this purpose, its provisions must be liberally construed; we thus must view with caution any narrowing of the act that would deprive persons entitled thereunder of benefits. Godsol v Unemployment Compensation Comm, 302 Mich 652, 665; 5 NW2d 519 (1942), Fifth District Republican Committee v Employment Security Comm, 19 Mich App 449, 452; 172 NW2d 825 (1969), lv den 383 Mich 760 (1970).

I next examine the referee’s conclusion that the two instances in which the plaintiff damaged company property constituted a series of acts establishing a pattern of misconduct. These two episodes occurred eight months apart; the earlier of the two had resulted in a three-day disciplinary lay-off.

The fact that these two instances were distant in time from each other does not prevent a finding of a "pattern of misconduct”. Giddens v Employment Security Comm, 4 Mich App 526, 535; 145 NW2d 294 (1966), lv den 378 Mich 744 (1966). Giddens, however, defines this pattern as a type of "last straw doctrine”:

"Indeed, if we were to sum up the latitude to be permitted an employer in dealing with a recalcitrant employee who has consistently demonstrated disregard for the employer’s interests, we might call it a 'last straw’ doctrine in which the final infraction, * * * is of such a nature that it demonstrates conclusively the employee’s utter disregard for the employer’s interests.”

Other cases finding a pattern of misconduct adopted a total picture approach to focus on the consistency, duration and gravity of the conduct to determine if the employee’s behavior evinced "a wilful disregard of [the] employer’s interests”. Booker v Employment Security Comm, 369 Mich 547, 551; 120 NW2d 169 (1963).

1 agree with the plaintiff, therefore, that the referee erred in finding that the two instances complained of constituted a pattern of misconduct sufficient to disqualify the plaintiff for benefits under MCL 421.29(1)(b); MSA 17.531(1)(b). The total picture presented reveals that the plaintiffs behavior, while negligent, was not so continuous and egregious that it evidenced his utter disregard for his employer’s interests. Giddens v Employment Security Comm, supra. For the foregoing reasons, I would reverse.

       This disqualification period was based on the version of MCL 421.29(3); MSA 17.531(3) then in effect. Subsequently, the statute was amended, effective June 6, 1975, to provide a 13-week disqualification period for benefits where an employee is discharged for misconduct under MCL 421.29(1)(b); MSA 17.531(1)(b). See, 1975 PA 110, § 1.

       Const 1963, art 6, § 28; MCL 421.38; MSA 17.540.

       359 Mich 342; 102 NW2d 728 (1960).

       MCL 421.29(1)(b); MSA 17.531(1)(b).

       364 Mich 538, 541; 111 NW2d 817 (1961).

       This disqualification period was based on the version of MCL 421.29(3); MSA 17.531(3) then in effect. Subsequently, the statute was amended, effective June 6, 1975, to provide a 13-week disqualification period for benefits where an employee is discharged for misconduct under MCL 421.29(1)(b); MSA 17.531(1)(b). See 1975 PA 110, § 1.

       The pattern of misconduct in Booker, supra, was based on the employee’s long history of absenteeism, tardiness and intoxication. For other examples of this type of misconduct, see Miller v F W Woolworth Co, supra, (misconduct found in employee’s consistent ill-temper, rudeness to customers and insubordination, despite repeated warnings) and Giddens v Employment Security Comm, supra, (employee’s record revealed numerous disciplinary lay-offs and a last-chance warning prior to the final episode of absenteeism that caused his discharge).