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

text:
    ELGAMMAL v MACOMB COUNTY INTERMEDIATE SCHOOL DISTRICT BOARD OF EDUCATION
    Docket No. 77-414.
    Submitted December 7, 1977, at Detroit.
    Decided May 22, 1978.
    Attia A. Elgammal was discharged from his employment as a tenured teacher by the Macomb County Intermediate School District Board of Education. Elgammal requested a hearing, but was refused one by the board because the request came more than 45 days after the initial filing of charges against Elgammal. Elgammal appealed to the teacher tenure commission, which found that he had not made a timely request for a hearing before the board, and dismissed the appeal. Elgammal then filed an appeal in circuit court seeking reinstatement with back pay or, in the alternative, a remand for further proceedings. The Macomb Circuit Court, Hunter D. Stair, J., reversed the commission, remanded the case to the school board for a hearing, and ordered the results of the hearing to be forwarded to the court. The school board held the hearing, again resolved to dismiss the plaintiff, and delivered the decision to the court. The court then entered an order upholding the dismissal. Plaintiff moved for a rehearing, requesting that he be allowed to take the board’s decision before the tenure commission. The court denied this motion, and plaintiff appeals. Held:

    1. The court acted within its power in remanding the matter to the board for a hearing on the merits; however, the court erred by directing that the results of the hearing were to be forwarded directly to the court. This was an impermissible expansion of the appellate jurisdiction of the circuit court, at the expense of the plaintiff’s right to administrative review.
    2. The plaintiff did not lose his right to a review by the tenure commission by his failure to make timely application because the trial court’s erroneous assertion of jurisdiction tolled the 30-day limitations period for appeals to the commission; nor did plaintiff lose his right to appeal by waiver, because the record does not indicate that the plaintiff intentionally exchanged his right to a review before the tenure commission for a judicial review of the board’s decision.

      References for Points in Headnotes

       68 Am Jur 2d, Schools § 202 et seq.

       68 Am Jur 2d, Schools § 191.

      3. There is no requirement that a board hearing be held as a prerequisite to a hearing before the tenure commission.
    Reversed and remanded.
    1. Schools and School Districts—Tenured Teachers—Tenure Commission—Review—Statutes.
    The teacher tenure act provides a tenured teacher with the right to have the tenure commission review a school board’s decision to discharge the teacher; the commission hears the case de novo (MCL 38.121; MSA 15.2021).
    2. Schools and School Districts—Courts—Tenure Commission-Review—Limits of Review.
    A decision of the teacher tenure commission is appealable to the circuit court; however, the circuit court’s reviewing power is limited to a determination of whether the commission’s decision is supported by competent, material and substantial evidence, and will overturn a decision only when such decision is contrary to law or is not supported by the necessary competent, material and substantial evidence (MCL 24.301, 600.631; MSA 3.560[201], 27A.631).
    3. Schools and School Districts—Administrative Law—Judicial Review—Exhaustion of Remedies—Statutes.
    A decision of a school board to discharge a tenured teacher is not subject to judicial review until the teacher has exhausted administrative remedies by obtaining review of the decision by the teacher tenure commission (MCL 24.301; MSA 3.560[201]).
    4. Schools and School Districts—Tenured Teachers—Discharge— Circuit Court—Jurisdiction.
    A circuit court which first heard a case involving the discharge of a tenured teacher upon appeal from the teacher tenure commission and properly remanded the matter to the school board for a hearing on the merits erred by directing the results of that hearing to be forwarded directly to the court rather than allowing an appeal to the tenure commission; the order impermissibly expanded the appellate jurisdiction of the circuit court.
    5. Schools and School Districts—Limitation of Actions—Tenure Commission—Tolling of Limitations Period.
    The 30-day period for bringing an appeal from a school board’s decision to the teacher tenure commission was tolled where a circuit court erroneously asserted jurisdiction over the matter, precluding review by the tenure commission.
    6. Schools and School Districts—Waiver—Tenured Teachers— Right to Hearing.
    A valid waiver requires an intentional relinquishment of a known right; a discharged tenured teacher did not waive his right to a hearing before the teacher tenure commission where a circuit court erroneously asserted jurisdiction of the matter, and the teacher acquiesced in the court’s assertion of jurisdiction, where the record does not indicate that the teacher intentionally exchanged his right to review by the tenure commission for the court’s review of the school board’s decision.
    7. Schools and School Districts—Tenured Teachers—Tenure Commission—Prerequisite to Review.
    There is no requirement that a tenured teacher who has been discharged from employment must exercise the right to a hearing before the school board as a prerequisite to seeking a hearing before the teacher tenure commission.

      Marco A. Santia, for plaintiff.
    Miller, Canfield, Paddock & Stone (by James E. Tobin), for defendant.
    Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   M. F. Cavanagh, P. J.

Defendant board of education rendered a decision discharging plaintiff, a tenured teacher. This decision was sustained by the circuit court, and plaintiff appeals.

The issues on appeal concern the propriety of the procedures followed below, and require that we recount the rather complex proceedings in detail.

On April 12, 1972, the school district’s superintendent filed dismissal charges against plaintiff with the board. A copy of the charges together with a letter reciting plaintiff’s rights under the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., were mailed to plaintiff’s home on April 14, 1972. The letter instructed plaintiff to request a hearing, if desired, within ten days from the date of the letter. However, plaintiff was in the hospital at this time and did not return home and pick up his mail until April 28, 1972, 14 days after the letter’s date.

As of May 30, 1972, 46 days after the letter was mailed to plaintiff, he had not requested a hearing. The board, noting that the tenure act required it to hold any hearing within 45 days of the filing of charges, MCL 38.102; MSA 15.2002, concluded that plaintiff did not desire a hearing. The board proceeded to act upon the charges and adopted a resolution dismissing plaintiff.

Upon notification of his dismissal, plaintiff, by letter dated June 2, 1972, requested a hearing before the board. The board refused a hearing on the ground that the 45-day period had expired.

Plaintiff appealed to the state teacher tenure commission. The commission’s decision stated the sole issue as whether plaintiff had made a timely request for a hearing before the board. The commission found against plaintiff, and granted the board’s motion to dismiss.

Plaintiff then filed an appeal in circuit court, seeking reinstatement with back pay or, in the alternative, a remand for further proceedings. The court found that plaintiff had justifiably assumed that his right to a hearing was lost when he received, 14 days after its mailing, a letter directing him to request a hearing, if desired, within ten days. The court further found that the delay before plaintiff did request a hearing was not unreasonably long. The court then reversed the commission and remanded the case for a hearing before the local board. No appeal from this adverse determination was taken by the defendant board. The court’s opinion also stated that it would "hold in abeyance” a decision on plaintiffs request for reinstatement and back pay "until said hearing is held and results of same forwarded to the Court”.

On May 7, 1976, after lengthy hearings, the board again resolved to discharge plaintiff. The board’s attorney then delivered to the circuit court the board’s decision and a transcript of the hearings. The court, after reviewing these documents and briefs of counsel, entered an order upholding the board’s action.

Plaintiff then moved the court for a rehearing, requesting that the court set aside its order and permit plaintiff to exhaust his administrative remedies by obtaining tenure commission review of the board’s decision on the merits. The court denied the motion, indicating that even if plaintiff were to prevail before the tenure commission the case would come back before the court and that the court agreed with the board’s disposition. Plaintiff appeals from the order denying a remand to the tenure commission.

The teacher tenure act prescribes the procedure for review of a school board’s decision to discharge a tenured teacher. The act specifically provides the tenured teacher with the right to review by the tenure commission. MCL 38.121; MSA 15.2021. The commission hears the case de novo. Luther v Board of Education of the Alpena Public Schools, 62 Mich App 32, 35; 233 NW2d 173, 175 (1975). It may take new evidence, "make an independent finding of facts, opinionate upon the same, and enter an order accordingly”. Rehberg v Board of Education of Melvindale, Ecorse Township School District No. 11, 345 Mich 731, 740; 77 NW2d 131, 135 (1956). The commission is "vested with duty and authority to determine, anew and as original questions, all issues of fact and law theretofore decided by the controlling board”. Long v Board of Education, District No. 1, Fractional, Royal Oak Township and City of Oak Park, 350 Mich 324, 327; 86 NW2d 275, 276 (1957).

The commission’s decision is in turn appealable to the circuit court. MCL 24.301; MSA 3.560(201), MCL 600.631; MSA 27A.631. However, the court’s reviewing power is limited:

"When a court reviews an administrative tribunal decision, it reviews the original record to determine if the decision is supported by competent, material and substantial evidence, and will overturn a decision only when such decision is contrary to law, or is not supported by the necessary competent, material and substantial evidence.” Detroit v General Foods Corp, 39 Mich App 180, 190; 197 NW2d 315, 321 (1972). (Emphasis in original.)

See also, Long v Board of Education, District No. 1, Fractional, Royal Oak Township and City of Oak Park, supra, 350 Mich at 326; 86 NW2d at 276.

Review of a tenured teacher’s discharge is further limited by the rule that an administrative agency’s decision is not subject to judicial review until the aggrieved party has exhausted all administrative remedies. See MCL 24.301; MSA 3.560(201). See generally Judges of the 74th Judicial District v Bay County, 385 Mich 710, 727-728; 190 NW2d 219, 226 (1971). Because tenure commission review is available to a tenured teacher discharged by the board, the doctrine of exhaustion requires resort to this remedy before the case is reviewable in circuit court. Compare Long v Board of Education, District No. 1, Fractional, Royal Oak Township and City of Oak Park, supra, 350 Mich at 326; 86 NW2d at 276, with Caddell v Ecorse Board of Education, 17 Mich App 632, 635-636; 170 NW2d 277, 279 (1969).

The circuit court first heard the instant case on appeal from the tenure commission. The court acted fully within its power in remanding the matter to the board for a hearing on the merits. However, the court erred by directing that the results of this hearing were to be forwarded directly to the court. The order impermissibly expanded the appellate jurisdiction of the circuit court at the expense of plaintiffs right to administrative review.

Defendant contends that plaintiff lost his right to tenure commission review by failure to make timely application and by waiver through acquiescence in the circuit court’s assertion of jurisdiction.

As to timely application, the statute requires that appeals to the tenure commission be taken within 30 days from the date of the board’s decision. MCL 38.121; MSA 15.2021. Here it has been many more than 30 days since the school board decision of which plaintiff complains.

However, in proper circumstances the 30-day period may be tolled. Biberstine v Port Austin Public School District No. 9, 51 Mich App 274, 278-279; 214 NW2d 729, 732 (1974), lv den, 392 Mich 766 (1974). The statute of limitations on an action at law is held to be tolled where a suit is commenced and jurisdiction over the defendant is obtained. MCL 600.5856; MSA 27A.5856. Smith v Bordelove, 63 Mich App 384, 386; 234 NW2d 535, 536 (1975), lv den, 395 Mich 772 (1975). A similar rule is appropriate where, as here, a court order truncates administrative review and brings the dispute into court. See Barczak v Rockwell International Corp, 68 Mich App 759, 766 et seq., 244 NW2d 24, 27 (1976) (dissenting opinion of M. F. Cavanagh, J.). Defendant can hardly contend that it was prejudiced by lack of timely notice of the claim which it was called upon to defend. Accordingly, we hold that the court’s erroneous assertion of jurisdiction tolled the limitations period for appeal to the tenure commission.

We turn to defendant’s claim that plaintiff waived his right to tenure commission review. A valid waiver requires an intentional relinquishment of a known right. Book Furniture Co v Chance, 352 Mich 521, 526; 90 NW2d 651, 655 (1958). From plaintiffs compliance with the court’s order it may fairly be inferred that he desired the benefit of any favorable ruling which the court might make. However, nothing in this record persuades us that plaintiff intentionally exchanged his right to de novo review before the tenure commission and subsequent judicial review for the court’s extrajurisdictional review of the board’s decision. Plaintiffs motion for remand to the tenure commission is strong evidence to the contrary. We find no waiver of the right to a hearing before the tenure commission.

Finally, defendant urges us to affirm the lower court on the ground that it reached the correct result, notwithstanding unsound reasons. See Bostrom v Jennings, 326 Mich 146, 157-158; 40 NW2d 97, 102 (1949). Defendant argues that the court erred by remanding the case for a board hearing, and that, for this reason, there was no error in refusing a remand for a tenure commission hearing.

Defendant’s argument assumes that the right to a hearing before the tenure commission is conditinned on exercise of the right to a prior hearing before the school board.

We have reservations about applying a right result-wrong reason analysis in this context. See GCR 1963, 807. These reservations aside, defendant has cited, and we have found, no authority requiring a board hearing as a prerequisite to a tenure commission hearing. Nothing in the teacher tenure act or the tenure commission’s rules so provides. See MCL 38.71 et seq.; MSA 15.1971 et seq., 1976 AACS, R 38.131 et seq. We conclude that, even if the court erred in ruling that plaintiff was entitled to a hearing before the board (a question upon which we express no opinion), this would not excuse error in denying plaintiff tenure commission review.

The circuit court is reversed. If demand is made within 30 days, plaintiff’s appeal shall be heard by the teacher tenure commission. This disposition makes it unnecessary to consider plaintiff’s request for back pay.

Reversed and remanded. No costs.


source: Caselaw Access Project

author: M. J. Kelly, J. Danhof, C. J.

license: Public Domain

text:
    BUSHMAN v BURNS CLINIC MEDICAL CENTER, P. C. (AFTER REMAND)
    Docket No. 77-883.
    Submitted December 8, 1977, at Grand Rapids.
    Decided May 22, 1978.
    Leave to appeal applied for.
    Thomas Bushman and his wife Kay Bushman filed a complaint in the Emmet Circuit Court against Burns Clinic Medical Center, P. C., and John Hall, M. D., alleging medical malpractice and breach of warranty in the performance of a vasectomy on the plaintiff husband. The plaintiff wife became pregnant and gave birth to a healthy child after the vasectomy. The circuit court granted the defendant’s motion for accelerated judgment based upon expiration of the statute of limitations. Plaintiffs appealed to the Court of Appeals which, in an unpublished opinion, reversed and remanded the case for trial. On remand to the Emmet Circuit Court, Martin B. Breighner, J., the jury returned a verdict in favor of defendants and a judgment of no cause of action was entered against the plaintiffs. Plaintiffs appeal. Held:

    The "benefits rule” applicable in wrongful life actions, which states that any damages incurred by the plaintiffs should be offset by any benefits received from having the blessing of a healthy child, does not apply in an action for damages incurred for wrongful pregnancy where the plaintiffs are not seeking the costs of raising the child as damages. Damages for wrongful pregnancy are established prior to the child’s birth; thus, benefits received from raising the child are logically severable from the damages already incurred where the circumstances indicate this is equitable. The plaintiffs should be allowed their probable damages for the wife’s pain, suffering and discomfort as a result of the pregnancy, the cost of a vasectomy, the husband’s loss of his wife’s comfort, companionship, services and the loss of her consortium limited to the loss from the pregnancy and immediately after the birth, and the medical expenses incurred as a result of the pregnancy.

      References for Points in Headnotes

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 135, 216, 217.
    Medical malpractice, and measure and element of damages, in connection with sterilization or birth control procedures. 27 ALR3d 906. .

      Reversed and remanded.
    Danhof, C. J., dissented and would hold that the plaintiffs’ voluntary tactic in disclaiming the cost of raising the child as an element of damages does not operate to preclude application of the "benefits rule” in establishing damages; therefore, the benefits of the unplanned child may be weighed against all the elements of claimed damages.
    Opinion of the Court
    1. Negligence—Malpractice—Medical Malpractice—Vasectomy— Damages—Benefits Rule—Unplanned Child.
    The "benefits rule” in wrongful life actions, that any damages incurred by the plaintiffs should be offset by the benefits received from having the blessing of a healthy child, does not apply in an action for damages incurred for wrongful pregnancy, namely the mental distress, anxiety, discomfort, and the accompanying physical, mental, and financial effects caused by an unwanted pregnancy where the action is for malpractice in the performance of a vasectomy on a husband and the wife later gave birth.
    2. Negligence—Wrongful Life—Public Policy—Benefits Rule— Wrongful Pregnancy.
    Michigan’s public policy does not deny recovery in a wrongful life action where a normal healthy child has been delivered, but recovery in a wrongful life action has been limited by offsetting any benefits received from the child; the public policy reasons expressed in precedent cases for denying recovery and offsetting any benefits are far less convincing in an action for damages for wrongful pregnancy than in the cases which deny recovery for wrongful life.
    3. Negligence—Malpractice—Medical Malpractice—Wrongful Pregnancy—Damages.
    The plaintiffs in an action for wrongful pregnancy who allege the negligent performance of a vasectomy may be allowed provable damages only for (1) the pain, suffering and discomfort of the plaintiff wife as a result of her last pregnancy, and (2) the cost of a vasectomy, and (3) the loss to plaintiff husband of the comfort, companionship, services and consortium of plaintiff wife; however, the loss of consortium is limited to the loss arising from pregnancy and immediately after birth, and (4) the medical expenses incurred by plaintiffs as a result of the pregnancy.
    4. Negligence—Malpractice—Medical Malpractice—Vasectomy— Damages—Speculation—Conjecture—Severance of Damages.
    Damages for wrongful pregnancy in a case where negligent performance of a vasectomy is alleged may be established without speculation and conjecture since such damages are established prior to the child’s birth, and thus, any benefits received by the parents from raising the child are logically severable from damages already incurred.
    5. Negligence—Malpractice—Medical Malpractice—Vasectomy— Damages—Wrongful Pregnancy—Severance of Damages— Circumstances.
    The damages claimed by the plaintiffs in an action for wrongful pregnancy are reasonably and equitably severable from the benefits received from the birth of a healthy child where circumstances indicate that the defendant physician was negligent in performing a vasectomy on the plaintiff father, that the unwanted pregnancy was difficult for the plaintiff mother, a polio victim as a child, and that the plaintiff mother was placed under psychiatric care after threatening suicide after her pregnancy was confirmed.
    Dissent by Danhof, C. J.
    6. Negligence—Malpractice—Medical Malpractice—Negligent Sterilization—Breach of Contracts—Damages—Cost of Raising Child—Benefits Rule.

      The plaintiffs’ voluntary tactic in an action alleging negligent sterilization and breach of contract, in affirmatively and voluntarily disclaiming the cost of raising an unplanned child as an element of their damages, does not operate to preclude application of the "beneñts rule” that the beneñts, if any, to these plaintiffs from the unplanned child were to be weighed against all the elements of claimed damages in establishing the plaintiffs’ damages.

    7. Negligence—Malpractice—Medical Malpractice—Vasectomy— Negligent Sterilization—Benefits Rule—Damages.

      The "beneñts rule” provides that if the defendant’s tortious conduct conferred a beneñt to the same interest which was harmed by his conduct the dollar value of the beneñt is to be subtracted from the dollar value of the injury in arriving at the

      amount of damages properly awardable; the beneñts of an unplanned child may be weighed against all the elements of claimed damages in an action where the negligent performance of a vasectomy is alleged, since pregnancy and its attendant anxiety, incapacity, pain, and suffering are inextricably related to child bearing, and it would not be sound to attempt to separate those segments of damages from the economic costs of an unplanned child in applying the rule.

      John D. Hayes, for plaintiffs.

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

On September 13, 1973, Thomas Bushman and Kay Bushman filed a complaint against Burns Clinic Medical Center, P. C., and John Hall, M. D., for damages for medical malpractice and breach of warranty. On December 3, 1973, the Emmet County Circuit Court granted defendant’s motion for an accelerated judgment based upon the expiration of the statute of limitations. MCL 600.5805, 600.5838; MSA 27A.5805, 27A.5838. This Court reversed that decision, Bushman v Burns Clinic Medical Center, P. C., (Docket No. 19333, decided December 4, 1974 [unreported]), and remanded the case for trial.

Plaintiffs were represented by new counsel at trial. In his opening statement to the jury, plaintiffs’ counsel informed the court that plaintiffs were limiting their cause of action to money damages for mental distress, anxiety, discomfort, and the accompanying physical, mental, and financial effects caused by an unwanted pregnancy. He remarked that those claims were included in the original five-count complaint. During trial plaintiffs did not introduce any proofs on a number of other damage allegations found in the original complaint, but proceeded with a claim narrowed to the issue of damages incurred for wrongful pregnancy as distinguished from wrongful birth.

On February 4, 1977, judgment of no cause for action in favor of defendants was entered upon a January 26, 1977, jury verdict. Plaintiffs appeal of right.

This case involves a vasectomy performed on plaintiff husband by defendant doctor. The vasectomy was ineffective since plaintiff wife later became pregnant with their fifth child. The child was and is in good health.

The particular factual situation presents us with what appears to be a case of first impression. One central issue is controlling and dispositive of this appeal, requiring reversal and remand for a new trial because of erroneous instructions and arguments to the jury. The defense theory approved by the trial court was that any damages incurred by the plaintiffs should be offset by the benefits received from having the blessing of a healthy child.

The trial court relied on Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971), lv den, 385 Mich 753 (1971). But reliance on Troppi is misplaced. Aside from damages incurred in a wrongful pregnancy, the plaintiffs in Troppi were seeking the economic costs of rearing their eighth child. The child was conceived after the mother had taken a drug, provided to her by a pharmacist, represented to be a contraceptive. It actually was a mild tranquilizer.

Plaintiffs in the present case abandoned damage allegations for the economic cost of raising their child, prior to the commencement of trial. We are aware that the Troppi Court did conclude that damages incurred during pregnancy should not be separated from damages for the economic costs of rearing a child. The Court stated:

"Since pregnancy and its attendant anxiety, incapacity, pain, and suffering are inextricably related to child bearing, we do not think it would be sound to attempt to separate those segments of damage from the economic costs of an unplanned child in applying the 'same interest’ rule. Accordingly, the benefits of the unplanned child may be weighed against all the elements of claimed damage.” 31 Mich App at 255.

The following discussion of case law and public policy leads us to the conclusion that the "benefits rule” set forth in Troppi should not apply to an action narrowly confined to damages for wrongful pregnancy and not wrongful life. To the extent this is inconsistent with Troppi, we stand in disagreement.

Case law in the various jurisdictions is divided on whether or not to allow recovery for wrongful life and make a physician liable for an unplanned child because of his negligent sterilization treatment. A recent New York case noted: "Causes of action for 'wrongful life’ have consistently met with judicial disapproval not only in New York State but in other jurisdictions as well”. Karlsons v Guerinot, 57 App Div 2d 73, 79; 394 NYS2d 933, 937 (1977). See Clegg v Chase, 89 Misc 2d 510; 391 NYS2d 966 (1977), Terrell v Garcia, 496 SW2d 124 (Tex Civ App, 1973), cert den 415 US 927; 94 S Ct 1434; 39 L Ed 2d 484 (1974), criticizing Troppi v Scarf, supra.

The Clegg court did note that "there are many well reasoned authorities to the contrary” allowing damages for wrongful life. Citing Martineau v Nelson, 247 NW2d 409 (Minn, 1976), Custodio v Bauer, 251 Cal App 2d 303; 59 Cal Rptr 463; 27 ALR2d 884 (1967). See also Troppi v Scarf, supra, Terrell v Garcia, supra, at 128 (Cadena, J., dissenting), Hays v Hall, 477 SW2d 402 (Tex Civ App, 1972), rev’d on other grounds, 488 SW2d 412 (Tex, 1972). See generally Anno: Medical Malpractice, and Measure and Element of Damages, in Connection with Sterilization or Birth Control Procedures, 27 ALR3d 906, Anno: Tort Liability for Wrongfully Causing One to be Born, 22 ALR3d 1441. Various jurisdictions have denied recovery in a wrongful life action when a normal healthy child has been delivered without harm to the mother on the grounds that the benefits of raising a child make the granting of any damages contrary to public policy. 27 ALR3d at 916. Michigan has determined that there is no public policy reason to deny recovery, but has limited recovery by offsetting any benefits received. Troppi v Scarf, supra.

Plaintiffs in the instant case claim to have been damaged by the tortious conduct of the defendant doctor in performing a vasectomy negligently. Since the plaintiffs have narrowed their claim of damages to wrongful pregnancy, they have framed an action wherein the policy reasons for denying recovery and offsetting any benefits are far less convincing than in the cases denying recovery for wrongful life.

In Coleman v Garrison, 327 A2d 757 (Del Super, 1974), aff'd 349 A2d 8 (Del, 1975), a Delaware court held that there should be no cause of action for damages for wrongful life, but nevertheless found sufficient reason to allow a cause of action for wrongful pregnancy. The court stated:

"It is the view of this Court that there should be no cause of action so established as to allow damages for 'wrongful life.’ The preciousness of human life should not be held to vary with the circumstances surrounding birth. To make such a determination would, indeed, raise the unfortunate prospect of ruling, as a matter of law, that under certain circumstances a child would not be worth the trouble and expense necessary to bring him into the world. It is not difficult to understand the reluctance of many distinguished jurists to find that the birth of a child is an injury for which plaintiff should deserve an award of damages.
"That is not to say, however, that the plaintiff has not suffered a recognizable injury where avoidable pregnancy has resulted from faulty medical procedure. To the contrary, a ruling that no recognizable cause of action could exist under such circumstances would leave the medical profession virtually immune from liability for improper treatment of patients justifiable [sic] seeking to avoid pregnancy.
"A more appropriate resolution of the difficulties presented, and the one hereby adopted, is to view the action as one for 'wrongful pregnancy’ rather than one for 'wrongful life’ thereby limiting the scope of the injury to the very real expenses, and obvious difficulties attending the unexpected pregnancy of a woman.
"Limitation of the cause of action in such a manner is valid since to do otherwise, would be to invite unduly speculative and ethically questionable assessments of such matters as the emotional affect of a birth on siblings as well as parents, and the emotional as well as pecuniary costs of raising an unplanned and, perhaps, an unwanted child in varying family environments. Speculative damages are, quite simply, not recoverable in this State. See Laskowski v Wallis, 205 A.2d 825 (Del. Supr. 1964); Henne v Balick, 1 Storey 369, 146 A.2d 394 (Del. Supr. 1958).” 327 A2d at 761.

In Michigan, while we recognize an action to allow damages for "wrongful life” offset by the benefits received by the plaintiffs from that life, the question is: should those benefits offset the potential damages for "wrongful pregnancy”? The Coleman case, although not binding on this Court, does suggest that we should treat damages for "wrongful pregnancy” differently than for "wrongful life”. We do not feel constrained by the Troppi Court to follow the "benefits rule” under the instant facts since Troppi was primarily concerned with damages sought for "wrongful life”. We adopt the following findings by the Coleman court as applicable in the present case:

"In summary, this Court finds that the plaintiffs may be allowed provable damages only for the following:
1. The pain, suffering and discomfort of [plaintiff wife] as a result of her last pregnancy; and
2. The cost of a [vasectomy]; and
3. The loss to [plaintiff husband] of the comfort, companionship, services and consortium of [plaintiff wife]; however, the loss of consortium is limited to the loss arising from pregnancy and immediately after birth; and
4. The medical expenses incurred by [plaintiffs] as a result of the * * * pregnancy.” 327 A2d at 761-762.

Further support can be found in Custodio v Bauer, supra, a California case wherein plaintiffs sought to recover damages resulting from the pregnancy of the plaintiff wife following the failure of a sterilization operation. In reversing a dismissal entered against the plaintiff, the Custodio court held in part that if the plaintiffs established a violation of duty by the defendants they should be awarded damages for the expenses incurred in undergoing the operation. Furthermore, if the plaintiffs could show "physical complications and mental, physical and nervous pain and suffering which the operation was designed to prevent, they should be able to recover”. The court noted that "mental suffering attendant to the unexpected pregnancy because of the complications which may or may not result, the complications that do result, and the delivery of a child are all foreseeable consequences of the failure of the operation”.

In West v Underwood, 132 NJL 325; 40 A2d 610 (1945), plaintiffs brought an action against defendants for negligently failing to sterilize the plaintiff wife at the time of performing a Caesarean operation. The court noted that there were proofs supporting the allegations. The court ruled that if this were so "[pjlaintiffs were entitled to recover for all pain and suffering, mental and physical, together with loss of services and 'any other loss or damage proximately resulting from such negligence’ ”. See also Betancourt v Gaylor, 136 NJ Super 69, 75; 344 A2d 336, 339 (1975), Anonymous v Hospital, 33 Conn Supp 126; 366 A2d 204 (1976).

A jury could not be expected to place the value of a child’s life to his parents as less than damages incurred during an unwanted pregnancy. To expand the scope of Troppi to the instant facts would, in effect, outlaw a cause of action for wrongful pregnancy. Again we quote from Coleman, supra:

"[A] ruling that no recognizable cause of action could exist under such circumstances would leave the medical profession virtually immune from liability for improper treatment of patients justifiable [sic] seeking to avoid pregnancy.” 327 A2d at 761.

Damages may be established without speculation and conjecture. Cf. Coleman v Garrison, supra, at 761, Terrell v Garcia, supra, at 127-128. In the main the damages for wrongful pregnancy have been established prior to the child’s birth, and, thus, any benefits received by the plaintiffs from raising a child are logically severable from damages already incurred. As the Troppi Court noted, "[t]he benefits rule allows flexibility in the case-by-case adjudication of the enormously varied claims which the widespread use of oral contraceptives portends”. 31 Mich App at 256.

The dissent favors the tactic of the defense in the trial of this case which was supported by the trial court’s interpretation of Troppi v Scarf, supra. That benefit rule emerged from Restatement Torts, § 920, p 616 which provides:

" 'Where the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable.’ Restatement, Torts, § 920, p 616.” Troppi v Scarf, supra, at 254.

We believe the last phrase of the quote from the Restatement is applicable here. To allow the defense to shield itself behind the love and affection of the plaintiffs for their healthy and lovable fifth child is less than equitable if indeed the plaintiffs’ claims are in fact true. That is, that the physician was negligent, that the plaintiff mother, a polio victim as. a child, had considerable and extreme difficulty with four previous deliveries, that she had a crippling condition of the spine, a significant difference in leg length, a distorted pelvis and had been subjected to extensive labor anywhere from 45 to 50 hours during delivery. Testimony indicates that plaintiff mother was placed under psychiatric care, threatening suicide shortly after her pregnancy was confirmed. Under these circumstances the damages claimed seem reasonably and equitably severable. The real damages are not child centered and the plaintiffs should not be forced to make fictional claims to suit the convenience of the defendants. "The result we reach today is at best a mortal attempt to do justice in an imperfect world.” Sherlock v Stillwater Clinic, 260 NW2d 169 (Minn, 1977).

Of course, our ruling does not establish that plaintiffs will ultimately be entitled to damages. Issues of contributory negligence and proximate cause, as well as damages, must await jury determination on proper instruction.

We reverse and remand for a new trial consistent with this opinion.

T. M. Burns, J., concurred.

Danhof, C. J.

(dissenting). Plaintiffs brought this action against defendants alleging negligent sterilization and breach of contract. The unsuccessful sterilization resulted in an unwanted pregnancy and an unplanned child. The jury in this case was instructed, according to the holding of Troppi v Scarf, 31 Mich App 240, 255; 187 NW2d 511 (1971), that the benefits, if any, to these plaintiffs from the unplanned child were to be weighed against all the elements of claimed damage. See also Stephens v Spiwak, 61 Mich App 647, 650-651; 233 NW2d 124 (1975). The plaintiffs affirmatively and voluntarily disclaimed the cost of raising the child as an element of their damages. No convincing argument has been made that this voluntary tactic should operate to preclude application of the Troppi benefits rule. The Troppi rule was intended to afford juries necessary flexibility in assessing damages. The majority opinion greatly impairs that flexibility.

Application of the Troppi benefits rule would not have foreclosed recovery by these plaintiffs had they sought compensation for all their damages. See Green v Sudakin, 81 Mich App 545; 265 NW2d 411 (1978). If the majority opinion is correct that application of the Troppi benefits rule "would * * * outlaw a cause of action” on the facts of the instant case, that is a consequence of the plaintiffs’ tactical decision to seek recovery for only a portion of their potential damages. I cannot agree that this is a sufficient reason for rejection of the Troppi benefits rule.

The majority would allow these plaintiffs to split their cause of action thereby enabling them to recover for pregnancy damages without any offset for the benefits, if any, of the unplanned child. I would follow Troppi: nomic costs of an unplanned child in applying the 'same interest’ rule. Accordingly, the benefits of the unplanned child may be weighed against all the elements of claimed damage.” Troppi, supra, at 255. (footnotes omitted).

"Thus, if the defendant’s tortious conduct conferred a benefit to the same interest which was harmed by his conduct, the dollar value of the benefit is to be subtracted from the dollar value of the injury in arriving at the amount of damages properly awardable.
"Since pregnancy and its attendant anxiety, incapacity, pain, and suffering are inextricably related to child bearing, we do not think it would be sound to attempt to separate those segments of damage from the eco-

Plaintiffs’ arguments on the other issues they have raised have not established any reversible error. Hence, I would affirm.

       In Green v Sudakin, 81 Mich App 545, 549; 265 NW2d 411 (1978), this Court recognized mental anguish as an element for breach of contract to perform a tubal ligation. We believe the reasoning in that case is applicable here:
      "The Court concluded that the contract was highly personal in nature, and that no reasonable person could doubt that mental pain and suffering were within the contemplation of the parties in the event that the physician failed to perform the agreed-upon operation.”

       In a recent Minnesota case, Sherlock v Stillwater Clinic, 260 NW2d 169 (Minn, 1977), the Minnesota Supreme Court recognized a cause of action for "wrongful conception” wherein "compensable damages may be recovered for the birth of a normal, healthy child proximately caused by a negligently performed sterilization operation.” In that case as in the case at bar reversal was mandated for errors in submission of the damages issues to the jury. That decision presents an excellent overview of the emerging case law on medical malpractice cases for failure to effectuate birth control measures consisting of operations to be performed on both husband and wife.

       From any aspect these cases are distasteful and any solution is a selection of the lesser evil.


author: R. B. Martin, J.

text:
    BICKEL v FAIRCHILD
    Docket No. 77-1225.
    Submitted January 5, 1978, at Lansing.
    Decided May 22, 1978.
    Leave to appeal applied for.
    John E. Bickel and others brought an action in Montmorency Circuit Court against James I. Fairchild and other defendants to quiet title to their oil and gas interests under the dormant mineral act. Plaintiffs claim superior title by operation of the statute. Defendants, including Shell Oil Company, an oil and gas leaseholder, claim title through their predecessors in title. Summary judgment, Joseph P. Swallow, J., for defendant Shell Oil Company holding Shell to be the leasehold owner of all the oil and gas rights in the property. Plaintiffs appeal. Held:

    Holders of gas and oil interests have a property right that is given to them by private publicly recorded contracts and these rights are subject to being sold, mortgaged, leased, devised or inherited just as the surface rights are; statutory termination of oil and gas interests of known owners of subsurface rights under the dormant mineral act is prohibited by our state and Federal constitutions because it would be a law impairing the obligation of contract.
    Affirmed.
    1. Mines and Minerals—Statutes—Dormant Mineral Act—Oil and Gas Interests—Abandonment—Preservation of Interests.
    The dormant mineral act provides that any person holding any interest in oil or gas in any land, other than the surface owner, shall be deemed to have abandoned such interest unless during any 20-year period such person relative to the land does one of five things: (1) secures a drilling permit, (2) actually produces or withdraws gas or oil, (3) sells, leases, mortgages or transfers such interest by recorded instrument, (4) uses the property subject to such interests for underground gas storage, or (5) records a notice of interest with the Register of Deeds; a three-year grace period was provided by the act for persons affected to record their notice to preserve their interests (MCL 554.291 et seq.; MSA 26.1163 (1) et seq.).

      References for Points in Headnotes

       54 Am Jur 2d, Mines and Minerals §§ 141, 142, 191.

       54 Am Jur 2d, Mines and Minerals §§ 20, 102, 148.

      2. Mines and Minerals—Statutes—Dormant Mineral Act—Purpose—Energy Exploration.
    The dormant mineral act has a real public purpose in our energy short and energy conscious generation and that purpose is to encourage exploration drilling of new gas and oil wells (MCL 554.291 et seq.; MSA 26.1163 (1) et seq.).

    3. Contracts—Oil and Gas Interests—Property Rights—Transferability.
    Holders of gas and oil interests have a property right that is given to them by private publicly recorded contracts and these rights are subject to being sold, mortgaged, leased, devised, or inherited just as the surface rights are.
    4. Constitutional Law—Statutes—Oil and Gas Interests—SubSurface Rights—Impairment of Contract—Constitutional Prohibition.
    The effect and application of the dormant mineral act to known property owners of sub-surface rights in a manner so as to deprive those owners of their interests in oil and gas without notice, hearing or compensation is prohibited by our state and Federal constitutions as a law impairing the obligation of contract (MCL 554.291 et seq.; MSA 26.1163 (1) et seq.).

      Denfield, Timmer & Taylor, for plaintiffs.

      Monaghan, Campbell, Loprete & McDonald (by John H. Norris), for defendants.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

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

   R. B. Martin, J.

The parties agree on the following facts: On August 16, 1944, Isabelle Worth deeded real estate to James and Grace Fairchild, reserving minerals, oils, gases, ores and stone. On February 14, 1956, Isabelle Worth died. Carl and Doris Worth are her successors in interest. On April 5, 1971, James and Winifred Fairchild, husband and wife, conveyed to John and Etta Bickel, husband and wife. The grantors here, likewise, reserved minerals, oils, gases, ores and stone.

On January 30, 1973, Carl and Doris Worth granted an oil and gas lease to Shell Oil Company.

On September 4, 1974, the Fairchilds granted an oil and gas lease to Dolores Cook.

On November 1, 1974, the Bickels leased oil and gas rights to Getty Oil Company, Skelly Oil Company, Total Leonard, Inc., and Dow Chemical. Getty Oil and Skelly thereupon assigned part of their interest to Saxon.

Plaintiffs brought suit to quiet title to their oil and gas interests under the dormant mineral act, MCL 554.291, et seq.; MSA 26.1163(1), et seq. The Fairchilds and Dolores Cook, by cross-complaints, asserted their rights against all the others.

The trial court, on motions for summary judgment, found Shell Oil Company was the leasehold owner of all the oil and gas rights in the property. All other claimants were denied any interest. Plaintiffs appeal.

This suit tests the constitutionality of the dormant mineral act. We commence by saying that we need not and do not decide the constitutionality of the prospective provisions of the act. The statute was 1963 PA 42 and became effective September 6, 1963. It provides that any person holding any interest in oil or gas in any land, other than the surface owner, shall be deemed to have abandoned such interest unless during any 20 year period such person relative to the land does one of five things:

(1) Secures a drilling permit, or

(2) actually produces or withdraws gas or oil individually or as part of a pool; or

(3) sells, leases, mortgages or transfers such interest by a recorded instrument; or

(4) uses the property subject to such interests for underground gas storage; or

(5) records a notice of interest with the Register of Deeds.

A three-year grace period was provided by the act for persons affected to record their notice to preserve their interests.

The parties agreed that Isabelle Worth and her successors did none of the 5 things above for a period of 20 years. The record shows the January 30, 1973, lease to Shell Oil was recorded on February 20, 1973.

We agree with appellants that in our energy short and energy conscious generation, the legislative act has a real public purpose—to encourage exploration and drilling of new gas and oil wells. Some oil and gas rights, with the passage of time, have become fractionalized and distributed among numerous owners, many who are no longer locatable and perhaps even deceased. No oil company will spend the time and expense of tracing all the possible owners down in order to do expensive exploratory drilling with no guarantee of favorable results.

On the other hand, the gas and oil interest holders have a property right given them by private publicly recorded contracts. These rights are subject to being sold, mortgaged, leased, devised or inherited just as the surface rights are. Whose rights are paramount, the state’s or the individual’s?

A line of cases has discussed the evolution of the doctrine that some impairment of contracts is permissible under the Federal constitution. The basic one is Home Building & Loan Association v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413 (1934). It contained a vigorous 4-vote dissent. The Court was confronted with the Minnesota statute giving additional time for redemption from mortgage foreclosure sales during the depression. Such time was given under strict conditions and the statute was to be effective only for a few years.

The majority felt the state reserved the power to protect itself and to act in the best interests of all of its people. This reservation was a part of every contract. The constitutional prohibition of impairment of contract was " * * * not an absolute one and is not to be read with literal exactness like a mathematical formula”. Some criteria were used in determining whether the state could impair the obligation of the contract: (1) the Legislature and the state supreme court found a grave emergency existing requiring state help, (2) the impairing statute was to help the basic interest of society and not just a few individuals, (3) the relief granted was appropriate to the need and granted on reasonable conditions, and (4) the legislation was temporary and with a short given limit in time. We note also that the statute gave some added protection to the mortgagees who were the parties being deprived of their right to enforce their original contract.

In El Paso v Simmons, 379 US 497; 85 S Ct 577; 13 L Ed 2d 446 (1965), Texas, by statute, sold land to raise money for schools. The buyers paid very little down and were obligated to pay very little for a long term of years. If the buyers forfeited their rights because they failed to make payments, they were given an unlimited right to redeem by catching up. When oil and gas discoveries and an increasing population made speculation in oil and gas rights a very profitable thing, the statute was amended to require redemption in five years and the only ones given a right of redemption were the last contract vendees. This was upheld by the United States Supreme Court on the basis of Home Building, supra. The Court believed the statute was "quite clearly necessary” and the measure was a mild one and not too much of a hindrance to the purchaser.

Justice Black dissented. He felt the state could not make a contract under a statute and then by statute repudiate the contract without compensating the injured party. He saw no reason to adopt the balancing principle of Home Building.

The United States Supreme Court in United States Trust Company of New York v New Jersey, 431 US 1; 97 S Ct 1505; 52 L Ed 2d 92 (1977), found an unconstitutional impairment of contract. There the states of New York and New Jersey had, by statute, given bond holders certain rights to a port authority’s revenues. Twelve years later they repealed that statute. By a 4 to 3 vote the Court found it was an unconstitutional impairment of contract. The dissent balanced the rights of the government and the bond holders and found the new statute did no real harm to the bond holders and should be upheld.

Our Court has dealt rather comprehensively with the subject in Washtenaw Community College Education Association v Board of Trustees of the Washtenaw Community College, 50 Mich App 467; 213 NW2d 567 (1973). It accepted the theory of balancing of rights and interests in determining whether a contract could be impaired.

In our particular case, the statute would deprive known property owners of their sub-surface rights without notice, hearing or compensation. The statute was passed in 1963. This was long before any real fossil fuel crisis in this country. By its provisions, it required the Worths to do something affirmatively within three years or lose their property. When the act became effective as to Isabelle Worth’s successors in interest, there was no grave state emergency requiring state help. The act, at that time, was aimed at helping a few individuals or companies and not all of society. The relief granted could reasonably have required some notice to known interest owners. The relief was not temporary or for a limited time. The property owners’ rights were not protected as they were in the statute in Home Building.

Our chief concern here is that the Worths were a known, identifiable, suable interest holder. They had, by contract, certain property interests in the land. Those property interests were known to all of the other parties to this litigation. Why should other parties be given the Worths’ property interests because the Worths had not used them or filed a notice they still claimed them? Without any grave emergency situation requiring such drastic action, the statute would take property obtained by contract from the Worths and give it to others. Through the recorded chain of title, the Worths’ contractual rights were recognized by the other claimants.

Even in using the "balancing” idea of Home Building, we too must balance certain principles. There is a presumption that legislatively enacted statutes are constitutional. There is a presumption that contracts should not be impaired by legislative acts. Balancing cases have had dissents so the weighing of rights and interests has not always been easy.

We agree with the learned trial judge. The effect and application of this act as to the defendants at bar is prohibited by our state and Federal constitutions as a law impairing the obligation of contract.

Affirmed.


author: M. J. Kelly, J. T. M. Burns, J.

text:
    PEOPLE v KROKKER
    Docket No. 77-1325.
    Submitted December 8, 1977, at Grand Rapids.
    Decided May 22, 1978.
    Randan I. Krokker was convicted of possession of heroin, Eaton Circuit Court, Richard Robinson, J. Defendant appeals contending that the search warrant which authorized the search of a townhouse was insufficient to authorize a search of his person, and that he was denied effective assistance of counsel because his attorney failed to make a motion to suppress the evidence found in the search of defendant’s person. Held:

    There was probable cause, under the circumstances of this case, for the police to search the defendant for heroin. The defendant had been under surveillance as a suspected heroin seller and was identified as the person occupying the premises described in the search warrant. Defendant was not deprived of a fair trial for failure of his trial counsel to move to suppress the evidence because the evidence was legally obtained.
    Affirmed.
    T. M. Burns, J., dissented and would hold that the search of the defendant’s person was a search without a warrant because the defendant was not mentioned specifically in the warrant. Searches without a warrant are per se unreasonable and are unconstitutional unless shown to be within one of the exceptions to the rule. Since no such exceptions have been shown by the prosecutor the heroin should have been suppressed and the conviction should be reversed and the defendant discharged.
    Opinion of the Court
    References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error §§ 166, 737.
    29 Am Jur 2d, Evidence § 425 et seq.

       68 Am Jur 2d, Searches and Seizures §§ 73, 79.
    Sufficiency of description in warrant of person to be searched. 49 ALR2d 1209.

       68 Am Jur 2d, Searches and Seizures § 41 et seq.

       68 Am Jur 2d, Searches and Seizures § 73 et seq.

       68 Am Jur 2d, Searches and Seizures § 35 et seq.

      1. Criminal Law—Searches and Seizures—Attorney and Client— New Trial—Record—Appeal and Error.
    Ordinarily a motion for a new trial would be required as a prerequisite for a claim on appeal of ineffective assistance of counsel; however, the Court of Appeals will consider the issue where the claim involves counsel’s failure to move to suppress evidence obtained in a search of a defendant and the facts and circumstances were fully explored at trial and the record contains sufficient facts to reach the issue.
    2. Searches and Seizures—Search Warrant—Search of a Person —Identification of Person.
    Generally, when a person is to be searched a search warrant must be obtained describing with particularity the person to be searched in such a manner that he may be identified with reasonable certainty.
    3. Searches and Seizures—Search Warrant—Search Without Warrant—Probable Cause—Premises—Occupant.
    The search of a defendant was proper and the evidence seized in the search of the defendant was properly admitted at trial even though the search was conducted without a warrant authorizing the search of the defendant where there was a warrant authorizing the search of premises believed to be occupied by the defendant, the information in the affidavit in conjunction with the warrant indicated that both the premises and the defendant were considered targets for the controlled substance sought in the search warrant, the defendant was the only person named in the search warrant, in the affidavit, and as the occupant of the house to be searched, and the defendant was specifically described and identified, thus negating any indication of a fishing expedition by the police; all of which established probable cause for the police to search the defendant for the controlled substance.
    Dissent by T. M. Burns, J.
    4. Searches and Seizures—Search Warrant—Narrow Interpretation—Search of Premises—Search of Occupant.

      A search warrant, once it has been issued, cannot be broadly interpreted; the warrant must describe the premises to be searched and the property to be seized with particularity and the executing officers must narrowly follow that description; therefore, where a search warrant is issued authorizing the search of certain premises and the warrant does not specify any persons to be searched, it is improper for the officers to

      extend the scope of the warrant so as to authorize a search of the person who occupies the premises.

    5. Searches and Seizures—Search Without Warrant—Constitutional Law.

      Searches without a warrant are per se unreasonable and are in violation of both the Federal and state constitutions unless shown to be within one of the recognized exceptions to the rule (US Const, Am IV, Const 1963, art 1, §11).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul F. Berger, Prosecuting Attorney, and Chester S. Sugierski, Jr., Assistant Prosecuting Attorney, for the people.

      Charles S. Mowbray, for defendant on appeal.
    Before: Danhof, P. J., and T. M. Burns and M. J. Kelly, JJ.
   M. J. Kelly, J.

Defendant was convicted by an Eaton County Circuit Court jury on December 8, 1976, of possession of a controlled substance, heroin. MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). He was sentenced to two to four years in prison and appeals of right.

On February 10, 1976, police officers assigned to the Tri-County Metro Narcotics Squad executed a search warrant for heroin, paraphernalia, and marked money suspected to be in a building occupied by defendant. The search warrant provided that the place to be searched was a "townhouse located at 4152 Seaway Drive, Eaton County, Lansing, Michigan, said townhouse being a brick front, single story, with 4152 address believed to be occupied by Randy Crocker [sic]”.

Deputy Barry Kingsley, one of several police officers who executed this warrant, testified at trial that after gaining entry to the described premises, the police officers secured the area by rounding up defendant and two other persons who were also present. Deputy Kingsley searched defendant’s person and removed from his front, left pants pocket a vial containing foil packets. The deputy then conducted a "field test” on the substance contained in one of these packets, and concluded that heroin was present. Defendant was then arrested. Deputy Kingsley testified at trial that he believed that the search warrant specified "persons within the residence” and that this' was his justification for searching defendant.

Defendant’s trial counsel did not move either before or during trial to suppress the vial and packets of heroin seized from defendant’s person. Defendant did not object to the admission of this evidence, nor did he move for a new trial.

On appeal, defendant claims that the seizure of narcotics from his person during a search conducted under the authority of a premises search warrant is illegal, and the failure of his trial counsel to move to suppress the evidence was a serious mistake that deprived him of a fair trial. Ordinarily a motion for new trial would be required as a prerequisite for a claim of ineffective assistance of counsel. Here the facts and circumstances surrounding the search were fully explored at trial and the record contains sufficient facts to reach this issue. See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

Since we find that the search of defendant and the seizure of the heroin from his person was proper, it follows that defendant was not deprived of a fair trial for failure of his trial counsel to move to suppress the legally obtained evidence.

Generally, when a person is to be searched a search warrant must be obtained describing with particularity the person to be searched in such a manner that he may be identified with reasonable certainty. 68 Am Jur 2d, Searches & Seizures, §§ 79, 111, pp 733-734, 766-767, Anno: Sufficiency of description in warrant of person to be searched 49 ALR2d 1209. Case law on the requirements in a search warrant for identification requirements of persons to be searched is sparse. 49 ALR2d at 1210.

The instant search warrant, which defendant asserts was defective to justify a search of his person, described the place to be searched and stated that it was occupied by defendant, but it does not specifically authorize the seárch of defendant. This is contrary to the constitutional requirement set forth in the general rule cited above.

At the request of this Court, the Chief Assistant Prosecutor of Eaton County submitted a letter describing the Eaton County Prosecutor’s policy regarding search warrants issued for places and issued for persons. A copy of this letter was served on defendant’s counsel. The following excerpt from that letter provides an insight into how the instant search warrant was executed. The letter states:

"When structures of any sort are specified in a search warrant, our office and the Courts of this County have another policy regarding the wording of the search warrant and supporting affidavit. The policy is that anything, be it animal, vegetable, or mineral, found within the premises to be searched at the instant the warrant is executed can be searched if it can logically conceal or contain the items specified in the warrant.
"A warrant authorizing the seizure of stolen truck tires may not justify a search of mason jars found in a refrigerator, but a warrant specifying the seizure of heroin would. An item of clothing whether hung on a door knob or worn by a person may still contain heroin concealed in a pocket.
"The pockets of a person found upon the premises to be searched are just another 'drawer.’ Any other interpretation would make a person’s pockets a virtual sanctuary for drugs, weapons, or other evidence small enough to be concealed therein. This office does not claim that rectal or vaginal inspections or extraction of other bodily substances are automatically authorized by 'building’ search warrants. Nor does it claim that persons who exit the premises shortly before a search warrant is actually executed or arrive shortly thereafter are 'satellites’ of the premises and subject to search,”

Limited to the present facts we find the clothing search reasonable. It is logical that the pockets of defendant on the premises were suspect as receptacles of heroin small enough to be so concealed. We do not endorse the prosecutor’s opinion that the scope of the warrant would extend to every person found on the premises.

While the Michigan Constitution, Const 1963, art 1, § 11, and the United States Constitution, US Const, Am IV, require warrants for places to be searched and persons to be seized, the United States Supreme Court has determined that a prerequisite to searching the person is the seizure of the person. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). See also Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975).

Since we are dealing with an issue of constitutional magnitude we are careful to point out that we limit our holding to the specific facts of this case. The better procedure in this case would have been to set forth specifically that defendant was a person to be searched. We read the warrant in conjunction with the affidavit in support of the search warrant. People v Hopkins, 79 Mich App 723; 262 NW2d 675 (1977).

The affidavit indicates that an informant contacted the affiants, Lansing police officers, and informed them that defendant was selling heroin. The informant had purchased heroin in the past from defendant, and was given marked bills to transact another purchase from defendant. The purchase was made and the heroin returned to one of the Lansing police officers. The informant indicated that he obtained the heroin from defendant at the address set forth in the search warrant.

The information in the affidavit in conjunction with the warrant indicates that both the premises and defendant were considered targets for the controlled substance sought in the search warrant. Defendant was the only person named in the search warrant, in the affidavit, and as the occupant of the house to be searched. Defendant was specifically described and identified, thus negating any indication of a fishing expedition by the police. Cf. Commonwealth v Smith, — Mass —; 348 NE2d 101 (1976), cert den, 429 US 944; 97 S Ct 364; 50 L Ed 2d 314 (1976).

While it is true that a search warrant merely authorizing the search of a particular building or premises does not give the officers the right to search all persons who may be found in it, State v Fox, 283 Minn 176, 179; 168 NW2d 260, 262 (1969), cf. State v Clark, — Minn —; 250 NW2d 199, 202 (1977), the affidavit in support of the search warrant must not be read " 'in hypertechnical fashion, and * * * considerable latitude should be allowed for the drawing of reasonable inferences from their faces’ ”. Commonwealth v Smith, supra, 348 NE2d at 105-106. They "are to be approached, in hindsight, with a view toward common sense”. Id.

The instant affidavit establishes probable cause to believe that defendant was present on the premises and was involved in illegal trafficking in heroin. The search warrant in Commonwealth v Smith, supra, commanded the police to search a known occupant of the apartment and " 'any person present who may be found to have * * * [heroin] in his possession or under his control or to whom such property may have been delivered’ ”. 348 NE2d at 102. The court while upholding the search of the defendant stated:

"The affidavit in support of the search warrant for apartment number 549 revealed to the issuing clerk that the informant on whose information the affiant relied had been inside the apartment on two occasions within only ten days prior to the signing of the affidavit and had seen the occupant selling heroin in half bundles (twelve decks), to other persons present in the apartment. The affidavit further showed that periodic surveillances of the apartment by the affiant and other police officers within only the prior seven days caused them to observe persons, known to the officers as persons trafficking in heroin, enter and leave the apartment. The local clerk undoubtedly inferred that, from the nature of the neighborhood and the project in which the apartment was located, the apartment was of modest size. All of these facts could properly be appraised by the clerk in light of the fact that the application sought authorization to search for the kind of contraband which, because of its nature and the type of packaging customarily used in its transfer from one individual to another, could reasonably be inferred would be discovered on the persons of those individuals present. Further, the insidious nature of the contraband (heroin) was such as to render it more likely than not that the participants would act in secret and to the exclusion of innocent persons and possible informants.
From these asserted facts and fair inferences drawn therefrom, it was permissible to conclude that it was probable that any person in the apartment was a participant in the trafficking in heroin there. Further the inference was permissible that it was virtually impossible to predict who would be there at any given time.” 348 NE2d at 106. (Footnote omitted.)

While the Smith warrant is distinguishable in that it allowed for a search of persons on the premises, and required identifiable persons known to be on the premises to be described with particularity, we think that court’s reasoning can be extended to the instant situation where it is clear that defendant was the one under surveillance and there was probable cause for the police to search him for the controlled substance of heroin.

See generally Smith v State, 292 Ala 120; 289 So 2d 816 (1974), State v Fox, supra.

Affirmed.

Danhof, C. J., concurred.

T. M. Burns, J.

(dissenting). I cannot agree that the search of defendant and the seizure of heroin from his person was proper and would therefore conclude that his trial counsel made a serious mistake in failing to move to suppress the heroin, depriving defendant of a fair trial. The people admit that if this evidence were suppressed, there would be no case against defendant.

There is no doubt that defendant was an identifiable person and that the police could have secured a warrant to search his person, if he was found on the premises or otherwise. All the information used to secure the warrant pointed not only to the premises, but to defendant personally. In my view, the issue is whether the warrant, as it was actually written, was broad enough to cover the search of defendant’s person. I would hold that it was not.

As stated by the majority of another panel in People v Summers, 68 Mich App 571, 579; 243 NW2d 689 (1976), lv granted, 399 Mich 828 (1977):

"Once a warrant has actually been issued, it cannot be broadly interpreted. A search warrant must describe the premises to be searched and the property to be seized with particularity, and the executing officers must narrowly follow that description. Marron v United States, 275 US 192, 196; 48 S Ct 74, 76; 72 L Ed 231, 237 (1927), People v Franks, 54 Mich App 729; 221 NW2d 441 (1974). It is true that the magistrate could have issued a warrant to search any individual found on the premises, but he did not do so. The "particularity” requirement prevented the police officers from legally extending the scope of the warrant so as to authorize a search of defendant’s-person.” (Emphasis in original.)

Not only would it have been "the better procedure * * * to set forth specifically that defendant was a person to be searched”, majority opinion, supra, in my opinion it was constitutionally required. Since defendant was not mentioned specifically in the warrant, the search of his person must be considered a warrantless search. Warrantless searches are per se unreasonable and violate the Fourth Amendment of the US Constitution and art 1, § 11 of our state constitution unless shown to be within one of the recognized exceptions to the rule. People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975). The people have not argued that any exception to the warrant requirement applies here. I would order the heroin suppressed, the conviction reversed and defendant discharged.


author: J. H. Gillis, J.

text:
    ARNDT v VOS
    Docket No. 77-2157.
    Submitted April 3, 1978, at Grand Rapids.
    Decided May 22, 1978.
    Cleo Arndt entered into an oral agreement with Arthur Vos in which Arndt, beset with financial difficulties and unable to meet his mortgage payments, would allow the redemption period on his property to expire whereupon the bank would convey the property to Vos for the balance due on the mortgage. Vos would then reconvey a part of the property to Arndt. Vos obtained the property as agreed, then failed to reconvey part of the property back to Arndt. Arndt filed suit against Vos and his wife, Gertrude Vos, requesting the imposition of a constructive trust and specific performance of the oral agreement. The Allegan Circuit Court, James E. Townsend, J., found Arthur Vos to be a. constructive trustee, and ordered the defendants to convey the subject property to the plaintiff, along with payment of damages. Defendants appeal. Held:

    1. Imposition of the constructive trust in favor of the plaintiff was proper. The existence of the agreement to reconvey a portion of the property to plaintiff was not disputed, and the plaintiff allowed the redemption period to expire in reliance upon Vos’s promise to reconvey; thus Vos obtained title to that portion of the property by misrepresentation and fraud.
    2. Defendants were properly denied reimbursement for alleged improvements to the property which were actually detriments.
    3. Defendants should be reimbursed for taxes paid, during the time they held the property, on that portion of the property to be reconveyed.
    Affirmed in part, and remanded for a determination of tax payments to be set off against the damages.
    References for Points in Headnotes

       76 Am Jur 2d, Trusts § 221 et seq.

       76 Am Jur 2d, Trusts §§ 194, 628, 637.

       76 Am Jur 2d, Trusts § 282 et seq.

       76 Am Jur 2d, Trusts §§ 524, 599.

      1. Trusts—Constructive Trusts—Equity.
    Constructive trusts are equitable in nature and their imposition makes the holder of legal title the trustee for the benefit of another who in good conscience is entitled to the beneficial interest in the property involved; a constructive trust is imposed only where it would be inequitable to do otherwise.
    2. Contracts—Evidence—Oral Contracts—Parol Evidence—Statute of Frauds—Trusts—Constructive Trusts—Specific Performance.
    Parol evidence is admissible to establish the existence of an oral agreement to transfer real estate in an action for the imposition of a constructive trust and for specific performance of the oral agreement; the statute of frauds is not a bar to such an action.
    3. Equity—Contracts—Specific Performance.
    A court of equity may grant in a decree for specific performance such additional or incidental relief as is necessary to adequately sort out the equities of the parties.
    4. Equity—Trusts—Constructive Trusts—Taxes—Set-Off.
    A defendant holder of legal title to real estate, whom the court has found a constructive trustee of the real estate and who was ordered to convey the real estate and pay damages to the plaintiff, is entitled to a set-off against the damages equal to the amount the defendant paid in taxes on the real estate during the time he wrongfully held the real estate.

      Leo W. Hoffman, for plaintiff.

      Bergstrom, Slykhouse & Shaw, P. C. (by Robert L. Lalley, Jr.), for defendants.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

Defendants appeal as of right from judgments entered in Allegan County Circuit Court finding defendant, Arthur Vos, a constructive trustee of certain properties previously owned by plaintiff. The trial court ordered defendants to reconvey part of said properties to plaintiff along with $11,437 in damages.

The trial court also denied defendants’ claims for taxes paid and improvements made on the property in question.

A review of the record reveals the following facts:

Plaintiff and his wife owned several parcels of land in Saugatuck Township, the title to said properties being the subject matter of the case at bar.

During the years 1964, 1965 and 1966, plaintiff became financially distressed due, in part, to his illness, his wife’s illness and subsequent death, business reversals and the depletion of gravel in his gravel pit. As a result of this situation, plaintiff became delinquent in making payments on his debts, mortgages and taxes.

Late in 1965, the bank foreclosed a chattel and real estate mortgage given by plaintiff and obtained a circuit court commissioner’s deed on part of plaintiff’s property. Plaintiff, in an effort to save his property, entered into an agreement whereby plaintiff would allow the redemption period on the property to expire and then the bank would convey the property to defendant for the balance due on plaintiff’s mortgage. Defendant would then, in consideration of the low price he paid to the bank for the property, reconvey part of the property back to plaintiff.

The transaction went as planned except defendant failed to reconvey part of the property back to plaintiff. Hence, plaintiff commenced this action seeking the imposition of a constructive trust on defendant for part of the property at issue.

Defendants first contend that the trial court erred in finding defendant, Arthur Vos, a construetive trustee of part of the properties for the benefit of plaintiff.

Constructive trusts are creatures of equity and their imposition makes the holder of the legal title the trustee for the benefit of another who in good conscience is entitled to the beneficial interest. They are distinguished from express and resulting trusts in that they do not arise by virtue of agreement or intention, but by operation of law. Kren v Rubin, 338 Mich 288; 61 NW2d 9 (1953), Digby v Thorson, 319 Mich 524; 30 NW2d 266 (1948), Stephenson v Golden, 279 Mich 710; 276 NW 849 (1937), Hewelt v Hewelt, 245 Mich 108; 222 NW 119 (1928), Weir v Union Trust Co, 188 Mich 452; 154 NW 357 (1915). Constructive trusts, while infinite in their variety, are imposed only where it would be inequitable to do otherwise. Union Guardian Trust Co v Emery, 292 Mich 394; 290 NW 841 (1940), Chapman v Chapman, 31 Mich App 576; 188 NW2d 21 (1971).

In the instant case, it is not disputed that the parties did in fact enter into an oral agreement whereby defendant was to reconvey part of the real estate he purchased from the bank back to plaintiff. It is also readily apparent that plaintiff allowed the redemption period to expire on his property relying upon defendant’s promise to re-convey part of the property back to him.

Hence, defendant obtained title to part of the properties in question via misrepresentation and fraud. Under such circumstances it would be unconscionable to allow defendant to retain title to said properties. See Nichols v Martin, 277 Mich 305; 269 NW 183 (1936), Weir v Union Trust Co, supra. See Markoff v Tournier, 229 Mich 571; 201 NW 888 (1925).

We also note that while the agreement in the instant case is not in writing, parol evidence is admissible to establish its existence since the statute of frauds is- not a bar to plaintiffs action for the imposition of a constructive trust and for specific performance of the oral agreement. Kren v Rubin, supra, Digby v Thorson, supra, Evanoff v Hall, 310 Mich 487; 17 NW2d 724 (1945), Zaborski v Kutyla, 29 Mich App 604; 185 NW2d 586 (1971).

Accordingly, we find that the trial court properly imposed a constructive trust on the property at issue in favor of plaintiff.

Defendants next contend that the trial court erred in failing to give defendant credit for taxes paid and improvements made on the property at issue.

In respect to the alleged improvements made by defendants on the property, the trial court found that the sewage system installed on the property was a detriment rather than an improvement and accordingly reduced the value of the land. Our de novo review of the record supports the trial court’s findings. Hence, defendants are not entitled to reimbursement for the alleged "improvements” they made on the property.

The question of whether or not defendants are entitled to reimbursement for the taxes they have paid presents a more difficult issue.

The instant proceedings are equitable in nature and require this Court as well as the trial court to balance the equities between the parties and grant relief accordingly. additional or incidental relief as is necessary to adequately sort out the equities of the parties. Van Camp v Van Camp, 291 Mich 688; 289 NW 297 (1939), Klais v Danowski, 373 Mich 281; 129 NW2d 423 (1964).” Brotman v Roelofs, 70 Mich App 719, 732; 246 NW2d 368 (1976).

"A court of equity in granting specific performance may grant in its decree for specific performance such

The record reveals that defendant did in fact pay taxes on a portion of the properties from 1963 to 1974. Under the circumstances of this case, we believe that in order to do equity to all those involved, defendants should be reimbursed for these payments.

As noted by the trial court, apportionment of the taxes among the properties will be a most difficult task. However, this reason alone should not cause the trial court to overlook the amounts defendants have paid in taxes on the property.

Accordingly, this case must be remanded to the trial court for an evidentiary hearing to determine how much defendants have paid in taxes on the property at issue. Defendants shall be entitled to a set-off against the damages they were ordered to pay to plaintiff for this amount. The remainder of the trial court’s opinion is affirmed.

Remanded. No costs, neither party having prevailed in full.

We retain no further jurisdiction.

       In their brief on appeal defendants also claim that there was a condition precedent to reconveying the property back to plaintiff, which was never met. Our review of the record supports the trial court’s finding that no such condition existed.

       No interest shall be awarded on this amount in that defendants have wrongfully held possession of the property at issue for an extended period of time.


author: S. Everett, J.

text:
    PEOPLE v CUMPER
    Docket No. 77-2267.
    Submitted March 7, 1978, at Lansing.
    Decided May 22, 1978.
    Leave to appeal applied for.
    Phillip Cumper, Homer Johnson, Linda Jones, Robert Jones, Charles Napier, John Rozmus, and Brian Swarthout were convicted in district court of attending, being parties to, or spectators at, a fight or baiting between dogs. Their conviction was affirmed by the Oakland Circuit Court, Arthur E. Moore, J. Application for leave to appeal was denied by the Court of Appeals, but the Supreme Court remanded for consideration as on leave granted, 400 Mich 826 (1977). Defendants allege that the statute imposing criminal sanction on spectators was impermissibly vague and overbroad and that the evidence for conviction was insufficient. Held:

    1. A statute proscribing the attendance as a spectator at any fighting or baiting of a dog, or other animal kept for that purpose provides fair notice of the conduct proscribed and is not unconstitutionally vague or overbroad.
    2. The evidence submitted justified the jury’s verdict.
    Affirmed.
    1. Constitutional Law—Statutes—Criminal Law—Vagueness— OVERBREADTH.
    A statute punishing the attendance as a spectator of a fighting, baiting or shooting of any bear, dog, cock or other animal, or fowl or bird kept for that purpose, except English sparrows and pigeons provides fair notice of the conduct proscribed; it is not vague, overbroad or unconstitutional (MCL 750.49; MSA 28.244).
    2. Criminal Law—Due Process—Statutes—Vagueness.
    A criminal statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overbroad and impinges on First Amendment freedoms.

      References for Points in Headnotes

       16 Am Jur 2d, Constitutional Law § 552.
    21 Am Jur 2d, Criminal Law § 17.
    Criminal law—sufficiency of penal statute. 70 L Ed 322.
    Illustrations as to when statute defining criminal offense is subject to attack as vague, indefinite, or uncertain. 83 L Ed 893.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Appellate Counsel, for the people.

      Faintuck, Shwedel, Roether, Wolfram, McDonald & Zipser, for defendants on appeal.
    Before: Danhof, C. J., and D. E. Holbrook, Jr., and S. Everett, JJ.

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

   S. Everett, J.

The defendants were convicted by a jury of attending, being parties to, or spectators at, a fight or baiting between dogs, under a charge brought pursuant to MCL 750.49; MSA 28.244. Their conviction took place in the 52nd District Court, 2nd Division, and was affirmed on appeal to the Oakland County Circuit Court. Application for leave to appeal to this Court was denied on January 21, 1977, but the case was remanded by the Supreme Court for consideration as on leave granted. People v Cumper, 400 Mich 826 (1977).

The defendants raise two issues, first claiming that the portion of the statute which imposes criminal sanction on persons who were spectators was impermissibly vague and unconstitutionally overbroad. They also claim that there was insufficient evidence in the record from which a jury could reasonably find them guilty beyond a reasonable doubt.

At the trial, a police officer testified that on October 12, 1975, he entered a building in the Village of Holly, Oakland County, and discovered in it a wooden structure, which he referred to as an arena, together with a number of people. One of the defendants, a Robert Harvey Jones, was holding a dog in one corner of the arena and another, Phillip Charles Cumper, held a dog in another portion. As the officer entered, Cumper threw the animal over the railing to the defendant, Brian Swarthout. The officer testified there was considerable blood in the area and the Cum-per’s shirt "was heavily saturated with a red type substance”. The dog which Cumper had held had a wound in the chest area and a red substance around his nose and mouth. He testified that the other defendants, Linda Ann Jones, Charles Tyrone Napier and John Carl Rozmus, were present. The seventh defendant, Homer Arnold Johnson, had started to leave the building at the time the officer had entered. Stains taken from the area and on a shirt were identified as dog blood. In or near the arena were two hammer handles that had been sharpened.

There was testimony that at least two of the defendants, Cumper and Swarthout, had gone to a store in Flint and had purchased indoor-outdoor carpeting to be used in the arena at Holly. The salesman testified that they told him that they intended to have dog fights at Holly. A doctor of veterinary medicine testified that the dogs were Staffordshire Terriers. He also testified that this breed of dogs was normally not harmful to humans, but was very aggressive toward other dogs. Two of the dogs involved had cropped ears and he stated this was commonly done to prospective fighting dogs.

In passing on the first claim the statute must be considered in its entirety. It reads as follows:

"Any person who shall keep or use any bull, beár, dog, cock, or other animal or fowl or bird, except English sparrows and pigeons, for the purpose of fighting, baiting or as a target to be shot at, as a test of skill in marksmanship; and any person who shall be a party to or be present as a spectator at any such fighting, baiting or shooting of any bear, dog, cock or other animal, or fowl or bird, except English sparrows and pigeons, and any person who shall rent any building, shed, room, yard, ground or premises, for the purpose of fighting, baiting or shooting any animal, fowl or bird, except English sparrows and pigeons, as aforesaid, or shall knowingly suffer or permit the use of any building, shed, room, yard, ground or premises belonging to him or under his control, for either or any of the purposes aforesaid, shall be guilty of a misdemeanor: Provided, That no bounty shall be paid for any English sparrow that may be killed when used as a target or to be shot as a test of skill in marksmanship: Provided further, That it shall not be lawful for any person or persons to engage in the propagation of English sparrows for the purpose allowed in this section, or for any other purpose.” MCL 750.49; MSA 28.244 prior to amendment, 1976 PA 392, eff Mar 31, 1977.

The defendants make no claim that the statute, in general, is unconstitutional, suggesting that that part referring to persons who are present as spectators is.

"A statute may be challenged for vagueness on three grounds:

1. It does not provide fair notice of the conduct proscribed.
2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. ^
3. Its coverage is overbroad and impinges on First Amendment freedoms.” People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976).

It is apparent that the statute does not punish the witnessing of a dogfight per se. It punishes attendance as a spectator at an event legitimately prohibited by law. It is neither vague nor over-broad. The accused had fair notice of the conduct proscribed.

As to defendants’ second contention, the evidence submitted justified the jury’s verdict.

Affirmed.