author: R. M. Maher, J.

text:
    PEOPLE v AUSTIN
    Docket No. 78-3119.
    Submitted December 4, 1979, at Grand Rapids.
    Decided March 4, 1980.
    Sam Austin was convicted of delivery of heroin and conspiracy to deliver heroin and pled guilty to a second felony offender charge, Kent Circuit Court, Stuart Hoffius, J. Defendant appeals. On appeal, defendant alleges that the trial court committed reversible error in admitting defendant’s prior acts of selling and purchasing heroin under the similar acts statute and that reversible error was committed when the trial court ruled that defendant’s prior conviction for attempted delivery of heroin could be used for impeachment. Held:

    1. Evidence of alleged prior heroin transactions by a defendant several months previous to the sale for which he is on trial is generally inadmissible because probative value is outweighed by prejudice. The mere fact that two sales of heroin were close in time does not, by itself, make the prior sale admissible to show a scheme or plan under the similar acts statute. Defendant denied any participation in the alleged sale. Evidence of prior bad acts is inadmissible under the similar acts statute to put a defendant’s intent or lack of intent in doing an act in issue where there is a denial of any participation in the charged crime. Where there is no evidence of a scheme other than a similar heroin sale, evidence of bad acts tending to prove a scheme is inadmissible for this purpose also. Defendant’s alleged bad acts were neither contemporaneous with the charged conspiracy nor were they integrally related or blended into the offense for which defendant was on trial. The admission of this evidence was reversible error because it is reasonably possible that in any proceeding free of this error one juror might have voted to acquit.
    2. A trial court commits error when it considers the similarity of a prior conviction as an element in favor of admissibility. Defendant’s conviction for attempted delivery of heroin to one of the witnesses could not be used for purposes of impeachment. The trial court committed reversible error when it held that evidence of the prior conviction was admissible.

      References for Points in Headnotes
    [1, 5] 29 Am Jur 2d, Evidence § 320 et seq.

    [2, 3] 25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 46, 47.

      3. A police officer who testified in the people’s case in chief was allowed to repeat a portion of his previous testimony on rebuttal. This may be only harmless error but it should be avoided on retrial.
    4. The trial court erred in denying defendant’s request to endorse and produce a certain witness. She was a res gestae witness and on remand should be endorsed and produced at trial.
    5. The issue of whether the prosecutor was excused from endorsing or producing the other persons at the residence where the alleged delivery was made was erroneously submitted to the jury. This is a question of law for the court, not the jury. Furthermore, the other persons present during the alleged delivery of heroin were res gestae witnesses. They do not fit into the accomplice exception which excuses endorsement and production. Therefore, if they are not produced at the new trial the trial court must conduct a hearing to determine whether the prosecutor has exercised due diligence in attempting to produce them.
    Reversed and remanded.
    1. Criminal Law — Evidence — Prior Bad Acts — Jury — Prejudicial Effect.
    Evidence of a criminal defendant’s prior bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant.
    2. Criminal Law — Drugs and Narcotics — Heroin — Evidence — Scheme or Plan — Statutes.
    The mere fact that two sales of heroin were close in time does not, by itself, make the prior sale admissible to show a scheme or plan under the similar acts statute (MCL 768.27; MSA 28.1050).
    3. Criminal Law — Drugs and Narcotics — Heroin — Evidence — Intent — Prior Bad Acts — Statutes.
    A defendant’s general denial of any participation in the sale or delivery of heroin does not suffice to put his intent or lack of intent in doing an act sufficiently in issue to permit evidence of prior bad acts to be introduced under the similar acts statute (MCL 768.27; MSA 28.1050).

      4. Criminal Law — Evidence — Prior Bad Acts — Jury — Reversible Error.
    The erroneous admission of evidence of similar bad acts is reversible error where it is reasonably possible that in a trial free of the error even one juror might have voted to acquit the defendant.
    5. Criminal Law — Evidence — Prior Convictions — Admissibility — Reversible Error.
    A trial court commits error when it considers the similarity of a prior conviction as an element in favor of admissibility of evidence of that conviction.
    6. Witnesses — Criminal Law — Res Gestae Witnesses — Eyewitnesses — Evidence — Endorsement of Witnesses.
    A res gestae witness is one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged offense; every reasonable doubt as to whether a witness is a res gestae witness should be resolved in favor of endorsing and calling the witness.
    7. Witnesses — Criminal Law — Endorsement and Production — Question of Law — Submission to Jury.
    The issue of whether a prosecutor is excused from endorsing or producing witnesses is a question of law for trial court determination; submission of this question to a jury is error.
    8. Witnesses — Criminal Law — Res Gestae Witnesses — Duty to Produce — Accomplices.
    A prosecutor’s duty to endorse and produce res gestae witnesses does not include the production of accomplices to the crime; however this exception to his duty to produce encompasses only such persons who participated in or were involved in the crime charged.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      Pinsky & Soet, for defendant on appeal.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   R. M. Maher, J.

On March 2, 1978, defendant was convicted by a jury of delivery of heroin and conspiracy to deliver heroin, contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), repealed by 1978 PA 368, effective September 30, 1978, now MCL 333.7401; MSA 14.15(7401), MCL 750.157a; MSA 28.354(1), respectively. On June 27, 1978, defendant pled guilty to a second felony offender charge, contrary to MCL 769.10; MSA 28.1082; MCL 769.13; MSA 28.1085. After a previous sentence was vacated, he was resentenced on July 11, 1978, to serve a prison term of 10 to 30 years. Defendant appeals as of right and we reverse.

At trial, Doug King testified that he had been working as an informant for the Grand Rapids Police Department since January, 1977. He agreed to assist the police in making "controlled buys” which meant that, after being appropriately searched by police, he was given money to purchase drugs, was observed as far as possible by police in making drug purchases, and was searched subsequent to each purchase. He testified that sometimes while making a "controlled buy” it was necessary to use heroin because the seller did not want the purchaser to leave the premises with unused drugs. King made 63 "controlled buys” and in approximately one-third of these situations he had to use the heroin.

King testified that on August. 26, 1977, at approximately 8:30 a.m. he went to 546 Dolbee Street, S.E., Grand Rapids, to see one Sharon McCoy. At that time he saw defendant, whom he had known for approximately three or four years. King asked defendant if he had any drugs. Defendant replied that he could obtain three bags for him at $50 each.

After that King telephoned Officer Hoatlin of the Grand Rapids Police Department and arranged to meet him to set up the "controlled buy”. Such meeting took place with several police officers at which time King and his 1969 Cadillac were searched, and he was given $150. King then drove to the Dolbee address and went to the upstairs apartment where he was let in by defendant. After King inquired regarding the drugs defendant indicated he had to "* * * pick up something * * *”. He then left with Sharon McCoy’s daughter, Nicki. Defendant came back approximately ten minutes later and said that Officer Hoatlin was outside. Sharon McCoy and several other persons were present but King did not know their names. He did indicate, however, that they were "shooting heroin” while he was there.

After defendant’s statement concerning Hoatlin, King testified that defendant told Sharon McCoy "* * * don’t let nobody walk with any dope * * He then handed an aluminum foil packet a couple of inches long and perhaps an inch and a half wide to Sharon McCoy and left.

King approached Sharon McCoy and asked her "* * * to fix me up a nice package for $150 * * She went into the bathroom and after coming out she placed a brown paper package in his shirt. King left and drove to meet Officer Hoatlin to whom he gave the brown package after marking it.

King, in response to a question from the prosecutor, indicated that he had on two previous occasions bought heroin from defendant. Defendant objected. The court overruled defendant’s objection with respect to the admissibility of such testimony but instructed the jury that it was to be considered solely for the purpose of "* * * looking to defendant’s motive, intent, plan, scheme, mistake, or accident and is not to be taken * * * as substantive evidence of the facts in this case * *

King testified that the earlier purchases by him from the defendant took place at defendant’s house on Benjamin in early 1976. He further testified that he sold heroin to defendant a number of times preceding the alleged purchase of August 26, 1977. He stated that he never saw Sharon McCoy while she was in the bathroom and that it was not until the defendant left the premises that he asked for the packet. While he saw defendant transfer to Sharon McCoy a packet of aluminum foil, he never saw what was in it.

Terrance Hoatlin testified that he had been employed as a Grand Rapids police officer for 15 years and was assigned to the vice squad in August of 1977. He stated that King contacted him at approximately 9 a.m. on August 26, 1977, and as a result Hoatlin and Officer Nicholson searched him and his vehicle and then followed him to McCoy’s residence in their vehicles at approximately 9:26 a.m. The surveillance consisted of Officers Hoatlin, Nicholson, and Elenbaas. Three vehicles were used and were parked near the Dolbee address. Hoatlin testified that from the time King first called him until the time he turned over the package to him 58 minutes elapsed. To make the purchase, the police gave King $150 in cash. King was observed entering the Dolbee apartment at 9:36 a.m. Defendant was observed leaving the apartment at 9:51 a.m. Defendant, after he initially left the premises was observed returning at 9:43 a.m. At the time that defendant returned he had a young black female with him. They exited from the vehicle and went to the apartment. After King left the apartment, he drove away and met the officers who then searched him. At that point the brown paper bag was turned over to police with King’s number marked on it. Hoatlin testified that defendant was not arrested immediately because King was still making "controlled buys” for them and to have done so would have "blown his cover”. No fingerprints were ever obtained from the bag.

The other two officers who accompanied Hoatlin generally corroborated his testimony and a police chemist testified that the material delivered by King to Officer Hoatlin was heroin.

Charles Nagle testified that he made "controlled buys” for the Grand Rapids Police Department during 1976 and that on May 24, 1976, he purchased heroin from defendant at 511 Benjamin, S.E., Grand Rapids, Michigan. In making his purchase he followed the normal search procedure established by police. Mr. Nagle described the transaction. Defense counsel objected to this testimony but the trial judge again ruled that the testimony was admissible under the similar acts statute and so instructed the jury.

Charles Wright Brown, Jr., testified that he was 28 years old, employed by General Motors, and knew the defendant. He testified that he was at the Dolbee address on August 26, 1977, sometime between 9:15 a.m. and 9:45 a.m. for the purpose of collecting some money from Sharon McCoy. He testified that he was there but a few minutes when he heard defendant say "* * * the police is outside, you all be cool * * *”. The door was then closed and defendant left. Brown then left. He did not see Sharon McCoy receive any packages from defendant.

On cross-examination Brown testified that he saw two other persons there whom he had never seen before and that they were not doing anything in particular. He further testified that he did not receive the money that was owed to him. He testified that he never saw King.

Prior to defendant’s taking the stand defense counsel moved to exclude, for impeachment purposes, evidence of the defendant’s conviction in 1976 for attempted delivery of heroin. This conviction arose out of the sale by defendant to Charles Nagle on May 24, 1976. The trial court denied the motion because the prior conviction was similar to the charged offense.

On appeal, defendant first claims that the trial court committed reversible error in admitting into evidence under MCL 768.27; MSA 28.1050, the similar acts statute, evidence of defendant’s prior acts of selling and purchasing heroin with respect to witness King and defendant’s prior act of selling heroin to witness Nagle. We agree.

Generally, evidence of a criminal defendant’s prior bad acts is inadmissible because its probative value is outweighed by the prejudice to the defendant. People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). The Supreme Court of Michigan, however, has adopted MRE 404(b) as an exception to this general rule, which provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.”

In People v Rustin, 406 Mich 527; 280 NW2d 448 (1979), the Supreme Court held that a trial court committed reversible error when, under the authority of the similar acts statute, it admitted evidence of prior sales of controlled substances by defendant Rustin as bearing on his intent and scheme in perpetrating another controlled substance sale five days later for which he was on trial. The same undercover agent was involved in both of the narcotics transactions. Rustin denied any participation in the sale for which he was on trial. The Supreme Court found that the mere fact that the two sales of heroin were close in time did not, by itself, make the prior sale admissible to show a "scheme or plan” under the statute. It was also found that defendant’s general denial of his participation did not suffice to put his lack of intent in issue as required by the statute.

The instant case is similar to Rustin in that the prosecution seeks to introduce evidence of alleged prior heroin transactions by defendant several months previous to the transaction for which he was on trial. Defendant Austin, similar to Mr. Rustin, denied any participation in the instant sale. Thus, defendant’s intent could not have been sufficiently in issue to permit the prior bad act evidence to be introduced to prove his intent. Furthermore, just as in Rustin, there is no evidence of a scheme other than the similar heroin sales. Bad act evidence tending to prove a scheme was thus inadmissible for this purpose also.

We note in passing that People v Wilkins, supra, stated an exception to the rule which requires that intent be in dispute when defendant is being tried for the crime of conspiracy. Id. at 270. Wilkins cited People v Ormsby, 310 Mich 291; 17 NW2d 187 (1945), and People v McCrea, 303 Mich 213; 6 NW2d 489 (1942), as support for this proposition. Both of those cases, however, deal with similar acts of the defendant which were both contemporaneous with and integrally related to the charged conspiracy. This is not the situation in the case at bar where the alleged similar acts are neither contemporaneous with the charged conspiracy of August 26, 1977, nor integrally related thereto. For this reason the conspiracy exception stated in Wilkins does not alter our application of Rustin.

Moreover, in People v Delgado, 404 Mich 76; 273 NW2d 395 (1978), the Supreme Court established an alternative theory for the admission of bad acts evidence:

" 'Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime.’ [Citation omitted.]” Id. at 83.

In Delgado the prosecution sought to introduce evidence of prior heroin sales by defendant to an undercover agent. The terms of the prior sale were that, if the agent found the heroin which he just purchased to be satisfactory, he would return to defendant and buy an even larger quantity. Defendant was on trial for the sale of this larger quantity. The Court found the evidence of the prior sale to be properly before the jury since this similar bad act was "blended” with the offense for which defendant was on trial.

In the instant case, however, the evidence of defendant’s participation in previous heroin sales with the same informant was not inextricably blended with the offense for which defendant was tried. Indeed, they were several months apart. There is no evidence in the record that, as in Delgado, defendant was to sell more heroin to the informant if the latter was satisfied with the drugs he first bought from defendant. Nor is there evidence in the record, as in Delgado, to show that any prior heroin transactions perpetrated by defendant were a cause of the instant transaction for which he was convicted. Thus, Delgado can not be used to justify the admission of defendant’s alleged participation in previous heroin sales.

The admission of this bad acts evidence was reversible error since it was reasonably possible that in any proceeding free of this error one juror might have voted to acquit. People v Flores, 89 Mich App 687; 282 NW2d 183 (1979), People v Wilkins, supra. See also, People v Rustin, supra.

We also agree that reversible error was committed when the trial court ruled that defendant’s 1976 conviction for attempted delivery of heroin could be used for the purposes of impeachment.

In People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), the Supreme Court held that a trial court commits error when it considers the similarity of a prior conviction as an element in favor of admissibility. See also, People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978).

Plaintiff agrees that the trial court committed error with respect to the admission of the 1976 conviction but contends that this evidence was independently admissible under MRE 404(b). Having ruled such evidence was improperly admitted under the above rule, plaintiffs claim is without merit.

We address two other issues raised by defendant and consider them only to the extent that they may recur on retrial.

Officer Nicholson who testified in plaintiff’s case in chief was allowed to repeat a portion of his previous testimony on rebuttal. This was at most harmless error but should be avoided on retrial. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974).

Prior to the trial, defendant moved to endorse Nicki Thomas, Ms. McCoy’s daughter, as a witness. The motion was denied on the basis that she was not a res gestae witness. During the trial, defendant proposed an instruction to the effect that the unknown persons seen by Doug King at Ms. McCoy’s apartment were res gestae witnesses, that the prosecution did not use due diligence in producing them, and so the jury could infer that their testimony would have been unfavorable to the prosecution. In response, the trial court gave the following jury instruction:

"Now, there has been some question concerning the identity of the people there at the scene. It is the claim of the People that the people in the police department have no information as to the identity of the persons who were there at the scene. It is a rule of law that if any person sees a crime being committed and is right there in its presence, it is the duty of the People to produce those witnesses who are known as res gestae witnesses who witnessed the particular crime. In this case it is the claim of the People that they do not know who those other people were or that they were participating in illegal acts there on the premises. If so, they would be excused from having to appear. But if you should find that they are just innocent bystanders or bystanders who witnessed the crime, then it would be the duty of the People to produce them because they were present at the 546 Dolbee. The people did not produce these witnesses and if they were required to do it, you can infer, therefore, that the testimony of at least two people would have been unfavorable to the prosecution.”

Defense counsel objected to this instruction on the basis that even if the persons on the scene were acting illegally in using heroin, they would still be res gestae witnesses for purposes of the production requirement unless they were accomplices to the crime charged. The trial court declined to instruct the jury further.

A res gestae witness is one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged offense. People v Hadley, 67 Mich App 688; 242 NW2d 32 (1976). Every reasonable doubt as to whether a witness is a res gestae witness should be resolved in favor of endorsing and calling the witness. People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). We find that the trial court erred in denying defendant’s request to endorse Nicki Thomas. We find that she was a res gestae witness, in view of King’s testimony that she accompanied the defendant when he went to pick up the alleged heroin. On remand, she should be endorsed and produced at trial.

We also find that the issue of whether the prosecutor was excused from endorsing or producing the other persons at the McCoy apartment was erroneously submitted to the jury. This is a question of law for the trial court’s determination. People v Willie Pearson, 404 Mich 698, 721; 273 NW2d 856 (1979).

The other persons present in the apartment during the alleged delivery of heroin were also res gestae witnesses. The fact that King did not know them by name is not dispositive. The prosecutor and police have the duty to make inquiries of known persons who may have the information in an attempt to locate them, following any leads which are available. See People v Carter, 87 Mich App 778, 785; 276 NW2d 493 (1979), People v Starr, 89 Mich App 342, 346; 280 NW2d 519 (1979). There is no indication that these persons who were present in Ms. McCoy’s apartment were known only to the defendant, thus excusing the prosecutor from the obligation to produce them under People v Gillam, 93 Mich App 548; 286 NW2d 890 (1979).

Moreover, the accomplice exception to the prosecutor’s duty to endorse and produce res gestae witnesses encompasses only such persons who participated in or were involved in the crime charged. People v Lyle Brown, 37 Mich App 25, 29; 194 NW2d 450 (1971), People v Phillips, 61 Mich App 138, 149; 232 NW2d 333 (1975). While an accomplice need not be formally charged before the informant exception becomes applicable, People v Potts, 55 Mich App 622, 627; 223 NW2d 96 (1974), the mere fact that the persons in the McCoy apartment may have been engaged in an illegal use of heroin does not, in and of itself, render them the defendant’s accomplices in the alleged delivery of heroin to King. Since King never indicated any participation by these others, the trial court may not consider the conspiracy exception.

On remand, the trial court must conduct a hearing to determine whether the prosecutor has exercised due diligence in seeking these witnesses. People v Pearson, supra. The adverse witness instruction of CJI 5:2:14(3) is not appropriate unless the trial court finds that there was a lack of due diligence. Pearson, supra, 404 Mich at 722. If these persons were res gestae witnesses and cannot be produced at the new trial, the trial court will determine whether the defendant was prejudiced by their nonproduction after the jury returns a verdict, and if so, will fashion an appropriate remedy as required by Pearson, supra, 404 Mich at 723.

Defendant’s final contention that there was insufficient evidence as a matter of law to sustain defendant’s convictions is without merit.

Reversed and remanded for a new trial in accordance with this opinion.

       On March 1, 1978, the second day of defendant’s trial, MRE 404(b) came into effect, superseding the similarly phrased similar acts statute, MCL 768.27; MSA 28.1050. People v Delgado, 404 Mich 76, 81, fn 3; 273 NW2d 395 (1978). The case law interpreting the statute, however, has been embodied in the evidentiary rule. People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978).


source: Caselaw Access Project

author: P. C. Elliott, J.

license: Public Domain

text:
    FLANAGAN v GENERAL MOTORS CORPORATION
    Docket No. 78-3774.
    Submitted December 11, 1979, at Detroit.
    Decided March 4, 1980.
    Plaintiff, William S. Flanagan, Sr., brought a malicious prosecution action against General Motors Corporation, Dallas Flesher, a Pontiac police detective, and Larry Thompson, a General Motors employee. Flanagan was charged, prosecuted and acquitted on charges arising out of a scheme by Thompson to fraudulently obtain payment from General Motors for undelivered goods as a result of Thompson’s having named Flanagan as a co-conspirator. Defendants General Motors and Dallas Flesher moved for summary judgment on the basis that plaintiff failed to allege sufficient facts to state a cause of action. The Oakland Circuit Court, Richard D. Kuhn, J., granted the motion for summary judgment after having set forth in its written opinion the factual allegations the court deemed would be necessary to state a cause of action for malicious prosecution. Plaintiff filed an amended complaint which incorporated two new paragraphs which were almost verbatim the language used by the court in its opinion as to the facts necessary to state a cause of action. Defendants General Motors and Dallas Flesher moved for summary judgment on the amended complaint on the basis that the new "facts” were "mere conclusions”. Judge Kuhn granted the renewed motion for summary judgment. Defendant Thompson moved for summary judgment on the basis that the amended complaint failed to allege sufficient facts with respect to Thompson specifically to state a cause of action. Thompson’s motion for summary judgment was also granted. Plaintiff appeals. Held:

    1. Since a motion for summary judgment is tested by the pleadings alone, and since all well-pleaded material allegations must be taken as true, the trial judge erred in granting the motion for summary judgment made by the corporation and the police detective. Even though the trial court had reason to believe that plaintiff would not be able to present the proofs necessary to support the allegations made in the amended complaint, the factual allegations in the complaint were sufficient to state a cause of action upon which relief could be granted.

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Pleading §§ 229, 230.
    [2] 20 Am Jur 2d, Costs § 37.
    [3] 61 Am Jur 2d, Pleading § 181.
    [4] 46 Am Jur 2d, Judges §§ 180, 181.
    Disqualification of judge for having decided different case against litigant. 21 ALR3d 1369.

      2. The remedy provided in the general court rules to protect parties against groundless and unwarranted factual allegations in a pleading is the right of a party against whom such a pleading is filed to secure costs if the pleading is found to have been made in bad faith and the right to demand security for those costs. Summary judgment is not to be used as a remedy for bad faith allegations, since for the purpose of summary judgment the allegations in the pleading must be taken to be true.
    3. While the new paragraphs in the amended complaint did not specifically refer to defendant Thompson, they are deemed to include him, since the gist of the entire complaint was that Thompson was equally liable with the other defendants.
    4. The fact that the trial judge presided in prior criminal actions arising out of the events that ultimately gave rise to the present malicious prosecution action does not disqualify that judge from presiding in this civil action.
    Reversed and remanded.
    1. Judgment — Summary Judgment — Well-Pleaded Pacts — Proofs — Court Rules.
    A motion for summary judgment is tested by the pleadings alone and all well-pleaded material allegations must be taken as true; accordingly, summary judgment should not be granted where the factual allegations are sufficient to state a cause of action upon which relief could be granted, even if there is reason to believe that the plaintiff will not be able to present the proofs necessary to support the allegations (GCR 1963, 111).
    2. Pleading — Unwarranted Allegations — Summary Judgment — Costs — Security for Costs — Court Rules.
    The remedy provided in the general court rules to protect against groundless and unwarranted factual allegations in a pleading is not the granting of summary judgment, but rather, the remedy is the right to secure costs if the pleadings are found to have been in bad faith and the right to demand security for those costs (GCR 1963, 109, 111.6).

      3. Pleading — Specific Allegations — Applicability to Specific Defendants — Gist of the Complaint.
    Specific paragraphs of a civil complaint which do not specifically refer to one of multiple defendants may, nevertheless, be held to encompass that particular defendant where the gist of the entire complaint is that the particular defendant is equally liable with the other defendants.
    4. Judges — Disqualification — Presiding Over Prior Allied Actions.
    A judge need not be disqualified from presiding in a malicious prosecution case in which a jury trial has been requested by reason of the fact that the trial judge presided in prior criminal actions which arose out of the same factual background that is at issue in the malicious prosecution action.

      Keller & Avadenka, P.C., for plaintiff.

      Devine & Falvay, for defendant General Motors Corporation.

      Wilson, Portnoy, Basso & Leader, P.C. (by James M. Pidgeon), for defendant Flesher.

      Kuirsky & Sharbaugh, for defendant Thompson.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   P. C. Elliott, J.

Facts

Claiming malicious prosecution, plaintiff sued General Motors Corporation (hereafter GM), Dallas Flesher, a detective of the Pontiac police force, and Larry Thompson, a GM employee. The complaint alleged that: Thompson was involved in a fraudulent scheme to obtain payment from GM of undelivered goods; when the scheme was discovered, Thompson admitted his guilt and named Flanagan as a coconspirator; Flesher and GM employees threatened Flanagan with prosecution unless he would admit guilt and implicate others; and when Flanagan said he was innocent, he was prosecuted and acquitted. The prosecution, Flanagan claimed, was malicious and without probable cause on the unverified word of an admitted thief. He further alleged that as a result of that prosecution he suffered disgrace, a heart attack and medical and legal expense.

The trial judge had presided at jury trials convicting two other GM employees based on information also furnished by Thompson. The trial judge’s written opinion granting summary judgment to defendants GM and Flesher explained why he felt the allegations of the complaint were insufficient. Plaintiff then amended his complaint to add, almost verbatim, what the judge had held was required:

"10. The defendants General Motors Corporation and Dallas Flesher gave information to a public official which information was known to be false, or seriously incomplete or contrived.

"11. The desire of the defendants General Motors Corporation and Dallas Flesher to have criminal proceedings initiated against the plaintiff William S. Flanagan Sr., was expressed by direction, request, or pressure of a complaint such as to be the determining factor in the official’s decision to commence the prosecution, and that the information upon which General Motors Corporation and Dallas Flesher acted was not of such and from such sources that the generality of businessmen of ordinary care, prudence and discretion would prosecute upon it under the same conditions.”

Summary judgment was entered a second time on a renewed motion of GM and Flesher. The second opinion said:

"Plaintiff’s Second Amended Complaint merely pleads the necessary elements to the cause of action without alleging the facts which make up those elements. In Plassey v Lowenstein and Son, 330 Mich 525, 528 [48 NW2d 126] (1951), the Court said 'But allegations of mere conclusions are not sufficient to save a pleading from dismissal on proper motion’.”

Paragraphs 10 and 11 of the amended complaint allege what the judge had earlier ruled was required; they parrot his first opinion. We are called upon to decide only whether those paragraphs are "mere conclusions” that can be disregarded. We find that they state "ultimate facts”, if true, and that the summary judgment was error.

Opinion

" 'Frankly, the distinction between averments of ultimate fact and mere conclusions of the pleader is not always too easy to make. But the modern tendency is not to regard such distinctions too critically, and, as the supreme court of 1 of our neighboring States has well said, "it will not do to pursue too far metaphysical distinctions between allegations of fact and conclusions of law.” ’ ” Flynn v Brownell, 371 Mich 19, 27; 123 NW2d 153, 157 (1963).

"(T)he distinction between pleading facts and conclusions should not be applied so formalistically as to bar possibly meritorious claims on technicalities.” Binder v Consumers Power Co, 77 Mich App 343, 347; 258 NW2d 221, 224 (1977)

The interesting comments to GCR 1963, 111 in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 194-197, are too long to quote in full; but they contain the following:

"Judges who wanted to avoid difficult cases or who were too busy or too impatient to help shape up ineptly presented cases could still seize upon technical pleading defects. The pleader had set forth 'evidentiary facts’ rather than 'ultimate facts’ or had pleaded 'conclusions’ rather than 'facts’ — distinctions so illusory that they were always a threat. * * *

"To minimize these difficulties, the architects of the Federal Rules dropped the terms 'facts’ and 'cause of action’.

"While Michigan practice might be called 'fact pleading’, it is primarily concerned with the notice function.

"The new sub-rule 111.1 makes emphasis on the notice function even more apparent by the way in which it has integrated the substance of the prior statute and prior Rules 17 and 19. It says that the pleading shall contain '* * * a statement of the facts * * * upon which the pleader relies in stating his cause of action with such speciñc averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend, * * *’ Unless an unintended regression from prior practice is to be read into the new rule, the underlined clause must be taken as modifying that which precedes it — that is, as prescribing the purpose or end to which the pleader is required to state a 'cause of action’.

"There have been some relatively recent decisions approving dismissal for pleading 'conclusions’. But these decisions, for the most part, are not demanding more extensive factual allegations or greater specificity than federal practice. They are cases in which a conclusory allegation of some claimed right or wrong is rejected because specific facts affirmatively show that the pleader cannot meet the substantive requirements for relief; or they are cases where the facts as pleaded show legal defects in plaintiff’s standing to seek relief notwithstanding conclusory pleas to the contrary. They are not cases in which lack of specificity or defective draftsmanship have been seized upon to avoid the merits.” (Citations omitted, emphasis in original.)

See also the pleading standards suggested in 1 Honigman & Hawkins, supra, 198-199.

Of course, the trial judge, knowing of the convictions of others, may have correctly deduced that plaintiffs did not have proofs to back up the new paragraphs that were taken "whole cloth” from his opinion, but, as explained in Wynn v Cole, 68 Mich App 706, 712; 243 NW2d 923, 926 (1976), a motion for summary judgment "is to be tested by the pleadings alone” and "all well-pleaded material allegations must be taken as true”. However, when there is good reason to believe that allegations, which cannot be summarily dismissed, are nonetheless groundless and unwarranted, a combined use of GCR 1963, 109 and 111.6 may be appropriate. The purpose of 111.6 is "to impose realistic costs, including actual attorney fees, as a deterrent to bad faith pleading”; 1 Honigman & Hawkins, supra, (1979 Supp), p 70. Requiring security, under 109, for such expected costs would emphasize the deterrent while preserving the right to a jury trial. If 111.6 is to achieve its objective it "should be liberally applied in cases where bad faith is shown, with an allowance of attorney fees realistically based on actual charges at prevailing rates”. Id. at 71.

The order of summary judgment in favor of Thompson must also be reversed. Although he is not named in paragraphs 10 and 11, the gist of the entire complaint is that he falsely accused plaintiff to avoid the consequences of his own wrongdoing.

Finally, plaintiffs claim the trial judge should be disqualified because he acknowledged that he was "having a hard time separating what this court knows to be decisions of juries in this matter”, referring to the convictions of two other men in the same fraudulent scheme. A jury has been demanded. Knowledge of the entire episode may make the judge especially qualified to rule on questions of evidence. His opinion on the first motion for summary judgment was scholarly. He took the second motion for summary judgment under advisement and expressed his concern in a straightforward way. His admission that the conviction of two other men because of Thompson’s testimony makes it difficult for him to accept plaintiffs’ claims that GM and the detective lacked probable cause and acted with malice seems to us to be a candid, natural conclusion. We see no basis for his disqualification.

Reversed and remanded.


author: V. J. Brennan, J.

text:
    JENKINS v STARKEY
    Docket No. 78-3852.
    Submitted December 6, 1979, at Detroit.
    Decided March 4, 1980.
    Plaintiff James Jenkins, a Wayne County deputy sheriff, was injured in a shoot-out with members of the Detroit Police STRESS unit. Jenkins and his wife, JoAnn, brought an action against the defendants Virgil A. Starkey, James R. Harris and Ronald H. Martin, STRESS unit members. Prior to trial the Detroit Police Department and its commissioner were dismissed as parties. The Wayne Circuit Court, William Leo Cahalan, J., entered judgment on a verdict for plaintiffs. Defendants appeal. Held:

    1. Defendants allege error in certain instructions to the jury but did not object to them at trial. The Court of Appeals will review a. trial court’s instructions to the jury only upon a showing of manifest injustice where the instructions were not objected to at trial.
    2. Defendants contend that the proper standard of care in determining negligence as to police use of deadly force is a subjective one. The standard of care which applies in a negligence action involving a police officer is to compare the officer’s conduct to that care which a reasonably prudent man would exercise in the discharge of official duties of like nature under like circumstances; this standard applies to the negligent use of deadly force.
    3. Defendants object to the court’s refusal to instruct the jury concerning contributory negligence. A trial court is not obligated to give requested instructions which are not warranted by the facts. The facts did not warrant such an instruction.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 891.
    [2] 57 Am Jur 2d, Negligence §§ 66 et seq., 115-118.
    Municipal liability for personal injuries resulting from police officer’s use of excessive force in performance of duty. 88 ALR2d 1330.
    Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death. 60 ALR2d 873.
    [3] 75 Am Jur 2d, Trial § 590.
    [4] 5 Am Jur 2d, Appeal and Error § 601 et seq.

      4. Defendants claim error in the trial court’s refusal to admit certain evidence. However, because they failed to object in the trial court to the admission of the evidence, they have failed to preserve the issue for review.
    Affirmed.
    1. Appeal and Error — Instructions to Jury — Manifest Injustice.
    The Court of Appeals will review a trial court’s instructions to the jury only upon a showing of manifest injustice where the instructions were not objected to at trial.
    2. Negligence — Standard of Care — Police Officers — Reasonably Prudent Man — Like Circumstances.
    The standard of care which applies in a negligence action involving a police officer is to compare the officer’s conduct to that care which a reasonably prudent man would exercise in the discharge of official duties of like nature under like circumstances; this standard applies to the negligent use of deadly force.
    3. Trial — Instructions to Jury.
    A trial court is not obligated to give requested instructions which are not warranted by the facts.
    4. Appeal and Error — Preserving Question — Evidence.
    The issue of a trial judge’s ruling on the admissibility of evidence is not preserved for appellate review without an objection to the ruling.

      Zeff & Zeff (by Michael T. Materna and Melvin L. Berris), for plaintiffs.

      Roger E. Craig, Corporation Counsel, and Thomas H. Gallagher, Assistant Corporation Counsel, for defendants.
    Before: Mackenzie, P.J., and V. J. Brennan and D. F. Walsh, JJ.
   V. J. Brennan, J.

This is a negligence action which arose out of a March 9, 1972, "shoot-out” which occurred between several Wayne County Sheriffs deputies, plaintiff James Jenkins among them, and defendants Virgil A. Starkey, James R. Harris and Ronald H. Martin, then members of the Detroit Police Department’s STRESS unit.

As a result of this "shoot-out”, plaintiff James Jenkins and his wife, JoAnn, filed a complaint against the Detroit Police Department, the Detroit Police Commissioner and Detroit Police Officers Starkey, Martin and Harris. They alleged that the individual officers without warning or cause fired upon plaintiff James Jenkins causing substantial injuries. Plaintiff James Jenkins sought $3,000,000 in damages while plaintiff JoAnn Jenkins sought $1,000,000 for loss of love, use, care and consortium of her husband. On October 5, 1972, the Detroit Police Department and the Detroit Police Commissioner were dismissed as parties. The matter proceeded to trial with the jury returning a verdict of $1,500,000 in favor of James Jenkins and $150,000 in favor of plaintiff JoAnn Jenkins.

There is considerable disagreement as to what occurred on the night in question. James Jenkins, then a Wayne County Sheriffs deputy, testified that on March 8, 1972, between 11:30 p.m. and midnight, he arrived in the vicinity of 3210 Rochester, Detroit. Parking his car, he took both his weapons and headed down the street towards the apartment of Wayne County Deputy Sheriff Aaron Vincent. Jenkins denied carrying these weapons in his hands. After knocking and being told to enter, he walked into Vincent’s apartment. While standing with his back to the door, someone entered and hollered something and shooting broke out before Jenkins could turn around. Jenkins fired three times at a man he saw on the balcony, unaware that this man who was firing at him was a police officer. Along with the other occupants of the apartment, he retreated into the bedroom. In response to shouts of "come on out”, Jenkins and the other men in the bedroom started yelling that they were Wayne County Deputies. When a voice demanded "[s]how some I.D.”, guns and badges were thrown out. Then, in response to the command, "Okay. Come on out with your hands up”, Jenkins approached the door holding his I.D. folder with badge in front of him. As soon as he got to the bedroom door, he was shot in the temple.

Wayne County Sheriffs Department Deputies Aaron Vincent, Henry Henderson, Henry Duvall, David Edward Davis and civilian Richard Sain testified they were playing cards in Vincent’s apartment the night of the incident. Vincent, Davis and Sain testified at trial and essentially corroborated Jenkins’ testimony.

On the other hand, defendant Ronald H. Martin, then a member of the Detroit Police Department’s STRESS Unit, testified that shortly before midnight on March 8, 1972, he noticed Jenkins holding a gun in his hand in the vicinity of 3210 Rochester, Detroit. Aroused solely by the gun, Martin and defendant James R. Harris, also a member of STRESS, ran after Jenkins and saw him enter Vincent’s apartment. After opening the screen door, Martin shoved his gun and badge through the doorway, and heard Officer Harris identify himself as a police officer. Gunfire quickly followed. After the initial shooting, someone’s arm came out of the doorway and fired at Martin twice. Martin returned this gunfire and Officer Starkey ascended the stairway. Believing that Harris had been shot and that the apartment’s occupants were running to the back of the building, Martin and Starkey entered the apartment. Another round was fired from the bedroom following which Martin fired 17 or 18 rounds. By this time the three policemen had entered the apartment. Officer Martin yelled, "Detroit Police Officers” and the survivors in the bedroom shouted "We’re police, too, we’re deputies”, threw out their guns and badges, and exited the bedroom. Martin testified that he found Jenkins in the bedroom shot in the head, along with Deputy Henderson who had been shot to death.

Officer Martin’s testimony was corroborated by that of Officers Harris and Starkey.

Following a verdict in favor of plaintiff, defendants moved for a new trial, judgment n.o.v. or remittitur. The motion was denied in an order dated September 5, 1978.

Although defendants raise five issues on appeal, only the first of the alleged instructional errors, regarding the appropriate standard of care in the use of deadly force, requires extended discussion.

At the outset we note that defendants did not object at trial to those instructions which they now argue on appeal to be erroneous. Where no objections are made at the trial court level, appellate review is precluded absent a showing of manifest injustice. Conel Development, Inc v River Rouge Savings Bank, 84 Mich App 415, 425; 269 NW2d 621 (1978). Earle v Colonial Theatre Co, 82 Mich App 54, 57; 266 NW2d 466 (1978), lv den 403 Mich 816 (1978), GCR 1963, 516.2. Our review indicates no manifest injustice.

The trial judge gave the following instruction regarding defendants’ use of deadly force and the standard of care to be used in determining if the police officers were negligent:

"Now, the law in the State of Michigan respecting an arrest made by a peace officer, is as follows.

"Any peace officer may without a warrant arrest a person for the commission of any felony or misdemeanor committed in his presence or when he has reasonable cause to believe that a felony has been committed, and reasonable cause to believe that such person has committed it.

"In effecting a lawful arrest for a misdemeanor, a peace officer may use only that degree of force reasonably necessary to effect the arrest, short of deadly force. In effecting a lawful arrest for a felony, a peace officer may use that degree of force reasonably necessary to effect that arrest including deadly force.

"A peace officer may use deadly force in defense of his own life, in defense of another, or in pursuit of a fleeing felon.

"Now, if the police officers make an arrest for a misdemeanor only, the arrest must be reasonably immediate after the misdemeanor was observed. A police officer is not liable for injuries inflicted by him in the use of reasonably necessary force.

"In reviewing the question of reasonable force and of whether the officers had probable cause to believe that a felony had been committed, you must determine whether or not a man of reasonable prudence and caution would have so acted or so believed under the facts which you ñnd the officers were aware of or reasonably should have been aware of at that time; and under the then existing circumstances.” (Emphasis added.)

Although one of the several instructions requested by defendants was virtually identical to that given by the trial judge, defendants now claim error. Specifically, they contend that the proper standard of care in determining negligence as to police use of deadly force is a subjective one. Thus they argue that the trial judge should have instructed that the use of deadly force is within the officer’s professional discretion. We cannot agree.

The specific issue raised here has not been previously addressed by our courts. However, the Court has addressed the standard of care used in determining a police officer’s negligence. In McKay v Hargis, 351 Mich 409, 418; 88 NW2d 456 (1958), a case involving a suit by a police officer against the individual he was pursuing in an automobile chase, the Michigan Supreme Court stated:

"We know of no better standard by which to determine a claim of negligence on the part of a police officer than by comparing his conduct, as this circuit judge suggested, to 'that care which a reasonably prudent man would exercise in the discharge of official duties of like nature under like circumstances.’ ”

And in Cole v Rife, 77 Mich App 545, 549-552; 258 NW2d 555 (1977), a panel of this Court, relying on McKay, supra, concluded that the "reasonably prudent man” standard applies where a police officer is the defendant in a negligence action.

In view of both McKay and Cole, supra, we remain unpersuaded that a different standard of care applies where, as in this case, the claim is negligent use of deadly force. The drastic, oftentimes fatal consequences of the negligent use of deadly force further compels us to reject the purely subjective standard which defendants advocate. We believe that such a standard could cause fear of, and reduce respect for, the police, in addition to leading to abuses by unscrupulous officers.

The traditional tort standard of negligence, "reasonably prudent man under like circumstances” governs in determining the standard of care applicable under the factual circumstances of the instant case. This standard allows the fact-finder to determine that some factual circumstances reasonably require greater or lesser diligence than do other circumstances in order to constitute reasonable or due care. Felgner v Anderson, 375 Mich 23, 30; 133 NW2d 136 (1965). The trial judge’s charge adequately and fairly presented the law applicable to the facts in evidence. Thus this allegation of error is without merit.

The remaining two alleged instructional errors do not require extensive discussion. The trial judge’s failure to define "felony”, "misdemeanor”, and "barricaded gunman” was not error where the felony-misdemeanor distinction was adequately explained at trial, a witness read the jury the definition of "barricaded” from several dictionaries, and the jury did not request the definition of these terms.

Similarly, the trial judge’s decision not to give defendants’ requested instruction on contributory negligence was not erroneous. A court is not obligated to give requested instructions which are not warranted by the facts. Aamco Automatic Transmissions, Inc v Motor Trans, Inc, 45 Mich App 539, 543; 207 NW2d 156 (1973), lv den 389 Mich 817 (1973). Contributory negligence was not an issue presented by the proofs. Rather, defendants contended that Jenkins intentionally turned on them and fired knowing they were police officers. The officers’ theory of the case was self-defense. Hence the trial judge properly refused to give the requested instruction.

Defendants also claim they were prejudiced when the trial judge accepted plaintiffs’ theory of the case one day before the jury was instructed, in contravention of Wayne County Circuit Court Rule 7.6. Specifically, defendants argue that the "barricaded gunman” portion of plaintiff theory was both untimely and not supported by the evidence. Our review of the trial transcript indicates that the "barricaded gunman” issue had been raised several times during trial, was supported by the evidence, injected no new facts and did not prejudice defendants. Thus the trial judge properly instructed the jury on this element of plaintiffs’ theory. Hansen v Batchelder, 14 Mich App 627, 633; 165 NW2d 886 (1968).

Lastly, defendants complain that the trial court erred in refusing to allow the jury to examine the record of the proceedings of the Board of Inquiry which initially investigated this matter. Defendants did not object to the trial court’s ruling on the report’s admissibility, thus failing to preserve this alleged error for appellate review. Metcalf v Waterbury, 60 Mich App 553, 557; 231 NW2d 437 (1975), lv den 394 Mich 821 (1975), Hirdes v Selvig, 369 Mich 173, 178-179; 119 NW2d 537 (1963),

Affirmed.

       Defendants cite no cases which suggest that a subjective standard under these circumstances exists in Michigan. They do, however, provide us with a litany of cases, both Federal, Daly v Pedersen, 278 F Supp 88 (D Minn, 1967), Conklin v Barfield, 334 F Supp 475 (WD Mo, 1971), and state, Skinner v Brooks, 74 Ohio App 228; 58 NE2d 697 (1944), Perry v Gibson, 247 NC 212; 100 SE2d 341 (1957), In re Removal of Pickering, 25 Ohio App 2d 58; 266 NE2d 248 (1970), Manson v Wabash R Co, 338 SW2d 54 (Mo, 1960), and Schell v Collis, 83 NW2d 422 (ND, 1957), in support of their contention that the subjective standard is the correct one. Our reading of these cases, however, does not coincide with defendants’ interpretation of them.


author: E. A. quinnell, J.

text:
    SCOTT v BURGER KING CORPORATION
    Docket No. 78-3875.
    Submitted November 13, 1979, at Detroit.
    Decided March 4, 1980.
    Johnny Lee Scott was fatally shot while he was a patron at a restaurant owned by Burger King Corporation. His wife, Verna Scott, brought an action for damages for wrongful death against Burger King. Burger King, in turn, brought a third-party action against Vi-Six Security Agency, Inc., and Ted Crawford, an individual security officer. Johnny Lee Scott was also survived by his parents and several brothers and sisters. The parents and siblings filed a motion to intervene as plaintiffs in the wrongful death action. Their motion was denied by the Wayne Circuit Court, Joseph Burtell, J., and they appeal by leave granted. Held:

    The wrongful death statute provides that damages may be recovered by those persons who would be entitled to inherit the personal property of the deceased had he died intestate. References in the statute to the "next of kin” include those persons who would inherit had the deceased died intestate and, therefore, include the deceased’s parents and siblings as well as his surviving spouse and children. The motion to intervene by Johnny Scott’s parents and siblings should have been granted.
    Reversed and remanded.
    1. Negligence — Wrongful Death — Next of Kin — Statutes.
    The phrase "surviving spouse and next of kin” as used in the wrongful death act refers to those persons who by law would be entitled to inherit the personal property of the deceased had he died intestate (MCL 600.2922; MSA 27A.2922).
    2. Negligence — Wrongful Death — Next of Kin — Statutes.
    The parents and siblings of a decedent, as persons entitled to inherit the personal property of the decedent, are among the next of kin and are entitled to participate as plaintiffs in a wrongful death action arising from the death of the decedent (MCL 600.2922; MSA 27A.2922).

      References for Points in Headnotes
    [1, 2] 22 Am Jur 2d, Death § 47 et seq.

    [2] Wrongful death: brothers and sisters of deceased as beneficiaries within state wrongful death statute. 31 ALR3d 379.

      Rifkin, Kingsley & Rhodes, P.C. (by Robert E. Laramie), for plaintiff.

      Peter R. Barbara & Associates, P.C. (by Frank G. Becker), for intervening plaintiffs.
    Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   E. A. quinnell, J.

Verna Scott, administratrix of the estate of her deceased husband Johnny Lee Scott, brought this action under the wrongful death statute, MCL 600.2922; MSA 27A.2922, for the benefit of herself and their minor child. The complaint alleged negligence on the part of defendant Burger King Corporation that resulted in the shooting of the decedent while a patron at one of the defendant’s restaurants on January 8, 1977. In addition to his wife and child, the decedent was survived by his parents and siblings. The decedent’s parents and siblings sought recognition from the administratrix as beneficiaries in the lawsuit, and subsequently moved to intervene as plaintiffs to pursue their claims when that recognition was not granted. Plaintiff opposed the motion, which was denied by the trial court. We granted leave to consider the interlocutory appeal of the proposed intervenors. We reverse.

I. The question of the rights of the decedent’s parents and siblings requires us to construe the wrongful death statute, which is the sole source of the cause of action. The pertinent subsection provides:

"(2) Every such action shall be brought by, and in the námes of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased. Such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence. After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total loss suffered by the surviving spouse and next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and the next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws.” MCL 600.2922(2); MSA 27A.2922(2). (Emphasis added.)

In Crystal v Hubbard, 92 Mich App 240; 285 NW2d 66 (1979), a panel of this Court held that siblings of a decedent who was survived by spouse and parents could not recover damages since they were not "next of kin” of the decedent. If we were to follow Crystal, Johnny Scott’s siblings would have no rights in the action. We disagree, however, with the conclusion reached in that opinion.

The Crystal panel relied upon the decision of the Supreme Court in MacDonald v Quimby, 350 Mich 21; 85 NW2d 157 (1957). The decedent in MacDonald was survived by his wife and children and also by his mother, who was dependent upon him for support. The statute then in effect, CL 1948, 691.582; Stat Ann 1955 Cum Supp 27.712, detailed the types of damages available and added the following proviso: "Provided, however, That such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.” The next sentence began a discussion of the manner of distribution of the recovery: "The amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury and in proportion thereto.” The Court noted the changes brought by the 1939 amendment to the act. Among other changes, this amendment added the "next of kin” language and added the word "class” to "(persons) who, by law, would be entitled to inherit”. MacDonald, supra, 26-27. The Court decided that the amendment was intended to free the statute from the tight reins of the laws of intestacy and to expand the class of beneficiaries from those who were the decedent’s heirs at the time of his death to those who could have been his heirs had the circumstances been different.

"We cannot agree with appellees’ contention that 'heirs at law and next of kin are synonymous terms,’ or that for this Court to rule otherwise would delete and make inoperative the words found in the first half of the amended section 'that such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.’

"The petitioning mother was of a class who would be entitled to inherit the personal property of the deceased had he died intestate. The fact that she would not inherit if he died intestate leaving a wife and children would not eliminate her from that class.” MacDonald, supra, 32.

The Court held that the decedent’s mother, as the next of kin according to civil law, could recover damages. MacDonald, supra, 31-32.

The Crystal Court properly characterized the issue of the rights of siblings, who are blood relations of the second degree, as remaining undecided after MacDonald.

"We must decide in this appeal the question which MacDonald leaves unanswered: whether the statutory term 'next of kin’ fixes the minimum membership of 'that class of persons who, by law, would be entitled to inherit the personal property of the decedent had he died intestate’ or serves the additional function of excluding from class membership those persons not also claiming the civil law status of next of kin. The dispute brought before the Court in MacDonald required it to decide only that the first proposition was true.” Crystal, supra, 248.

The Court concluded:

"This deliberate resort to the civil law convinces us that while the 'class of persons who, by law, are entitled to inherit’ was 'opened’ by the legislative employment of 'next of kin’ in the same paragraph, that class was expanded only to include those persons who are next of kin according to the civil law meaning of the term. We are unable to find in the statute any words which can free 'next of kin’ of its ordinary restrictive meaning as that term had served in MacDonald to release from its confinement 'that class of persons who, by law, are entitled to inherit’ ”. Crystal, supra, 249.

We believe this result was intended neither by the Legislature in adopting the statutory language nor by the MacDonald Court in deciding a case involving only a parent and not siblings. Our disagreement with the Crystal panel centers on the meaning of the phrase "next of kin”. The phrase has been interpreted at least three different ways.

Black’s Law Dictionary (4th ed, 1951):

"Next of kin. In the law of descent and distribution, this term properly denotes the persons nearest of kindred to the decedent, that is, those who are most nearly related to him by Wood; but it is sometimes construed to mean only those who are entitled to take under the statute of distributions, and sometimes to include other persons.”

Anno: Brothers And Sisters Of Deceased As Beneñciaries Within State Wrongful Death Statute, 31 ALR3d 379.

Some courts, as did the Crystal panel, interpret the phrase as meaning the nearest blood relatives, computing degrees of kindred according to the strict rules of the civil law. Other courts interpret the phrase as being synonymous with heirs at law, a result forbidden by the MacDonald majority. Still other courts have adopted a somewhat less precise use which in effect encompasses persons who are neither heirs at law nor civil law next of kin, but who are related. For instance, in Jones v Wittenberg University, 534 F2d 1203 (CA 6, 1976), the Sixth Circuit Court of Appeals, applying Ohio law, affirmed a Death Act judgment in favor of the father and one sister of an unmarried, childless decedent. The Ohio statute provided that wrongful death actions are to be brought "for the exclusive benefit of the surviving spouse, the children and other next of kin of the decedent”. The court did not discuss the meaning of "next of kin”, but the result in the case is to expand the term beyond both "heirs at law” and the civil law definition.

We do not consider significant any difference in the MacDonald opinions in the use of "next of kin”, and fail to find the "deliberate resort to the civil law” noted by the Crystal panel. The case involved the rights of the mother only; she was clearly entitled to participate under either the 5-member Kelly opinion or the 4-member Black opinion. Further, Justice Edwards signed both opinions, which accounts for the 9 concurring votes from an 8-member court.

II. In what sense then did the 1971 Michigan legislature intend the term to be used? We have sought and have been unable to find any legislative history or pre-enactment analysis. The critical language of the statute itself reads as follows:

"Such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto.”

The former sentence as interpreted in MacDonald expresses the class of beneficiaries, i.e. potential (as distinct from actual) inheritors of personal property, who are entitled to recover damages. We do not believe the next sentence was intended to limit that class. If the Legislature had inténded tó give with one hand and take with the other, it could have done so much more explicitly. Read within the structure of the paragraph, the latter sentence and all later references to "surviving spouse and next of kin” concern the manner of distribution of the damages. The "surviving spouse and next of kin” are to recover those damages owing to them individually, certain creditors of the estate are to be paid, and the remainder of the estate passes by the laws of intestacy. Under our reading of the statute, "surviving spouse and next of kin” is a shorthand expression — albeit and inartful one — for "such person or persons who, by law, would be entitled to inherit the personal property of the deceased had he died intestate”.

A contrary interpretation would lead to results inconsistent with an express policy of the statute, which is to compensate persons for the loss of the pecuniary support, society, and companionship of a negligently killed decedent. The 1971 amendment to the act expressly added loss of society and companionship to the items of damages, thereby enacting the case law that had begun with Wycko v Gnodtke, 361 Mich 331; 105 NW2d 118 (1960), which had interpreted "pecuniary loss” to include companionship. The cases are very clear that companionship is found in the mutual society and protection existing in the family unit. Judge Holbrook, writing for this Court in Westfall v Venton, 1 Mich App 612; 137 NW2d 757 (1965), expressed this concept well:

"The award of damages for loss of companionship caused by the unlawful death of an adult daughter and an adult son, ruled as proper in the Currie [Currie v Fiting, 375 Mich 440; 134 NW2d 611 (1965)] and Reisig Cases [Reisig v Klusendorf, 375 Mich 519; 134 NW2d 634 (1965)], together with the quote from the Heider Case [Heider v Michigan Sugar Co, 375 Mich 490; 134 NW2d 637 (1965)] indicates to this Court, that the unlawful death of any member of a family unit with provable loss of companionship present, is actionable and included in the term 'pecuniary injury’ contained in the death act as construed in the Wycko, Currie, Heider and Reisig Cases.

"A family unit, including all of its members, whether living under the same roof or not, is still a family unit. As a rule, parents as they grow older acquire more wisdom and appreciation for their children, grandchildren, and the family unit. This enables them to exert through their concern, love, and companionship valuable guidance to the other members of the family, and strengthen the effective service of the family as a unit. The unlawful taking of the life of one of the members of a well-knit and close family unit, where love, and concern, abounds, severs this unit, with resulting pecuniary injury to the survivors. For such loss the survivors have an action under the death act.” Westfall, supra, 620. (Emphasis in original.)

In Heider v Michigan Sugar Co, 375 Mich 490; 134 NW2d 637 (1965), cert dismissed as improvidently grtd, 385 US 362; 87 S Ct 532; 17 L Ed 2d 427 (1966), the Court reversed a jury award for the death of a minor child on the grounds of error in the finding of liability, but Justice Adams addressed the question of damages and who could recover them in his dissenting opinion. Justice Adams noted:

"In the case of 8-year-old David Heider, the jury awarded damages of $125,000. It is asserted that this sum is excessive, against the clear preponderance of the evidence and contrary to its great weight. Appellant states:

" 'Mrs. Heider, with the $125,000, at her present age would be able to purchase an annuity which would pay her a guaranteed monthly income of $455 for her lifetime.’

"The loss of companionship in David’s case runs not only to the father and mother but also to a younger brother and sister. The amount of damages recoverable in actions for death by wrongful act is one peculiarly within the province of the jury. Taking into account the total family relationship, the probable dependency of the mother upon David, and the loss to the family group of the life of David over a useful lifetime, we do not find the verdict excessive.” Heider, supra, 515-516.

Loss of society, companionship, and pecuniary support from a decedent should not turn on the vagaries of survival of a person more closely related by blood to a decedent than another who sustained a loss. Consider the case of a decedent who lived with and supported his sibling for many years. If this decedent happened to have a child, the sibling would have no rights under the act, according to the Crystal Court. Yet it would be abundantly clear that the sibling, and possibly the child as well, would have suffered a loss. In a similar situation in which no child existed, the sibling could recover. Such a result would be nothing more than capricious and we cannot believe it was intended by the Legislature.

We are aware that our interpretation may lead to problems of proof and difficulty in the management of lawsuits. Whatever problems may have existed were clearly resolved by the Crystal trial judge and jury. Such difficulties, however, inhere in the nature of compensation for loss of society and companionship and must not interefere with implementation of what we perceive to be the intent of the Legislature. Justice Smith, writing for the Court in Wycko v Gnodtke, supra, explained that we should be undeterred by the possibility of logistical difficulties.

"What, then, is the pecuniary loss suffered because of the taking of the child’s life? It is the pecuniary value of the life. We are aware, of course, that there are those who say that the life of a human being is impossible to value, that although we will grapple mightily with the value of the life of a horse, of a team of mules, we will stand aloof where a human is concerned and assign it no value whatever. This kind of delicacy would prevent the distribution of food to the starving because the sight of hunger is so sickening. But we cannot shirk this difficult problem of valuation. In the cases coming to us a life has been taken and it is our duty, as best we can, to put a fair valuation on it. In so doing, we will keep in mind that the act is remedial in its character and our duty is to construe it liberally in favor of the beneficiaries.” Wycko, supra, 338-339. (Footnotes omitted.)

In short, decedent’s parents and siblings are among those persons entitled to inherit his personal property. MCL 702.93; MSA 27.3178(163), currently MCL 700.106; MSA 27.5106. As such, they are also among his next of kin. Therefore, they are entitled to participate in this wrongful death action. Whether any of them individually sustained a loss for which damages must be paid under the wrongful death act is a question for determination by the trier of fact.

Accordingly, we reverse and remand. Costs to appellants.

       The statute requires that the named plaintiff be the personal representative of the deceased, and it is unlikely that the parents and siblings can technically be designated as parties plaintiff. However, the remedy sought by the "propose intervening plaintiffs” is sanctioned in MacDonald v Quimby, 350 Mich 21; 85 NW2d 157 (1957); see the opinion of Justice Black, writing for four concurring Justices.

       The trial court in the instant case also denied the parents’ motion to intervene. Regardless of the effect of Crystal, however, the parents would be proper beneficiaries since they were next of kin to the decedent under all definitions. Both parents and children of the decedent stand in first-degree kinship to the decedent. The accepted authority of MacDonald v Quimby, supra, involved precisely this factual situation. Appellee’s argument to the contrary notwithstanding, we agree with the Crystal panel that the 1971 changes in the statute do not affect the validity of the MacDonald analysis.

       As a remedial statute, the wrongful death act is to be construed liberally. See Wycko v Gnodtke, 361 Mich 331, 339; 105 NW2d 118 (1960).


author: V. J. Brennan, P.J.

text:
    DURDA v CHEMBAR DEVELOPMENT CORPORATION
    Docket No. 78-4375.
    Submitted November 7, 1979, at Grand Rapids.
    Decided March 4, 1980.
    Leave to appeal applied for.
    On February 14, 1971, Matthew Durda, Sr., and Patricia Durda sold certain real estate to Chembar Development Corporation on a land contract. Chembar took possession of the premises on the date of the contract. Subsequently Chembar failed to make the installment payments and, in accord with a specific contract provision, was served on December 20, 1972, with a written notice of a forfeiture providing 15 days for remedy of the default. The default was not cured within the 15-day period and on January 4, 1973, the Durdas instituted summary proceedings in district court for possession. A judgment for possession was entered on February 3, 1973, and a writ of restitution was eventually issued on June 5, 1973. On June 8, 1973, the Durdas brought an action against Chembar in district court for the reasonable rental value of the premises arising out of the defendant’s continued occupancy from January 4, 1973, the date the time for cure had expired, to June 5, 1973, the date the writ of restitution was issued. Judgment was entered for the plaintiffs. On appeal, Muskegon Circuit Court, Fredrick A. Grimm, J., affirmed the district court judgment. The defendant now appeals to the Court of Appeals, by leave granted. The issue on appeal is whether the land contract vendor may recover the reasonable rental value of the premises for the redemption period (the date of forfeiture until the issuance of the writ of restitution). Held:

    1. The vendor has the right to possession immediately upon forfeiture, although this right can only be enforced after the writ of restitution is issued and cannot be enforced at all if the vendee prevents the writ from issuing by timely payment of the redemption price. In the instant case, the defendants became tenants by sufferance by having remained in possession beyond the 15-day period within which to cure and having failed to redeem. As such, they became liable under common law for the reasonable rental value of the property.

      References for Points In Headnotes
    [1, 2] 77 Am Jur 2d, Vendor and Purchaser §§ 409, 580.
    [3] 77 Am Jur 2d, Vendor and Purchaser §§ 404, 409, 580.
    [4] 77 Am Jur 2d, Vendor and Purchaser §§ 474, 478.
    [5] 77 Am Jur 2d, Vendor and Purchaser § 573.

      2. Allowing the plaintiffs to recover the property and the reasonable rental value for the time the defendant remained in possession is neither an inconsistent remedy nor a double recovery for the plaintiffs.
    Affirmed.
    1. Vendor and Purchaser — Land Contracts — Default — Notice of Forfeiture — Redemption — Statutes.
    A land contract vendee who has defaulted on a land contract must, within 15 days after service of a notice of forfeiture, either pay what is owed under the contract or deliver possession of the premises (MCL 600.5728[1]; MSA 27A.5728[1]).
    2. Vendor and Purchaser —• Land Contracts — Forfeiture — Vendor’s Right to Possession — Writ of Restitution — Redemption — Statutes.
    A land contract vendor has the right to possession of the premises immediately upon forfeiture by the land contract vendee (either 15 days after the vendee has been served with a notice of forfeiture as provided by statute or a later time if the contract so states); however, this right can only be enforced after a writ of restitution has issued and cannot be enforced at all if the vendee prevents the writ from issuing by timely payment of the redemption price (MCL 600.5728[1], 600.5741, 600.5744[1]; MSA 27A.5728[1], 27A.5741, 27A.5744[1]).
    3. Vendor and Purchaser — Land Contracts — Forfeiture —
    Writ of Restitution — Deficiency Judgment — Statutes. Once a land contract vendor has elected the remedy of forfeiture in response to the land contract vendee’s default and has proceeded to the point of issuance of a writ of restitution, the vendor cannot recover a deficiency judgment for money due under the contract (MCL 600.5750; MSA 27A.5750).
    4. Vendor and Purchaser — Land Contracts — Forfeiture — Incidental Damages.
    A land contract vendor has a right to recover, from a land contract vendee who has defaulted, damages incidental to the forfeiture proceeding.
    5. Vendor and Purchaser — Land Contracts — Forfeiture — Reasonable Rental Value.
    A defaulting land contract vendee is liable for the reasonable rental value of the property from the date the period for cure expired until he vacates the property; the vendor’s recovery of the property and the reasonable rental value where the vendee remains in possession and does not redeem is neither inconsistent nor a double recovery to the vendor.

      White, Spaniola, Knudsen, Stariha & Potuznik, PC. (by Darrel G. Brown), for plaintiff.

      Alphonse Lewis, Jr., for defendant.
    Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.

         Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   V. J. Brennan, P.J.

The defendant appeals a judgment of the district court awarding plaintiffs, land contract vendors, reasonable rental value of the premises sold to defendant during the period of redemption.

On February 14, 1971, the parties entered into a land contract for the sale of certain real estate. Defendant entered into possession of the premises on the date of the contract. Subsequently, defendant failed to make the installment payments and, in accord with a specific contract provision, was served on December 20, 1972, with a written notice of forfeiture providing 15 days to remedy the default. The default was not cured within the 15-day period and on January 4, 1973, plaintiffs instituted summary proceedings for possession in district court. A judgment for possession was entered on February 3, 1973, and a writ of restitution was eventually issued on June 5, 1973.

On June 8, 1973, pursuant to MCL 554.131 et seq.; MSA 26.1101 et seq., plaintiffs instituted the instant action for the reasonable rental value of the premises arising out of defendant’s continued occupancy from January 4, 1973, the date the time for cure expired, to June 5, 1973, the date the writ of restitution was issued. On March 13, 1975, the district court entered a judgment in favor of plaintiffs for $10,000. Upon appeal, the circuit court affirmed. We follow suit.

The issue whether a land contract vendor may recover the reasonable rental value of the premises during the redemption period (the date of forfeiture until issuance of the writ of restitution) presents a question of first impression under the current summary proceedings statute, MCL 600.5701 et seq.; MSA 27A.5701 et seq. It is undisputed that defendant in the present case defaulted on the land contract, plaintiffs sent notice of forfeiture and properly instituted summary proceedings, and defendant remained in possession until the writ of restitution was issued.

Analogizing land contracts to mortgages, defendant argues that possession during the redemption period was not wrongful, Meyers v Ermolik, 301 Mich 284, 291; 3 NW2d 276 (1942), and thus plaintiff is not owed reasonable rent.

Plaintiffs assert, however, that the vendee’s right to possession terminated at the time of forfeiture. Spaulding v Wyckoff, 320 Mich 329; 31 NW2d 71 (1948), John v McNeal, 167 Mich 148; 132 NW 508 (1911), Lafrance v Griffin, 160 Mich 236; 125 NW 34 (1910), McWilliams v Urban American Land Development Co, 37 Mich App 587; 194 NW2d 920 (1972), Rothenberg v Follman, 19 Mich App 383; 172 NW2d 845 (1969).

Notwithstanding the significant differences between a land contract vendee and a mortgagor addressed by Judge Levin in Rothenberg, supra, at 387, we note that the cases cited by both parties were decided before enactment of the present summary proceedings statute, MCL 600.5701, et seq.; MSA 27A.5701, et seq., and do not refer to the statutory right to redemption. Thus they do not aid in deciding the present case.

The threshold question, therefore, is at what point does the summary proceedings statute give the vendor the right to possession. Section 5726 states in part:

"A person entitled to any premises may recover possession thereof by a proceeding under this chapter after forfeiture of an executory contract for the purchase of the premises * * (Emphasis added.)

This language indicates that the right to possession shifts to the vendor sometime after forfeiture, and not on the date of forfeiture.

Section 5728(1) provides:

"Possession may be recovered under section 5726 only after the vendee or person holding possession under him has been served with a written notice of forfeiture and has failed in the required time to pay moneys required to be paid under the contract or to cure any other material breach of the contract. Unless the parties have agreed in writing to a longer time, the person served with a notice of forfeiture shall have 15 days thereafter before he is required to pay moneys required to be paid under the contract and cure other material breaches of the contract or to deliver possession of the premises. ” (Emphasis added.)

The meaning of the statute is clear: within 15 days after service of notice of forfeiture, the vendee must either pay what is owed under the contract or deliver possession of the premises. Since the parties’ agreement did not provide for a longer period, possession of the property was due on January 4, 1973.

Section 5728(1), however must be read in context with § 5741 which provides in pertinent part:

"If the jury or the judge finds that the plaintiff is entitled to possession of the premises, or any part thereof, judgment may be entered in accordance with the finding and may be enforced by a writ of restitution as provided in this chapter. If it is found that the plaintiff is entitled to possession of the premises, in consequence of the nonpayment of any money due under a tenancy, or the nonpayment of moneys required to be paid under an executory contract for purchase of the premises, the jury or judge making the finding shall determine the amount due or in arrears at the time of trial which amount shall be stated in the judgment for possession.”

And § 5744(1) which states:

"Subject to the time restrictions of this section, the court entering a judgment for possession shall issue a writ commanding the sheriff, or any other officer authorized to serve the process, to cause the plaintiff to be restored and put in full possession of the premises.”

When read together the logical construction of these provisions is that although the vendor has the right to possession immediately upon forfeiture (either the 15 days provided by statute or a later time if the contract so states), this right can only be enforced after the writ of restitution is issued, and not at all if the vendee prevents the writ from issuing by timely paying the redemption price.

We do not read the recent case of Gruskin v Fisher, 405 Mich 51; 273 NW2d 893 (1979), so broadly as to conflict with the results we achieve here. Gruskin addressed the question of whether a land contract vendor who sends notices of intent to forfeit and of forfeiture has made an irrevocable election requiring him to accept possession of the property when tendered by the purchaser in lieu of money damages for breach of contract. Finding no such irrevocable election on the part of the vendor, the Court went on to discuss the purpose of the modern statutorily required notice as serving as warning that "the seller is about to do something unless the deficiency is cured”. 405 Mich at 65.

"The purchaser is protected. The seller cannot evict merely because he sent notice of forfeiture. The seller must, rather, send the notice as a condition precedent to commencement of summary proceedings. If summary proceedings are commenced, the purchaser may still cure the default at any time during the proceedings * * *.” 405 Mich at 65-66.

This dicta does not change the statutory point in time at which the right to possession matures. Rather it delineates the point at which the remedy of eviction can be exercised. Where the remedy sought is reasonable rent, the statutory language of § 5728(1) governs, and this right accrues 15 days after the vendee has been served with a notice of forfeiture, or later if provided in the parties’ agreement.

Defendant next argues that regardless of when plaintiffs’ right to possession arose, the summary proceedings statute explicitly precludes the vendor’s claim for reasonable rental value during the period of redemption. We do not agree.

It is clear that once the vendor has elected the remedy of forfeiture and proceeded to the point of issuance of a writ of restitution, he cannot recover a deficiency judgment for money due under the contract. MCL 600.5750; MSA 27A.5750, Balesh v Alcott, 257 Mich 352, 354; 241 NW 216 (1932). However, in the present case, plaintiffs are not seeking to recover under the contract but rather are seeking to recover damages for defendant’s continued occupancy between notice of forfeiture and issuance of the writ of restitution.

In Hayes v Kent Real Estate Co, 44 Mich App 196, 198; 205 NW2d 52 (1972), we stated that under the now repealed MCL 600.5667; MSA 27A.5667 a vendor had a right to recover damages "incidental” to the forfeiture proceeding. The new summary proceedings statute does not change this policy. Section 5750 provides:

"The remedy provided by summary proceedings is in addition to, and not exclusive of, other remedies, either legal, equitable or statutory. A judgment for possession under this chapter does not merge or bar any other claim for relief, except that a judgment for possession after forfeiture of an executory contract for the purchase of premises shall merge and bar any claim for money payments due or in arrears under the contract at the time of trial and that a judgment for possession after forfeiture of such an executory contract which results in the issuance of a writ of restitution shall also bar any claim for money payments which would have become due under the contract subsequent to the time of issuance of the writ. The plaintiff obtaining a judgment for possession of any premises under this chapter is entitled to a civil action against the defendant for damages from the time of forcible entry or detainer, or trespass, or of the notice of forfeiture, notice to quit or demand for possession, as the case may be.” (Emphasis added.)

And § 5739 states that a party to summary proceedings "may join claims and counterclaims for money judgment for damages attributable to wrongful entry, detainer or possession, for breach of the lease or contract under which the premises were held”.

Although the statute provides for money damages incidental to forfeiture, it does not specifically authorize the recovery of reasonable rental value. Such a remedy is not without precedent in this state. Sanders v Detlaff, 218 Mich 471; 188 NW 446 (1922). Having remained in possession beyond the 15-day period within which to cure and having failed to redeem, defendants became tenants by sufferance. As such, they became liable under common law for the reasonable rental value of the property. See Dwight v Cutler, 3 Mich 566 (1855), Hogsett v Ellis, 17 Mich 351 (1868). We do not read the summary proceedings statute as changing this result under the factual circumstances of the instant case.

Recovery of inconsistent remedies is barred. Gruskin v Fisher, supra. A claim for money due, or in arrears under the contract, and repossession of the property, or reasonable rental value plus money due or in arrears under the contract would be clearly barred as inconsistent. But recovery of the property and reasonable rental value where the vendee remains in possession and does not redeem is neither inconsistent nor a double recovery to the vendor. To find otherwise would allow the vendee to remain rent free for an extended period of time while correspondingly denying the vendor either the use of, or the income from, his property. Such a result would unjustly enrich the vendee.

Plaintiffs’ request for reasonable rental value during the statutory period of redemption is not precluded by the summary proceedings statute. Since the basis of this recovery is defendant’s continued occupancy in contravention of plaintiffs’ right to possession, the period for which rent is owed corresponds to this period of possession. Thus, we hold that where a defaulting land contract vendee remains in possession of the property and does not redeem he is liable for the reasonable rental value from the date the period for cure expired until he vacates the property.

In the instant case, the clock started to run on defendant on January 4, 1973. The record is unclear, however, as to the actual date defendant left the premises. We, therefore, remand to the trial court for a determination of this date and for the granting of relief consistent with this opinion.

Affirmed, and remanded.

       Although the circuit court found that the parties’ concise statement of fact indicates that the notice was served on December 20, 1972, the notice itself reflects that it was served on December 28, 1972.