author: Allen, J. M. J. Kelly, J.

text:
    BEALS v WALKER
    Docket No. 78-4454.
    Submitted February 13, 1980, at Lansing.
    Decided June 16, 1980.
    Leave to appeal applied for.
    Renold L. Beals, Jr., was injured when he fell from a roof of the Kingston Farm Service building, owned and operated by Richard J. Walker. He subsequently received medical treatment from several doctors including John F. Williamson, M.D. Mr. Beals and his wife Joyce E. Beals brought suit against Walker alleging negligence, and, in amended complaints, against Dr. Williamson alleging medical malpractice. The Tuscola Circuit Court, Martin E. Clements, J., entered a judgment on a jury verdict of no cause of action in favor of Walker and Williamson. Plaintiffs Bealses’ motion for a new trial was denied. Plaintiffs appeal, alleging the trial court erred in 1) refusing to submit the case to the jury under the doctrine of comparative negligence, 2) permitting Dr. Williamson’s counsel to introduce plaintiffs’ original complaint and two amended complaints into evidence and to comment on the differences therein, 3) refusing to give a requested instruction that any negligence on the part of Mr. Beals in contributing to his fall was not a defense to the medical malpractice action, and 4) refusing to give requested instructions listing the types of injury to Mr. Beals for which Dr. Williamson could be held liable.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 545. 20 Am Jur 2d, Courts § 233.

       5 Am Jur 2d, Appeal and Error § 810 et seq.

    Modern development of comparative negligence doctrine having applicability to negligence actions generally. 78 ALR3d 339.
    [3, 5-7] 57 Am Jur 2d, Negligence §§ 5-7, 9.

       57 Am Jur 2d, Negligence § 33.

       62 Am Jur 2d, Premises Liability § 121.

       62 Am Jur 2d, Premises Liability § 69.
    [10, 11, 12] 57 Am Jur 2d, Negligence § 273.
    Admissibility in evidence, on issue of negligence, of codes or standards of safety issued or sponsored by governmental body or by voluntary association. 58 ALR3d 148.

       29 Am Jur 2d, Evidence § 249.

       57 Am Jur 2d, Negligence § 79.

       29 Am Jur 2d, Evidence § 687.

       30 Am Jur 2d, Evidence § 693.

       75 Am Jur 2d, Trial §§ 590, 592.

       5 Am Jur 2d, Appeal and Error § 816.

       5 Am Jur 2d, Appeal and Error § 886.

      Defendant Walker cross-appeals, alleging error in the denial of his motion for a directed verdict and the introduction of evidence by plaintiffs concerning state safety regulations. Held:

    1. The trial judge erred in failing to grant defendant Walker’s motion for a directed verdict, as plaintiffs did not make out a prima facie case of negligence. Thus, there is no need to remand for a new trial on the issue of comparative negligence.
    2. Plaintiffs’ evidence that defendant Walker failed to comply with certain administrative safety code provisions was irrelevant and should not have been introduced as evidence of negligence.
    3. The allegations against Dr. Williamson in plaintiffs’ second amended complaint and the lack thereof in the former pleading were relevant, and their admission into evidence was not error.
    4. A refusal by the trial court to give plaintiffs’ proffered instruction to the jury in its entirety was not reversible error, since the instruction submitted contained an improper charge to the jury and the instruction actually read fully and properly apprised the jury of the applicable law, along with the correct portion of the requested instruction.
    5. A refusal to give requested instructions listing the type of injury to plaintiff Renold L. Beals, Jr., for which defendant Williamson could be held liable was harmless error since the jury never reached the question.
    Reversed in part; affirmed in part.
    M. J. Kelly, J., concurred with the majority opinion with respect to defendant Williamson, but dissented with respect to defendant Walker. He would affirm the trial court’s denial of defendant Walker’s motion for a directed verdict but would reverse for a new trial as to defendant Walker on the issue of comparative negligence.
    Opinion of the Court
    1. Appeal — Preservation of Issue — Courts — Comparative Negligence.
    A request during trial for the application of the doctrine of comparative negligence preserves the issue for appeal, requiring a reversal for a new trial, provided the case was pending on appeal upon the adoption by the Supreme Court of the doctrine of comparative negligence.
    2. Appeal — Courts — Comparative Negligence — Directed Verdict — Motions.
    A refusal by a trial judge to apply the doctrine of comparative negligence, when requested, does not require a remand for a new trial on appeal where the opposite party was entitled to a directed verdict.
    3. Negligence — Directed Verdict — Proofs.
    A party must make out a prima facie case of negligence, which includes proofs of the four elements of negligence, in order to avoid a directed verdict for an adversary.
    4. Negligence — Proofs — Parties — Legal Duty — Breach — Proximate Cause — Damages.
    A prima facie case of negligence is made out where a party proves a legal duty was owed him by an adversary and that the duty was breached or violated by the adversary, proximately causing damages actually suffered.
    5. Trial — Directed Verdict — Question of Fact — Courts.
    Directed verdicts are not permitted whenever a question of fact exists upon which reasonable persons may differ.
    6. Trial — Directed Verdict — Evidence — Jury Verdict.
    A directed verdict is improper where there is any competent and sufficient evidence to support a jury verdict for the nonmoving party.
    7. Motions and Orders — Directed Verdict — Trial — Evidence — Courts.
    A trial court is bound to view the evidence in a light most favorable to the nonmovant in considering a motion for a directed verdict.
    8. Negligence — Master and Servant — Independent Contractor — Employee — Business Invitee.
    An independent contractor or an employee of an independent contractor doing repair work on the private premises of an owner is properly considered a business invitee.
    9. Negligence — Property Owners — Business Invitees — Duty to Warn — Latent Defects — Patent Defects.
    An owner-invitor has a duty to maintain his premises in a reasonably safe condition for a business invitee or to warn of dangerous conditions or latent or hidden defects on the premises which he knows or reasonably should know exist, but he has no duty to warn of conditions or defects which are obvious.
    10. Evidence — Administrative Rules — Safety Codes — Legislative Authority — Duty — Violation — Negligence.
    A violation of a duty imposed by administrative rules and regulations or safety codes and standards, where such code is adopted by an administrative agency pursuant to legislative authority, is evidence of negligence.
    11. Evidence — Safety Codes — Legislative Authority — Admissibility.
    A safety code which has been properly promulgated must still meet all the general rules of evidence relating to competency, materiality, and relevance to be admissible in evidence.
    12. Evidence — Administrative Codes — Noncompliance — Negligence — Relevancy.
    Evidence that a party failed to comply with an administrative safety code should not be admitted where such noncompliance has no reasonable or logical connection with the negligence alleged.
    13. Evidence — Industry Customs — Proper Conduct — Relevance — Knowledge — Negligence.
    Evidence of an industry custom is generally admissible as bearing on what is proper conduct under given circumstances; but, to be relevant, it must be reasonably brought home to the actor’s locality, and be so general or well known that the actor may be charged with knowledge or negligent ignorance thereof.
    14. Negligence — Industry Customs — Standards of Conduct — Knowledge — Evidence.
    A party cannot be held to a specific standard of conduct as indicated by an industry custom of which he has no knowledge and for which awareness cannot be reasonably charged.
    15. Evidence — Pleadings — Averment or Admission — Trial — Relevance — Materiality.
    An averment or admission in an adversary’s final pleading is competent evidence and can be introduced at trial if relevant and material.
    16. Evidence — Pleadings — Amendment — Judicial Admissions — Admissibility.
    A pleading or allegation which is amended, withdrawn, or superseded ceases to be usable as a conclusive judicial admission but is admissible in evidence in the case in which it is filed as an evidentiary admission.
    17. Trial — Instructions to Jury — Improper Charge — Applicable Law — Courts.

    A refusal by the trial court to give a party’s proffered instruction to the jury in its entirety was not error where the instruction submitted contained an improper charge to the jury and the instruction actually given fully and properly apprised the jury of the applicable law, along with the correct portion of the requested instruction.
    18. Trial — Instructions to Jury — Harmless Error.
    A refusal to give requested instructions listing the types of injury to a plaintiff for which a defendant could be held liable was harmless error where the jury never reached the question.
    Partial Concurrence and Partial Dissent by M. J. Kelly, J.
    19. Negligence — Appeal — Review op Record.

      A review of the entire record is necessary to determine the propriety of a trial court’s denial of a defendant’s motion for a directed verdict when plaintiff’s proofs, however slight, create at least a permissible inference of the defendant’s negligence.

      Cicinelli, Mossner, Majoros & Alexander (by Eugene D. Mossner and Kay F. Pearson), for plaintiff.

      Isackson & Neering (by Frank M. Quinn), for defendant Walker.

      Smith and Brooker (by Richard G. Smith and Thomas A. Connolly), for defendant Williamson.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   Allen, J.

On January 18, 1974, plaintiff Renold L. Beals, Jr. suffered personal injuries when he fell from a roof of the Kingston Farm Service building in Kingston, Michigan, owned and operated by defendant Walker. As a result of this fall, plaintiff received medical treatment from several doctors, including Dr. Williamson. A complaint was filed, alleging defendant Walker’s breach of various duties with respect to safety on the premises, proximately causing plaintiff’s fall and resulting injuries. Amended complaints were filed, alleging medical malpractice by defendant Dr. Williamson in the treatment of plaintiff’s injured foot. A trial was held on June 6, 1978, and ended with a jury verdict of no cause of action in favor of both defendants on June 17, 1978. Plaintiff’s motion for a new trial was denied by the trial court on October 6,1978. He appeals as of right.

Since plaintiff’s claims arose out of two distinct wrongs, albeit deriving from his fall from Walker’s roof, and allege two distinct causes of action against the defendants, we consider separately the appeal and cross-appeal of the parties.

I. Claims Between Plaintiff and Defendant Walker: Premises Liability

At the time of his injury, plaintiff had been a millwright for about ten years and had been working for the same employer for about four years. All of his work as a millwright had involved grain elevators, silos and other farm structures. Plaintiff had worked at defendant’s Kingston Farm Service elevator previously. Normally, plaintiff worked with his own tools and tools provided by his employer. The employer also provided scaffolding, where needed, and rope, safety harnesses and chains were standard equipment. The millwrights would generally decide what needed to be done on the job and the method of doing it without supervision from their employer.

On January 17, 1974, Walker telephoned plaintiffs employer to arrange for repair of a broken "leg” on his grain elevator. Walker explained that he thought the problem was with the "reducer gear”. The employer contacted plaintiff and another millwright, John Wilson, and told them to make the repairs the next day. Ordinarily, when millwrights were called in to make repairs on a grain elevator, they brought their own equipment and were not supervised or directed by the elevator operator, who would attempt to define the problem and would be billed for the job.

On the morning of January 18, 1974, plaintiff and Mr. Wilson picked up the needed parts in Saginaw and drove to defendant’s place of business. The temperature was near freezing, and there was a hazy sky and a fine misty rain. When they arrived at Kingston Farm Service, Mr. Wilson went to the office to speak with defendant about the kind of repair needed. Defendant explained that he thought that the problem was with the reducer, which was in the headhouse at the top of the grain elevator.

At trial, neither plaintiff nor defendant recalled any discussion with Mr. Wilson concerning means of access to the headhouse. However, defendant’s deposition testimony and written statement indicated that he told Mr. Wilson that there were two ways of getting to the headhouse, a man-lift and an outside ladder.

The man-lift was a manually operated one-man lift inside the grain elevator, which was the only inside access to the headhouse. Defendant testified that routine maintenance and repair in the head-house area did not require more than one person and that there had not been a similar breakdown in the grain elevator while he worked there.

After the initial contact with the millwrights, defendant gave no further instructions and left the premises to keep an appointment. Plaintiff and Mr. Wilson decided that the repair required two men and, since the lift only carried one, looked for a second means of access to the headhouse. Plaintiff initially looked for an inside ladder adjacent to the lift. He testified that such ladders existed in all other grain elevators that he had worked on. This elevator did not have one, and plaintiff asked one of defendant’s employees how a second person could reach the headhouse. The employee pointed out an outside ladder leading from a lower roof to the headhouse and a portable ladder that could be used to get from the ground to the lower roof.

Mr. Wilson went up in the interior lift, and plaintiff decided to use the outside route. Plaintiff leaned the portable ladder against the building to reach the lower roof. He climbed the ladder and felt the roof for ice and wetness before climbing onto it and found none. He got on the roof and started toward the second ladder. The roof peaked a few feet before the ladder to the headhouse, and plaintiff did not feel the roof on the other side of the peak but testified that it looked like the rest of the roof. Without stopping, he stepped over the peak and slipped on a "glare of ice” and slid down the roof and over the edge, landing on railroad tracks below. During the climb, he had not used a safety line or belt or roof cleats.

Plaintiff struck the railroad tracks with his left elbow and face, causing a cut lip, broken tooth and broken glasses. He also felt pain in his right foot, later determined to be a comminuted fracture. The alleged mistreatment of the fracture by defendant Dr. Williamson was the basis of the malpractice portion of the lawsuit.

At trial, plaintiff offered evidence establishing that defendant failed to comply with various state safety regulations relating to the use of guardrails and barriers on stairways and runways. Defense counsel objected to the admissibility of this evidence, claiming that it was irrelevant to the matter on trial. The objection was overruled. In addition, plaintiff introduced evidence tending to show that it was the custom and practice of the industry to provide ladders inside grain elevators. At the close of plaintiff’s proofs, defendant Walker moved for a directed verdict on the basis that plaintiff failed to establish, as a matter of law, that defendant breached his duty to provide reasonably safe premises for the plaintiff. This motion was taken under advisement by the trial judge and subsequently denied. Defendant cross-appeals on the denial of his motion for directed verdict and the introduction of plaintiff’s evidence concerning state safety regulations.

Defendant Walker’s position at trial was that (1) he was not negligent, since he did not breach his duty of care to plaintiff, and (2) plaintiff was contributorially negligent and, therefore, barred from any recovery, even if defendant was negligent.

The issue of defendant’s negligence and the plaintiff’s contributory negligence was submitted to the jury with appropriate instructions. However, plaintiff objected to the instruction on contributory negligence, claiming that the case should be decided on the doctrine of comparative negligence. The trial judge rejected this claim, and the jury returned a verdict of no cause of action in favor of the defendant.

On appeal from this verdict and a subsequent denial of plaintiffs motion for a new trial, the plaintiff claims that the trial court erred in refusing to submit the case to the jury under the doctrine of comparative negligence. Both parties to this appeal acknowledge that this case is governed by the Michigan Supreme Court’s decision in Placek v City of Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).

In Placek, the Supreme Court held that the doctrine of contributory negligence was henceforth replaced by the doctrine of comparative negligence. The decision was given limited retroactive effect to "any case presently pending on appeal in which application of the doctrine was requested at the trial court, and the issue preserved for appeal”. Placek, supra, 667. Since, in the case at bar, plaintiff properly raised the issue and preserved it for appeal, we would, under normal circumstances, be required to reverse for a new trial. Rivers v Ford Motor Co, 90 Mich App 94, 97; 280 NW2d 875 (1979).

It is not clear from the jury verdict whether it concluded that defendant Walker was not negligent or that the plaintiff was contributorially negligent. Faced with this ambiguity, we would ordinarily reverse the judgment, since it is just as likely that the jury based its verdict on the finding that plaintiff was contributorially negligent, which conclusion would now be impermissible in light of Placek. However, since, for the reasons hereinafter set forth, we conclude that the trial judge erred in failing to grant defendant’s motion for directed verdict on the issue of defendant’s negligence, there is no need to remand for a new trial.

In order to avoid a directed verdict for the defendant, plaintiff must make out a prima facie case of negligence, which includes proofs of the four elements of negligence:

"1) that the defendant owed a legal duty to the plaintiff;
"2) that the defendant breached or violated the legal duty it owed to the plaintiff;
"3) that the defendant’s breach of duty was a proximate cause of the damages suffered by the plaintiff; and
"4) that the plaintiff suffered damages.” Crews v General Motors Corp, 400 Mich 208, 224; 253 NW2d 617 (1977), (opinion by Williams, J.).

See also, Roulo v Automobile Club of Michigan, 386 Mich 324, 328; 192 NW2d 237 (1971), Clark v Dalman, 379 Mich 251, 260; 150 NW2d 755 (1967). The absence of proof on any one of these elements prevents plaintiff from submitting the case to the jury.

We are well aware that directed verdicts, párticularly in negligence actions, are not permitted whenever a fact question exists, upon which reasonable persons may differ. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). Where there is any competent and sufficient evidence to support a jury verdict for the nonmoving party, a directed verdict is improper. McKinch v Dixon, 391 Mich 282; 215 NW2d 689 (1974), Kujawski v Cohen, 56 Mich App 533, 535; 224 NW2d 908 (1974), lv den 394 Mich 772 (1975). In considering the motion, the trial court is bound to view the evidence in a light most favorable to the nonmovant, Beasley v Grand Trunk WR Co, 90 Mich App 576, 583-584; 282 NW2d 401 (1979).

Bearing these points in mind, we proceed to consider whether plaintiff provided any evidence at trial on the element of defendant’s purported breach of the legal duty he owed to plaintiff. In this regard, we note that the parties do not dispute the existence or extent of the legal duty owed by defendant to the plaintiff. Whether as an independent contractor or an employee of an independent contractor doing repair work on the private premises of the owner, plaintiff is properly considered as a business invitee of the defendant. Perl v Cohodas, Peterson, Paoli, Nast Co, 295 Mich 325; 294 NW 697 (1940), Boylen v Berkey & Gay Furniture Co, 260 Mich 211; 244 NW 451 (1932), Keiswetter v Rubenstein, 235 Mich 36; 209 NW 154; 48 ALR 1049 (1926), Kucken v Hygrade Food Products, 51 Mich App 471; 215 NW2d 772 (1974). As the owner-invitor, defendant had a duty to maintain his premises in a reasonably safe condition for the plaintiff or, in the alternative, to warn the plaintiff of dangerous conditions or latent or hidden defects on the premises which defendant knew or reasonably should have known existed. Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965), Dobbek v Herman Gundlach, Inc, 13 Mich App 549, 555; 164 NW2d 685 (1968), Mills v AB Dick Co, 26 Mich App 164, 167; 182 NW2d 79 (1970), Kucken, supra, 474. Of course, defendant has no duty to warn plaintiff of a condition or defect that is obvious. Kirner v General Motors Corp, 41 Mich App 211, 213; 199 NW2d 827 (1972), Prosser, Law of Torts (4th ed), § 61, p 394.

Plaintiff testified at trial that he specifically tested the roof for ice when he first climbed up there. Although he stated that no ice could be seen on the far side of the roof, certainly he, more than the defendant, was in a position to discover the existence of the icy condition. If the roof appeared safe to the plaintiff under the circumstances, it must have so appeared to the defendant. Since defendant was without actual knowledge of the natural condition, and there was nothing in the appearance of the rooftop which indicated the possible or probable existence of the icy condition, defendant cannot be required to have made an inspection or warn of such a condition. McCarthy v Hiers, 81 Ga App 365; 59 SE2d 22 (1950). Thus, to the extent that the icy condition was obvious, due to the temperature, climate, and time of year, defendant cannot be held to have a duty to warn plaintiff of such a condition. Correlatively, to the extent that the icy condition was hidden from the plaintiffs observation, it must also have been hidden from the defendant. As such, and absent evidence that defendant actually knew of the icy condition of the roof, we conclude that defendant had no duty, as a matter of law, to warn plaintiff of the slippery condition of the roof.

Therefore, the issue here is concerned with the second element of negligence: whether plaintiff introduced sufficient evidence to establish that defendant breached the general legal duty to maintain his premises in a reasonably safe condition. Defendant contends that the two basic types of evidence offered by plaintiff at trial were insufficient, as a matter of law, to take the case to the jury on the question of negligence. We agree.

First, plaintiff introduced evidence of various safety regulations issued by the Michigan Department of Labor. These regulations require the use of guardrails and barriers "in all places of employment where there is danger of persons * * * falling * * * from stairways and runways”. 1976 AACS R 408.10201. Defendant objected to the introduction of this evidence on the grounds that it was immaterial and irrelevant. Although the trial court overruled the objection, in its later order denying plaintiffs motion for new trial the court questioned the propriety of its own ruling, stating:

"I question now whether such mention should even have been presented to the jury considering the area was a seldom used exterior roof of a warehouse.”

Violations of a duty imposed by administrative rules and regulations are evidence of negligence. Douglas v Edgewater Park Co, 369 Mich 320, 328; 119 NW2d 567 (1963), Zeni v Anderson, 397 Mich 117, 142; 243 NW2d 270 (1976). The sáme rule applies to safety codes and standards, where such code is adopted by an administrative agency pursuant to legislative authority. Cheney v Olender, 303 Mich 129; 5 NW2d 692 (1942), 57 Am Jur 2d, Negligence, § 273, 30 Am Jur 2d, Evidence, § 1003, Anno: Admissibility of safety codes or standards, 58 ALR3d 148. Assuming that the safety code has been properly promulgated, 30 Am Jur 2d, Evidence, § 1003, fn 20, it is still necessary that the code meet all of the general rules of evidence relating to competency, materiality and relevance. See Whinnen v 231 Corp, 49 Mich App 371, 374; 212 NW2d 297 (1973), Webster v WXYZ, 59 Mich App 375, 383; 229 NW2d 460 (1975), Warren v Michigan Gas Utilities Co, 91 Mich App 231, 236; 283 NW2d 703 (1979).

In the case at bar, plaintiffs evidence that defendant failed to comply with the administrative safety code was clearly irrelevant and should not have been introduced as evidence of defendant’s negligence. Review of the statutory scheme by which the safety code is authorized raises serious doubts as to whether defendant should be subject to these administrative regulations in this case. However, even if we were to conclude that defendant is subject to these regulations, they were clearly irrelevant, since they had no reasonable, logical connection with the negligence alleged.

One regulation read to the jury involves the use of certain safety devices on ladders ascending over 20 feet. This regulation has no application in this case, since the plaintiff fell from the rooftop before he was able to reach the outside ladder. Accordingly, any alleged inadequacy of the ladder did not, as a matter of law, contribute to his fall. 1970-71 AACS R 408.10355.

The other regulations submitted to the jury involve the use of guardrails and barriers,

"* * * in all places of employment where there is danger of persons, materials, or equipment falling through or into floor and wall holes or openings, or from stairways or runways.” 1976 AACS R 408.10201.

Related regulations requiring barriers for "an open sided floor or platform” or for a "ramp” were also read to the jury. 1970-71 AACS R 408.10213, 1973 AACS R 408.10207.

It is obvious that the warehouse roof upon which plaintiff climbed was not a stairway, runway, ramp, platform or open-sided floor. Cf. Wilhelm v The Detroit Edison Co, 56 Mich App 116, 141-142; 224 NW2d 289 (1974). The Occupational Safety Standards Commission could have very easily included rooftops as another type of area in a "place of employment” where the danger of persons falling was sufficient to require the use of barriers or guardrails. MCL 408.1016; MSA 17.50(16). However, it did not do so. Further, in addition to the commonsense meaning of the words, reference to the administrative definitions of the terms floor, opening, platform, runway and stairway indicate that the requirement for the use of guardrails and barriers on warehouse rooftops is simply inapplicable. 1970-71 AACS R 408.10205-7. Accordingly, defendant had no obligation to comply with these regulations as they related to his warehouse roof. As such, his failure to comply with the safety code had no reasonable, logical connection with his duty to maintain his premises in a reasonably safe condition. Such evidence was irrelevant on the issue of whether defendant breached that duty, and, therefore, should not have been admitted.

The only other evidence offered by plaintiff at trial on defendant’s alleged breach of duty was that defendant failed to conform to the industry custom of providing access ladders inside the grain elevator. Evidence of an industry custom is generally admissible as bearing on what is proper conduct under the circumstances. 2 Harper & James, Law of Torts, § 17.3, Prosser, Law of Torts (4th ed), § 33, p 166, 57 Am Jur 2d, Negligence, §§ 77-81, pp 428-432, Fries v Merkley, 8 Mich App 177; 154 NW2d 50 (1967). However,

"A custom to be relevant, must be reasonably brought home to the actor’s locality, and must be so general, or so well known, that the actor may be charged with knowledge of it or with negligent ignorance.” Prosser, supra, 168.

Michigan courts have followed this rule. Fogarty v Michigan Central R Co, 180 Mich 422, 432-433; 147 NW 507 (1914), Hoyt v Jeffers, 30 Mich 181, 192 (1874). In the case at bar, plaintiffs evidence did not indicate that the defendant knew of the alleged industry custom of installing interior ladders, nor did it establish that defendant had any reason to anticipate the need for two-man access to the headhouse. Absent proof that the defendant knew or reasonably should have known of the industry custom and the need for two-man access to the headhouse, evidence of the use of interior ladders in other grain elevators was irrelevant. This is because defendant should not be held to a specific standard of conduct, as indicated by an industry custom, of which he has no knowledge and for which awareness cannot be reasonably charged. Accordingly, this evidence should not have been considered by the trial judge in ruling on defendant’s motion for directed verdict.

Other than the two types of proof discussed above, which we have concluded should not have been considered by the trial judge in ruling on the motion for directed verdict, plaintiff failed to offer any other evidence on the issue of defendant’s breach of duty to provide reasonably safe premises. As a result of plaintiffs lack of any proof in this regard, he failed to make out a prima facie case of negligence against the defendant. Under these circumstances, the trial judge erred by refusing to grant the motion for directed verdict.

Because our conclusion disposes of the claim against Walker on legal grounds, it is unnecessary to remand the claim to the trial court for further proceedings. Shaw v Macomb Community College, 37 Mich App 96; 194 NW2d 558 (1971), aff'd 389 Mich 69; 204 NW2d 129 (1973). Accordingly, the trial court’s denial of defendant Walker’s motion for directed verdict is reversed, and the motion is hereby granted pursuant to GCR 1963, 820.1(7).

II. Claims Between Plaintiff and Defendant Williamson: Medical Malpractice

Following plaintiffs fall from defendant Walker’s warehouse roof, and the resultant injury to his foot, he was taken to the emergency room at a local hospital where emergency treatment was performed on his foot, including x-rays, examination by a doctor and the application of a plaster splint and bandages. Upon plaintiffs request, he was transferred to a hospital nearer his home. It was there that defendant Dr. Williamson first saw the plaintiff. Based upon the x-rays of the transferring hospital and the symptoms presented, defendant diagnosed the injury as a severely comminuted fracture of the os calcis (heel bone broken into multiple pieces). Treatment based upon the diagnosis was ordered by defendant._

As complications developed in plaintiffs injured foot, defendant was taken off the case and plaintiff was referred to an orthopedic surgeon. This surgeon testified at trial that he examined plaintiff and found that he was suffering from a seriously comminuted fracture of the heel bone with extensive soft tissue injury. Treatment consistent with this diagnosis was commenced. This surgeon testified at trial through the use of depositions, that defendant’s treatment was correct but was a more conservative approach than the one he took. Two other physicians testified at trial that, although defendant’s treatment would have been appropriate for the injury if the diagnosis had been as defendant declared it to be, it was inadequate to deal with plaintiffs true condition: fractured dislocation of the heel bone. Plaintiffs own orthopedic surgeon stated that he did not think that plaintiffs os calcis was dislocated. Defendant and another witness, who was an orthopedic specialist, testified that defendant properly diagnosed and treated plaintiff’s foot. Plaintiff continues to suffer from the injury to his foot.

At the close of trial, the jury returned a verdict of no cause of action in favor of defendant Williamson. Plaintiff appeals of right, raising three issues for our consideration.

First, plaintiff claims that the trial court erred in permitting defense counsel to introduce into evidence plaintiffs original complaint and two amended complaints and to comment on the differences therein. Briefly, plaintiff argues that contents of former pleadings are irrelevant unless inconsistent with plaintiffs position at trial and, since there was nothing in the former pleadings that was inconsistent with plaintiffs position at trial, the former pleadings were not admissions that could be introduced into evidence. The lower court file reveals that the original complaint did not name Dr. Williamson as a defendant. The first amended complaint named Dr. Williamson as a defendant and alleged that he was negligent in the treatment of plaintiff’s injured foot. A second amended complaint eliminated certain allegations of negligence and replaced them with five other allegations of medical malpractice. At trial, defense counsel introduced evidence of the amended pleadings to refute the opening statement of plaintiff’s counsel that plaintiff carefully investigated the matter before filing a claim against defendant because he wanted to be careful that defendant would not be improperly accused. No objection was raised by plaintiff to the responding argument of counsel on this matter, although plaintiff objected to the subsequent introduction of the former pleadings.

Although generally viewed as judicial and not evidential admissions, an averment or admission in an adversary’s final pleading is competent evidence and can be introduced at trial if relevant and material. Grand Trunk R Co v Lovejoy, 304 Mich 35; 7 NW2d 212 (1942), McCormick, Evidence (2d ed) § 265, p 633. Furthermore,

"If a pleading or allegation therein, is amended, withdrawn, or-superseded by a substitute pleading, it ceases to be usable as a conclusive judicial admission, but is admissible in evidence in the case in which filed at the instance of the adversary as an evidentiary admission.” McCormick, supra, 634.

Accord, 31A CJS, Evidence, § 304, 29 Am Jur 2d, Evidence, § 693, p 748, 4 Wigmore, Evidence (3d ed), § 1067, p 88, Anno, 52 ALR2d 516.

Michigan authority is in accord with this latter rule. Ward v Alpine, 204 Mich 619; 171 NW 446 (1919), People v Nickopoulous, 26 Mich App 297, 302; 182 NW2d 83 (1970), lv den 384 Mich 807 (1971), cf., Cady v Doxtator, 193 Mich 170, 172; 159 NW 151; 14 ALR 10 (1916), Guarantee Bond & Mortgage Co v Hilding, 246 Mich 334, 344; 224 NW 643 (1929).

Since the allegations against Dr. Williamson contained in plaintiff’s second amended complaint and the lack thereof in the former pleading was relevant to refute the assertion of plaintiff’s counsel in his opening statement (see generally People v Moncure, 94 Mich App 252; 288 NW2d 675 [1979], 5 Callaghan’s Michigan Pleading & Practice, § 36.498, p 58), we conclude that the trial judge did not err by admitting these pleadings into evidence.

Second, plaintiff contends that the trial court erred in refusing to give a requested instruction that any negligence of plaintiff in contributing to his fall from the roof was not a defense to the medical malpractice action. In essence, plaintiff asserts that, absent his proffered instruction, the jury was led to believe that the plaintiff’s possible contributory negligence was a defense to the medical malpractice action against defendant Williamson. We disagree.

The instruction submitted by the plaintiff was at the time of trial, properly rejected by the trial judge, since it would have charged the jury to completely disregard the issue of contributory negligence as to both defendants. In contrast, the instruction actually read to the jury on the defense of contributory negligence properly confined the issue to defendant Walker:

"As to the Defendant Walker only however, unless the Plaintiff himself was negligent, and such negligence proximately contributed to his injuries or damages, your verdict will be for the Defendants if the Plaintiff was not injured or damaged, or if the Defendants were not negligent, or if negligent, their negligence was not a proximate cause of the injuries or damages. Or as to the Defendant Walker only, if the Plaintiff himself was negligent, and such negligence was a proximate cause of the injuries or damages.”

Since the jury was fully and properly apprised of the applicable law, and the correct portion of plaintiffs requested instruction was submitted to the jury, there was no reversible error. Berlin v Snyder, 89 Mich App 38, 41; 279 NW2d 322 (1979), lv den 407 Mich 867 (1979).

Plaintiffs reliance on Podvin v Eickhorst, 373 Mich 175; 128 NW2d 523 (1964) is misplaced. That case was a medical malpractice action in which defense counsel repeatedly referred to plaintiff’s negligence in causing the automobile accident which led to his injuries. The Supreme Court found that the trial court erred in refusing to instruct the jury that plaintiff’s negligence should not be considered. In the present case, counsel for defendant Williamson did not raise the issue of contributory negligence or refer to plaintiffs possible negligence in his arguments. Abbe v Woman’s Hospital Ass’n, 35 Mich App 429, 434-435; 192 NW2d 691 (1971).

Finally, plaintiff contends that the trial court erred in refusing to give requested instructions listing the types of injury to plaintiff for which defendant Williamson could be held liable. Assuming plaintiffs contention is true, the error was harmless, since the jury, by finding no cause of action in favor of the defendant, never reached this question. Heck v Henne, 238 Mich 198, 205; 213 NW 112 (1927), Peden v Carpenter, 352 Mich 604, 610; 90 NW2d 647 (1958), Shepard v Barnette, 4 Mich App 243, 245; 144 NW2d 685 (1966).

No reversible error was committed below with regard to plaintiff’s claim against defendant Williamson. The jury verdict of no cause of action in favor of the defendant should be sustained.

Affirmed. Costs to defendants.

J. H. Gillis, P.J., concurred.

M. J. Kelly, J.

(concurring in part, dissenting in part). I concur with the majority opinion with respect to defendant Williamson.

The majority concludes that reversal is not mandated for failure to submit this case to the jury under the doctrine of comparative negligence with respect to the cause of action against defendant Walker, on the ground that the trial court should have granted defendant’s motion for directed verdict. I find that the trial court properly refused to grant defendant’s motion, since plaintiffs presented sufficient evidence on the element of defendant’s alleged breach of the legal duty to maintain his premises in a reasonably safe condition to go to a jury.

Evidence of the industry custom of installing an interior ladder was included in plaintiffs’ case in chief. The majority concludes that such evidence was inadmissible, absent any proof that defendant knew or should have been aware of such a practice. However, examination of the record indicates that the practice was so widely followed that defendant may be charged with knowledge of it or with negligent ignorance. Prosser, Law of Torts (4th ed), § 33, p 168. Plaintiff Renold L. Beals, Jr., testified that interior access ladders existed in all other grain elevators he had worked on. His employer, a former millwright, gave similar testimony, as did Mr. John Wilson, the millwright who accompanied plaintiff Renold on the day of the accident.

In determining the propriety of the trial court’s denial of defendant’s motion, we review the entire record when plaintiffs’ proofs, however slight, create at least a permissible inference of defendant’s negligence. Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1959), Whitmore v Sears, Roebuck & Co, 89 Mich App 3; 279 NW2d 318 (1979), lv den 406 Mich 985 (1979). Defendant’s testimony provides additional proof of his own awareness of the need for additional access to the headhouse. Mr. Walker testified that the outside ladder used by plaintiff Renold was an emergency ladder, to be used as a means of fire escape, but that he had, on occasion, used it as an access ladder, and that his employees probably did as well. He further stated that he had personally observed workmen use the ladder as a means of access to the headhouse for cleaning and repair purposes when one man had already used the one-man lift for elevation from the inside. Defendant’s proofs, properly considered here, included evidence which served to bolster the inference of negligence in failing to provide safe conditions for business invitees.

I would affirm the trial court’s denial of defendant Walker’s motion for a directed verdict but reverse for a new trial as to defendant Walker, consistent with Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), and Rivers v Ford Motor Co, 90 Mich App 94, 97; 280 NW2d 875 (1979).

       Plaintiffs wife, Joyce E. Beals, also claimed damages arising out of the parties’ allegedly tortious behavior in the form of loss of her husband’s services and consortium. However, since her claim is derivative, all references to plaintiff in this opinion are singular and refer only to Renold L. Beals.

       Promulgation of the safety regulations is authorized by § 16 of the Michigan Occupational Safety & Health Act, 1974 PA 154; MCL 408.1001 et seq.; MSA 17.50(1) et seq. The act specifically applies to "all places of employment”. Section 2(1). This phrase is defined in the statute as "a factory, plant, establishment, construction site, or other similar area, workplace or environment where an employee is permitted to work”. Section 6(1). An "employee” is "a person permitted to work by an employer”. Section 5(1). And an "employer” is defined as "an individual or organization * * * which employs 1 or more persons”. Section 5(2). Although this legislation is to be liberally construed, Am Jur 2d, New Topic Service, Occupational Safety and Health Acts, §28, we are inclined to hold that it does not apply where, as in this case, an employee of an independent contractor is injured while performing repairs on the business premises of the other contracting party, and where the injury occurs at an area of the premises not used in the ordinary business operation. See Cochran v International Harvester Co, 408 F Supp 598 (D Ky, 1975), Anno: Who is "employer” for purposes of occupational safety and health act (29 USCS § 651 et seq.), 27 ALR Fed 943.

       After the close of plaintiffs case in chief and defendant’s motion for a directed verdict, testimony of the defendant was introduced into evidence which established that defendant and some of his employees may have used the ladder leading to the headhouse on prior occasions. Assuming that this testimony raised a jury question of defendant’s negligence, nevertheless, as no such question appeared at the conclusion of plaintiffs case, and Walker then was entitled to a directed verdict, the case must be reviewed without reference to the defendant’s testimony. Snyder v Johnson, 264 Mich 286, 289; 249 NW 856 (1933), Campbell v Michigan Consolidated Gas Co, 313 Mich 410, 414-416; 21 NW2d 181 (1946), Whitmore v Sears, Roebuck & Co, 89 Mich App 3, 8-9; 279 NW2d 318 (1979), lv den 406 Mich 985 (1979). Compare, Mitcham v Detroit, 355 Mich 182, 192; 94 NW2d 388 (1959), Kasza v Detroit, 370 Mich 7, 9-11; 120 NW2d 784 (1963). Therefore, we are precluded from considering this post-motion testimony in reviewing the trial court’s denial of defendant’s motion for directed verdict made at the close of plaintiff’s case in chief.


source: Caselaw Access Project

author:
D. E. Holbrook, Jr., P.J.
      Cynar, J.

license: Public Domain

text:
    UNITED COIN METER CO OF MICHIGAN v LASALA
    Docket No. 78-4951.
    Submitted March 4, 1980, at Detroit.
    Decided June 16, 1980.
    Leave to appeal applied for.
    Plaintiff, United Coin Meter Co. of Michigan, entered into an agreement with Villa Investment Company couched in terms of a lease whereby plaintiff agreed to install and maintain 15 coin-operated washing machines and 15 dryers in the Villa Manor Apartments at a rent of 55 percent of the monthly revenues from the machines. Defendants, Michael Lasala and his wife, purchased Villa Manor Apartments from Villa Investment Company. Defendants disconnected plaintiffs machines, installed other coin-operated laundry equipment on the premises and refused plaintiff access to the premises except to pick up its machines. Plaintiff brought suit in the Macomb Circuit Court, seeking treble damages and injunctive relief for unlawful interference with its leasehold interest. Defendant counterclaimed that plaintiff breached the terms of the lease by failing to properly maintain the machines and by failing to pay 55 percent of the revenues. The court, Hunter D. Stair, J., granted a judgment for defendants holding that this was not a landlord-tenant matter. Plaintiff appeals. Held:

    1. The trial court was correct in refusing to grant injunctive relief, because an adequate remedy existed at law, and in finding that treble damages were not justified, because the treble damages provision was intended by the Legislature to apply only to the use or threat of personal violence or force.
    2. This is a landlord-tenant matter and defendant was bound by the lease. The trial court erred in permitting defendants to raise plaintiff’s breach of the lease as a defense to plaintiff’s action for possession. Malfunctioning of the machines was not a relevant feature of the lease. Defendants’ remedy for breach of the lease was to institute summary proceedings to recover possession, requiring a 30-day notice and commencement of a district court action. A landlord may not forfeit a lease and reenter the premises upon a breach by the tenant absent a specific grant of that right in the lease.

      References for Points in Headnotes

       49 Am Jur 2d, Landlord and Tenant §§ 290, 293.

       49 Am Jur 2d, Landlord and Tenant §§ 222, 223.

       49 Am Jur 2d, Landlord and Tenant § 11.

       49 Am Jur 2d, Landlord and Tenant § 1021.

       75 Am Jur 2d, Trial § 191.
    Prejudicial effect of trial court’s denial, or equivalent, of counsel’s right to argue case. 38 ALR2d 1396.

      3. Evidence concerning malfunctioning machines was not relevant to the issue of damages, because defendants never claimed damages for breach of the repair covenant.
    4. Although a trial court has considerable power to limit the argument of counsel, to deny closing argument completely to a party who requests it is an abuse of discretion.
    5. Plaintiff is not entitled to possession because the term of the lease has expired, but it is entitled to actual proven damages.
    Remanded for a determination of damages.
    Cynah, J., dissented. He would hold that the agreement was in substance a lease of personal property, the machines, to defendants as lessees rather than a lease of real property. As a lease of personal property, it would be governed by Article 2 of the Uniform Commercial Code. He would hold that plaintiff was in breach of an implied warranty of merchantability and that defendants’ actions im removing the machinery from the laundry room constituted a revocation of acceptance under the UCC and was proper. He would affirm with costs and attorney fees.
    Opinion of the Court
    1. Landlord and Tenant — Remedies — Injunction — Statutes.
    Injunctive relief, provided for by statute to tenants whose rights of possession are unlawfully interfered with, is properly denied where there exists an adequate remedy at law (MCL 600.2918; MSA 27A.2918).
    2. Landlord and Tenant — Remedies — Damages — Statutes.
    The treble damages provision of a statute providing for remedies for unlawful interference with possessory interests in real property was meant by the Legislature to apply only in cases of use or threat of personal violence or force (MCL 600.2918; MSA 27A.2918).
    3. Contracts — Landlord and Tenant.
    An agreement to install and maintain on a certain premises coin-operated washing machines and dryers and payment of 55 percent of the revenues collected in return for providing the space and water and fuel to run the machines is a lease of real property, creating a landlord-tenant relationship.
    4. Landlord and Tenant — Breach op Lease — Remedies — Right op Reentry.
    A landlord may not forfeit a lease and reenter the premises upon a breach by the tenant absent a specific grant of that right in the lease.
    5. Trial — Closing Argument — Abuse of Discretion — Court Rules.
    Complete denial of closing argument to a party who requests it is an abuse of discretion (GCR 1963, 507.7).
    Dissent by Cynar, J.
    6. Contracts — Uniform Commercial Code — Leases — Statutes.

      An agreement to install and maintain on a certain premises coin-operated washing machines and dryers and payment of 55 percent of the revenues collected in return for providing the space and water and fuel to run the machines is a lease of personal property and, as a "transaction in goods”, is subject to Article 2 of the Uniform Commercial Code (MCL 440.2101 et seq.; MSA 19.2101 et seq.).

      Stephen M. Landau, for plaintiff.

      Stewart, O’Reilly, Cornell, Lascoe & Rancilio, P.C. (by Eugene F. Nowak), for defendants.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   D. E. Holbrook, Jr., P.J.

On April 10, 1977, plaintiff entered into a three year lease with defendants’ predecessor in title to the Villa Manor Apartments. Plaintiff agreed to install and maintain 15 washers and dryers, paying as rent 55 percent of the monthly revenues earned therefrom.

After defendants purchased the apartment complex, they negotiated for the purchase of the laundry equipment. Plaintiff contends that the negotiations did not reach fruition because of defendants’ refusal to purchase the leasehold interest in addition to the machines. There was some conflicting testimony as to malfunctioning of the laundry equipment and the need for frequent repairs. Defendants disconnected or otherwise rendered inoperable plaintiffs machines and installed other coin-operated laundry equipment on the premises. Plaintiff was then barred from the premises except to pick up its machines.

Plaintiff claims that because of the unlawful interference with the leasehold interest, it is entitled to treble damages and injunctive relief pursuant to MCL 600.2918; MSA 27A.2918. Defendants allege that plaintiff breached the lease by failing to properly maintain and service the equipment and by failing to pay 55 percent of the revenues.

The lower court held that this was not a landlord-tenant matter. A decision was rendered without either party resting and without any opportunity for closing argument. This Court is unable to understand the lower court’s determination of damages as the written order was at variance with the oral pronouncement of judgment as to the amount due defendant on the counterclaim.

We hold that the lower court was proper in its refusal to grant injunctive relief as an adequate remedy at law was available. We further find that treble damages are not justified as the statute was intended to apply to the use or threat of personal violence or force. Shaw v Hoffman, 25 Mich 162, 167-169 (1872).

We do hold, however, that this is a landlord-tenant matter and that defendant was bound by the lease. The trial court erred by permitting defendant to raise as a defense in an action for possession that the plaintiff breached the lease agreement. Malfunctioning of the machines was not a relevant feature of the lease. Assuming plaintiff breached the lease by failing to properly maintain the equipment, defendants’ remedy was to institute summary proceedings to recover possession, which required service of a 30-day notice to terminate tenancy and commencement of a district court action. The trial court permitted self-help. A landlord is not permitted to forfeit a lease and reenter the premises upon breach of a covenant by the tenant absent a condition in the lease giving him such a right. McPheeters v Birkholz, 232 Mich 370; 205 NW 196 (1925). There was no such provision in the instant lease. Defendants unlawfully interfered with plaintiffs use and possession of the leased premises. Evidence concerning malfunctioning machines was not relevant to the question of damages, since defendants never claimed damages for breach of the repair covenant. Such evidence should have been excluded.

We also hold that it was reversible error to refuse to allow counsel closing argument. The trial court has considerable power in matters of trial conduct and may limit the arguments of counsel. People v Green, 34 Mich App 149; 190 NW2d 686 (1971). GCR 1963, 507.7 permits the court to fix the time allowed each party for closing argument. However, to completely deny closing argument to a party who requests it is an abuse of discretion.

As the lease term has expired, we hold that plaintiff is not entitled to possession of the premises. Nevertheless, it is entitled to actual proven damages. We remand this case to the lower court for a determination of those damages. We retain no further jurisdiction.

R. M. Maher, J., concurred.

Cynar, J.

(dissenting). I respectfully dissent.

Initially, I must disagree with the facts as stated in the majority opinion. I find more than "some conflicting testimony” that the machines in question malfunctioned recurrently. Likewise, defendants’ testimony indicated that the reason the negotiations for the purchase of the laundry equipment were not consummated was not because of defendants’ refusal to purchase plaintiffs leasehold interest but because of plaintiffs rejection of defendants’ offer.

So too, the majority opinion states that "malfunctioning of the machines was not a relevant feature of the lease”. I disagree. Two documents drafted by plaintiff, the first entitled "Lease Agreement for Installation of Coin Operated Automatic Laundry Equipment”, and the second labeled "Memorandum of Lease”, contained the entire contract of the parties. The former instrument contained a clause which read as follows:

"2. SERVICE, REPAIRS AND MAINTENANCE
"UNITED shall service the equipment and keep same in repair at its expense and shall have the right to remove any of the equipment for repairs when necessary.”

I find that this provision is persuasive evidence that malfunctioning of the laundry equipment was a major consideration of the parties.

However, the majority opinion is correct in concluding that, if this provision was breached, defendants’ remedies did not include right of reentry and forfeiture of the lease, for no express right therefor was reserved in the written agreement. But this necessarily assumes that the lease dealt with real property and that the parties were in a landlord-tenant relationship. I am unable to accept this conclusion, in spite of the fact that the form of the agreement would compel it. I am convinced that the agreement was in substance a lease of personal property by defendant as lessee and that the substance should control over the form. Accordingly, I am persuaded that this arrangement was a "transaction in goods” within the meaning of MCL 440.2102; MSA 19.2102, and that Article 2 of the Uniform Commercial Code controls resolution of the parties’ dispute. Under Article 2, it is clear that plaintiff was in breach of the implied warranty of merchantability found in MCL 440.2314; MSA 19.2314. I would find that defendants’ actions in removing the machinery from the laundry room constituted revocation of acceptance under MCL 440.2608; MSA 19.2608, triggering defendants’ rights under MCL 440.2711; MSA 19.2711, and MCL 440.2712; MSA 19.2712. I find nothing unacceptable in defendants’ actions herein under those sections. Additionally, as per the agreement, they were entitled to the monies withheld during the pendency of the litigation. Accordingly, I would affirm the judgment of the court below, with costs and attorney fees.


author: R. B. Burns, P.J.

text:
    SHEARSON HAYDEN STONE, INC v PROTZKO
    Docket No. 43902.
    Submitted May 6,1980, at Grand Rapids.
    Decided June 16, 1980.
    Leave to appeal applied for.
    John J. Protzko was engaged in commodity futures trading with Shearson Hayden Stone, Inc., a brokerage house. Protzko was employed by the brokerage at the time. When a dispute arose over Protzko’s margin requirements, Shearson liquidated Protzko’s accounts and terminated his employment. Pursuant to an arbitration clause in the customer’s agreement signed by Protzko, Shearson demanded arbitration of the dispute. Protzko failed to respond, and Shearson filed a complaint for an order to compel arbitration, which was .granted. The matter proceeded to arbitration and Shearson was granted an award in its favor. The arbitration award was affirmed by the Oakland Circuit Court, Robert L. Templin, J. Protzko appeals. Held:

    A rule promulgated by the Commodity Futures Trading Commission provides that no futures merchant shall enter into an arbitration agreement with a customer unless the agreement is separately endorsed and contains specific language in bold face type. The rule applies to all such arbitration agreements retroactively. The agreement in this case did not comply with this rule, and was therefore invalid.
    The arbitration award is vacated.
    Arbitration — Commodity Futures — Federal Regulations.
    A regulation of the Commodity Futures Trading Commission which sets forth the conditions upon which an arbitration agreement between a customer and a commodity futures merchant will be considered valid is retroactive, applying to such arbitration agreements entered into prior to the promulgation of the regulation (17 CFR 180.3).
    Reference for Points in Headnote
    [1] 73 Am Jur 2d, Stock and Commodity Exchange §§ 11, 24.

      Hertz & Schram, for plaintiff.

      Alfonsetti, Monicatti & Giarmarco, P.C., for defendant.

      Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   R. B. Burns, P.J.

Defendant appeals from a circuit court order affirming an arbitration award in favor of plaintiff based on a dispute over defendant’s commodity futures trading with plaintiff.

On July 1, 1975, defendant began work for plaintiff, a brokerage house. On July 3, 1975, defendant signed a customer’s agreement with plaintiff and commenced to engage in commodity trading. A clause in the customer’s agreement provides:

"Any controversy arising out of or relating to my cash and/or margin accounts to transactions with you for me or this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules, then in effect, of the National Association of Securities Dealers, Inc., the Board of Governors of the New York Stock Exchange or the Board of Governors of the American Stock Exchange as I may elect. If I do not make such election by registered mail addressed to you at your main office within 5 days after demand by you that I make such election, then you may make such election. Judgment upon any aware [sic] rendered by the arbitrators may be entered in any court having jurisdiction thereof.”

In late July, 1975, a dispute arose over margin requirements. Defendant’s accounts were liquidated and defendant’s employment by plaintiff was terminated. August 8, 1975, plaintiff demanded arbitration. Defendant did not respond to this demand.

Thereafter, nothing happened until April, 1977, when defendant filed a "reparations” complaint with the Commodity Futures Trading Commission ("CFTC”) under 7 USC 18 of the Commodity Exchange Act to seek damages for plaintiffs allegedly improper conduct in its handling of defendant’s commodity training.

Next, plaintiff, on May 20, 1977, filed a complaint in Oakland County Circuit Court for an order to compel defendant to submit to arbitration. On June 15, 1977, the circuit judge ordered defendant to prqceed to arbitration. In spite of defendant’s contention that arbitration was prohibited by Federal law the matter proceeded to arbitration and an award of $17,036.76 plus costs of $1,050 was awarded in favor of plaintiff. On November 15, 1978, the circuit judge affirmed the arbitration award.

The CFTC was established by 7 USC 4a. This body has rule-making authority, 7 USC 12a(5). 7 USC 18 authorizes the CFTC to conduct administrative proceedings called "reparations” over disputes between customers and commodity brokers. Judicial review of the CFTC orders are by Federal circuit courts of appeal, 7 USC 18(g).

Under its rule-making authority, the CFTC promulgated regulation 180.3(b), effective November 29, 1979, which provides that no futures merchant shall enter into an arbitration agreement with a customer unless the agreement is separately endorsed and contains specific cautionary language in bold face type. 17 CFR 180.3(b)(3), (4).

The arbitration agreement between plaintiff and defendant is not separately endorsed, nor does it contain specific bold face cautionary language required by the rule.

Ames v Merrill Lynch, Pierce, Fenner & Smith, Inc, 567 F2d 1174 (CA 2, 1977), held that regulation 180.3 applied to all arbitration agreements retroactively.

The arbitration award confirmed by the circuit court is hereby set aside and vacated. Costs to defendant.

       "Futures commission merchant” is defined in § 2 of the Commodity Exchange Act, 7 USC 2, to “mean and include individuals, associations, partnerships, corporations, and trusts engaged in soliciting or in accepting orders for the purchase or sale of any commodity for future delivery on or subject to the rules of any contract market and that, in or in connection with such solicitation or acceptance of orders, accepts any money, securities, or property (or extends credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result or may result therefrom”.
      Though plaintiff contends that the Commodity Exchange Act does not govern the dispute between the parties herein because appellant is not among the class of persons protected by the legislation, plaintiff does not dispute that it is itself a futures commission merchant within the meaning of the act.


author: Danhof, C.J.

text:
      In re KONKE ESTATE DEPARTMENT OF TREASURY v HART
    Docket No. 44122.
    Submitted April 9, 1980, at Detroit.
    Decided June 16, 1980.
    The Michigan Department of Treasury, Revenue Division, brought a claim against the estate of Mary Konke, deceased, for money due for care rendered the decedent while she was confined to Northville State Hospital from 1965 to 1968. Sylvia Hart, the executrix of the estate, filed exceptions to the claim, asserting that the claim was barred by the six-year statute of limitation and that a statutory exception to the six-year statute violated the constitutional rights to both due process and equal protection. The Wayne Probate Court, Joseph J. Pernick, J., held that the statutory exception to the statute of limitation was unconstitutional. The Wayne Circuit Court, Charles S. Farmer, J., affirmed. The Department of Treasury appeals by leave granted. Held:

    1. The Legislature has the power to except the state from the operation of any statutes of limitation. In this case the question is whether the delay of some nine years between the time the debt was accrued and the time the state brought its claim deprived the executrix of procedural due process. Because of the nature of the claim and the evidence the passage of time has not seriously prejudiced the executrix. The state, on the other hand, has a legitimate interest in protecting its revenues. The exception to the statute of limitation did not deprive the executrix of a fair hearing.
    2. There is a reasonable relationship between the statute’s effective separation of debtors into two classes — debtors of private institutions and debtors of state institutions — and the state’s legitimate interest in protecting its revenue. Therefore, there is no violation of equal protection.

      References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions §§ 9, 12.

       51 Am Jur 2d, Limitation of Actions §§ 416, 417.

       16A Am Jur 2d, Constitutional Law § 815.

       41 Am Jur 2d, Incompetent Persons §§ 56, 57.
    Constitutionality of statute inposing liability upon estate or relative of insane person for his support in asylum. 20 ALR3d 363.

       16A Am Jur 2d, Constitutional Law § 752.

      Reversed and remanded.
    1. Limitation op Actions — Statutes — Procedural Requirements.
    Statutes of limitation are generally considered to be procedural requirements; they are legislative in nature and do not represent any right in an individual.
    2. Limitation op Actions — Exceptions — Legislative Powers.
    The Legislature has the power to except the state from the operation of statutes of limitation.
    3. Constitutional Law — Due Process — Seriousness op Deprivation — Governmental Interest.
    Determination of whether or not an individual has been deprived of procedural due process requires the court to balance the seriousness of the deprivation against the governmental interest involved.
    4. Mental Health — Ability to Pay — Liability for Services — Statutes.
    The state is required to provide medical services for mentally incompetent persons regardless of ability to pay for such services; however, an individual is financially liable for services provided by the Department of Mental Health (MCL 330.1804, 330.1810; MSA 14.800[804], 14.800[810]).
    5. Limitation op Actions — Exceptions — Statutes.
    The statute which excepts the state from operation of a statute of limitation protects the state’s legitimate interest in protecting its revenue by allowing the state to bring a claim against a debtor whenever assets of the debtor become available (MCL 600.5821[4]; MSA 27A.5821[4]).
    6. Constitutional Law — Equal Protection — Reasonable Basis — Burden op Proof.
    A party attacking a statutory classification on equal protection grounds has the heavy burden of demonstrating that the classification lacks a reasonable basis; if a reasonable relationship exists between the governmental classification and a legitimate state interest, no denial of equal protection exists.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and E. David Brock-

      man and Gary Kress, Assistants Attorney General, for the Department of Treasury.

      Charles Alpert, for Sylvia Hart.
    Before: Danhof, C.J., and Cynar and Mackenzie, JJ.
   Danhof, C.J.

This appeal arises out of a claim for $3,803 filed on February 15, 1977, by the Department of Treasury against the estate of Mary Konke for medical services it claims to have rendered to the deceased between September, 1965, and September, 1968. The estate contested the claim, arguing that it was barred by a six-year statute of limitation and that the exception to statutes of limitation, MCL 600.5821(4); MSA 27A.5821(4), which provides that the state’s claim for treatment is not barred by any statute of limitation, is unconstitutional.

On August 18, 1977, Wayne County Probate Court Judge Joseph J. Pernick held that MCL 600.5821(4); MSA 27A.5821(4) violated the due process and equal protection clauses of the United States and Michigan Constitutions. This decision was affirmed on appeal to the Wayne County Circuit Court on January 12, 1979. Plaintiff appeals by leave granted.

The statute at issue, MCL 600.5821(4); MSA 27A.5821(4), provides:

"Actions brought in the name of the state of Michigan, the people of the state of Michigan, or any political subdivision of the state of Michigan, or in the name of any officer or otherwise for the benefit of the state of Michigan or any political subdivision of the state of Michigan for the recovery of the cost of maintenance, care, and treatment of persons in hospitals, homes, schools, and other state institutions are not subject to the statute of limitations and may be brought at any time without limitation, the provisions of any statute notwithstanding. ”

Plaintiff argues on appeal that due process is satisfied by the statute since there is no taking without notice and an opportunity to be heard. Defendant argues that the statute deprives the estate of due process because the state may seek recovery at any time. She claims that a hearing more than "ten years” after the cause of action accrued is not a "fair” hearing as contemplated by the due process clause.

Statutes of limitation are generally considered to be procedural requirements. Forest v Parmalee, 402 Mich 348, 359; 262 NW2d 653 (1978), Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971).

At common law, the sovereign was exempt from the operation of statutes of limitation and remains exempt to this day in the absence of statutory authority. Guaranty Trust Co of New York v United States, 304 US 126, 133; 58 S Ct 785; 82 L Ed 1224 (1938), Comm’r of Welfare of the City of New York v Jones, 73 Misc 2d 1014; 343 NYS2d 661 (1973).

As a result, statutes of limitation are legislative creatures and do not represent any right in an individual.

"Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a 'fundamental5 right or what used to be called a 'natural5 right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.55 (Citation omitted.) Chase Securities Corp v Donaldson, 325 US 304, 314; 65 S Ct 1137; 89 L Ed 1628 (1945).

Although we conclude the Legislature has the power to except the state from the operation of statutes of limitation, we agree with defendant that, in some circumstances, governmental delay in asserting its claims could so prejudice a defendant as to deprive him of a fair hearing. Defendant’s arguments raise the question of whether the delay in the present case was so egregious as to deprive her of procedural due process.

In determining whether the passage of some nine years in the instant case meets procedural due process, we must balance the seriousness of the deprivation against the governmental interest involved. Bundo v Walled Lake, 395 Mich 679, 696; 238 NW2d 154 (1976), Goldberg v Kelly, 397 US 254, 263; 90 S Ct 1011; 25 L Ed 2d 287 (1970).

Apparently, the deprivation advanced by defendant is the diminution of her ability to defend against the claim due to the passage of time. She argues: "In the instant case, the date for which reimbursement is sought is September 1968, more than 10 years ago. No doubt much relevant evidence has been lost in the intervening years, evidence which could be crucial to the outcome.”

On the unique facts of the present case, we are not persuaded that defendant has suffered a serious deprivation. The agreed-upon facts state that Mary Konke was declared mentally incompetent and admitted to the Northville State Hospital on September 29, 1965, the order providing that her guardian was to pay the state for her care and maintenance. She left the facility on September 19, 1968, owing $3,803. The facts establishing liability are undisputed and are provable by reference to public records. Due to the nature of the claim and the evidence we believe the passage of some nine years has not seriously prejudiced defendant.

On the other hand, the statute advances an important governmental interest. The state is required to provide medical services for mentally incompetent persons regardless of ability to pay for such services. See MCL 330.1810; MSA 14.800(810). Yet the individual is financially liable for services provided by the Department of Mental Health. See MCL 330.1804; MSA 14.800(804).

The state has an interest in protecting its revenue by collecting from individuals who receive institutional care while indigent but who later obtain assets. In the present case, Mary Konke’s only assets were social security benefits which are protected from legal process while a person lives, but can be claimed by creditors if such funds pass into a probate estate. See, In re Vary Estate, 401 Mich 340; 258 NW2d 11 (1977), cert den 434 US 1087; 98 S Ct 1283; 55 L Ed 2d 793 (1978). The present statute therefore protects the state’s legitimate interest by allowing the claim to be brought against a debtor whenever assets become available.

Having determined that any deprivation to defendant does not outweigh the governmental interest protected, we conclude that the statute, as applied in the present case, does not deprive defendant of a fair hearing.

Defendant also argues that the unlimited period for suit by the state violates the equal protection clauses of the United States and Michigan Constitutions. US Const, Am XIV, Const 1963, art 1, § 2. She claims the statute arbitrarily separates the natural class of hospital creditors into private creditors and government creditors. We infer that she means to argue that the statute also separates the natural class of debtors into debtors of governmental institutions who are not protected by any statute of limitation and debtors of private institutions who are protected by a six-year statute of limitation, defendant being unable to assert that private creditors are denied equal protection.

A party attacking a statutory classification on equal protection grounds has the heavy burden of demonstrating that the classification lacks a reasonable basis. Forest v Parmalee, supra. If a reasonable relationship exists between the governmental classification and a legitimate state interest, no denial of equal protection exists. Id.

The state has a legitimate interest in protecting its revenue by collecting debts owed for care in state institutions.

In protecting this interest, the instant statute does effectively separate debtors into two classes: debtors of private institutions and debtors of state institutions.

Defendant asserts that no reasonable rationale can support an unlimited time period for the state.

We disagree. As we noted previously, the state must provide treatment of the mentally ill regardless of ability to pay. On the other hand, private institutions, whether profit or nonprofit, are not required to accept patients unable to pay for services. There is little reason for even nonprofit institutions to accept indigent patients for these institutions cannot continue to operate at a loss. Thus, a disproportionate number of patients in state institutions are unable to pay and may well remain unable to pay for long periods of time. Many, like Mary Konke, receive only benefits which are exempt from legal process.

It may be argued that the classification is unnecessary and consequently unreasonable because the state could pursue its claim to judgment and renew the judgment until such time as assets are available to satisfy it. This alternative is insufficient to vitiate the challenged classification because such a judgment could be discharged in bankruptcy to the obvious prejudice of the state.

We hold that a reasonable relationship exists between the classifications in the statute and the legitimate state interest protected. Therefore, there is no denial of equal protection in the instant case.

In conclusion, we hold MCL 600.5821(4); MSA 27A.5821(4), as applied in this case, does not violate the due process or equal protection clauses of the United States or Michigan Constitutions. Consequently, we reverse the decisions of the Wayne County Circuit and Probate Court and remand for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

Costs to appellant.


author: Bronson, J. D. C. Riley, J.

text:
    PEOPLE v PHILPOT
    Docket No. 44334.
    Submitted January 15, 1980, at Detroit.
    Decided June 16, 1980.
    Herman D. Philpot was convicted of assault with intent to murder and was also found guilty of possession of a firearm in the commission of a felony but mentally ill, Wayne Circuit Court, Michael L. Stacey, J. Defendant appeals, alleging that the trial court erred by not suppressing evidence of a prior conviction, that the people failed to prove his sanity beyond a reasonable doubt, and that the verdicts were inconsistent. Held:

    1. The fact that the prior conviction, for attempted carrying of a concealed weapon, was for a similar offense weighs heavily against admission of evidence of that conviction for impeachment purposes. In this case, however, the defendant was not deterred from taking the stand and the evidence of the prior conviction was never actually admitted. Any error in the judge’s ruling which would have allowed the admission of the evidence was therefore harmless.
    2. There was sufficient evidence to support the jury’s conclusion regarding the defendant’s sanity.
    3. The jury’s verdicts, finding the defendant guilty of assault and guilty but mentally ill on the felony-firearm charge, were inexplicably inconsistent. In order to further the legislative concern for treatment of those suffering mental illness, the jury’s verdict on the assault charge should be modified to guilty of the assault but mentally ill.

      References for Points in Headnotes
    [1, 3, 6, 7] 5 Am Jur 2d, Appeal and Error §§ 637, 838, 883. 76 Am Jur 2d, Trial § 1155 et seq.

       21 Am Jur 2d, Criminal Law § 55 et seq.

    Power of courts or other public agencies, in the absence of statutory authority, to order compulsory medical care for adult. 9 ALR3d 1391.

       73 Am Jur 2d, Statutes §§ 145, 146.

       29 Am Jur 2d, Evidence §§ 320, 321, 327.

       21 Am Jur 2d, Criminal Law §§ 50-53. 75 Am Jur 2d, Trial §§ 366, 426.
    Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case. 17 ALR3d 737.

      Affirmed in part, reversed in part and remanded.
    D. C. Riley, J., concurred except as to the method used to correct the inconsistent verdicts. She would hold that there is no authority for augmenting the verdict on the assault charge by adding "but mentally ill”; that the Court of Appeals should not substitute its judgment of what is best for the defendant for that of the jury. Judge Riley would normally advocate the vacation of the felony-firearm conviction in order to cure the inconsistency but in this case, wherein the defendant has already served that portion of his sentence, she sees no benefit to the defendant. She would, therefore, affirm.
    Opinion of the Court
    1. Appeal — Criminal Law — Inconsistent Verdicts.
    The extent to which a reviewing court may interfere with a jury’s verdicts, where the jury has returned inconsistent verdicts, is generally governed by well-established precepts of criminal law; a reviewing court may not, for example, impose a conviction where the jury failed to do so.
    2. Criminal Law — Verdicts — Guilty But Mentally III — Statutes.
    Evaluation and treatment of a defendant are mandated where a jury returns a verdict of guilty but mentally ill (MCL 768.36; MSA 28.1059).
    3. Appeal — Criminal Law — Inconsistent Verdicts — Guilty But Mentally III.
    An appellate court, when reviewing a jury’s inconsistent verdicts finding a defendant guilty on one charge and guilty but mentally ill on another charge, should side with the jury’s finding of mental illness in order to further the legislative intent to provide help to those who have committed a criminal offense while suffering from mental illness even when that mental illness cannot be said to have totally relieved the defendant from all criminal responsibility (MCL 768.36; MSA 28.1059).
    Concurrence in Part, Dissent in Part by D. C. Riley, J.
    4. Criminal Law — Evidence — Prior Similar Offense — Impeachment.

      Similarity between a charged offense and a prior offense for which a defendant was convicted weighs heavily towards exclusion of evidence of the prior conviction for purposes of impeach

      ment; however, a trial court’s ruling which would have allowed admission of evidence of a prior similar offense was harmless where the defendant was not deterred from taking the stand and where the evidence of the prior conviction was never actually admitted.

    5. Criminal Law — Evidence — Sanity — Burden of Proof.

      Every defendant is initially presumed to be sane, however, once any evidence is presented to suggest otherwise the burden of proof rests on the prosecution to prove a defendant’s sanity beyond a reasonable doubt; it is solely within the province of the trier of fact to determine whether this burden has been met.

    6. Jury — Criminal Law — Inconsistent Verdicts.

      Inconsistent verdicts may not stand unless they can be explained on a rational basis; the proper corrective measure for inconsistent verdicts is to vacate or modify the jury’s decision.

    7. Jury — Criminal Law — Inconsistent Verdicts — Augmenting Verdict.

      A jury verdict may not be augmented, where the jury inconsistently found a defendant guilty of assault with intent to murder and guilty of possession of a Srearm in the commission of a felony but mentally ill, by addition of “but mentally ill” to the assault conviction; the proper corrective measure is vacation of the felony-ñrearm conviction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, for the people.

      Arthur James Rubiner, for defendant on appeal.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   Bronson, J.

The pertinent facts are well stated in Judge Riley’s separate opinion, and we are in agreement with the majority of what is said there. We are also in agreement with the position that the verdicts in this case are inexplicably inconsistent. We differ, however, with the apparent conclusion that there is no appropriate remedy for this situation.

The concurring/dissenting opinion seems to assume that the only way in which the inconsistency could be remedied would be to vacate the "but mentally ill” portion of defendant’s felony-firearm conviction. This option is declined, because it is perceived that no benefit would result to the defendant from the premature termination of the treatment mandated by the guilty but mentally ill statute. We believe that the defendant could benefit from an extension of the treatment to cover the entire period of his incarceration, and hold that the proper remedy in this case is to add on the "but mentally ill” language to his assault conviction.

Although this requires interference with the jury’s verdict, such "interference” takes place in every case involving inconsistent verdicts. The problem is that the jury has returned verdicts containing a legal inconsistency, so that some interference is necessary to set matters straight. The extent of the interference is governed in most cases by well-established precepts of criminal law so that, for example, where the inconsistency is between verdicts of guilty and not guilty, the reviewing court must side with the jury’s acquittal, and cannot impose a conviction where the jury failed to do so. See People v McCurtis, 84 Mich App 460; 269 NW2d 641 (1975).

Clearly there are differences between the verdicts of guilty and guilty but mentally ill. In the latter, evaluation and treatment are mandated while this is not true in the former. MCL 768.36; MSA 28.1059. Furthermore, the purpose of the guilty but mentally ill verdict should require the reviewing court to side with the jury’s finding of mental illness. The guilty but mentally ill statute evinces a legislative intent to provide help to those who have committed a criminal offense while suffering from mental illness even when that mental illness cannot be said to have totally relieved the defendant from all criminal responsibility. In this manner, the statute furthers the announced constitutional and legislative concern for fostering care for the mentally handicapped. See Const 1963, art 8, § 8, MCL 330.1116; MSA 14.800(116).

The jury found the defendant was mentally ill on one offense, but made no similar finding as to the other offense when there was no rational basis for such an inconsistency. Accordingly, we remand to the trial court for entry of a verdict of guilty but mentally ill on the assault charge, with leave to the prosecution, should it be persuaded that justice would be better served and on notification to the trial court before resentencing, to seek a new trial on the assault charge. The verdict of guilty but mentally ill on the felony-firearm charge is affirmed._

Affirmed in part, reversed in part and remanded.

M. J. Kelly, P.J., concurred.

D. C. Riley, J.

(concurring in part; dissenting in part). Defendant was charged in a two-count information with assault with intent to murder, MCL 750.83; MSA 28.278; and possession of a firearm in the commission of a felony, MCL 750.227(b); MSA 28.424(2). A jury found him guilty of the former charge and guilty but mentally ill of the latter charge. He was sentenced to 6 to 20 years and 2 years respectively and now appeals as of right.

Defendant initially contends that the trial court erred in refusing to suppress evidence of a prior conviction for attempted carrying of a concealed weapon. He specifically claims that the ruling was incorrect since the prejudicial effect of nonexclusion outweighed the probative effect. Despite the court’s adverse ruling, however, defendant took the stand in his own behalf and evidence of the conviction was not used to impeach him.

In accord with current law, the instant trial judge noted his discretion regarding the admissibility of evidence of prior convictions. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). He also purported to comply with the MRE 609(a)(2) mandate that judges weigh the probative effect of admissibility against the prejudicial effect. Our courts have continually recognized that the similarity between offenses weighs heavily towards excluding evidence of prior convictions, yet the instant judge ruled that the evidence of the similar prior conviction was admissible in this case. See People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977), People v Townsend, 60 Mich App 204; 230 NW2d 378 (1975).

While we are not certain that the trial court adequately balanced the factors necessary at the time of trial, we are convinced that defendant suffered no prejudice because of this. Since defendant was not deterred from taking the stand due to the court’s ruling, and since evidence of the conviction was never actually admitted, we believe that any error was harmless. See People v Wilkins, 82 Mich App 260, 271-273; 266 NW2d 781 (1978), rev’d on other grounds 408 Mich 69 (1980).

Defendant next asserts that the people failed to prove his sanity beyond a reasonable doubt. While every defendant is initially presumed sane, once any evidence is presented to suggest otherwise, the burden of proof rests on the prosecution to prove a defendant’s sanity beyond a reasonable doubt. People v Krugman, 377 Mich 559, 563; 141 NW2d 33 (1966), People v Marvin White, 81 Mich App 335, 337; 265 NW2d 139 (1978), People v Fisk, 62 Mich App 638, 641; 233 NW2d 684 (1975). It is solely within the province of the trier of fact, whether it is a judge or a jury, to determine if this burden has been met. See People v Chamblis, 395 Mich 408, 420; 236 NW2d 473 (1975), People v Duffy, 67 Mich App 266, 268-269; 240 NW2d 771 (1976), People v Tubbs, 22 Mich App 549, 557; 177 NW2d 622 (1970). After carefully reviewing the record below, we believe that sufficient evidence was adduced to support the jury’s conclusion regarding defendant’s sanity._

Defendant’s next argument has been refuted by the Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), and needs no further discussion here.

Finally, defendant contends that there is reversible error based on the jury’s differing verdicts of guilty on the assault charge and guilty but mentally ill on the felony-firearm conviction. The majority and I agree that these verdicts are inexplicably inconsistent. See People v Allen, 94 Mich App 539; 288 NW2d 451 (1980). However, we part company on what is the proper remedy for rectifying the inconsistency. The majority advocates entry of an expanded verdict; I believe that any addition would be inappropriate.

In Michigan, inconsistent verdicts may not stand unless they can be explained on some rational basis. People v Goodchild, 68 Mich App 226; 242 NW2d 465 (1976), People v Fields, 66 Mich App 347; 239 NW2d 372 (1976), People v Ames, 60 Mich App 168; 230 NW2d 360 (1975), People v Johnson, 58 Mich App 165; 227 NW2d 272 (1975), People v Phillips, 43 Mich App 581; 204 NW2d 250 (1972). The proper corrective measure for inconsistent verdicts is to vacate or modify the jury’s decision. See People v Vaughn, 92 Mich App 742; 285 NW2d 444 (1979), People v McCurtis, 84 Mich App 460; 269 NW2d 641 (1978), Goodchild, supra. There is no authority for augmenting the verdict as the majority proposes by adding "but mentally ill” to the instant defendant’s assault conviction. See People v Way, 22 Mich App 473; 177 NW2d 729 (1970). The fact that the evaluation and treatment triggered by such a finding would be beneficial to the accused is irrelevant. We should not substitute our judgment of what is "best” for the defendant for that of the jury.

While normally I would advocate vacation of defendant’s felony-firearm conviction, under the present case’s narrow factual circumstances I see no advantage to be gained from this procedure. Defendant’s incarceration began in the spring of 1978, thus, his two-year felony-firearm term is nearly over. I perceive no benefit that would result to defendant if his treatment period was prematurely terminated, thus, I would not order any vacation. I would affirm.

       It is interesting to note that in this case the prosecution is arguing that there are no differences between these verdicts. This contention is more often raised by defendants who claim the verdict holds out the mere illusion of meaningful evaluation and treatment. See People
        v Ramsey, 89 Mich App 468, 472-473; 280 NW2d 565 (1979), lv den 407 Mich 861 (1979), People v McLeod, 77 Mich App 327; 258 NW2d 214 (1977), aff’d 407 Mich 632 (1980).

       We disagree with Judge Riley’s position that this holding amounts to a substitution of our judgment of what is best for the defendant for the judgment of the jury. The jury found defendant guilty but mentally ill on one charge but inexplicably omitted the finding of mental illness on the other. Faced with such an inconsistency, we must side with one or the other of the jury’s apparent findings, and we believe that sound policy dictates siding with the finding of mental illness. Accordingly, rather than substituting our judgment for that of the jury, we are merely giving the judgment of the jury its proper scope.

       Recently our Court has held that the balancing of factors, specifically (1) that the conviction relates to credibility, (2) that it is more probative than prejudicial and, (3) that there is no alternative means of impeaching the defendant while protecting his right to testify, must take place on the record. People v Joyner, 93 Mich App 554; 287 NW2d 286 (1979). This will greatly facilitate review of the breadth and profundity of the trial judge’s deliberations.