text:
    PEOPLE v BATES
    Docket No. 78-2108.
    Submitted November 19, 1979, at Lansing.—
    Decided January 3, 1980.
    Leave to appeal denied, 408 Mich 933.
    James E. Bates was convicted of delivery of heroin, St. Clair Circuit Court, Halford I. Streeter, J. Defendant appeals, alleging that evidence of a prior conviction for delivery of heroin was erroneously admitted. Held:

    1. The evidence of the prior offense was properly admitted as part of the prosecution’s case in chief to show the defendant’s plan, motive, or scheme.
    2. The trial court erred by ruling that the evidence of the prior offense was admissible for impeachment purposes. Ordinarily, this error would require that the conviction be reversed and a new trial be ordered. However, because the evidence was properly admissible under the similar acts statute a remand for a new trial would serve no useful purpose.
    Affirmed.
    1. Criminal Law — Evidence — Prior Bad Acts — Statutes.
    Evidence of a defendant’s prior similar acts is admissible as part of the prosecution’s case in chief to show the defendant’s plan, motive, or scheme only where: (1) substantial evidence shows that the defendant actually committed the prior bad act, (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items of the case at bar, (3) the evidence is material, probative of a matter at issue, and (4) even if these requirements- are met, the probative value of the evidence must be greater than its prejudicial effect (MCL 768.27; MSA 28.1050).
    2. Criminal Law — Evidence — Prior Offense — Impeachment — Similar Offenses.
    Evidence of a prior offense may generally be introduced for purposes of impeachment of a defendant; however, the similarity of the prior offense to that for which the defendant is being tried is a factor against admission of the evidence, and the more similar the acts are the greater is the weight against admission of the evidence of the prior offense.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 298 et seq., 320 et seq.

       29 Am Jur 2d, Evidence § 320.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   Allen, P.J.

Following a trial by jury on January 21, 1978, on charges of delivery of heroin contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), defendant was found guilty as charged. On January 24, 1978, he was sentenced to prison for a term of 10 to 40 years and appeals of right, raising seven grounds for reversal. Of these, two merit our careful review.

On January 21, 1976, an undercover state police officer and defendant met in room 9 at the Serenade Motel in Port Huron. There, the officer requested defendant to sell him a spoon of heroin. Later that day the two met again at the motel at which time defendant informed the officer the drug would cost $65. The officer gave defendant four $20 bills and the two agreed to meet later at the Red Shingle Bar. While waiting at the bar the officer was approached by a Ms. Parmann who gave the officer a tinfoil packet and $15 in change. The officer then drove Ms. Parmann back to the Serenade Motel. Defendant exited from room 9 and told the officer the heroin would be of satisfactory quality. The alleged sale on January 21, 1976, was the second heroin sale made by defendant to the officer. The previous sale was on December 12, 1975. On that sale, defendant was convicted by jury in March, 1977. It is the introduction of evidence of the first sale of heroin and defendant’s conviction thereunder which are the principal basis for appeal.

After the jury had been selected, defense counsel moved in limine to exclude evidence of three prior convictions from admission for impeachment purposes. Counsel stated that the court’s ruling on the motion would determine whether his client would or would not testify in his own defense. The court excluded the 1961 conviction as "too far back” and excluded the 1972 conviction as not "related”. As to the 1977 conviction the transcript discloses the following:

"MR. COOLEY [prosecutor]: May I answer the other one as to Mr. Bates’ other convictions in 1976 — no, that was 1977, his conviction from a 1976 delivery.
"Your Honor, this case is a little different. This is not going to be used. I am going to put evidence of that particular case into evidence in my case in chief, and that is going to be used to show the intent of Mr. Bates to deliver heroin to Trooper Maddox.
"Well, your Honor, for this particular conviction, there are two grounds which it may be introduced into evidence on. One is for impeachment purposes if Mr. Bates takes the stand; and number two, which must be put in the People’s case in chief, to show plan, motive, scheme or intent, under the like and similar acts. So, evidence of that crime may be put in for dual purposes.
"MR. FOSTER [defense attorney]: Again, your Honor, I would have separate objections if he wishes to introduce evidence of that conviction into his case in chief; but I think, to me, that’s premature. That’s a separate topic to be taken up if and when he would so intend. If your Honor wishes to make a ruling at this time — well, I don’t really believe the Court can, but the law on that in Michigan was People v Spillman, 63 Mich App 256, 1975, which said that similar acts must be — they must be relevant to what is sought to be proved by the prosecutor.
"MR. COOLEY: Your Honor, there is also — it is also used to show plan, motive, scheme, modus operandi, which is also material in this particular case since Mr. Bates did not directly deliver the heroin, as in both cases, to Trooper Maddox. In this case it was delivered by Brenda Parmann; and it’s the People’s contention that it was under the direction of Mr. Bates; and also in the other case in which he has been convicted, he did not personally hand the heroin to Trooper Maddox, but placed it outside a post of the Red Shingle Bar and directed Trooper Maddox to that location. We are talking about the same locations, the Serenade Motel and the Red Shingle, the same type of drug to the same undercover police officer.
"THE COURT: I think it’s admissible as a similar act and showing the regular course of conduct. I won’t pass on the impeachment at this time until we get there.
"MR. FOSTER: If it please the Court, your Honor, we would certainly request a ruling at this stage because it could very definitely have an effect on whether or not Mr. Bates would take the stand in this case.
"THE COURT: That other offense was in 1977, the conviction. It’s very similar. If he does take the stand he will no doubt deny that he knew it was heroin or deny that it was delivered or deny one of those four elements. In either case, I think it would be proper to bring out the prior offense to test his credibility. I will so rule.”

We find no error in the trial court’s ruling that evidence of defendant’s December, 1976, delivery of heroin was admissible as part of the people’s case in chief to show plan, motive, or scheme. The Michigan similar acts statute, MCL 768.27; MSA 28.1050, permits evidence of similar acts to be introduced under certain conditions. A threshold condition is that evidence of the prior act be material to the case at hand. People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979). Because defense counsel in the instant case argued that the delivery was not made by defendant but was made by Ms. Parmann, evidence of an agreement to sell followed by nonpersonal delivery was admissible.

But even if the threshold requirement of materiality is met, evidence of prior similar acts is not admissible unless:

"(1) substantial evidence must show that the defendant actually committed the bad act; (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items; (3) the evidence is material, i.e., is probative of a matter 'in issue’; and (4) even if all three of the above are satisfied, the trial court must still weigh the evidence’s probative value against its prejudicial effect before deciding whether to admit it. People v Ernest Smith, 87 Mich App 18, 22; 273 NW2d 573 (1978).

People v Wilkins, 82 Mich App 260, 267-268; 266 NW2d 781 (1978). See People v Oliphant, 399 Mich 472, 488; 250 NW2d 443 (1976). In the instant case, requirements (1) and (2) are obviously met. Whether requirement (3) is satisfied depends upon the degree of similarity of the prior act to the offense for which defendant is tried. Oliphant, supra, 484-488, People v Kelly, 386 Mich 330, 334; 192 NW2d 494 (1971), People v Jones, 83 Mich App 559, 565; 269 NW2d 224 (1978). In the instant case the similarities are striking. There is (1) identity of the officer and. the defendant; (2) identity of the drug; (3) identity of the place and the room; (4) identity of the place where the negotiations took place; (5) identity of the place where the officer awaited delivery — the Red Shingle Bar; (6) identity of the location where delivery finally took place — in front of the bar; (7) in both cases the defendant avoided delivering the heroin. We find the similarities sufficient to allow the evidence; As in Oliphant, where evidence of prior acts establishing a pattern by which defendant could avoid detection was allowed in evidence, so, too, in the instant case, evidence of prior acts disclosing that defendant had devised a system for delivering heroin which would protect him from prosecution is allowable in evidence. Introduction of the similar act testimony enabled the prosecution to prove that the defendant intended to deliver even though in neither case did he personally hand over the drug, see People v Nieves, 92 Mich App 613; 285 NW2d 389 (1979).

While no specific reference was made by the trial judge on the question of the prejudicial effect of the prior act evidence, it is clear to us that he clearly recognized that he had discretion and, in exercising that discretion, considered the mátter of possible prejudice.

We turn now to the second issue. Did the trial court err in ruling that the 1977 conviction for the 1976 offense of delivery of heroin could be used for impeachment purposes? Defendant argues that error was committed since the court, by stating the conviction was "similar”, applied the rule in reverse or "upside down”. We agree with defendant. This Court and the Supreme Court have uniformly found error where the trial court, in determining whether to admit evidence of a prior conviction, concludes that the similarity of the prior offense and the offense for which defendant is being tried is a factor in favor of admitting the prior conviction. The first case raising the issue was People v Cash, 80 Mich App 623, 626, 627; 264 NW2d 78 (1978). There, we said:

"However, prior convictions which are for the same crime should be admitted with extreme caution. The more similar the prior conviction is to the offense for which the accused is being tried, the more hesitant should be the trial judge in allowing its admission.
"Unfortunately, the trial court in the instant case, though properly recognizing that it had discretion in the matter, appears to have exercised that discretion upside down in admitting the prior conviction because it was similar to the offense for which the defendant was charged.”

Subsequent cases reached the same conclusion. People v Denny, 86 Mich App 40, 43; 272 NW2d 332 (1978), People v Green, 86 Mich App 142, 147; 272 NW2d 216 (1978), People v Oliver, 90 Mich App 144, 148; 282 NW2d 262 (1979), People v Baldwin, 405 Mich 550, 553; 275 NW2d 253 (1979).

Having determined that the trial court’s action was error, we still must decide whether the error was harmless. In Cash, supra, we held the error harmless but our position was subsequently reversed by the Supreme Court, and a new trial was ordered. Oliver did not order a new trial per se but instead remanded to the trial court to decide on redetermination whether evidence of the prior conviction should be suppressed. Denny, Green and Baldwin were remanded for new trials.

Given the clear declaration by the Supreme Court in Cash and Baldwin that the cause should be remanded for a new trial, we would ordinarily reverse and order a new trial. But in view of the unique factual situation where prior acts took place which, as we have held in issue I, may properly be admitted in evidence, we conclude remand is unnecessary. Under the similar acts doctrine, not only may testimony be introduced regarding defendant’s prior delivery of heroin in front of the Red Shingle Bar but, in addition, evidence of defendant’s conviction for said offense may be introduced.

"The prosecutor is correct in his argument that, even if particular convictions are not admissible for impeachment purposes, if the factual basis behind these convictions falls within the confines of MCL 768.27; MSA 28.1050, they may be introduced by the prosecution as substantive evidence.” People v Renno, 392 Mich 45, 56; 219 NW2d 422 (1974).

What useful purpose is served in remanding for a new trial at which the court would determine whether evidence of the prior conviction is admissible for impeachment if, as we have already held, evidence of the prior conviction is admissible as part of the case in chief under the similar acts statute? We see none, even though the purposes for which the jury could consider the prior conviction differ where evidence of the conviction is admitted as part of the case in chief or admitted on cross-examination for impeachment purposes.

The remaining issues raised by defendant have been carefully considered and no error has been found.

Affirmed.

       The three prior convictions were: (1) 1961 conviction for unarmed robbery; (2) 1972 conviction for felonious assault; (3) conviction in 1977 for the delivery of heroin December 12, 1975.

       In the first case the officer testified he obtained the drugs from behind a post in front of the front entrance of the Red Shingle Bar and that he was directed to that location by defendant who directed him from a point about five feet away.

       "In lieu of leave to appeal, we reverse the judgments of the Court of Appeals and the Washtenaw Circuit Court and remand to the Washtenaw Circuit Court for a new trial. The trial judge erred in treating the similarity of defendant’s prior conviction as a factor to be weighed in favor of allowing the conviction [to be] used for impeachment. People v Baldwin, 405 Mich 550 (1979).” (Emphasis supplied.) People v Cash, 406 Mich 930 (1979).

         Under the similar acts statute the jury is instructed that evidence tending to show that defendant was guilty of a prior offense can only be considered by them for a limited purpose or purposes. People v Rice, 206 Mich 644, 658; 173 NW 495 (1919), People v Chism, 390 Mich 104, 120; 211 NW2d 193 (1973). In the case at bar, those purposes include that defendant specifically intended to deliver heroin through an agent, People v Bullock, 173 Mich 397, 410; 139 NW 43 (1912), or that his acts were the result of a characteristic scheme, plan or system he had used before. People v Anderson, 13 Mich App 247, 250; 163 NW2d 793 (1968). In contrast, evidence of defendant’s prior conviction admitted on cross-examination may be considered by the jury only insofar as it may affect defendant’s credibility as a witness. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Renno, supra. Nonetheless, if evidence of the particular convictions is not admissible for impeachment purposes, but is admissible under the similar acts statute, then such evidence is still admissible, People v Renno, supra.

       Issue VI pertains to the claim that defendant was improperly sentenced under the supplementation provision of the Controlled Substances Act, MCL 335.348; MSA 18.1070(48), because defendant’s second offense occurred prior to defendant’s first conviction under the act. This claim was rejected in People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977).


source: Caselaw Access Project

author:
D. F. Walsh, J.
      V. J. Brennan, P.J.,

license: Public Domain

text:
    PEOPLE v HART
    Docket No. 78-2131.
    Submitted March 12, 1979, at Detroit.
    Decided January 3, 1980.
    Thomas W. Hart was charged with conspiracy to commit armed robbery and with first-degree murder. Pursuant to a plea bargain agreement whereby defendant agreed to testify against his co-defendant in exchange for dismissal of the murder charge and a ten year "cap” on the maximum sentence to be imposed, defendant pleaded guilty to the conspiracy to commit armed robbery charge in Macomb Circuit Court before former Circuit Judge Walter Cynar. Because of Judge Cynar’s appointment to the Court of Appeals, Judge Arthur E. Moore was presiding when defendant was brought for sentencing. Defendant’s attorney argued that no useful purpose would be served by defendant’s further incarceration. The prosecution argued that probation was not an alternative available to the sentencing judge, since conviction for armed robbery requires a prison sentence and conspiracy to commit armed robbery similarly would not be subject to probation. After adjourning the sentencing proceeding to resolve the question of the power of the court to grant probation under these circumstances, the judge indicated that he felt compelled by statute to impose a prison sentence. Believing that mandatory imprisonment was required, the judge sentenced defendant to a prison term of four to ten years and abandoned the idea of giving defendant a delayed sentence because of the belief that defendant could not be placed on probation. Defendant appeals. Held:

    The provision of the criminal conspiracy statute which provides that one convicted of conspiracy to commit a felony shall be punished by a penalty equal to that which could be imposed if the underlying felony had been committed does not transform a conspiracy prosecution into a prosecution for the offense which was conspired to be committed; therefore, conviction of conspiracy to commit armed robbery does not incorporate the prohibition against probation which exists with respect to one convicted of armed robbery. The sentencing judge, being mistaken in his belief as to his power to grant probation, erred in imposing a prison sentence after he had concluded that imprisonment was not a desirable sentencing alternative.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 563.

       73 Am Jur 2d, Statutes § 297.

       21 Am Jur 2d, Criminal Law § 566.

       73 Am Jur 2d, Statutes § 22.

      Remanded for resentencing.
    V. J. Brennan, P.J., dissented. He would hold that the sentencing judge was correct in his belief that one convicted of conspiracy to commit armed robbery may not be placed on probation. He would hold that the language in the criminal conspiracy statute which provides that punishment "shall” be by a penalty equal to that which could be imposed if defendant had been convicted of committing the crime he conspired to commit, when coupled with the provision in the probation statute prohibiting probation upon conviction for armed robbery, renders conspiracy to commit armed robbery a nonprobationable offense. He would affirm.
    Opinion op the Court
    1. Criminal Law — Conspiracy To Commit Armed Robbery — Probation — Statutes.
    The sentencing provision of the criminal conspiracy statute does not by incorporation extend the nonprobational status of an armed robbery conviction to a conviction for conspiracy to commit armed robbery (MCL 750.157a, 771.1; MSA 28.354[1], 28.1131).
    2. Criminal Law — Sentences — Conspiracy to Commit Armed Robbery — Probation — Statutes.
    Remand for resentencing is mandated where the sentencing court imposes sentence under the mistaken belief that a conviction for conspiracy to commit armed robbery, like a conviction for armed robbery, is not subject to the provisions of the probation statute (MCL 750.157a, 771.1; MSA 28.354[1], 28.1131).
    Dissent by V. J. Brennan, P. J.
    3. Criminal Law — Sentences — Mandatory Imprisonment — Conspiracy to Commit Armed Robbery — Statutes.

      The sentencing provision of the criminal conspiracy statute, when read in conjunction with the provisions of the probation statute, mandates that a conviction for conspiracy to commit armed robbery, as with a conviction for armed robbery, be

      punished by imprisonment and not be subject to a sentence of probation (MCL 750.157a, 771.1; MSA 28.354[1], 28.1131).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Alice F. Sage, Assistant Prosecuting Attorney, for the people.

      James W. Rini, for defendant.
    Before: V. J. Brennan, P.J., and Bronson and D. F. Walsh, JJ.
   D. F. Walsh, J.

On February 10, 1978, defendant pleaded guilty to conspiracy to commit armed robbery. MCL 750.157a; MSA 28.354(1), MCL 750.529; MSA 28.797. He was sentenced to a prison term of four to ten years.

Defendant was 16 years old at the time he was alleged to have committed the originally charged offenses of conspiracy to commit armed robbery, MCL 750.157a, and first-degree murder, MCL 750.316; MSA 28.548. The prosecutor’s petition for waiver of jurisdiction from probate court to circuit court was granted. In circuit court, defendant’s guilty plea was entered pursuant to a plea bargain whereby he agreed to testify against his co-defendant. In return, the prosecutor agreed to dismiss the murder charge. A ten year "cap” on the maximum sentence to be imposed on the conspiracy count was also part of the bargain.

At the plea-taking proceeding defendant was told by then Circuit Judge Walter Cynar that, if a sentence of imprisonment was imposed, it would not exceed ten years.

Because of Judge Cynar’s appointment to this Court, a different judge sentenced defendant. At the original sentencing proceeding, defense counsel argued that further incarceration of defendant would serve no useful purpose. Particular emphasis was placed on defendant’s current steady employment. At that hearing the judge indicated that he would place defendant on probation. The prosecutor, however, argued that probation was perhaps not an alternative available to the sentencing judge. He pointed out that an armed robbery conviction requires a prison sentence and that perhaps conspiracy to commit armed robbery should be similarly nonprobationable. The judge adjourned sentencing so that this issue could be resolved.

At the second sentencing proceeding, the judge stated, "I don’t have any desire to punitively punish you or anything of that kind * * * but there is the statute that is involved which is the conspiracy statute which I think applies, as the robbery statute does, with a minimum * * The judge indicated that this mandatory imprisonment precluded him from following the course which he had considered — i.e., to delay sentence for a year. The judge felt that defendant would not be better off by getting a delayed sentence, since the minimum prison sentence would have to be imposed at the end of the year.

The sole issue raised on appeal is whether the sentencing judge erred in ruling that the offense of conspiracy to commit armed robbery is nonprobationable. We disagree with the sentencing judge and remand for resentencing.

The conspiracy statute to which defendant entered his plea of guilty provides:

"Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:
(a) except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed.” MCL 750.157a.

Armed robbery, the offense which defendant admitted he conspired to commit, is punishable by imprisonment for life or for any terms of years. MCL 750.529.

In sentencing a person convicted of armed robbery, a judge may not place him on probation. The probation statute provides:

"Sec. 1. In all prosecutions for crimes or misdemeanors, except murder, treason, and robbery while armed, where the defendant has been found guilty upon verdict or plea, and where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer. In any case in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or such other leniency as may be compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order setting forth the reason for the delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.” MCL 771.1; MSA 28.1131. (Emphasis added.)

By its terms the probation statute does not preclude probation in a conspiracy case. Probation is available in all prosecutions for crime unless the crime is one of the three enumerated exceptions— murder, treason and armed robbery. Although the conspiracy statute under which defendant was convicted incorporates the armed robbery statute for punishment purposes, this limited incorporation does not transform a conspiracy prosecution into a prosecution for the offense which was conspired to be committed.

The conspiracy statute incorporates other appropriate provisions of the Penal Code for punishment purposes. There is no indication that this incorporation was intended by the Legislature to extend to the probation provision of The Code of Criminal Procedure. The independent nature of these two codes vis-á-vis each other was recently noted by this Court in People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979).

In sentencing defendant to a prison term of 4 to 10 years, the sentencing judge recommended that he be placed in a camp program. We note that this alternative was also available to the judge under the probation statute, MCL 771.3a; MSA 28.1133(1). The probation statute also expressly provides for delayed sentencing. MCL 771.1.

Because of the sentencing judge’s misconceived notion that the offense to which defendant entered a plea of guilty was nonprobationable and because the judge clearly indicated that imprisonment was not a desirable sentencing alternative, we remand for resentencing.

Bronson, J., concurred.

V. J. Brennan, P.J.,

(dissenting). I respectfully disagree with my colleagues. The majority says the sentencing judge had a misconceived notion that the conviction by plea to conspiracy to commit armed robbery, MCL 750.157a; MSA 28.354(1), MCL 750.529; MSA 28.797, was nonprobationable. The sentencing judge is correct.

The conspiracy statute under which defendant pled guilty, among other things, says "the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit”. (Emphasis added.)

The armed robbery statute, MCL 750.529; MSA 28.797, sets forth the punishment for conviction to be imprisonment for life or for any term of years. Probation cannot be imposed for robbery armed and because the conspiracy statute is a "shall” statute the same applies. The trial judge must impose a sentence with a minimum of one year or more.


author: D. F. Walsh, P.J.

text:
    NYLUND v DEPARTMENT OF NATURAL RESOURCES
    Docket No. 78-3724.
    Submitted May 10, 1979, at Marquette.
    Decided January 3, 1980.
    Leave to appeal applied for.
    In May, 1974, the Natural Resources Commission determined, after protracted review which included public hearings, that it was necessary to prohibit the use in the great lakes of large mesh gill nets by commercial fishermen so as to insure a self-sustaining lake trout population. Rules effectuating that ban were promulgated, said rules including the provision that commercial fishermen holding licenses permitting the use of such nets would have until December 31, 1974, to phase out the use of such nets and replace them with trap or pound nets. While extensions of time in which to replace the banned gill nets were granted, all such extensions expired as of June 1, 1976. Charles Nylund and other commercial fishermen holding 1974 licenses which permitted the use of large mesh gill nets commenced an action against the Michigan Department of Natural Resources which sought to enjoin the department from amending, suspending or revoking their 1974 commercial fishing licenses. Plaintiffs alleged that the rules as promulgated only banned the use of large mesh gill nets by those who did not possess a license permitting the use of the same; and, accordingly, the amendment of their 1974 licenses was improper. Plaintiffs urged, in the alternative, that the rules as promulgated were unreasonable. The Delta Circuit Court, Clair J. Hoehn, J., while finding that the rules as promulgated were not arbitrary and capricious, determined that the rules as promulgated did not actually ban the use of large mesh gill nets by persons authorized to use such nets pursuant to their 1974 licenses, and accordingly, determined that the general amendment of such licenses by the department, whereby the use of such nets was prohibited, was improper. The trial court granted a permanent injunction enjoining the department from interfering with plaintiffs’ pursuit of commercial fishing in accordance with their 1974 licenses. The Department of Natural Resources appeals. Held:

      References foe Points in Headnotes

       35 Am Jur 2d, Fish and Game § 47.

       2 Am Jur 2d, Administrative Law § 397 et seq.

      1. The administrative rules promulgated in 1974 by the Department of Natural of Resources relative to a ban on the use of large mesh gill nets by commercial fishermen are not arbitrary and capricious. These rules prohibit the continued use of large mesh gill nets by persons holding 1974 licenses permitting the use of large mesh gill nets.
    2. The amendment of commercial fishing licenses by the Department of Natural Resources by the elimination of the right to use large mesh gill nets did not violate the individual licensee’s right to due process, since the individual licensees were afforded the opportunity to contest the validity of the new restrictions at an administrative hearing, an opportunity which the plaintiffs herein did not exercise.
    Reversed.
    1. Fish — Administrative Law — Commercial Fishing Law — Department of Natural Resources — Licenses — Rules.
    The 1974 administrative rules promulgated by the Department of Natural Resources relative to the ban on the use of large mesh gill nets by commercial fishermen are not arbitrary and capricious, and said rules prohibit the continued use of such nets by persons holding prior licenses permitting the use of such nets (1974 AACS R 299.1079).
    2. Fish — Administrative Law — Commercial Fishing Law — Department of Natural Resources — Licenses — Due Process.
    The amendment of commercial fishing licenses by the Department of Natural Resources whereby the former right to use large mesh gill nets was eliminated did not violate the individual licensee’s right to due process, since the individual licensees were afforded an opportunity to contest the validity of the new restrictions at an administrative hearing.

      Green, Renner, Weisse, Rettig, Rademacher & Clark, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman and Gregory T. Taylor, Assistants Attorney General, for defendant.

      Before: D. F. Walsh, P.J., and Bronson and T. M. Burns, JJ.
   D. F. Walsh, P.J.

Defendants appeal the September 6, 1978, judgment entered by the Delta County Circuit Court permanently enjoining them from "suspending, revoking, annulling, withdrawing, recalling, cancelling, amending” plaintiffs’ 1974 commercial fishing licenses, subject to "any and all statutes and rules of general application presently existing or properly enacted or promulgated hereafter”. Plaintiffs are commercial fishermen licensed to use large mesh gill nets before and during 1974. The circuit court further ordered that, pending appellate resolution of this controversy, plaintiffs’ use of large mesh gill nets is to be limited to the use allowed under the relevant pre1974 administrative rule. 1970-1971 AACS R 299.883.

The issue presented to this Court is whether there is a properly promulgated rule which allowed the Director of Conservation (now the Director of Natural Resources, hereinafter referred to as the director) to amend plaintiffs’ 1974 commercial fishing licenses to remove from them the authorization to use large mesh gill nets after 1974. The circuit court held that no rule banning the use of large mesh gill nets by those licensed in 1974 to use such nets had been promulgated. We disagree. A review of background facts is necessary to put this controversy in proper perspective.

On November 23, 1976, the Department of Natural Resources (DNR) filed an administrative complaint against the plaintiffs seeking to amend the commercial fishing licenses of each plaintiff to prohibit commercial fishing with large mesh gill nets. The administrative hearing was held in February 1977. Asa Wright, head of the Great Lakes section of the fisheries division of the DNR, testified at length concerning the need for prohibition of large mesh gill net commercial fishing. According to Mr. Wright, the major cause for the decline of fish populations in the Great Lakes and the disappearance of such species as lake trout has been over-exploitation by commercial fishermen. The DNR has undertaken to redevelop a self-sustaining population of lake trout in the Great Lakes. Large mesh gill nets are nonselective; many species closed to commercial fishing, such as lake trout, are inadvertently caught in the gill nets of commercial fishermen. Fish which become entangled in gill nets have a very low survival rate. The nonselective nature of gill nets is obstructing the goal of reestablishing a self-reproducing lake trout population. Overlap between the habitat and spawning areas of such species as whitefish and those of lake trout results in large incidental catches of the protected lake trout.

Mr. Wright further testified that there are prudent and feasible alternatives to the use of large mesh gill nets for commercial harvest of whitefish and other species in areas where large mesh gill nets have been authorized in the past.

John Scott, chief of DNR’s fisheries division, also testified at the administrative hearing. He described the lake trout repopulation program, which began in 1965. By 1967, it was apparent that lake trout were being killed in gill nets. The fisheries division’s suggested ban on large mesh gill nets in the shallow waters of the Great Lakes was rejected by the Natural Resources Commission (hereinafter referred to as the commission). In 1968, the Legislature authorized the DNR director to, inter alia, limit commercial fishing licensees to certain types of gear. MCL 308.1b(2)(d); MSA 13.1491(2)(2)(d). In 1970, the Great Lakes Zone Management Plan was adopted by the DNR. 1970-1971 AACS R 299.883. Strict controls were placed on the use of gill nets in certain areas of the Great Lakes.

Mr. Scott described the Zone Management Plan as a compromise between commercial and recreational fishing interests. Because the lake trout repopulation program did not show signs of success under the plan, the fisheries division once again, this time in June 1973, proposed to the commission that gill net fishing be banned in Lakes Superior and Michigan. The goal was "to eliminate the nonselective gear, convert the fishery to selective gear, and finish the job of restoring most of the fish population in the Great Lakes”. The Great Lakes fishery advisory committee [MCL 308.1d; MSA 13.1491(4)] also recommended to the commission, in 1973, that large mesh gill nets be banned.

The commission considered the proposed ban at its July, 1973, meeting. Commercial fishermen were notified of the meeting and were there to voice their objection to the proposal. The commission deferred decision and asked the fisheries division to make further studies of alternatives to complete ban.

The commission ultimately accepted the fisheries division’s conclusion that there were no feasible alternatives to complete ban which would allow restoration of the fish populations of the Great Lakes. Three public hearings were held at different locations in the state. The commission gave tentative approval to the proposal and submitted the proposed rules to the joint rules committee of the Legislature, after securing approval of the proposed rules from the legislative service bureau and the Attorney General. The joint committee held two public hearings on the proposed rules. The committee voted 5 to 2 against approval of the rules. A majority of the Senate also voted against the rules. In the House, however, the joint resolution disapproving the rules was rejected. The commission, therefore, adopted the rules in May 1974. They took effect on June 10, 1974. 1974 AACS R 299.1071 through 299.1079.

According to Mr. Scott, although Rule 299.1078 contemplated a phaseout of gill nets to be completed by December 31, 1974, the DNR agreed to grant extensions to those fishermen who demonstrated inability to make the required conversion before that date. This agreement resulted from a lawsuit, filed on behalf of commercial fishermen, challenging the time schedule set forth in the rule. Although 1975 licenses did not authorize the use of large mesh gill nets, the DNR delayed enforcement of the ban to allow reasonable time for conversion to other gear. On November 28, 1975, all commercial fishermen whose 1974 licenses had authorized them to use gill nets were notified that no further extensions would be granted for compliance with the 1974 rules. By June 1, 1976, all time extensions had expired. Each noncomplying commercial fisherman was given an opportunity at an informal hearing to explain why he or she should be given further extension. Plaintiffs did not appear at these hearings.

The administrative hearing examiner found that plaintiffs were not in compliance with Rules 299.1071 to 299.1079. He recommended amendment of their commercial fishing licenses. The commission agreed, finding that the rules prohibited the use of large mesh gill nets. Rule 299.1078, according to the commission, established a time schedule whereby those commercial fishermen previously authorized to use large mesh nets could convert to other authorized gear. The commission ordered that all provisions of plaintiffs’ licenses which authorized the use of large mesh gill nets in the Michigan waters of Lakes Superior or Michigan be suspended. Each license was amended to prohibit large mesh gill net fishing in those waters.

Plaintiffs filed complaint on March 4, 1977, in Delta County Circuit Court. With regard to large mesh gill nets, plaintiffs alleged, inter alia, that the amendment of their 1974 commercial fishing licenses, which allowed use of large mesh gill nets, to prohibit those nets and to require conversion to other gear was "arbitrary, capricious, and unreasonable, and unnecessary to the preservation of the fish sought to be protected”.

Asa Wright and John Scott testified at the November 1977 trial. On behalf of plaintiffs, two licensed commercial fishermen testified that they took very few lake trout as incidental catches in their gill nets and that impoundment gear could not be fished successfully throughout the year. The manager of the Michigan Fish Producers Association spoke of the adverse economic effects of banning commercial gill net fishing. A Canadian commercial fisherman described the Canadian alternative to prohibition — a quota system.

At the close of the November 1977 proceedings, counsel for plaintiffs argued that there was no "rule of general application” prohibiting large mesh gill net fishing. He argued that the 1974 rules only prohibited gill net use by persons not licensed to use gill nets and that, since plaintiffs had been licensed to use them, amendment of their licenses was improper. According to plaintiffs’ counsel, individual consideration must be given to each licensee before his license can be amended. Alternatively, he argued that, even if there was a rule of general applicability banning gill nets, such a rule would be unreasonable.

The circuit court identified the antagonistic positions taken by the DNR and the commercial fishermen regarding a prohibition against gill nets but "decline[d] the invitation to decide between competing social policies”. The trial court’s opinion indicates that it employed the proper standard of review. MCL 24.306; MSA 3.560(206). The trial court found that gill nets are a significant factor in the decline of lake trout population in the Great Lakes and that therefore the DNR prohibition of such nets was not without a basis in reason. The control of this significant factor was not arbitrary or capricious. Reestablishment of the lake trout population, according to the trial court, is a desirable result.

After rejecting plaintiffs’ challenge to administrative prohibition of large mesh gill net fishing, the trial court identified the sole remaining issue as whether plaintiffs’ licenses had been properly amended. The court reviewed the rule-making procedures in effect at the time of proposal and adoption of the 1974 rules. The rules had been adopted pursuant to the statutorily prescribed procedures. The court observed that licensees are entitled to due process protection when agencies seek to amend their licenses. In addition, noted the trial court, commercial fishing licensees have a statutory right to have their licenses renewed annually, MCL 308.1b(5); MSA 13.1491(2)(5). Conceding that the DNR, by adopting "a rule of general applicability”, could amend commercial fishing licenses and that the DNR has the right to prohibit gill net fishing, the court found that the DNR had attempted merely to amend individual licenses "instead of adopting a rule of general application which would give the fishermen the right to be heard before the Legislature and have the Legislature consider their position”. Rule 299.1074 banned the use of gill nets except by licensees. Rule 299.1078, according to the court, provided only that persons licensed to use gill nets could lose that right "if and when rules to that effect are promulgated in accordance with the Administrative Procedures Act”. (Emphasis in original.) The trial court cited, in particular, Rule 299.1078(8). According to the court, Rule 299.1078 merely established a "method for the elimination of gill nets” and did not actually ban use of these nets by persons authorized to use them under their 1974 commercial fishing licenses. The trial court entered a permanent injunction enjoining the DNR from interfering with plaintiffs’ pursuit of commercial fishing in accordance with their 1974 fishing licenses.

The relevant rules, the validity and applicability of which the circuit court was asked to determine, were adopted in 1974 and provided as follows:

"R 299.1071. Commercial fishing license; application; eligibility of applicant.
"Rule 1. (1) An application for a commercial fishing license shall be made not less than 30 days before fishing operations are expected to commence.
"(2) To be eligible for a license, an applicant shall have been issued a Michigan commercial fishing license for the immediately preceding year.
"R 299.1072. Areas closed to commercial fishing.
"Rule 2. Except as provided in a license issued by the director or in a research permit issued by a representative of the director, it is unlawful to use gill nets, trap nets, pound nets, seines and set hooks in the following described waters:
[Certain areas in Lakes Superior, Michigan, and Huron listed as closed to commercial fishing.]
"R 299.1074. Areas and depths for use of commercial fishing devices; size of meshes in gill nets.
"Rule 4. Including the statutory prohibitions of sections 2, 3, and 30a to 45 of Act No. 84 of the Public Acts of 1929, as amended, being sections 308.2, 308.3 and 308.30a to 308.45 of the Michigan Compiled Laws; and by the provisions of section 1 of Act No. 179 of the Public Acts of 1935, section 1 of Act No. 180 of the Public Acts of 1931, as amended and section 1 of Act No. 92 of the Public Acts of 1931, being sections 308.141, 308.151 and 308.161 of the Michigan Compiled Laws, it is unlawful to use gill nets, trap nets, pound nets, seines and set hooks, except in the manner, time, area and depths hereinafter prescribed or as provided in a license issued by the director or in a search permit issued by a representative of the director:
LAKE SUPERIOR
"(a) Gill nets with meshes 2-1/2 inches to 3 inches, stretch measure, may be used in depths greater than 60 fathoms if the lead lines of the gill nets are set on the bottom.
"(b) Trap nets and pound nets may be used in depths less than 15 fathoms in Lake Superior January through October and during December.
LAKE MICHIGAN
"(c) Trap nets and pound nets may be used in depths less than 15 fathoms in Lake Michigan January through October and during December, except trap nets and pound nets may be used only for taking smelt and alewife January through May in waters north of a line extending from the mouth of the Ford river in sections 21 and 22, T38N, R23W to Peninsula Point in section 24, T38N, R21W, Delta county.
"(d) Gill nets with meshes 2-1/2 inches to 3 inches, stretch measure, may be used in depths greater than 40 fathoms north of a line extending due west from Grand Haven harbor; and in depths greater than 30 fathoms south of a line extending due west from Grand Haven harbor.
"R 299.1077. Areas licensees permitted to fish; limitations on gear.
"Rule 7. (1) A licensee may fish only within a radius of 50 miles of the port specified in the license and all fish shall be landed at that port.
"(2) A licensee shall conduct his commercial fishing operation only with the kind and amount of gear specified in his license or research permit.
"R 299.1078. Replacement of gill nets with trap and pound nets.
"Rule 8. (1) Persons whose gill net fishing operations are prohibited or restricted by these rules and who intend to continue to fish commercially in the waters of this state may replace their gill nets with trap or pound nets. Any person who intends to replace his gill nets with trap or pound nets may continue to use his gill nets where otherwise prohibited by these rules only during 1974 by filing an appropriate application for replacement within the prescribed time designated by the director. Persons licensed to use gill nets in combination with trap or pound nets when these rules become effective may continue to use gill nets only during 1974 where otherwise prohibited by these rules. A person authorized to use gill nets only during 1974 where otherwise prohibited by these rules shall use gill nets only under the provisions of a permit or license issued by the director, the provisions of which shall be substantially the same as those contained in the person’s 1974 commercial fishing license. This subrule does not apply to those persons presently licensed to use trap or pound nets only or gear other than gill nets.
"(2) To be eligible to replace gill nets with trap or pound nets, a person shall:
"(a) Have held a commercial fishing license in 1971, 1972 and 1973 to use gill nets in the waters of this state.
"(b) File an application in accordance with instructions on a form provided by the director within 15 days after the effective date of these rules.
"(3) Failure of a person to comply with subsection (b) of subrule (2) is evidence that the person no longer wishes to fish commercially and the director shall notify the person to cease and desist using gill nets where prohibited by these rules. The person may voluntarily terminate his license at that time or action will be taken to revoke the license if the person continues to use gill nets where prohibited by these rules.
"(4) A person whose application has been properly filed shall be notified and shall request to have his commercial fishing license amended to authorize replacement of gill nets with trap or pound nets.
"(5) A person whose license has been amended pursuant to subrule (4) shall provide progress reports on his gill net replacement to the director. Progress reports required by this subrule shall be submitted as follows:
"(a) Within 30 days of the effective date of the license amendment, a person shall submit to director or his representative evidence in the form of purchase orders for gear and materials or other satisfactory information that clearly demonstrates that he has commenced replacing his gill nets with trap or pound nets.
"(b) Within 90 days of the effective date of the license amendment, a person shall submit to the director or his representative a progress report that clearly demonstrates his continued progress in replacing his gill nets with trap or pound nets.
"(c) By December 31, 1974, all persons who have been authorized to replace gill nets with trap or pound nets shall submit to the director satisfactory evidence of having totally completed the replacement.
"(6) A person failing to meet the requirements of subrule (5) shall show cause to the director why the requirements have not been met; and unless authorized by the director, the person shall not be subsequently licensed to fish commercially in the waters of this state.
"(7) A person electing to replace his gill nets pursuant to this rule shall be licensed to use no more than 10 trap nets or 10 pound nets, or any combination thereof so long as the total number of nets does not exceed 10 nets.
"(8) If the director finds it necessary to protect the fisheries resources of this state and rules are promulgated as required by law, the use of gill nets as provided by these rules shall be prohibited or restricted.”

MCL 308.22; MSA 13.1513, provides that it is unlawful for anyone to fish using any kind of net without having a license to do so. See Rule 299.1077, supra.

Plaintiffs interpret the above rules to allow their continued use of large mesh gill nets. The rules, they argue, prohibit such nets except as provided in a license. See Rule 299.1074. Since licenses possessed by plaintiffs at the time the rules were adopted authorized them to use these nets, the current ban, they contend, does not apply to them. Further echoing the circuit court’s ruling, they rely on MCL 308.1b(5); MSA 13.1491(2X5), which provides:

"Any licensee presently licensed at the time this section becomes effective [i.e., November 15, 1968] shall have the right to have his license renewed from year to year by the director of conservation if such licensee continues to meet the qualifications set forth in this section and the qualifications specified in any rules promulgated under this section regardless of the determination of the number of licenses to be issued hereunder. Such licenses so issued shall not be transferable without the permission of the director.”

If the DNR had adopted only Rules 299.1072 and 299.1074, we would perhaps be persuaded to agree with plaintiffs. However, the DNR also adopted, at the same time, Rule 299.1078. The plain meaning of that rule, in the context of the entire group of 1974 rules, is that those whose 1974 licenses authorized the use of large mesh gill nets were to convert to trap or pound nets. Absent the abandonment of the use of large mesh gill nets, these licensees were to cease commercial fishing operations. Rule 299.1078 comprehensively addresses the situation of 1974 licensees authorized to use gill nets. This rule does not, contrary to the circuit court’s ruling, contemplate further rule-making to effectuate a ban against use of large mesh gill nets by plaintiffs. Rule 299.1078’s phrase "where otherwise prohibited by these rules” refers to and incorporates the preceding rules to the extent that those rules prohibit gill nets of certain sizes and in certain areas. Rule 299.1078(8) merely authorizes the director to prohibit or restrict gill net fishing more extensively than already provided in the 1974 rules. For example, the director could ban gill nets with meshes of stretch measures from 2-1/2 to 3 inches in depths greater than 60 fathoms in Lake Superior or could prohibit or further restrict the use of small mesh gill nets in Lake Michigan. See Rule 299.1074(a) and (d). Indeed, in 1976, Rule 299.1074 was amended to allow the use of the gear described in Rule 299.1074(d) "only at such times as to coincide with an open season on chubs established by the natural resources commission”. 1976 AACS R 1074(l)(d).

In Department of Natural Resources v Seaman, 396 Mich 299; 240 NW2d 206 (1976), the Supreme Court held that MCL 308.1b(2); MSA 13.1491(2)(2) does not unconstitutionally delegate legislative authority to the DNR. That provision authorizes the DNR director to place restrictions — e.g., regarding type of gear — on commercial fishing licenses. The Court also upheld the director’s prohibition, by rule, of the use of gill nets with mesh sizes under 8 inches in certain fishing zones. Development of specific regulations by administrative agencies, noted the Court, must be accompanied by due process protection to minimize opportunities for abuse of discretion and to provide adequate protection to the interests of those to be affected by the regulations. The Court found compliance with due process requirements in the development of the general commercial fishing regulations. Individual fishermen had also been given an opportunity to contest particular restrictions placed on their licenses. Id. at 313-314, 318-321.

We find that the requirements of due process have been satisfied with regard to development of the 1974 rules and the amendment of plaintiffs’ licenses. It is not disputed that several public hearings were held, after proper notice to interested parties, before final adoption of the rules.

In addition, when the DNR filed its administrative complaint seeking amendment of the licenses held by plaintiffs, each plaintiff was given an opportunity to appear and contest restrictions placed on his or her license. At the beginning of the administrative hearing, counsel for plaintiffs insisted that the hearing examiner determine "the validity of the prohibition against the use of large mesh gill nets enacted and sought to be enforced by the Department”. Counsel for the DNR said that he had no objection to letting plaintiffs’ counsel use the hearing as a forum to persuade the commission to modify its rules. He expected the hearing to be a long one, since many fishermen were involved. He stated the DNR’s desire "to afford all due process of law to the fishermen”. Although the hearing examiner had previously stated, and reiterated at the hearing, that he did not feel he had authority, in this particular hearing, to determine the validity of the gill net rule, he nonetheless expressly stated that he would not preclude plaintiffs from presenting evidence on that issue. Plaintiffs’ counsel withdrew from the hearing. The sole witnesses at the hearing were those presented by the DNR.

Plaintiffs were never prohibited from presenting evidence as to why the licenses of each individual plaintiff should not be amended to reflect the ban on large mesh gill net fishing. Instead of taking advantage of this opportunity to contest restrictions, see DNR v Seaman, supra, 314, plaintiffs chose rather to seek a declaratory ruling in circuit court regarding the validity of a large mesh gill net prohibition. MCL 24.264; MSA 3.560(164). As discussed supra, the circuit court did not agree that a ban on this fishing gear was unreasonable, arbitrary or capricious. Because of plaintiffs’ voluntary absence from the license amendment proceeding, the hearing examiner properly proceeded in their absence. MCL 24.291(1); MSA 3.560(191X1), MCL 24.272(1); MSA 3.560(172)(1).

We find that plaintiffs’ rights to due process protection were observed in the development of the 1974 rules and in the amendment of their individual licenses. We also find that the 1974 rules apply to plaintiffs and that, under Rule 299.1078, their continued use of large mesh gill nets in their commercial fishing operations is prohibited.

The permanent injunction entered by the circuit court is set aside. The cease and desist order of the Natural Resources Commission is reinstated.

       See 1969 PA 306, § 45, as amended by 1971 PA 171, § 1, which set forth the rule adoption procedures in effect at the time the DNR’s 1974 gill net rules were being developed.


text:
    DEPARTMENT OF NATURAL RESOURCES v BJORK DEPARTMENT OF NATURAL RESOURCES v BREY
    Docket Nos. 78-3936, 78-3937.
    Submitted May 10, 1979, at Marquette.
    —Decided January 3, 1980.
    Officers of the Department of Natural Resources seized fishing gear belonging to John Bjork and to Henry Brey, Joseph Brey and Patricia Brey and fish which were in the nets when they were raised by the officers from Lake Superior. The DNR then brought complaints against Bjork and the Breys for violation of a regulation which prohibited the use of large mesh gill nets under the defendants’ 1974 commercial fishing licenses in the particular area of Lake Superior where the nets were seized. The Alger Circuit Court, William F. Hood, J., entered orders of condemnation and confiscation against the fishing gear and fish. The defendants appeal, alleging that an order of the Delta Circuit Court enjoining the DNR from amending the defendants’ 1974 licenses prevented the Alger Circuit Court from exercising jurisdiction over the matter. The cases were consolidated by the Court of Appeals. Held:

    1. Because the defendants were contesting certain restrictions placed on their 1975 licenses, the 1974 licenses were still in effect at the time of the seizure, and the defendants were obligated to fish in accordance with the provisions of those licenses which included the regulation they were found to have violated,
    2. The injunction against amendment of the 1974 licenses does not affect the jurisdiction of the Alger Circuit Court to enter an order punishing the violation of the provisions of those licenses.
    Affirmed.
    1. Courts — Circuit Courts — Jurisdiction — Lake Superior — Statutes.
    A circuit court in a county bordering on Lake Superior has jurisdiction to hear controversies arising in the waters of Lake Superior adjoining that county (MCL 45.14; MSA 5.290).

      References for Points in Headnotes

       78 Am Jur 2d, Waters §§ 69, 70.

       45 Am Jur 2d, Fish and Game § 45.

      2. Licenses — Commercial Fishermen — Statutes.
    A commercial fisherman may fish in Michigan waters only after obtaining a license and then only in accordance with the provisions of that license (MCL 308.22; MSA 13.1513).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman and Donald K. Goulais, Assistants Attorney General, for plaintiff.

      Green, Renner, Weise, Rettig, Rademacher & Clark, for defendants.
    Before: D. F. Walsh, P.J., and Bronson and T. M. Burns, JJ.
   D. F. Walsh, P.J.

In these consolidated cases defendants appeal the entry of orders of condemnation and confiscation entered against them in the Alger County Circuit Court. It was ordered that large mesh gill nets, anchors, down lines and fish seized by agents of the Michigan Department of Natural Resources be condemned and confiscated.

In March 1978, DNR conservation officers found large mesh gill nets belonging to defendants, who are licensed commercial fishermen. The nets were set through the ice in waters of Lake Superior adjoining Alger County. The nets were set at depths greater than 15 fathoms. The officers raised the nets, which contained lake trout and whitefish. They seized the gear and the fish.

We find no error in the entry of the orders of condemnation and confiscation. At the time of the seizure, defendants’ 1974 commercial fishing licenses had not yet expired, since they were contesting certain limitations placed on their licenses beginning in 1975. MCL 24.291(2); MSA 3.560(191X2). Under the 1974 licenses, use of large mesh gill nets at depths greater than 15 fathoms in "Zone 5” of Lake Superior, where defendants’ nets were found, was prohibited. 1970-1971 AACS R 299.883. The complaint for violation of the rule restriction was filed pursuant to authority vested in the director of the DNR. The property was properly seized. MCL 300.11, 300.12, 300.14; MSA 13.1221, 13.1222, 13.1224.

The Alger County Circuit Court correctly ruled that it had jurisdiction over the complaints for condemnation and confiscation. MCL 45.14, 300.14; MSA 5.290, 13.1224. We reject defendants’ argument that their authority to fish came from an order of the Delta County Circuit Court and that, therefore, jurisdiction lay only in that county. Defendants were charged with violating the statutory requirement that persons desiring to fish in Michigan waters may do so only after obtaining a license and in accordance with the provisions of that license. MCL 308.22; MSA 13.1513. The Delta County order enjoined the DNR from amending defendants’ 1974 licenses. Those licenses were, therefore, still in effect and, by statute, defendants were precluded from fishing except in accordance therewith.

Affirmed.


author: Allen, P.J.

text:
    KOKKONEN v WAUSAU HOMES, INC
    Docket No. 78-4308.
    Submitted October 4, 1979, at Marquette.
    Decided January 3, 1980.
    Robert and Sue Kokkonen purchased a factory-built home from Wausau Homes, Inc., and contracted with George Lepisto for site preparation and construction of the foundation for the home. After the Kokkonens moved in, leaks were found in the foundation, and they discovered that the foundation was not built to the depth called for in the Lepisto contract. The Kokkonens brought an action for breach of contract against Lepisto, who counterclaimed for a sum of money owing on the contract. Later, upon discovery of water damage to the ceilings, the Kokkonens amended their complaint to include a claim against Wausau for damages for a defective roof. The Houghton Circuit Court, Stephen D. Condon, J., entered judgment on the jury verdict in favor of the plaintiffs against Wausau for the roof damage, in favor of the plaintiffs against Lepisto for a nominal amount on the foundation damage claim, and in favor of Lepisto on his counterclaim. The jury had added a proviso on the award to Lepisto that he finish the rough grading work, but that proviso was striken by the trial court. The plaintiffs brought a motion for a judgment notwithstanding the verdict, a new trial, or additur on their claim against Lepisto. The motion was denied, and plaintiffs appeal. Wausau, which also brought a motion for a judgment notwithstanding the verdict which was denied, cross-appeals. Held:

    1. Wausau, in its cross-appeal, contends that the evidence failed to show a faulty roof condition causing the water damage. Viewing the evidence in the light most favorable to the nonmoving party, the plaintiffs, there was sufficient evidence to support the submission of the question to the jury; therefore, the trial court properly denied Wausau’s motion for a judgment notwithstanding the verdict.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 886

       58 Am Jur 2d, New Trial § 148 et seq.

       22 Am Jur 2d, Damages § 345.

       22 Am Jur 2d, Damages § 26.

       22 Am Jur 2d, Damages § 346.

       13 Am Jur 2d, Building and Construction Contracts § 79.
    Cost of correction or completion, or difference in value, as measure of damages for breach of construction contract. 76 ALR2d 805.

       46 Am Jur 2d, Judgments § 751.

      2. There was sufficient evidence presented to submit to the jury the plaintiffs’ claim against Lepisto for water damage; therefore, the trial court’s denial of the plaintiffs’ motion for a new trial or for additur was proper as to that claim.
    3. The trial court erred in regard to the plaintiffs’ claim against Lepisto for repairs to the foundation where the court, in its instructions to the jury, permitted the jury to award an amount which would fairly compensate the plaintiffs but refused to give any instructions on the measure of damages and essentially precluded the jury from considering any evidence of the amount of damages.
    4. It is probable that if the jury had known that it was unable to add the specific performance requirement to the award for Lepisto on his counterclaim they would have awarded the plaintiffs a greater amount on the claim against Lepisto. The judgment on the counterclaim must, therefore, be vacated and a new trial granted on that claim. A new trial is also ordered on the plaintiffs’ claim for repair of the foundation.
    Affirmed in part, reversed in part, and remanded.
    1. Appeal and Error — Motions — Judgment Notwithstanding the Verdict.
    The Court of Appeals views the evidence in the light most favorable to the nonmoving party when reviewing the grant or denial of a motion for a judgment notwithstanding the verdict.
    2. Motions — New Trial — Question of Fact.
    Denial of a plaintiffs motion for a new trial or for additur on the grounds that the jury verdict was inadequate was proper where the evidence presented a question of fact for the jury as to the cause and responsibility for the plaintiffs alleged loss.
    3. Damages — Instructions to Jury — Evidence.
    Jury instructions on damages must be related to the evidence in the case.
    4. Damages — Future Damages — Certainty of Occurrence.
    An award of future damages is allowable if those damages are reasonably certain to accrue.

      5. Damages — Instructions to Jury — Measure of Damages.
    A trial court is required to instruct a jury as to the proper measure of damages consistent with the proofs introduced at trial.
    6. Damages — Contracts — Building Construction — Measure op Damages.
    The measure of damages for breach of a building construction contract is the amount necessary to make the building conform to the plans and specifications where only slight additions br alterations are required to finish the work at a reasonable cost without interfering with the rest of the structure; where the defects cannot be remedied without demolition of the building and the building is worth less than it would have been if constructed according to the contract, the measure of damages is the difference between the value of the building actually tendered and the reasonable value of that which was to have been built.
    7. Jury — Verdicts — Defective Verdicts.
    It is the duty of a trial court to correct defective and irregular* verdicts.

      Tercha & Daavettila, for plaintiffs.

      McLean & McCarthy, for defendant Lepisto.

      Von Wiegan & Corcoran, for defendant Wausau Homes, Inc.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Allen, P.J.

This cause involves an action for a breach of contract, negligence and breach of implied warranty against Wausau Homes, Inc. (Wausau), manufacturer of factory-built homes from whom plaintiffs purchased a home for $19,055, and George Lepisto, a building contractor and franchise dealer for Wausau, who contracted to clear plaintiffs’ lot, construct a foundation, install tile and perform rough grading work for $4,000. After the home was erected in late July, 1977, and plaintiffs commenced occupancy, leaks were found in the foundation. Investigation disclosed the foundation was not built at a depth for which the contract called. Upon receiving this information, plaintiffs filed the instant action against Lepisto, alleging breach of the foundation-site contract. Defendant Lepisto filed a counterclaim demanding the remaining $500 which plaintiffs had not paid on the $4,000 foundation-site contract.

In the spring of 1978, staining and warping were discovered in the ceiling spaces, whereupon plaintiffs amended their complaint to include a claim against Wausau for a defective roof.

At the conclusion of the trial, which continued from July 31, 1978, until August 4, 1978, the jury returned the following verdict: (1) for the plaintiffs against the defendant Wausau for the roof damage, $2,100; (2) for the plaintiffs against the defendant George Lepisto on the foundation claim, $250; (3) for the defendant Lepisto against the plaintiffs on Lepisto’s counterclaim, $500, with the proviso that the rough grading work was to be completed.

Plaintiffs do not appeal the award for roof damage against Wausau, but Wausau, by way of cross-appeal, appeals the trial court’s failure to grant Wausau’s motion for judgment notwithstanding the verdict. Plaintiffs’ motion for judgment notwithstanding the verdict, or new trial, or additur on plaintiffs’ claim against Lepisto was denied by the trial court on September 28, 1978, and plaintiffs appeal of right. We address the three claims seriatim.

I. Plaintiffs’ Claim Against Wausau

Cross-appellant Wausau argues that there was virtually no evidence that the home had an ice-damming condition in the winter of 1977-1978, and accordingly the trial court erred when it failed to grant cross-appellant’s motion for judgment notwithstanding the verdict. There is no doubt that water seeped through the roof causing stains on the interior of the home. The only question is whether the leakage was caused by "ice damming” resulting from faulty construction of the home by Wausau or was caused, as claimed by Wausau, by "moisture loss phenomenon” common to all homes.

Plaintiffs’ expert witness testified that he examined the roof and found partially cracked plywood and improperly placed insulation material obstructing the roof ventilation spaces which allowed heat to penetrate through the roof from inside the house causing snow on the roof to melt, flow down the roof decline, and freeze at the eaves, forming a dam behind which water collected and then seeped through the shingles into the home interior. Though cross-appellant introduced expert testimony that the leakage was moisture loss which occurs in even the most perfectly constructed home, the testimony of plaintiffs’ expert was sufficient to raise a question of fact submissible to the jury. Grand Trunk Western R Co v H W Nelson Co, Inc, 116 F2d 823, 840-841 (CA 6, 1941), reh den 118 F2d 252 (1941). Viewing the evidence in the light most favorable to the nonmoving party on a motion for judgment notwithstanding the verdict, we find ample evidence to support referring the question to the jury. Ringo v Richardson, 88 Mich App 684; 278 NW2d 717 (1979).

II. Plaintiffs’ Claim Against Lepisto

The breach of contract claim against defendant Lepisto is threefold: (1) $2,179.39 for costs of correcting the extensive water leakage in the basement caused because (a) the drain tiles were not placed at proper depth, (b) insufficient quantities of gravel or crushed rock were placed around the tiles, and (c) the ground surface around the basement was not sloped away from the foundation, (2) $1,873 for costs of insulating the foundation so as to prevent frost damage likely to be incurred because the foundation was not dug to the depth required by the contract, and (3) $240 for plaintiffs’ work on site preparation plus $400 for future work required to properly clear the lot. The jury returned a verdict in favor of plaintiffs for $250. While the verdict did not identify which claim the $250 award supported, we agree with defendant’s counsel that the $250 was awarded on the site preparation and lot-clearing claim. This leaves only items (1) and (2) of plaintiffs’ claim against Lepisto to be resolved on appeal.

We have no problem in affirming the trial court on the claim for water leakage in the basement. Just as a question of fact was presented allowing plaintiffs to submit their claim for damages against Wausau to the jury, so too a question of fact is raised on the claim for water damages allowing the defendant to submit that claim to the jury. Lepisto’s defense to the basement water leakage claim was that the leaking basement was due to the lack of fill on the lot and that the responsibility for providing the fill was plaintiffs’. He testified to such effect and this testimony was extensively corroborated by a civil engineer who formerly had taught engineering mechanics at Michigan Technological University. While plaintiffs introduced evidence to the contrary, defendant’s testimony was more than sufficient to refer the question to the jury. Accordingly, as to this portion of plaintiffs’ claim, the trial court did not err when it denied plaintiffs’ motion for a new trial or additur.

A more difficult problem arises in regard to the claim for foundation repairs. The contract between plaintiffs and George Lepisto called for the construction of a foundation in accordance with the Wausau Homes blueprints. The blueprints contained language that the footings should be no less than four feet deep with six blocks on top of the footings. At trial, Lepisto conceded that the wall was only five blocks deep, and because of rock it was impossible to sink footings 48 inches deep. He further testified that he neither informed the owners of the change nor obtained a modification of the building permit. Plaintiffs’ expert, Robert Pap-worth, stated the footings as constructed would be "very much” susceptible to frost damage. Witness Papworth then testified that there were three options available for correcting the breach:

1. A procedure could be followed whereby the foundation would be insulated on the outside with styrofoam, at a cost of $1,873 (Exhibit 16). However, plaintiffs could not leave the home unheated in the winter, should they decide to vacation in Florida.

2. The area under the footing could be dug out and concrete poured in to bring the footing to a proper depth. No estimate of cost was given.

3. The wood frame portion of the house could be raised or jacked up and additional courses of concrete block laid on top of the existing foundation and then fill could be added around the foundation so as to bring the footing to an appropriate depth at an estimated cost of $6,000 to $7,000.

Option 1 was recommended as the most economical and practical means of minimizing the danger of frost damage. Plaintiffs’ Exhibit 16 showing option 1 costs of $1,873 was duly admitted into evidence. However, after the close of all proofs and all parties had formally rested, counsel for defendant Lepisto called the court’s attention to O’Donnell v Oliver Iron Mining Co, 273 Mich 27; 262 NW 728 (1935), a case in which the Supreme Court held that in actions for structural damage caused by subsidence, damages were not recoverable until the damage had occurred. In the instant case no testimony was introduced that frost damage had in fact occurred, only evidence of a likelihood of it occurring in the future was introduced. Accordingly, the trial court reversed its earlier ruling, excluded Exhibit 16 and charged the jury:

"You are further instructed that you are to disregard the estimates by Mr. Papworth for the cost of remedying any potential frost damage to the foundation and its footings. The exhibit containing this estimate is not allowed by the Court.”

The court then refused, over plaintiffs’ objection, to give any instruction as to the measure of damages on the claim for improper construction of the foundation. Plaintiffs’ requested instructions Nos. 18-21 set forth the measure of damages if the jury found a breach of contract on the matter of the depth of the footings. Then, when plaintiffs’ counsel, in arguing plaintiffs’ case to the jury, referred to witness Papworth’s testimony that the cost of placing the footings below the frost line would be between $6,000 and $7,000, objection was made by opposing counsel. The objection was sustained, the trial court saying:

"THE COURT: The amount of damages, Ladies and Gentlemen of the Jury, the amount is to be left in your sole discretion, I’ll put it that way. Any arguments by counsel as to the figures as to what you should return in the form of damages is not to be taken by you as evidence in this case. All right.”

We conclude that the trial court erred. The court’s ruling, though permitting the jury to award an amount which would fairly compensate plaintiffs, precluded the jury from considering the evidence of damages. Instructions on damages must be related to the evidence in the case. 25A CJS, Damages, § 180; 22 Am Jur 2d, Damages, § 345. When the trial court instructed the jury to disregard the exhibits and testimony regarding costs, the court shut the door on any award of damages. Given the strong admonitions of the court, we cannot conceive how a jury would venture to award anything even if they found the contract was breached in regard to the depth of the footings.

Unfortunately, though under standingly, the court’s reliance on O’Donnell v Oliver Iron Mining Co, supra, was misplaced. That case is inapposite on four grounds. First, unlike the case before us where there was a contract between plaintiffs and defendant, the suit was solely in tort. Second, actions for damages for subsidence, where repeated slides of earth occur, appear to carry their own special rules on damages. Third, in O’Donnell, the Court reduced a jury award based on a future total destruction of the property but did award damages for the cost of repairs. In the instant case, the cost of repairs (Exhibit 16) was excluded. Fourth, the O’Donnell court itself cautioned that its holding would not apply where the damages, though still in futuro, were bound to occur. Id., p 40.

As was stated in O’Donnell, in futuro damages are allowable if bound to occur. For example, if one contracts to buy an automobile with rustproofing and the car is delivered without rustproofing, it is not necessary to wait until the car rusts through before recovering damages. The fact that the car would ultimately rust is so reasonably certain that it is not necessary to wait until the damage occurs. In the case before us the issue was whether (a) Lepisto failed to construct the footings and foundation in accordance with the Wausau blueprints, and (b) if so, whether such failure created a reasonable certainty of damage from frost upheaval. On both questions the testimony was conflicting, particularly on question (b). However, plaintiffs’ proof of the certainty of future damage was strong and persuasive. Based on the testimony, it was for the jury to first decide whether damage was so likely to occur. Gilson v Bronkhorst, 353 Mich 148, 153-158; 90 NW2d 701 (1958), Prince v Lott, 369 Mich 606, 609-610; 120 NW2d 780 (1963), Johnson v C & O R Co, 6 Mich App 611, 617; 150 NW2d 178 (1967), Savage v Parts Warehouse Co, 19 Mich App 416, 419; 173 NW2d 7 (1969).

In this regard, the following statements are instructive:

"As a general rule, where a cause of action is complete a recovery may be had of prospective damages which it is reasonably certain will accrue. * * * Where no subsequent action may be maintained, all damages present and future may be recovered.” 25 CJS, Damages § 29.
"Prospective damages — that is, damages which compensate for future losses reasonably certain to arise from a past breach of a contract promise — can be recovered when there is a total breach of a promise which has formed the consideration for an entire and indivisible contract.” 22 Am Jur 2d, Damages, § 29, p 49.

and, see generally, McCormick, Damages (1971 ed), §§ 13, 28, 161. Therefore, to the extent that plaintiffs in the case at bar have submitted proofs to a reasonable degree of certainty of damages which have not yet accrued at the time of trial, but which in the nature of things must necessarily or most probably will result from defendant’s alleged breach of contract, we conclude that plaintiffs were entitled to submit the question of future damages to the jury. Compare, Tucker v Tucker, 24 Mich 426, 428 (1872), Arnone v Chrysler Corp, 6 Mich App 224, 228-229; 148 NW2d 902 (1967). Accordingly, it is necessary to conclude that the trial court erred in precluding the jury from a proper consideration of the damages alleged by plaintiffs to have been caused by defendant Lepisto’s improper construction of the foundation.

Therefore, plaintiffs’ claim for repairing the foundation to prevent frost damage is remanded to the trial court for retrial. Upon retrial, and assuming plaintiffs’ proofs are substantially similar to the testimony in the present case, the jury shall decide whether defendant Lepisto breached the contract and, if so, whether such breach created a reasonable certainty of damage from frost upheaval. If the jury answers that question in the affirmative, damages shall be awarded.

In awarding damages, the jury is required to be instructed as to the proper measure of damages. Gutov v Clark, 190 Mich 381; 157 NW 49 (1916). In this regard, the trial court is required to instruct the jury in accordance with the correct rule of law concerning the breach of construction contracts by the builder:

"The rule is that where the contract is substantially complied with, and the building is such a one as is adapted for the purpose for which it was constructed, and only slight additions or alterations are required to finish the work according to the contract, the defects being remediable at a reasonable expense, and without interfering with the rest of the structure, the measure of damages is such a sum as is necessary to make the building conform to the plans and specifications. But, where the defects are such that they cannot be remedied without the entire demolition of the building, and the building is worth less than it would have been if constructed according to the contract, the measure of damages is the difference between the value of the building actually tendered, and the reasonable value of that which was to be built.” Gutov v Clark, supra, at 387.

Accord, Otto Misch Co v E E Davis Co, 241 Mich 285, 294-296; 217 NW 38 (1928), P & M Construction Co, Inc v Hammond Ventures, Inc, 3 Mich App 306, 315; 142 NW2d 468 (1966), Dierickx v Vulcan Industries, 10 Mich App 67; 158 NW2d 778 (1968) (warranty action), Caradonna v Thorious, 17 Mich App 41, 45; 169 NW2d 179 (1969), Schultz v Sapiro, 23 Mich App 324, 327-328; 178 NW2d 521 (1970), Baranowski v Strating, 72 Mich App 548, 562-563; 250 NW2d 744 (1976) (negligence action). And see, 7 Callaghan, Michigan Civil Jurisprudence, Damages, § 94, 25 CJS, Damages, §§ 74-76, Anno: Cost of correction or completion, or difference in value, as measure of damages for breach of construction contract, 76 ALR2d 805, 5 Corbin on Contracts, §§ 1089-1091, Restatement, Contracts, § 346, 13 Am Jur 2d, Building and Construction Contracts, §§ 76, 79, 80, 81. On remand, the lower court is required to instruct the jury on the proper measure of damages consistent with the proofs introduced at trial.

III. Defendant Lepisto’s Counterclaim

On the counterclaim, the jury returned a verdict as follows: "[F]or George Lepisto against Robert Kokkonen for $500.00, with rough grading to be completed” (emphasis added). Plaintiffs’ counsel did not object to the verdict at the time, but soon thereafter filed a post-trial motion challenging the verdict on grounds that under the decision in J Richardson & Co v Noble, 143 Mich 546; 107 NW 274 (1906), the jury exceeded its authority. Following a hearing, the trial court characterized the emphasized language as mere surplusage and ordered that it be stricken from the judgment.

On appeal, Lepisto contends that J Richardson & Co, supra, is distinguishable because here, unlike the situation in that case, it is altogether possible that the jury intended that the plaintiffs, not Lepisto, finish the rough grading. In addition, it is argued that plaintiffs waived any error by failing to request on the date the verdict was given that the jury be returned for further deliberations so that a proper verdict could be rendered. White v Huffmaster, 321 Mich 225; 32 NW2d 447 (1948).

We disagree. The rough grading work was never characterized as anyone’s responsibility other than Lepisto’s. Further, it would be totally redundant and unnecessary to add the proviso if the jury had intended that the work be completed by the Kokkonens. If that had been the jury intent, all the jury would have to do is omit the emphasized words.

It is our opinion that if the jury had known it could not combine specific performance with a money judgment, the jury would have granted a greater sum of money. In this respect we find the instant situation similar to Richardson. In particular, we believe that had the jury known that it was beyond its power to order Lepisto to finish the grading, it may well have allowed more than $250 on the site preparation portion of the plaintiffs’ claim. See footnote 1, supra. Likewise, we reject defendant’s waiver argument. We find no case holding that counsel’s failure to immediately object to the jury’s verdict precludes all future claims on that issue. Such cases as there are on this point suggest that it is the duty of the trial court to correct defective and irregular verdicts. McCormick v Hawkins, 169 Mich 641, 649; 135 NW 1066 (1912), Sadlowski v Meeron, 240 Mich 306, 313; 215 NW 422 (1927). Plaintiffs’ motion for a new trial, additur or judgment notwithstanding the verdict sufficiently precluded the claim of waiver.

Accordingly, the order of the trial court denying plaintiffs’ motion for judgment notwithstanding the verdict, additur, or a new trial is reversed with respect to the counterclaim. In addition, the judgment entered on the counterclaim is vacated. A new trial is ordered on the counterclaim and on plaintiffs’ claim for repair of the foundation to prevent damage from frost. In all other respects, the order and judgment of the trial court are affirmed.

Affirmed in part, reversed in part, and remanded in accordance with this opinion. Costs to plaintiffs on the claim against Wausau Homes, Inc. No costs between plaintiffs and defendant Lepisto, neither party having prevailed in full.

       "On the issue of lot clearing, it is fair to say that the jury returned a verdict for the plaintiffs in the amount of $250, for that portion of the lot clearing they initially did under an oral agreement with Mr. Lepisto that they would get credit for it. Thus, Mr. and Mrs. Kokkonen testified that they spent about 60 hours in clearing the lot, at a time when he was making $4.46 per hour and she was making $3.00 per hour. The plaintiffs’ attorney used a figure of $4.00 per hour for approximately 60 hours as a 'guideline’, and defense counsel did not dispute credit for what the plaintiffs had actually done. On the other hand, defense counsel did dispute the balance of the plaintiffs’ claim for $400 for future rough grading and clearing of the stumps left by the plaintiffs’ wood cutting operation. It is most reasonable to assume that the jury gave the plaintiffs $250 for the work already done, but rejected their claim for an additional $400.” Defendant Lepisto’s brief pp 29-30.

        Requested Instruction No. 18: "amount awarded should be measured by the reasonsable expense of necessary repairs”.

        Requested Instruction No. 19: "amount awarded should be measured by the difference between the fair market value of the home had the footings been constructed in accordance with the contract and the value of the home with footings as actually constructed”.

        Requested Instruction No. 20: "amount awarded should be measured by the reasonable expense of necessary, corrective action on the footings plus the loss in value of the home, if any, between the fair market value of the home had the footings been constructed in accordance with the contract and the value of the home with footings as actually constructed.”

        Requested Instruction No. 21: "then you should award such an amount of damages as would place the plaintiffs in the same position as they would have been if the foundation contract had been fully and properly performed”. The court rejected these instructions and gave a generalized instruction that if the jury found defendants breached their contract, "your verdict should be in such an amount that fairly compensates the plaintiffs for the damages which arise naturally from the breach”.

       See 9 Michigan Law and Practice, Damages, §§ 22, 23. In § 23, p 36, the O’Donnell decision is mentioned in a separate paragraph discussing damages for "withdrawal of lateral supports through mining operations not subjacent or adjacent to the property, but a considerable distance therefrom”.

       "Q. Mr. Papworth, the 48 inch standard that you referred to, that is a minimum standard?
      "A. The 48 inch depth of frost is the commonly used engineering figure for the Copper Country area for the depth of footings below the surface of the ground.
      "Q. Okay. And is it your testimony that in certain areas the frost would penetrate further than that, and under some circumstances it might be less than that?
      "A. That is correct.
      "Q. Is it your opinion, sir, that anyone who constructs a foundation and has the bottom of the footing less than 48 inches is taking a considerable chance?
      "A. Yes.
      "Q. Because if the frost does penetrate, the house could in fact be ruined, isn’t that true, sir?
      "A. Yes.”

       We note that the question of damages arising from a breach of contract is normally assigned to the jury where such question is based on conflicting evidence. However, since the question of future or prospective damages requires a "reasonable certainty” that the damages will result from the original breach, the trial court is required, as a matter of law, to determine the sufficiency of the evidence before the question of damages can be submitted to the jury. Gilson v Bronkhorst, supra, at 155, and see 25A CJS, Damages, § 176(3) pp 172-173. Nonetheless, presuming as we have in this case that plaintiffs’ proofs on retrial will be substantially similar to those which were previously offered, we would find that plaintiffs have established the necessary degree of probability of the apprehended future consequences of the breach as to amount to a reasonable certainty that the damages will occur. In re Boyer’s Estate, 282 Mich 552, 556; 276 NW 552 (1937), Kellom v City of Ecorse, 329 Mich 303, 308; 45 NW2d 293 (1951). Sufficient, at least, to submit the issue to the jury.

       "But it is said that part of the verdict giving plaintiff possession of the shoes may be treated as surplusage and the balance of the verdict be permitted to stand. We cannot assent to this suggestion because we think it clear the money part of the verdict would not have been rendered if the jury had understood they had no authority to decide who was entitled to the possession of the shoes then in the warehouse.” Richardson, supra, at 549-550.