author: R. B. Webster, J.

text:
    THE DETROIT BANK & TRUST COMPANY v GROUT
    Docket No. 78-2361.
    Submitted May 2, 1979, at Detroit.
    Decided February 5, 1980.
    Leave to appeal applied for.
    Louise Grout Hill was the settlor in a certain inter vivos trust agreement dated October 30, 1945, in which Detroit Trust Company was designated as the trustee. In that trust instrument Selden B. Daume was designated to receive property constituting 1/12 of the appraised value of the corpus. Mr. Daume was for many years the trust officer assigned to Louise Grout Hill’s account and had served for many years as Vice-Chairman of the Board of Detroit Bank and Trust Company, after the merger of Detroit Trust Company and the Detroit Bank. Mr. Daume died on December 23, 1966. Mrs. Hill died on December 6, 1969. In December, 1973, The Detroit Bank ánd Trust Company resigned as executor of both the estate of Louise Grout Hill and the estate of Selden B. Daume. The bank then brought an action in Wayne Circuit Court seeking instructions as to the disposition of the funds in the trust which were designated to go to Mr. Daume, who allegedly had a fiduciary relationship with Louise Grout Hill. Named as defendants in this action were Gardner K. Gróut II, other residuary legatees under the will of Louise Grout Hill, and Wilber M. Brucker, Jr., administrator with will annexed of the estate of Louise Grout Hill (referred to hereinafter as defendants Grout) and Joyce D. Daume, widow of Selden B. Daume, and four children of Selden B. Daume (referred to hereinafter as defendants Daume). The defendants Grout filed a cross-complaint against the defendants Daume and a counter-complaint against The Detroit Bank and Trust Company asserting that Selden B. Daume had exercised undue influence over Mrs. Hill. Wayne Circuit Court, James E. Mies, J., determined that Mrs. Hill had no secret purpose in the provisions of the trust which made the gift to Mr. Daume and that it was. her intent to benefit Mr. Daume (and should he pre-decease her, his heirs) solely and absolutely, that Mr. Daume was a fiduciary of Mrs. Hill at the time of this gift and trust and that, therefore, undue influence must be presumed but that other evidence negated the presumption, and that the defendants Grout were barred by the statute of limitations from raising the issue of undue influence. The defendants Grout appeal alleging that the trial court erred 1) in determining that the language making a gift to Mr. Daume constituted an absolute gift to Selden B. Daume and his heirs rather than a transfer of property in trust for the benefit of undisclosed third persons, 2) in determining that there was no undue influence exercised by Selden B. Daume, as agent of Detroit Bank and Trust Company, over the settlor in making the alleged gift, and 3) in determining that the alleged gift and trust did not lapse when Mr. Daume predeceased Mrs. Hill. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 703, 822.
    27 Am Jur 2d, Equity § 266.
    [2] 5 Am Jur 2d, Appeal and Error § 822.
    27 Am Jur 2d, Equity § 266.
    [3] 76 Am Jur 2d, Trust §§ 17, 18.
    [4] 25 Am Jur 2d, Duress and Undue Influence § 38.
    [5] 25 Am Jur 2d, Duress and Undue Influence § 43.
    Presumption or inference of undue influence from testamentary gift to relative, friend, or associate of person preparing will or procuring its execution. 13 ALR3d 381.
    [6] 76 Am Jur 2d, Trusts § 203.
    [7] 80 Am Jur 2d, Wills §§ 1662, 1671 et seq.

    [8] 76 Am Jur 2d, Trusts §§ 4, 101 et seq.

      1. In determining the intent of the settlor, it is necessary first to look to the expression of the intent in the instrument in question and to construe the instrument so that each word contained therein has meaning, if it is possible to do so. To construe the language of the disputed portion of the trust instrument so as to impose a resulting trust on Mr. Daume or his heirs would require ignoring or deleting a portion of the disputed paragraph. The trial court’s construction of the disputed paragraph to the effect that there was no secret purpose other than to benefit Mr. Daume and his family was consistent with the evidence. The trial court’s finding of an absolute gift to Mr. Daume from this paragraph is affirmed.
    2. It is undisputed that a fiduciary relationship existed between Mr. Daume and Mrs. Hill. Accordingly, it is clear that a presumption of undue influence is raised. The defendants Grout had the ultimate burden of proof on the issue of undue influence. There was sufficient evidence presented to establish the presumption of undue influence by Mr. Daume. However, in light of evidence rebutting the presumption of undue influence, it is clear that even if the gift to Mr. Daume were the product of undue influence in the execution of the 1945 trust agreement, Mrs. Hill’s subsequent actions, free from any undue influence, served to ratify the original trust agreement. The gift to Mr. Daume was not the product of undue influence.
    3. It is clear in this case that Mrs. Hill created a vested remainder, subject to revocation, in Selden B. Daume. An inter vivos trust creates a present interest in property, albeit, as in this case, an expectant interest. Where words of absolute grant are used to create that interest, it must be determined to be a vested interest. The only condition that could defeat Mr. Daume’s interest in the Hill trust would have been a revocation by the settlor. Such an interest is descendible, devisable and alienable. The vested remainder to Selden B. Daume did not lapse by reason of his predeceasing Mrs. Hill and was descendible to his heirs.
    Affirmed.
    1. Appeal and Error — Equity — De Novo Review.
    Appellate review of equity actions is de novo.

      2. Appeal and ErroFv — Equity — De Novo Review — Findings of Fact — Court Rules.

      De novo appellate review of equity cases is not in conflict with nor has it been altered by the court rule which requires that a trial judge’s findings of fact shall not be set aside unless clearly erroneous and that in review of the findings of fact regard shall be given to the special opportunity of the trial court to judge the credibility of witnesses (GCR 1963, 517.1).
    3. Trusts — Settlor’s Intent — Appeal and Error.
    It is necessary that the Court of Appeals, in determining the intent of a settlor, first look to the expression of the intent in the instrument in question and construe the instrument so that each word contained therein has meaning, if it is possible to do so.
    4. Trusts — Fiduciary Relationship — Undue Influence — Presumptions.
    A presumption of undue influence is raised where a fiduciary relationship exists between a settlor of a trust and a beneficiary of the trust.
    5. Evidence — Undue Influence —■ Burden of Proof.
    The ultimate burden of proof in an undue influence case rests upon the party asserting undue influence.

      6: Trusts — Undue Influence — Voidable Trust.
    A trust agreement which is induced by undue influence is merely voidable; it may be ratified by the grantor upon his restoration to freedom of action.
    7. Wills — Predeceased Legatee — Anti-Lapse Statute — Statutes.
    A bequest or devise is held to lapse or revert back to a testator’s estate when a legatee predeceases the testator unless the provisions of the anti-lapse statute apply (MCL 702.11; MSA 27.3178[81]).
    8. Trusts — Inter Vivos Trusts — Present Interest in Property — Expectant Interest — Statutes.
    An inter vivos trust creates a present interest in property, although it may be an expectant interest, and where words of absolute grant are used to create an expectant interest it is a vested interest; an interest which is subject only to revocation by the settlor is descendible, devisable and alienable (MCL 554.35; MSA 26.35).

      Miller, Canfield, Paddock & Stone (by Gilbert E. Gove), for plaintiff.

      Mclnally, Brucker, Newcombe, Wilke & DeBona (by Wilber M. Brucker, Jr., and Wayne G. Wegner), for defendants Grout.

      Dickinson, Wright, McKean, Cudlip & Moon (by W. Gerald Warren), for defendants Daume.
    Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

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

   R. B. Webster, J.

This cause is an appeal from a decision of the Wayne County Circuit Court instructing plaintiff, The Detroit Bank and Trust Company as to the disposition of certain funds subject of an inter-vivos trust agreement and dismissing counter and cross-claims asserted by defendants Gardner K. Grout II, Louise Grout Brigham, Gardner K. Grout III, and Wilber M. Brucker, Jr., administrator with will annexed of the estate of Louise Grout Hill, deceased; These defendants will be collectively referred to, hereinafter, as the defendants Grout.

The following factual summary frames the present controversy.

Louisé Grout Hill, deceased, was the settlor in a certain trust agreement dated October 30, 1945, in which Detroit Trust Company was designated trustee. This action arises from a complaint filed by the bank seeking instructions designating to whom the proceeds being held under paragraph III (E) of that trust should be paid. That paragraph provides:

"Property constituting one-twelfth (1/I2th) of the appraised value of the corpus shall be paid over and delivered by the Trustee to Selden B. Daume of Grosse Pointe Farms, Michigan, his heirs and assigns, and for purposes which he Understands and which have been thoroughly discussed between said Donor and the said Selden B. Daume. I do not, however, create or impose any condition, trust, duty or obligation with respect to such one-twelfth (l/12th) but, on the contrary, give the same to Selden B. Daume iii absolute legal and equitable ownership.”

Selden B. Daume was the President of Detroit Trust Company, which Was later merged into The Detroit Bank and Trust Company. Defendant Gardner K. Grout II is the adopted son of Louise G. Hill, and Louise Grout Brigham and Gardner K. Grout III are his children and all are residuary legatees under the will of Louise G. Hill. Wilber M. Brucker, Jr., is the administrator with will annexed of the estate of Louise Grout Hill.

Joyce D. Daume is the widow of Selden B. Daume, and Daphne M. Daume, Selden B. Daume, Jr., Samuel D. Daume and Susan D. Lambrecht are the children of Selden B. Daume. These defendants will be collectively referred to, hereinafter, as the defendants Daume.

Louise G. Hill, born in 1872, died in Pasadena, California, on December 6, 1969, at age 97. Mrs. Hill had been married to Arthur Hill in 1898 and widowed from him in 1909. Arthur Hill was a prominent Michigan lumberman. Subsequent to his death, Mrs. Hill married Landon C. Rose in 1912 and was divorced from him in 1925. She remained single until her death. In 1925 Mrs. Hill began doing business with the Detroit Trust Company. She established a trust, known as No. 14367, in January, 1940, which was subsequently modified by supplemental agreements dated April 27, 1942, and May 23, 1945. On October 30, 1945, a new trust instrument was executed, also being known as trust No. 14367. Selden B. Daume was born in 1897 and subsequently became an attorney. He first became employed by the Detroit Trust Company in 1927, and became its president in 1941. After a series of mergers, Mr. Daume became Vice-Chairman of the Board of The Detroit Bank and Trust Company in 1956. He suffered a slight stroke in that year but continued his employment to his retirement in 1962 at the age of 65. He died on December 23, 1966, at the age of 70.

Mr. Daume had first met Mrs. Hill in 1931 and became the trust officer assigned to her accounts from 1933 to 1960, when he was succeeded by Andrew Davison. He served at her request as a member of the board of directors of several companies in which she held a controlling interest.

Gardner K. Grout II was born in 1904. He was the son of Louise G. Hill’s sister. The sister was divorced subsequently and Mr. Grout was adopted by Mrs. Hill in 1915. He graduated from the United States Naval Academy and served in World War II in the Navy in California near where Mrs. Hill resided. He was employed from 1946 to 1958 in his own corporation, Grout and Horn, a distributor for Union Carbide Co. He also served as a member of the board of directors of various Hill interest companies. His children, Gardner Grout III and Louise Grout Brigham were born on January 21, 1933, and March 26, 1930, respectively.

The record in this cause indicates, and the trial judge found, that during the period of Mr. Daume’s relationship with Mrs. Hill, a close fiduciary relationship developed between them as well as a close personal friendship. From 1931 when Mr. Daume first became a trust officer assigned to Mrs. Hill, through October 30, 1945, when the trust agreement which is the subject of this action was executed, the record in this cause indicates that Mrs. Hill consulted regularly with Mr. Daume and was deeply grateful for his services to her. During this period Mrs. Hill relied on Mr. Daume for advice relative to her financial affairs and the disposition of her estate. She expressed deep gratitude for his services and offered gifts to him periodically. She developed a social relationship with Mrs. Daume and in 1938 gave her a Packard convertible. Additionally, she made gifts to the Daume children during this period.

There was a policy at the Detroit Trust Company prohibiting acceptance of gifts by trust officers from trust customers without executive committee approval. Both Mrs. Hill and Mr. Daume were obviously aware of this policy as exemplified by correspondence between them.

On January 18, 1940, Mrs. Hill entered into a new trust agreement with the Detroit Trust Company, trust No. 14367. Selden B. Daume executed the agreement on behalf of the Detroit Trust Company. It provided for family members in various fractions, and assets of value $1,229,241.11 were contributed to this trust. On April 27, 1942, Mrs. Hill executed a supplemental trust agreement with Detroit Trust Company, executed on behalf of the company by Mr. Daunie. This supplemental agreement did not fundamentally alter Mrs. Hill’s estate plan for her family. In 1944 there was correspondence between Mrs. Hill and Mr. Daume in which she sought advice relative to the making of gifts during her lifetime for certain individuals. She apparently requested a list of Mr. Daume’s children for the purpose of making gifts. It is believed by Mrs. Daume that Mrs. Hill gave $5,000 bonds to the Daume children at approximately this time.

On May 23, 1945, a supplemental agreement was executed between Mrs. Hill and the Detroit Trust Company involving the disposition of one-twelfth of the corpus of the trust and making other changes. No fundamental changes were made in the basic estate plan in this document. At this time, however, there was correspondence indicating that Mr. Daume had made a trip to California, where Mrs. Hill resided, at a time that was apparently most difficult for Mrs. Hill. She expressed her deep gratitude to Mr. Daume for his sacrifices in connection with this trip. This letter was dated May 26, 1945, three days after the execution of the supplemental agreement. Later that year the series of events leading to the execution of the instant trust agreement of October 30, 1945, occurred.

On October 17, 1945, Mrs. Hill addressed a letter to the Detroit Trust Company informing the company that she wished Mr. Daume to become a beneficiary to the extent of one-twelfth of the residuary property in the trust. That letter read as follows:

"The death of my sister Harriet E. Grout, and other changed conditions has led me to feel that it would be well to make some changes in my trust agreement with the Detroit Trust Company which is numbered 14367. These changes I have carefully discussed with the president, Selden B. Daume, who has been closely associated with my affairs and the companies in which I am interested for many years, and is also a close personal friend. One of these changes in my trust is the inclusion of Mr. Daume as a beneficiary to the extent of 1/12 of the residuary property which will constitute my trust after death. In phrasing this provision I have asked that the words 'for purposes which he understands’ be included.

"It has occurred to me that Mr. Daume may in some way be embarrassed by the inclusion of his name — and as a matter of fact he has shown considerable hesitancy in the matter. Therefore I am writing this letter so that in the event it is ever necessary it can be exhibited by him, or by you to explain my position. There are certain matters which I wish carried out after my death with which Mr. Daume is perfectly familiar. These are things that I wish done without including them in any Will or Trust agreement, and I know he will meticulously follow my wishes. I do not however, wish him to be accountable to to [sic] any person or persons, or to have his actions subject to review which could only lead to embarrassment for him which I most certainly wish to avoid.

"There is complete understanding between us, and Mr. Daume is included as a beneficiary at my very earnest solicitation and request.

"Yours very truly

"signed Louise G. Hill”

This letter was found in the safe deposit box of Mr. Daume after his death in December, 1966. Its contents were never disclosed to Gardner Grout III or Louise Grout Brigham until after Mrs. Hill’s death. On October 18, 1945, Mrs. Hill wrote a note on stationery of the Hotel Bancroft, Saginaw, Michigan, to "My dear Mr. Daume” which enclosed the above cited letter dated October 17, 1945. That note reads as follows:

"I’ve carefully written the enclosed letter in longhand with the hope that it is legible. I think I’ve even misspelled a word — to prove it is mine.”

Mr. Daume then contacted Edward Reid, an attorney with Miller, Canfield, Paddock arid Stone. That law firm had prepared the trust agreement of January 18, 1940, and the supplemental agreement of April 27, 1942. The firm was general counsel for Detroit Trust Company. Mr. Reid had never contacted or consulted with Mrs. Hill, obviously acting solely on behalf of Detroit Trust Company. He did not meet Mrs. Hill until 1967. Mr. Daume informed Mr. Reid that he had reached an understanding with Mrs. Hill that he was to receive a one-twelfth interest in the residue of the trust for an undisclosed purpose and that he wished Mr. Reid to redraft the trust agreement so as to make this change. He stated that the purpose was confidential and refused to make further disclosure relative to it. Mr. Reid redrafted the trust agreement, in toto, and included the following Paragraph III (E):

"Property constituting one-twelfth (l/12th) of the appraised value of the corpus shall be paid over and delivered by the Trustee to Selden B. Daume of Grosse Pointe Farms, Michigan, his heirs and assigns, and for the purposes which he understands and which have been thoroughly discussed between said Donor and the said Selden B. Daume.”

Upon receipt of this draft, Mr. Daume again contacted Mr. Reid and indicated that there was ambiguity as to whether he, Mr. Daume, was to have the one-twelfth interest absolutely and forever. He requested Mr. Reid to redraft the provision so as to state his absolute ownership of the one-twelfth interest. Mr. Reid then added the following sentence to Paragraph III (E):

"I do not, however, create or impose any condition, trust, duty or obligation with respect to such one-twelfth (l/12th) but, on the contrary, give the same to Selden B. Daume in absolute, legal and equitable ownership.”

Mr. Daume approved of this amended language.

The original and three copies of the trust agreement were forwarded by Mr. Reid to Mr. Daume of Detroit Trust Company. The agreement was executed by Mrs. Hill at the company’s offices on October 30, 1945. Her signature was witnessed and the document was notarized by employees of Detroit Trust Company.

Subsequent to this event Mr. Daume stated to his wife that Mrs. Hill had done something "perfectly wonderful for us”.

Thereafter, Mr. Daume disclosed to the trust officers of the trust company that he was a beneficiary of Paragraph III (E) and that he agreed to carry out Mrs. Hill’s wishes and desires with regard to the one-twelfth interest. He stated:

"They were her own ideas, the substantive matter is hers. He would assist her with respect to form and procedure.”

He did not disclose what the desires or wishes were. At approximately this time he also stated to Mr. Davison that Mr. Reid was Mrs. Hill’s attorney in the matter. In 1950 Mrs. Hill made a gift of approximately $500,000 from this trust. The correspondence relative to this partial distribution indicated that Mrs. Hill wished Mr. Daume to make the distribution and to follow the terms of the trust in the distribution. There is correspondence at this time indicating the awareness of Gardner Grout II of the distribution. As a one-twelfth beneficiary Mr. Daume received securities and cash having a total value of $42,901.67.

It was at this time that Gardner Grout II first learned that Mr. Daume was a named beneficiary "for certain purposes with which he is familiar”. He testified that he asked his mother about this and she "froze”. She refused to discuss the matter further with him and indicated that if he did not like it, he could change his own will.

Thereafter, Detroit Trust Company was acquired in August, 1956, by The Detroit Bank and Trust Company. Mr. Daume became Vice-Chairman of the Board of Detroit Bank and Trust Company and continued his relationship with Mrs. Hill and his supervision of the Hill Trust. In 1958 Mrs. Hill addressed a letter to Mr. Daume requesting him to distribute surplus cash to friends and relatives. She stated the names and amounts to be paid. Mr. Daume received $1,000 as a result of this distribution. In addition, an accounting from the bank dated June 25, 1958, indicated that on September 24, 1957, Mr. Daume had been given a check for $3,000. The personal income tax return of Selden B. Daumé and his wife, Joyce D. Daume, for 1959 indicates that Mr. Daume sold 50 shares of Booth Kelley stock in 1959 at $4,250 per share and achieved a gain of $204,900 over the cost to Mrs. Hill. Mr. Daume had recéived these shares in the 1950 distribution from the trust in question. In 1962 Mr. Daume expressed fears that some members of the Hill family would unduly influence Mrs. Hill to give them additional funds. He requested Mr. Reid to prepare an instrument dated August 9, 1962, and executed by Mrs. Hill making the trust irrevocable: Mr. Reid had no contact with Mrs. Hill at this time.

Mr. Daume retired from The Detroit Bank and Trust Company on November 1, 1962. One year later, in November of 1963, Mr. Davison, Mr. Thurber and Gardner Grout II visited Mrs. Hill át her apartment in Pasadena, California. A purpose of this visit was to inform Mrs. Hill that Mr. Daume had retired from the bank: Although Mrs. Hill had previously met Mr. Davison, she did not recognize him.

On June 30, 1964, Mrs. Hill éxecüted her last will and testament, which was designed to cover any property not included in her trust.

Mr. Daume died on December 23, 1966.

On January 29, 1967 Cleveland Thurber, Jr., Edward S. Reid and Gardner Grout II again visited Mrs. Hill in Pasadena, California. Both Mr. Reid and Mr. Thurber were present for the purpose of apprising Mrs. Hill of Mr. Daume’s death and inquiring about the purpose of the one-twelfth residual interest for Mr. Daume in the trust. They found her incapable of understanding her circumstances and unresponsive to news of Mr. Daume’s death.

On February 22, 1968, Mr. Reid and Mr. Thurber again visited Mrs. Hill. They found her unable to respond in any way to any of her affairs. It is clear from the record that Mrs. Hill from that time forward was mentally incompetent. Mr. Thurber and Mr. Reid visited Mrs. Hill on several occasions thereafter and were able to note only that her condition had further deteriorated and that they were unable to discover the purpose of the provisions of paragraph III (E) of the trust.

Mrs. Hill died on December 6, 1969, at the age of 97. Thereafter, Mr. Thurber informed defendants Grout that plaintiff was unable to determine what the "purposes” mentioned in paragraph III (E) were, and that, accordingly, plaintiff would seek instructions from the Wayne County Circuit Court. He suggested that defendants Grout obtain counsel.

In December, 1973, Detroit Bank and Trust Company resigned as executor of both the estate of Louise Grout Hill and the estate of Selden B. Daume and commenced these proceedings.

The amended pleadings of the defendants Grout assert their contentions that Mr. Daume exercised undue influence over Mrs. Hill. The defendants Grout have further filed a cross-claim against the defendants Daume seeking to trace assets received by Mr. Daume from the Hill trust during his lifetime. They assert a counterclaim against the plaintiff alleging its responsibility for acts of undue influence practiced by its trust officer, Mr. Daume, with regard to the lifetime gifts made to Mr. Daume.

The total value of the one-twelfth interest in dispute on November 20, 1972, the date of allocation, was $411,412. On September 15, 1977, this value was $226,010. The fifty shares of Booth Kelley Lumber Co. stock distributed to Mr. Daume in 1950 were sold by him for $204,900. Other assets distributed to Mr. Daume have not been traced. Defendants Grout contend that all of these assets should become part of the estate of Louise G. Hill, deceased.

After trial of this cause without a jury, the acting circuit court judge determined:

1. That Mrs. Hill had no known disclosed secret purpose in the provisions of paragraph III (E) of the trust and that it was her intent to benefit Mr. Daume (and should he pre-decease her, his heirs) solely and absolutely.

2. Mr. Daume was a fiduciary of Mrs. Hill at the time of this gift and trust and that, therefore, undue influence must be presumed. The trial court determined that other evidence negated the presumption.

3. The trial court determined that the Grout heirs were barred from raising the issue of undue influence by the statute of limitations, MCL 487.513; MSA 23.710(213).

This appeal presents three issues for decision.

I

Did the lower court err in determining that the language in dispute in Paragraph III (E) of the trust agreement constituted an absolute gift to Selden B. Daume and his heirs, rather than a transfer of property in trust for the benefit of undisclosed third persons?

At the outset it should be stated that this is an equitable action and appeal is de novo. Smith v General Mortgage Corp, 73 Mich App 720, 728; 252 NW2d 551 (1977). While it is true that GCR 1963, 517.1 requires that the "findings of fact shall not be set aside unless clearly erroneous”, our Supreme Court has not found this court rule to be "in conflict with or [to have] altered an appellate court’s de novo power in a chancery case as formerly known and exercised”. Papin v Demski, 383 Mich 561, 568; 177 NW2d 166 (1970). The effect of the rule as applied to de novo review is to require that "’regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it’ ”. Id. In this regard we note that this cause was tried primarily on stipulations of fact and depositions admitted in evidence.

The defendants Grout contend that the language of the disputed paragraph evinces an undisclosed secret purpose for the transfer to Mr. Daume. Since Mr. Daume pre-deceased the donor and there is no evidence of the purposes for which the trust was created, appellants contend that it must fail and a resulting trust must be imposed for the benefit of the donor’s estate. Paragraph III (E) of the trust provides:

"Property constituting one-twelfth (l/12th) of the appraised value of the corpus shall be paid over and delivered by the Trustee to Selden B. Daume of Grosse Pointe Farms, Michigan, his heirs and assigns, and for purposes which he understands and which have been thoroughly discussed between said Donor and the said Selden B. Daume. I do not, however, create or impose any condition, trust, duty or obligation with respect to such one-twelfth (l/12th) but, on the contrary, give the same to Selden B. Daume in absolute, legal and equitable ownership.”

In determining the intent of the settlor, it is necessary that this Court first look to the expression of the intent in the instrument in question and construe the instrument so that each word contained therein has meaning, if it is possible so to do. Quartern v Barton, 249 Mich 474, 476; 229 NW 465 (1930), Rivenett v Bourquin, 53 Mich 10, 13; 18 NW 537 (1884), Union Guardian Trust Co v Nichols, 311 Mich 107; 18 NW2d 383 (1945). As stated in Tonnelier v Westin, 302 Mich 213, 217; 4 NW2d 523 (1942):

"In the last analysis, however, all the words in the will must be taken into consideration.”

It should be apparent that to construe the above disputed paragraph of the Hill trust instrument to impose trust conditions upon Selden B. Daume, it would be necessary to ignore or delete the second sentence of that paragraph entirely from the trust instrument. The settlor indicated that one-twelfth of the corpus is to be given to Selden B. Daume, his heirs and assigns, "for purposes which he understands and which have been thoroughly discussed between said Donor and the said Selden B. Daume”. Standing alone such language would indeed impose a resulting trust upon Mr. Daume or his heirs. The settlor however, goes on to state that she does not "create or impose any condition, trust, duty or obligation” on Mr. Daume with regard to this gift bíít gives him absolute legal and equitable ownership. That language is clear and unambiguous and constitutes an absolute gift to Selden B. Daume without obligation or duty relative to the so-called "purposes” referred to in the previous sentence. The language of the first sentence relative to "purposes”, when considered in conjunction with the second sentence, can be construed to comport with a desire of the settlor to make an outright gift to Mr. Daume for his personal use. As stated in Bogert, The Law of Trusts and Trustees (2d), § 46, p 326: "The mere statement of the purpose for which a gift is made does not per se show an intent to make the donee a trustee to accomplish that purpose.” This is especially so when considered in light of the factual circumstances of the settlor and her relationship with Mr. Daume at the time of execution of the instrument. Such a construction gives effect to all of the words of the disputed paragraph. This Court cannot divine any construction of the instrument that imposes trust obligations upon Selden B. Daume without completely ignoring the express language of the second sentence of the paragraph. Accordingly, this Court is satisfied that the trial court’s conclusion relative to construction of this instrument is correct.

The trial court found that its construction of the disputed paragraph to the effect that there was no secret purpose other than to benefit Mr. Daume and his family was consistent with the evidence. Of particular interest in the trial court’s findings in this regard is the fact that prior to the execution of the trust agreement on October 30, 1945, Mrs. Hill had indicated deep appreciation for Mr. Daume’s services and had made gifts previously to his wife and to his children. Specifically, she had given each of the Daume ofeys a bond in the amount of $5,000 and purchased a Packard convertible for Mrs. Daume. There is evidence in this record to indicate that Mrs. Hill was aware of the policy of the Board of Trustees of Detroit Trust Company relative to gifts to trust officers and that she was sensitive to that policy. As she stated in her letter of October 17, 1945:

"It has occurred to me that Mr. Daume may in some way be embarrassed by the inclusion of his name — and as a matter of fact he has shown considerable hesitancy in the matter.” The trial court said that it was plausible to conclude that the "purpose language” was designed by Mrs. Hill to avoid any problems with Mr. Daume’s employer. Defendants Grout argue that any such purpose or motive by Mrs. Hill would be "illegal” and therefore such intent may not be considered by the court. This record indicates that no attempt was made by Mr. Daume to conceal the existence of this paragraph from his employer and that it was discussed by him with his fellow trust officers during the course of an annual review of each trust serviced by the various trust officers of the company. The policy of the bank was not to prohibit any gifts, but rather to require approval of such provisions by the trust company. While it is true that there is no evidence that Mr. Daume sought express approval, it cannot be said that his conduct under the circumstances was illegal or in any way constituted a fraud upon the trust company. The relationship between Mrs. Hill and Mr. Daume at the time of execution of paragraph III (E) indicated a predisposition on Mrs. Hill’s part to make gifts to Mr. Daume’s family and a desire to make gifts to him. This evidence is consistent with the conclusion of the trial judge giving effect to all of the words of paragraph III (E). Equally consistent with such conclusion is the subsequent conduct of Mrs. Hill and Mr. Daume relative to the partial distribution from the trust in 1950. Mr. Daume received a substantial distribution in the form of stock in Booth Kelley Lumber Company and cash. Mrs. Hill filed a gift tax return showing a gift to Mr. Daume personally and not in trust. The proofs in this cause indicate that the proceeds of this distribution were used by Mr. Daume personally.

Accordingly, the trial court’s findings relative to construction of paragraph III (E) of the Hill trust are affirmed.

II

Did the trial court err in determining that there was no undue influence exercised by Selden B. Daume, as agent of The Detroit Bank and Trust Company, over the settlor, Louise Grout Hill, in making the alleged gift?

In this case all parties concede that a fiduciary relationship existed between Mr. Daume and Mrs. Hill. Accordingly, it is clear that a presumption of undue influence is raised. The defendants Grout contend that the trial court misconstrued the effect of the presumption of undue influence and erred in concluding that there was insufficient evidence to sustain the burden of proof imposed upon the party asserting undue influence. In Kar v Hogan, 399 Mich 529; 251 NW2d 77 (1976), the Supreme Court held that the ultimate burden of proof in undue influence cases rests upon the party asserting undue influence. The Court stated that the presumption of undue influence was established by proof of a confidential or fiduciary relationship between a grantor and a fiduciary when the fiduciary benefited from the transaction and had an opportunity to influence the grantor’s decision in the transaction. The Court further held that the burden of persuasion remained upon the party asserting undue influence throughout the trial, but that the burden of going forward with evidence that the transaction was free of undue influence was on the defending party once the presumption was raised. The Court clearly held that the presumption of undue influence was substantive evidence and that the burden of persuasion was satisifed if the defending party failed to rebut the presumption with sufficient evidence.

It is true that the trial court in its findings of fact repeatedly referred to an absence of proof of direct compulsion, duress or fraudulent deception being imposed upon Mrs. Hill by Mr. Daume at any time and did not specifically refer to evidence rebutting the presumption. However, for thp reasons stated below, and after examination of the record in this cause, this Court is satisfied that the presumption of undue influence was rebutted by a preponderance of the evidence.

The defendants Grout contend that the initial presumption of undue influence is supported by the circumstances of execution of the trust agreement on October 30, 1945, the fact that the correspondence files of The Detroit Bank and Trust Company from January 1, 1945, to January 1, 1948, on this trust account are missing, and by Mr. Daume’s failure to provide Mrs. Hill with independent counsel before the trust agreement. They further contend that the very nature of the close personal relationship between Mr. Daume and Mrs. Hill is supportive of undue influence.

It is true that at the time of execution of the trust agreement Mr. Daume instructed Mr. Reid of Miller, Canfield, Paddock and Stone as to the contents of that instrument and specifically requested the addition of the second sentence of that paragraph, so as to evince an intent of absolute gift. Mr. Reid was retained to act on behalf of the trust company and his bill for services was paid by it. He never met Mrs. Hill until 1962. There can be no question that Mrs. Hill received no independent counsel from Mr. Reid at the time of execution of the trust instrument. The absence of independent advice and counsel at the time of execution of this instrument combined with the conceded fact of Mr. Daume’s fiduciary relationship with Mrs. Hill would, under those circumstances standing alone, constitute sufficient evidence to sustain the burden of proof of undue influence. If this were the totality of evidence in this cause, we would hold that the presumption of undue influence had not been rebutted by sufficient evidence. Clearly, the better practice for any trust officer would have been to insist upon independent review and advice to the settlor at the time of execution. In this regard see In re Wood Estate, 374 Mich 278; 132 NW2d 35 (1965), and Kar v Hogan, supra.

In this case, however, the record sustains findings that Mrs. Hill was an intelligent and fairly strong-willed person with an understanding of financial and tax matters and that the initial suggestions of gifts to Selden B. Daume originated in Mrs. Hill’s mind. Further, there are subsequent acts of the settlor indicating ratification of her original intent under such circumstances as to rebut the presumption of undue influence. It has been held that a trust agreement which is induced by undue influence is merely voidable. Vanderlinde v Bankers Trust Co of Muskegon, 270 Mich 599, 604; 259 NW 337 (1935). It may be ratified by the grantor upon his "restoration to freedom of action”. Id. In the instant case, on at least three occasions, Mrs. Hill acted in such manner as to show her continuing intent to ratify the gift to Daume. In 1950 she made a partial distribution of the trust property in accordance with the schema established by her trust agreement. At that time Mr. Daume reminded her that he would receive a portion of the trust corpus. Gardner Grout II was directly involved in the planning and execution of this distribution. Mrs. Hill was located in California at this time and was using Gardner Grout II as one of her advisors. Further, it was at this time that Mr. Grout questioned Mrs. Hill about the wisdom of paragraph III (E) of her trust agreement. In this regard he testified that upon questioning her she "froze” and replied that if Mr. Grout did not like this provision of her trust agreement he could change his own will. These facts do not comport with the classic situation of direct control constituting coercion and duress of such force as to vitiate the free will of the donor. Further, there is evidence that at the time of this distribution Mrs. Hill expressed her delight and pleasure in it.

Again, in 1962, Mrs. Hill signed a trust amendment which expressly ratified the previous provisions of the trust. The amendment was executed in California in the presence of Mr. Grout. Singificantly, this amendment made the provisions of the inter vivos trust irrevocable by Mrs. Hill alone. That instrument provided:

"Donor hereby declares that each and every of the foregoing powers, heretofore exerciseable solely by her shall hence forth continue to be exerciseable by her, but only in conjunction with and with the approval of the Detroit Bank & Trust Company (formerly Detroit Trust Company). In all other respects donor hereby ratifies and confirms said deed of trust.”

While it is true that there was no independent legal counsel at the time of execution of this amendment, it is also true that the amendment was executed in .the presence of Gardner Grout III after being forwarded to him by Mr. Daume for Mrs. Hill’s signature. It was executed in California without the presence of Mr. Daume. In 1964, Mrs. Hill executed what was to become her last will and testament. This document was subsequently admitted to probate in 1969. There can be no question of her testamentary capacity at the time of execution of the last will and testament. Her last will was prepared by independent legal counsel and she received independent advice relative to it.

Under all of these circumstances this Court is satisfied that it must affirm the conclusion of the trial court that Louise Grout Hill ratified the execution of the original trust instrument by her subsequent conduct.

Ill

Did the trial court err in determining that the alleged gift and trust did not lapse where the beneficiary predeceased the grantor?

This issue presents an apparent question of first impression in this state. The trust instrument in this cause created a funded inter vivos trust in which the settlor granted:

"To Selden B. Daume of Grosse Pointe Farms, Michigan, his heirs and assigns”

property constituting one-twelfth of the corpus of the trust to be paid over and delivered to Selden B. Daume upon the death of the settlor. Throughout the term of this trust prior to the death of Mrs. Hill it was revocable either by her act alone or by Mrs. Hill and the trustee. The defendants Grout argue that the law applicable to estates of decedents should be held applicable to the resolution of this issue. It is true that in this state, when a legatee predeceases a testator the bequest or devise is held to lapse and reverts back to the testator’s estate, unless the provisions of the anti-lapse statute, MCL 702.11; MSA 27.3178(81), apply. That statute provides in pertinent part:

"When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had survived the testator; unless a different disposition shall be made or directed by the will; Provided, however, That except in the case of a residuary devise or legacy, such issue shall not take the devise or bequest where the relationship of the devisee or legatee to the testator is beyond the fourth degree, but in such case the devise or legacy shall become a part of the residue of the estate.”

Obviously, the statute is not applicable in the instant cause since Mr. Daume was not related to Mrs. Hill.

The defendants Daume contend that the general rule found in other jurisdictions pertinent to inter vivos trusts is different from that applicable to estates of decedents. They contend that the words of the trust instrument in this cause created a present interest in Selden B. Daume and his heirs and assigns subject only to revocation by the grantor or settlor during her lifetime. Accordingly, they argue that this Court should follow the weight of authority and hold that Mr. Daume was given a vested remainder subject only to divestment and that accordingly his interest descended to his heirs. In holding that Selden B. Daume’s interest did not lapse by reason of his predeceasing Mrs. Hill, the trial court followed the opinion of the Supreme Court of Ohio in The First National Bank of Cincinnati v Tenney, 165 Ohio St 513; 60 Ohio Op 481; 138 NE2d 15 (1956). In that case an inter vivos trust was established wherein the settlor reserved a power of revocation. The beneficiary of the trust was to receive the corpus upon the death of the trustor. No alternate beneficiary was named. The beneficiary predeceased the settlor. The Supreme Court of Ohio held that the trust created a vested remainder subject to be divested before revocation. The Court then reasoned that since Ohio statutory and case law states that remainders are alienable, descendible and devisable, a beneficiary’s interest passed to the beneficiary’s heirs, subject to the same power of revocation. Since the trust was not revoked, the interest of the beneficiary’s heirs became indefeasible upon the settlor’s death. This principle was re-affirmed in Ohio in Smyth v The Cleveland Trust Co, 172 Ohio St 489; 179 NE2d 60 (1961). The same issue was decided in Randall v Bank of America National Trust & Savings Ass’n, 48 Cal App 2d 249; 119 P2d 754 (1941). In that case, the California court held that since the trust under consideration created a valid vested remainder subject to divestment, the fact that a vested interest was created at the time the trust was created dictated that upon the death of the beneficiary the vested remainder passed to his heirs. In this regard it should be noted that MCL 554.35; MSA 26.35 provides:

"Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession.”

It is clear in this case that Louise Grout Hill created a vested remainder subject to revocation in Selden B. Daume. An inter vivos trust creates a present interest in property, albeit, as in this case, an expectant interest. Where words of absolute grant are used to create that interest, it must be determined to be a vested interest. The only condition that could defeat Mr. Daume’s interest in the Hill trust was revocation by the settlor. Such an interest is, by the weight of authority, and by statutory authority in this state, MCL 554.35, descendible, devisable and alienable. On the contrary, no present interest in property is created by the exécution of a last will and testament. A legatee achieves an interest only upon the death of the testator. Therefore, if the legatee predeceases the testator it is generally held that his interest lapses and reverts to the remainder of the testator’s estate, unless he is one of the persons protected by the so-called anti-lapse statute, MCL 702.11. The only authority that could be said to be contra to the above conclusion is In re Estate of Button, 79 Wash 2d 849; 490 P2d 731 (1971). In that case a Washington court held that the anti-lapse statute in that state preserved for the benefit of the heirs of the trustor’s mother their interest in the trustor’s estate even though the mother predeceased the trustor. That court stated in dicta:

"Whether or not the interest of [the beneficiary] had vested prior to the death of the trustor, it was subject to be divested if she died before the trustor died, under the rule as it existed prior to the enactment of [the anti-lapse statute]. That statute alone, interpreted to apply to trusts as well as to wills, saves her interest for her heirs.” 79 Wash 2d 855.

Thus, the Washington court would have found in this case, that the interest of Mr. Daume lapsed because it was not protected by the anti-lapse statute. This Court is satisfied that it should follow the weight of authority as established in First National Bank of Cincinnati v Tenney, supra, Smyth v Cleveland Trust Co, supra, and Randall v Bank of America National Trust & Savings Ass’n, supra. The vested remainder of Selden B. Daume did not lapse by reason of his predeceasing Louise Grout Hill and was descendible to his heirs.

Since this Court has held that the disputed language of paragraph III (E) of the Hill Trust constituted an absolute gift to Selden B. Daume, that the presumption of undue influence was overcome by substantial evidence, and that the gift to Selden B. Daume did not lapse, the contentions of the defendants Grout relative to the applicable statute of limitations are rendered moot. Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Beasley, J.

license: Public Domain

text:
    PATELCZYK v OLSON
    Docket No. 78-3305.
    Submitted October 4, 1979, at Marquette,
    Decided February 5, 1980.
    Plaintiffs, Rose Patelczyk and William Patelczyk, brought an action against defendant Walter R. Olson, a board certified general surgeon, for damages for medical malpractice in the Alger Circuit Court, alleging failure to prescribe certain postoperative treatment for Mrs. Patelczyk following a mastectomy. At the close of plaintiffs’ proofs, the court, William F. Hood, J., directed a verdict for defendant. Plaintiffs appeal. Held:

    The general standard of care in a malpractice action against a general surgeon relates to what a reasonably prudent general surgeon would do or not do under the same or similar circumstances. To establish that standard and whether or not it was breached by the defendant, expert testimony from those learned in the medical profession is necessary. Use of the defendant’s testimony by the plaintiffs is proper. However, the plaintiffs failed to introduce evidence of the requisite standard of care and breach thereof by defendant.
    Affirmed.
    1. Physicians and Surgeons — Malpractice — Standard op Care — Evidence — Expert Testimony.
    The general standard of care in a malpractice action against a general surgeon relates to what a reasonably prudent general surgeon would do or not do under the same or similar circumstances; expert testimony from those learned in the medical profession is necessary to establish that standard and whether or not it was breached by the defendant.
    References for Points in Headnotes
    [1] 61 am Jur 2d, Physicians, Surgeons, and Other Healers §§ 106, 202.
    [1, 2] Necessity of expert evidence to support an action for malpractice against a physician or surgeon. 81 ALR2d 597.
    [2] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 188, ' 202.
    [3] 31 Am Jur 2d, Expert and Opinion Evidence §§ 7, 16.

      2. Physicans and Surgeons — Malpractice — Evidence — Expert Testimony.
    A medical malpractice plaintiff must prove the requisite standard of care and breach thereof by expert medical testimony; this burden of proof may be satisfied by the use of the testimony of the defendant physician.
    3. Evidence — Expert Testimony — Judge’s Discretion —• Abuse of Discretion.
    Admission or exclusion of expert testimony is within a trial court’s discretion and an exercise of that discretion will not be reversed unless it is clearly erroneous.

      Bridges & Collins (by Bruce L. Houghton), for plaintiffs.

      McDonald & Shortley, for defendant.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Beasley, J.

Plaintiffs, Rose Patelczyk and William Patelczyk, sought damages from defendant, Walter R. Olson, for medical malpractice.

Defendant, a board certified general surgeon in Munising, performed a mastectomy on Rose Patelczyk in 1975. Both she and her husband, William Patelczyk, who has filed a derivative claim, contend that defendant failed to prescribe radiation therapy and/or chemotherapy as postoperative treatment, either or both of which would have aided in preventing the spread of further cancer. Plaintiffs also claim defendant failed to refer her to specialists when she requested. At the time of trial in 1978, the cancer had metastasized to her lungs and bones, and she was hospitalized.

Upon completion of plaintiffs’ proofs, the trial court directed a verdict in favor of defendant. Plaintiffs appeal as a matter of right._

On appeal from a directed verdict, the question is, considering the evidence in a light favorable to the plaintiff, is a prima facie case of liability established.

Our review indicates that it is not; consequently, we affirm the trial court’s direction of a verdict for defendant.

In this malpractice suit, the general standard of care imposed upon defendant general surgeon relates to what a reasonably prudent general surgeon would do or would not do under the same or similar circumstances. Malpractice means the failure to do something which a reasonably careful general surgeon would do or the doing of something a reasonably careful general surgeon would not do under the same or similar circumstances.

Subject to certain exceptions, which are not relevant here, expert testimony from those learned in the medical profession is required to establish the standard of professional practice in the community and to determine whether it has been breached. In Roberts v Young, the Supreme Court applied this general rule to require expert testimony on the questions of whether and what a physician should advise a patient with respect to possible postoperative results.

The issue here is slightly different. Plaintiffs’ claims are not of a failure to point out possible risks and results of surgery; rather, they are that defendant failed to inform of and to prescribe forms of possible postoperative treatment for cancer and, specifically, radiation (cobalt) therapy and chemotherapy. Thus, this is not the usual "informed consent” issue.

Plaintiffs attempted to prove their case by the testimony of defendant and three other doctors; Dr. Martinius L. Lexmond, a board qualified general surgeon and general practitioner engaged in family medicine in Ishpeming, Dr. Juan del Regato, a professor of radiology at the University of South Florida, and Dr. Wilson G. Newell, a radiologist at Bell Hospital in Ishpeming.

Reviewing their testimony, we do not find sufficient evidence that the standard of care applicable to defendant required him to prescribe radiation therapy or chemotherapy as postoperative care for plaintiff Rose Patelczyk. Whether we apply a national standard of care for board certified general surgeons, as is now required under Francisco v Parchment, or a local community standard of care for general practitioners who perform surgery, as was previously required under LeBlanc v Lentini, there is insufficient evidence here that defendant violated his duty to perform as a reasonably prudent board certified general surgeon would have performed under the same or similar circumstances. Specifically, we do not find evidence here that there is a standard of care applicable to defendant that would have required him, as part of postoperative mastectomy care after a 1975 mastectomy, to prescribe radiation (cobalt) treatments and/or chemotherapy.

Neither is there evidence here that what defendant did by way of postoperative care, namely, continuing observation, or what defendant did not do in regard to postoperative care constituted a violation of the standard of practice applicable to defendant.

Regarding the content of the expert testimony offered by plaintiffs, defendant doctor was called as a witness by plaintiffs.

Michigan law permits a medical malpractice plaintiff to elicit the required expert medical testimony from the defendant physician. In such instances, the burden of proof remains with the plaintiff. In the instant case, the issue is not whether plaintiffs rightfully employed defendant’s expert testimony to make out a case sufficient for submission to the jury, but whether defendant’s testimony, in fact, established a standard of practice, informing patients of available, postoperative treatment, and that what defendant did, or did not do, was contrary to that standard of practice. In evaluating defendant’s testimony for purposes of measuring the correctness of the directed verdict, this Court must read it in the light most favorable to plaintiffs. Dr. Olson testified with regard to his own practice in informing cancer patients of postoperative treatment alternatives:

"(By Mr. Collins, [plaintiffs’ attorney] continuing): What is your practice, doctor, with regard to consulting with your patients after the surgery.

"A [Dr. Olson]: They are informed of the findings of the surgery.

"Q Do you discuss with them follow-up treatment?

"A Yes. They are told that — what was involved with the surgery, what was done, what was found. When the final pathology report comes back, what the findings of the pathologist were and then if there is further treatment indicated, and sometimes there’s more than one route to go, the options are discussed with the patient.

"Q What are the options for a post-cancer or a post-mastectomy?

"A The options, of course, for the treatment to begin with is — surgery is the basis of the treatment. Then following that, there is a wide difference of opinion as to what should be done next, whether no treatment is done, whether radiation therapy is given, whether chemotherapy is given, or a combination of the two are given, and—

"Q Doctor, in your practice, do you tell the patient, give the patient — is it your practice to tell them what these alternatives are?

"A Yes.

"Q You tell them how available these alternatives might be?

"A Yes.

"Q Now, you tell them that there is radiation treatment available?

"A Yes.”

He did not intimate that this was the customary-practice of skilled medical practitioners either in his community or similar communities. When asked whether it was the practice to follow-up with radiation therapy or chemotherapy in this area, he answered, "it depends on who you talk to”. Obviously, Dr. Olson believes the better and significant medical opinion did not advocate the general use of radiation therapy or chemotherapy after a mastectomy. However, even assuming that his testimony established the standard of practice followed by a general surgeon. in informing his patient of postoperative alternatives, there is no indication in defendant’s testimony that he violated the standard of care.

Compare this situation to that in McPhee v Bay City Samaritan Hospital, where the defendant physician stated at trial that he had performed over 100 thyroidectomies, and that in performing such an operation, the laryngeal nerve should be avoided, and to Mitz v Stern, where the defendant physician testified that it is not customary practice to' come into contact with the sphincter muscles when performing a transurethral resection.

We find that although Dr. Olson stated he is a board certified general surgeon, his testimony did not include factual information by way of foundation to show that he, in fact, knew what the applicable general standard of care was. Although Dr. Olson stated what was customarily done in his own practice, he did not assert it to be the applicable standard, nor did he state what would constitute an impermissible deviation from any applicable standard. Consequently, we do not find the testimony of Dr. Olson establishing a prima facie case for submission to a jury.

Second, we consider plaintiffs’ claim that the testimony of Dr. Lexmond established the standard of care applicable to defendant in providing postoperative treatment after a mastectomy.

Prior to trial, the trial court granted a motion to strike the testimony of Dr. Lexmond as contained in his videotape deposition. The trial court possesses discretion to admit or exclude expert testimony, and, on appeal, the trial court’s decision will not be disturbed by this Court unless it is clearly erroneous.

Dr. Lexmond expressed a preference for use of radiation treatment in his own practice, but he said that, except where a patient is not "rational”, the decision whether to use radiation therapy or chemotherapy is for the patient. However, he declined to say that the use of radiation therapy and/or chemotherapy are the only acceptable treatments. Also, he said he did not think it was malpractice not to recommend radiation treatment or chemotherapy.

We do not find that the trial court’s refusal to admit Dr. Lexmond’s testimony was clearly erroneous. His videotape deposition did not establish a jury-submissible case of malpractice.

Third, we consider the videotape deposition of Dr. del Regato, which was admitted into evidence. At the time of the deposition in 1978, Dr. del Regato was a professor of radiology at the University of South Florida and was a specialist in therapeutic radiology. The record does not indicate whether or not he is board certified.

The following colloquy took place between plaintiffs’ and defendant’s counsel at the deposition:

"Q [Mr. Collins, plaintiffs' counsel]: Doctor, I have given you copies of hospital records and doctors reports of Rose Patelczyk.

"A [Dr. del Regato]: Yes.

"Q Have you had a chance to evaluate these things?

"A I have spent several hours going over the records of the various admissions and the correspondence involved in the case of Mrs. Patelczyk and I have made a summary of the positive findings that you have in front of you.

"Q Doctor, had you been consulted by Mrs. Patelczyk, what kind of treatment would you have recommended?

"MR. MCDONALD: I think, Mr. Collins, I am now going to enter an objection to the further testimony of Dr. del Regato unless he is qualified in a manner which meets the requirements of this case. In other words, is he being asked to render an opinion as to the standard of care for a general practitioner or a surgeon in Munising, Michigan or a similar community at the time of the treatment by Dr. Olson. Is that what he is asked to do?

"MR. COLLINS: I have asked Dr. del Regato what he would have done under these circumstances. I have not asked him if, in the sense that he was a doctor in Munising, Michigan, as a general practitioner.

"MR. MCDONALD: I will enter an objection on the record here on the basis of irrelevancy — as I am sure you are aware, you can answer. Do you intend, may I ask at this time, do you intend to qualify Dr. del Regato to render an opinion on the standard of care?

"MR. COLLINS: No, I am not going to ask Dr. del Regato to render an opinion on what the standard of care is in Munising, Michigan. Dr. del Regato is one of the foremost authorities in cancer in the country and I am consulting with and we are taking his testimony to determine cancer treatment and what cancer is about. We will find some other witnesses as to what .the standard of care should be in the Upper Peninsula.”

Unfortunately, both counsel were proceeding under the assumption that the applicable standard of care was that of a reasonably prudent general practitioner in Munising, Michigan, at that time. Consequently, while Dr. del Regato expressed his preference for radiation therapy for plaintiff, Rose Patelczyk, he does not say that a postoperative course of observing and watching for possible recurrence of cancer cells is an improper procedure or a breach of the accepted standard of care.

We find that Dr. del Regato’s testimony establishes neither a standard of care applicable to defendant nor any violation by defendant of his professional duty. The trial court was not clearly erroneous in its evaluation of Dr. del Regato’s testimony.

Fourth, we consider the testimony of Dr. Newell, who is a specialist in radiology in Ishpeming. He accepts patients on a referral basis and performs no surgery. This experience has familiarized him with what general surgeon — general practitioners do, so that it can be said he knows the standard of care in Ishpeming, a generally similar community to Munising.

Taking his testimony in a light most favorable to plaintiffs, Dr. Newell at no time stated that it-was standard procedure for physicians and surgeons, in the exercise of ordinary care, to provide postoperative radiation treatment or chemotherapy, or that Dr. Olson’s failure to do so was malpractice.

The trial court was not clearly erroneous in determining that Dr. Newell’s testimony was insufficient as a basis for submission of plaintiffs’ case to the jury.

Thus, taking the experts’ testimony offered by plaintiffs in a light most favorable to plaintiffs, either separately or altogether in concert, plaintiffs fail to establish a prima facie case of liability.

We recognize that there is a conflict in the testimony of plaintiffs and of defendant as to their conversations respecting postoperative treatment. Since plaintiffs have established neither the standard of care required of defendant nor a breach of the applicable standard of care by competent medical testimony, the credibility issue between the parties is not relevant on appeal. Even if we assume plaintiffs’ testimony to be true, a jury-submissible issue of malpractice is not established here.

We also recognize that this case was tried on the assumption that the acceptable standard of care required of defendant was a local or community standard, rather than a national standard. We note that this assumption appeared to find support in LeBlanc v Lentini, supra, but, under Francisco v Parchment, supra, no longer prevails.

Our conclusion that plaintiffs have failed to establish a prima facie case for jury submission applies under either the national standard of Francisco v Parchment, or the local community standard of LeBlanc v Lentini.

Affirmed, with costs.

       Plaintiff, Rose Patelczyk, is now deceased.

         Blanchard v Monical Machinery Co, 84 Mich App 279, 282; 269 NW2d 564 (1978), Zanzon v Whittaker, 310 Mich 340; 17 NW2d 206 (1945).

         Lince vMonson, 363 Mich 135; 108 NW2d 845 (1961).

       369 Mich 133; 119 NW2d 627 (1963).

       407 Mich 325; 285 NW2d 39 (1979).

       82 Mich App 5, 10; 266 NW2d 643 (1978).

        Mitz v Stern, 27 Mich App 459; 183 NW2d 608 (1970), Giacobazzi v Fetzer, 6 Mich App 308; 149 NW2d 222 (1967), McPhee v Bay City Samaritan Hospital, 10 Mich App 567; 159 NW2d 880 (1968), Delahunt v Fenton, 244 Mich 226, 230; 221 NW 168 (1928).

        Mitz v Stern, supra, 464-465.

       See Marchlewicz v Stanton, 50 Mich App 344, 347-348; 213 NW2d 317 (1973).

        McPhee v Bay City Samaritan Hospital, supra.

        Mitz v Stern, supra.

        Johnson v Detroit, 79 Mich App 295; 261 NW2d 295 (1977), Coger v Mackinaw Products Co, 48 Mich App 113; 210 NW2d 124 (1973).


author: D. F. Walsh, J.

text:
    PEOPLE v MacMILLAN
    Docket No. 78-3625.
    Submitted December 6, 1979, at Detroit.
    Decided February 5, 1980.
    Leave to appeal applied for.
    Defendant, Vincent MacMillan, was convicted of carrying a dangerous weapon with unlawful intent and felony-firearm in the Wayne Circuit Court, Joseph B. Sullivan, J. Defendant appeals, alleging double jeopardy and error in the admission of evidence of a prior bad act. Held:

    1. Conviction of both carrying a dangerous weapon with unlawful intent and felony-firearm for a single incident does not violate the constitutional protection against double jeopardy.
    2. Evidence of a defendant’s prior bad act is inadmissible unless it satisfies the following requirements: (1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced, (2) there must be some special circumstances of the prior bad act which tend to prove that the facts or circumstances of the other bad act are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense, (3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense, and (4) the matter which they tend to prove is disputed by the defendant in opening statement, by cross-examination of prosecution witnesses or by his presenting affirmative evidence on them. Evidence of a prior bad act which meets the criteria for admission is not rendered inadmissible by the fact that the defendant was found not guilty by reason of insanity of the act in an earlier criminal trial.
    Affirmed.
    1. Criminal Law — Felony-Firearm — Double Jeopardy.
    Conviction of both carrying a dangerous weapon with unlawful intent and felony-firearm for a single incident does not violate the constitutional protection against double jeopardy.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 182 et seq.

    [2, 3] 29 Am Jur 2d, Evidence §§ 320-333.
    30 Am Jur 2d, Evidence § 1175.

      2. Criminal Law — Evidence — Prior Bad Acts — Admissibility Requirements.
    Evidence of a defendant’s prior bad act is inadmissible unless it satisfies the following requirements: (1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced, (2) there must be some special circumstances of the prior bad act which tend to prove that the facts or circumstances of the other bad act are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense, (3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense, and (4) the matter which they tend to prove is disputed by the defendant in opening argument, by cross-examination of prosecution witnesses or by his presenting affirmative evidence on them.
    3. Criminal Law — Evidence — Prior Bad Acts — Admissibility — Acquittal.
    Evidence of a prior bad act which meets the criteria for admission is not rendered inadmissible by the fact that the defendant was found not guilty by reason of insanity of the act in an earlier criminal trial.

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

      Arthur J. Tarnow, for defendant on appeal.
    Before: Mackenzie, P.J., and V. J. Brennan and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendant, Vincent MacMillan, was convicted by a jury of carrying a dangerous weapon with unlawful intent (Count I), MCL 750.226; MSA 28.423, and felony-firearm (Count ID, MCL 750.227b; MSA 28.424(2). He was sentenced to a prison term of two to five years on Count I and to the mandatory two-year term on Count II.

Defendant challenges his separate convictions on double jeopardy grounds. In Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), reh den 406 Mich 1127 (1979), the Supreme Court upheld the felony-firearm statute, finding no violation of double jeopardy protections in separate convictions and consecutive sentence for both a "proper” felony and felony-firearm. In particular, the Court found no double jeopardy violation in separate convictions and cumulative punishment for (1) armed robbery and felony-firearm, or (2) second-degree murder and felony-firearm. Id., 396-398. With regard to separate convictions of armed robbery and felony-firearm, for example, the Court noted that proof of possession of a firearm is "not necessary to secure a conviction for armed robbery (any 'dangerous weapon’ or 'article’ used or fashioned so as to lead the victim to believe it is a dangerous weapon will satisfy the 'armed’ requirement of the armed robbery statute)”. Id., 398. MCL 750.529; MSA 28.797.

In this case defendant was charged with and convicted of violation of the following statute:

"Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over three [3] inches in length, or any other dangerous or deadly weapon or instrument, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than five [5] years or by a fine of not more than two thousand five hundred [2,500] dollars.” MCL 750.226, supra.

In our view, the Supreme Court’s analysis of separate convictions of armed robbery and felony-firearm is fully applicable to the instant defendant’s situation. The Supreme Court repeatedly emphasized that focus must be solely on the "legal” or "statutory” elements of the respective offenses, rather than on the particular factual occurrence giving rise to the charges. 406 Mich 374, 395-396. See Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), Harris v United States, 359 US 19, 79 S Ct 560; 3 L Ed 2d 597 (1959), Iannelli v United States, 420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975).

Looking only to the "statutory” elements of the offenses involved in this case, the rule applied by the Supreme Court is satisfied. In order to convict defendant of felony-firearm, the prosecution was legally required to prove that defendant carried or possessed a firearm and that the firearm was carried or possessed during the commission of any felony or attempted felony. Wayne County Prosecutor, supra, 397-398. Conviction of Count I, on the other hand, required proof (1) that defendant was armed with a dangerous or deadly weapon or instrument, (2) that at the time he was so armed he intended to use the weapon, and (3) that he intended to use the weapon unlawfully against the person of another. MCL 750.226.

In denying defendant’s motion to dismiss the felony-firearm charge, the trial court correctly noted that the felony involved in this case does not necessarily involve the carrying of a firearm:

"Now, in this particular case, we have a sort of situation where the original charge under the statute is carrying a dangerous weapon with unlawful intent.

"The second count is possession of a firearm in the commission of a felony. A dangerous weapon may mean things as stated in the statute itself or pardon me, in the instruction. Various types of weapons are listed as falling within the purview of the statute.

"Pistol, firearm, dagger, razor, stiletto, knife having a blade over three inches, dangerous or deadly weapon or instrument and so it is more than just a firearm.

"That is the distinction here that I rely on and that is the difference. The legislature has decided that if people are going to go out and commit a crime that there is going to be an extra penalty imposed if the dangerous weapon selected is a firearm. If one in the commission of a crime decides to use some other type of weapon, then that statute does not apply.

"So, the element that is added here, is the fact that the dangerous weapon is a firearm * * *.

"Different policies have come into play when one uses or possess [sic] a certain deadly weapon during a crime instead of a less dangerous weapon. The certain deadly weapon that puts it into the category of the second offense is this gun.

"Therefore, we do have a different element in law here and the motion of the defendant is therefore denied.”

On the authority of Wayne County Prosecutor, supra, therefore, we reject defendant’s double jeopardy challenge to his separate convictions of carrying a dangerous weapon with unlawful intent and felony-firearm.

Defendant raises one evidentiary issue, challenging the trial court’s ruling that evidence of a prior act of defendant was admissible. Examination of the record and consideration of the arguments of counsel reveal no error. The requirements set forth in People v Wilkins, 82 Mich App 260, 267-268; 266 NW2d 781 (1978), lv den 406 Mich 857 (1979), were satisfied: (1) There was substantial evidence that defendant perpetrated the prior act. (2) The circumstances surrounding the prior act were probative of defendant’s intent to use the weapon in this case unlawfully against the person of another. There was substantial similarity between the prior act and the offense charged in Count I. The incidents of each occurred in the same location, involved the same woman, were apparently instigated by defendant’s discovery of romantic involvement between the woman and another man, and involved a firearm. (3) Defendant’s intent was highly material. The defense was based, at least in part, on defendant’s alleged lack of intent to use the weapon against the person of another.

In our view the record is sufficient to indicate that the trial court recognized and exercised its discretion in ruling on the admissibility of evidence of defendant’s prior act. People v Wilkins, supra, 270-271, People v Golochowicz, 89 Mich App 57; 279 NW2d 576 (1979). We find no abuse in the exercise of that discretionary authority.

In related arguments, defendant suggests that the fact that he was found not guilty by reason of insanity of the prior act rendered the evidence inadmissible and that admission of the evidence violated double jeopardy principles. In People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), evidence of two rapes of which the defendant had been acquitted was introduced to show the defendant’s scheme, plan or system. As noted by the Supreme Court, the prior act evidence was not introduced to prove prior criminal conduct. Id., 491, 499. So too in the instant case, the prior act evidence was not introduced to prove criminal intent in connection with the prior act. Rather, admission was based on the materiality of defendant’s intent at the time of the instant offense and the special circumstances rendering evidence of the prior act probative of that intent. The "integrity” of defendant’s prior acquittal has not been disturbed. Id., 499. Probative evidence is not inadmissible simply because it was offered once before in a criminal proceeding, dealing with an entirely separate event, which resulted in an acquittal. Id., 497.

Defendant’s attempt to distinguish People v Oliphant, supra, is based on his erroneous perception that the prosecution in this case was attempting to prove intent to commit this offense by showing criminal intent at the time of the prior act. Such an attempt would, of course, be improper. See People v Wilkins, supra, 267. In our view this was not the purpose for which the prosecution sought admission of this evidence.

Finding no error in defendant’s separate convictions for carrying a dangerous weapon with unlawful intent and felony-firearm or in admission of the challenged evidence, we affirm defendant’s convictions.

       The Court identified the legislative intent underlying enactment of the felony-firearm statute:
      "The Legislature has clearly expressed its judgment that carrying a firearm during any felony which may, but need not necessarily, involve the carrying of a firearm, entails a distinct social harm inimical to the public health, safety and welfare which deserves separate treatment. In order to deter the use of guns, the Legislature has chosen to create a separate crime.” Id., 391.

       In support of its ruling, the trial court relied on Kowalski v Parratt, 533 F2d 1071 (CA 8, 1976), cert den 429 US 844; 97 S Ct 125; 50 L Ed 2d 115 (1976). The Kowalski decision was cited with approval in Wayne County Prosecutor, supra, 398.


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

text:
    APPLEGATE v PALLADIUM PUBLISHING COMPANY
    Docket No. 78-4144.
    Submitted June 12, 1979, at Grand Rapids.
    Decided February 5, 1980.
    Leave to appeal applied for.
    In the spring of 1975, Palladium Publishing Company negotiated a contract with the Twin Cities Typographical Union, Local 762, which provided that the union would be the exclusive bargaining agent of certain employees, increased the amount of pension benefits payable to covered employees under the company funded pension plan, and provided for mandatory retirement of all persons who were 65 years or older. Paul F. Applegate, an employee subject to that collective bargaining agreement, was over 65 years of age and, accordingly, was advised by the union representative that he would have to retire. Applegate retired without protest and thereafter received monthly pension benefits from Palladium, in addition to monthly social security retirement benefits. Applegate thereafter registered with the Michigan Employment Security Commission office as being available for work and sought unemployment compensation benefits. The commission determined that Applegate was entitled to unemployment compensation benefits. On redetermination, it was held that Applegate was not disqualified from benefits on the basis of the statutory voluntary termination of employment provision, however, his benefits were reduced to reflect his receipt of retirement benefits, as mandated by statute. The redetermination was affirmed by a referee, whose decision was, in turn, affirmed by the Michigan Employment Security Appeal Board.
    Palladium sought review of the appeal board’s decision in circuit court. The Berrien Circuit Court, Chester J. Byrns, J., reversed the appeal board’s decision and held that Applegate was ineligible for benefits on the basis that Applegate had voluntarily left work within the meaning of the Michigan Employment Security Act, and, accordingly, he must serve 13 requalifying weeks and must have 13 weeks of benefits deducted from his maximum benefit entitlement. The Employment Security Commission, a part in the proceedings in circuit court, appeals as of right. Held:

      References for Points in Headnotes
    [1-3] 76 Am Jur 2d, Unemployment Compensation § 60.
    Unemployment compensation: eligibility of employee laid off according to employer’s mandatory retirement plan. 50 ALR3d 880.
    Eligibility for unemployment compensation of employee who retires voluntarily. 88 ALR3d 274.

      1. A person who is required to retire from his employment because of a mandatory retirement provision contained in the collective bargaining agreement negotiated by the labor union of which that person is a member is deemed to have voluntarily terminated his employment within the meaning of the Michigan Employment Security Act. The voluntary termination of employment by such an individual renders that person disqualified from unemployment compensation benefits under the provisions of the act.
    2. A mandatory retirement provision of the collective bargaining agreement is not an agreement to waive, release or commute benefit rights under the Michigan Employment Security Act and, thus, is not rendered void and invalid by the act.
    3. The disqualification from unemployment benefits by persons who retire is limited to those persons who retire as a result of a mandatory retirement provision contained in a collective bargaining agreement negotiated by the labor union of which they are members. The statutory provision which reduces unemployment compensation benefits by reason of receipt of retirement benefits clearly evidences an intent that retired persons under other circumstances are not disqualified from unemployment compensation benefits.
    Affirmed.
    1. Unemployment Compensation — Voluntary Termination of Employment — Mandatory Retirement —• Collective Bargaining Agreement —• Disqualification from Benefits — Statutes.
    A person who is required to retire from his employment because of a mandatory retirement provision contained in the collective bargaining agreement negotiated by the labor union of which said person is a member is deemed to have voluntarily terminated his employment within the meaning of the Michigan Employment Security Act and, accordingly, is subject to the provision of the act which disqualifies from benefits persons who voluntarily terminate employment (MCL 421.29[l][a], [3], [4]; MSA 17.531[l][a], [3], [4]).
    2. Unemployment Compensation — Agreement to Voluntarily Terminate Employment — Validity — Statutes.
    An agreement to voluntarily terminate employment, which thereby disqualifies a person so terminating employment from unemployment compensation benefits, is not an agreement by an individual to waive, release or commute benefits of rights under the Michigan Employment Security Act such that the agreement is statutorily void and invalid (MCL 421.31; MSA 17.533).
    3. Unemployment Compensation — Disqualification from Benefits — Voluntary Termination of Employment — Limitation of Disqualification — Statutes.
    Disqualification from receiving unemployment benefits by persons who retire is limited to those persons who are deemed to have voluntarily terminated their employment as a result of a mandatory retirement provision contained in the collective bargaining agreement governing their employment status, the statutory provision which reduces unemployment compensation benefits by reason of retirement benefits clearly evidencing that retired persons under other circumstances may not be disqualified from unemployment compensation benefits (MCL 421.27[f]; MSA 17.529[f]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and E. J. Setlock, Assistant Attorney General, for Michigan Employment Security Commission.

      Spelman, Tuglia, Meek, Lagoni, Burdick & Sauer, for defendant.
    Amicus curiae: Kleiner & DeYoung (by Michael L, Fayette) and John A. Fillion, General Counsel, and Jordan Rossen and M. Jay Whitman, Associate General Counsel, for the International Union.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E, F. Oppliger, JJ,

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

   D. F, Walsh, P.J,

The Michigan Employment Security Commission (hereinafter called the MESC) appeals the order of the Berrien County Circuit Court reversing a decision of the Michigan Employment Security Appeal Board. The appeal board’s decision affirmed a determination that Paul F. Applegate (hereinafter called the plaintiff), former employee of defendant Palladium Publishing Company, was entitled to unemployment compensation benefits under the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq.

Palladium Publishing Company is a union shop. In the spring of 1975 the company and its employees’ representative, Twin Cities Typographical Union, Local 762, negotiated a three-year contract-commencing June 1, 1975, and ending May 31, 1978. The contract provided that the union was the exclusive bargaining representative of certain employees, including plaintiff. The contract raised the amount of pension benefits payable to covered employees. The pension plan is totally funded by the employer. In addition, the contract contained the following provision for mandatory retirement:

"The union agrees that an employee in the composing room or photoengraving department who reaches the age of 65 shall retire on the first of the month following the day he reached 65. Employees who are 65 or older as of May 31, 1975, must retire within 90 days after May 31, 1975.”

Plaintiff was employed by Palladium as a compositor from August 20, 1944, until August 29, 1975. At the time of execution of the 1975 contract, plaintiff was over 65 years old. He was advised by the union representative that he would have to retire within 90 days of the effective date of the contract. Since his August 29, 1975, retirement, plaintiff has received monthly pension benefits from Palladium and monthly social security retirement benefits.

Plaintiff did not protest his mandatory retirement. He registered with the local MESC office as being available for work. On September 10, 1975, he applied for unemployment compensation benefits. A determination was made by the commission on October 10, 1975, awarding benefits to him. On November 3, 1975, a redetermination was issued which held that plaintiff was not disqualified for benefits under MCL 421.29(l)(a); MSA 17.531(l)(a) hereinafter referred to as § 29(l)(a). That subséction provides: "An individual shall be disqualified for benefits in all cases in which he: (a) has left work voluntarily without good cause attributable to the employer or employing unit.” It was ruled that plaintiff was entitled to benefits for 26 weeks at $97 per week: The weekly rate was reduced to $75 to reflect plaintiff’s receipt of retirement benefits. MCL 421.27(f); MSA 17.529(f). The redetermination was affirmed by a referee on May 14, 1976. Palladium appealed to the Employment Security Appeal Board, which affirmed the referee’s decision.

Palladium appealed the appeal board’s decision. The circuit court reversed, finding that plaintiff was ineligible for benefits under § 29(l)(a). The court found that plaintiff had left work voluntarily in accordance with the contract negotiated on his behalf by the union. Under the circuit court’s ruling, plaintiff must serve 13 requalifying weeks and 13 weeks of benefits will be deducted from his maximum benefit entitlement. MCL 421.29(3), (4); MSA 17.531(3), (4).

The issue presented is one of first impression in Michigan. Does a union member employee who is compelled to retire under the terms of a collective bargaining agreement reached between his union and his employer leave his job "voluntarily without good cause attributable to the employer” so that he is disqualified for unemployment compensation benefits under § 29(l)(a) of the employment security act?

There is currently a split of authority concerning proper resolution of this issue. See Anno: Unemployment Compensation: Eligibility of Employee Laid Off According to Employer’s Mandatory Retirement Plan, 50 ALR3d 880, § 3(a), p 886, § 4(a), p 895; 1 B CCH Unemployment Ins Rep, ¶¶ 1975.340, 1975.3404, p 4493-29; 76 Am Jur 2d, Unemployment Compensation, § 60, p 959.

The leading case following the view that persons retired pursuant to mandatory provisions in collective bargaining agreements are eligible for unem-. ployment compensation benefits is Campbell Soup Co v Board of Review, 13 NJ 431; 100 A2d 287 (1953). The New Jersey Supreme Court held in that case that the claimants had left work involuntarily. The court found unimportant the fact that the claimants, through their agent, the union, had voluntarily subscribed to the collective bargaining agreement. The court noted that each of the claimants had resisted termination and had left against his will. Using a subjective approach the court found the test to be whether the individual employee wanted to continue working.

The contrary and, we think, better reasoned approach was taken by the Supreme Court of Minnesota in Bergseth v Zinsmaster Baking Co, 252 Minn 63; 89 NW2d 172 (1958). There the court found that, by being a member of the union, the employees had ratified or joined in the decisions of the union and were bound by those decisions. "Any other result would destroy the principles of collective bargaining and render union-management contracts meaningless.” 252 Minn at 70; 89 NW2d at 177.

We find unacceptable and unworkable the "subjective” approach of the Campbell court. See 50 ALR3d at 883. Instead, we adopt the analysis of the Bergsetb case and affirm the circuit court’s ruling that plaintiff is disqualified for unemployment benefits due to his "voluntary” termination of employment. Action taken by employees under a contract negotiated for them by their authorized agent must be considered their voluntary acts. In effect, plaintiff agreed to terminate his employment voluntarily pursuant to the collective bargaining agreement. As observed by the Ohio court in Marcum v Ohio Match Co, 4 Ohio App 2d 95, 98; 212 NE2d 425, 427 (1965), plaintiff, "through his agent, entered into this contract. He chose to accept its benefits including the pension. He must also abide by the duties called for by such agreement.”

The MESC argues that, if the collective bargaining agreement is considered a binding agreement by plaintiff to voluntarily terminate his employment with Palladium at retirement age, the agreement is void as contrary to MCL 421.31; MSA 17.533, which provides in pertinent part:

"No agreement by an individual to wave [sic], release, or commute his rights to benefits or any other rights under this act from an employer shall be valid.”

Several courts have rejected similar arguments. In Bergseth, supra, for example, the court found that the agreement did not waive benefits to which the employees would otherwise have been entitled. "Rather it is an agreement for the voluntary termination of employment and is, therefore, not prohibited.” 252 Minn at 72; 89 NW2d at 178. See also Richardson v Maine Employment Security Comm, 229 A2d 326, 331 (Me, 1967): "For a right to be waived, released or commuted the right must first exist, though inchoately. There is no right in the mandatory retiree under the facts before us to unemployment benefits upon which this statute can operate.”

. Under MCL 421.27(f) unemployment compensation benefits must be reduced by certain retirement benefits. In light of this provision we must stress the limited scope of our holding. It is not our opinion that persons who retire are disqualified from receiving unemployment compensation benefits. On the contrary, our decision is limited to those persons whose contractual mandatory retirement is the cause of their unemployed status. As noted by the Ohio court:

"The reference to the reduction of benefits in the event retirement pay is received does not create a right to receive such benefits. However, if a new job is obtained, and a sufficient length of service is performed, then benefits may be paid in the event of a subsequent lay-off.” Marcum v Ohio Match Co, supra, 4 Ohio App 2d at 98; 212 NE2d at 427.

Because we find that plaintiff voluntarily left his work without good cause attributable to his employer, we affirm reversal of the decision of the Employment Security Appeal Board.

No costs, a public question.

       Our holding is not in conflict with those cases in which the Michigan. Supreme Court has rejected, for unemployment benefits purposes, the doctrine of "constructive voluntary leaving”. Those cases did not involve persons leaving employment pursuant to the provisions of union-employer contracts. Rather, they dealt with employees who took risks which they need not have assumed would result in job loss. Thomas v Employment Security Comm, 356 Mich 665; 97 NW2d 784 (1959) [employee arrested for driving without a license while en route to his job], Wickey v Employment Security Comm, 369 Mich 487; 120 NW2d 181 (1963) [employee seaman missed his ship], Jenkins v Employment Security Comm, 364 Mich 379; 110 NW2d 899 (1961) [disciplinary discharge].

       Our holding finds support in the Supreme Court’s discussion in I M Dach Underwear Co v Employment Security Comm, 347 Mich 465; 80 NW2d 193 (1956). In that case the issue was unemployment benefit eligibility for employees unpaid during a plant shutdown for vacations. The collective bargaining agreement between the employees’ union and the employer required that vacations be taken during an annual shutdown. In affirming denial of benefits, the Court found that the employees were not involuntarily unemployed.
      The Dach result was expressly overruled in Employment Security Comm v Vulcan Forging Co, 375 Mich 374; 134 NW2d 749 (1965). In that case the Court relied on the statutory provision for payment of unemployment compensation benefits to certain employees during vacation periods. MCL 421.48; MSA 17.552. The Vulcan majority did not express disapproval of the Dach majority’s conclusion that the employees had left work voluntarily because their bargaining representative had voluntarily entered into the contract requiring unpaid vacations. The Vulcan Court, however, stated that, even if the employees had left work voluntarily, their unemployment had resulted from a cause attributable to the employer — i.e., the employer’s voluntary execution of the contract requiring the vacations. 375 Mich 380-381.
      We decline to follow the Vulcan dicta concerning the statutory requirement of "without good cause attributable to the employer”. The Court’s discussion was unnecessary to its disposition of the issue there involved. In addition, it is our view that an employee who retires pursuant to a mandatory provision in a collective bargaining agreement is not unemployed by virtue of cause attributable to the employer in the statutory sense. The voluntary termination of employment is "caused” by the collective bargaining agreement, which cannot fairly be considered "attributable to the employer”. Once a contract has been executed its requirements must be viewed as acceptable to all parties to the contract. All parties must be held responsible for the contractual provisions. Those provisions are not "attributable” to either party. In our view, the "without good cause attributable to the employer” requirement is inapplicable to the instant fact situation.

       Plaintiff cites Larson v Employment Security Comm, 2 Mich App 540; 140 NW2d 777 (1966), as authority for the proposition that one who, through his union bargaining representative, enters into a contract to retire at a certain time does not leave work "voluntarily” as that term is .used in MCL 421.29(l)(a); MSA 17.531(l)(a). We believe the Larson decision should be limited to its own facts. In that case this Court found that Larson had executed the redemption agreement which required his resignation from employment because of the "coercive effects of economic pressure” and that "[t]he concept of voluntary termination of employment [was] not compatible with [the] particular facts and circumstances” of that case. See Larson, supra, 546-547. (Emphasis supplied.) To any extent, however, that the holding in Larson is incompatible with our disposition of this case, we decline to follow it.