text:
    BAILEY v GENERAL MOTORS CORPORATION
    Docket No. 77-2011.
    Submitted March 21, 1978, at Detroit.
    Decided May 10, 1978.
    Leave to appeal applied for.
    Oliver Bailey suffered a work-related injury on July 29, 1967. Since that time, he has received compensation benefits on a voluntary basis from his employer, General Motors Corporation, Truck and Coach Division. On August 18, 1975, plaintiff filed a petition with the Workmen’s Compensation Bureau for a hearing to determine his eligibility for compensation for total and permanent disability benefits from General Motors and the Second Injury Fund of the State of Michigan. At a hearing before a referee, the parties agreed that plaintiff was entitled to benefits from both and the only dispute was the extent of the fund’s liability. The hearing referee held that the "one-year back” rule of the Worker’s Disability Compensation Act did not apply and ordered the fund to pay differential benefits to the plaintiff from the date of his injury. The fund appealed to the Workmen’s Compensation Appeal Board which affirmed. The fund appeals by leave granted. Held:

    The statute in effect on the date of the injury governs plaintiff’s entitlement to benefits, therefore, the "one-year back” rule of the Worker’s Disability Compensation Act does not limit the liability of the Second Injury Fund of the State of Michigan to one year prior to the injured employee’s application for differential benefits, since the law in effect on the date of the injury obliged the fund to pay such benefits without application by the injured employee, and there was but a single injury to the employee for which he is seeking compensation which is different in kind from that previously paid. The "one-year back” rule did not apply since the plaintiff was not seeking further compensation for his injury because he had not previously received scheduled benefits for permanent disability. The "one-year back” rule is a defense that can be waived; and it is not a jurisdictional limit on the Workmen’s Compensation Appeal Board’s authority to order benefits.

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation § 89.

       82 Am Jur 2d, Workmen’s Compensation §§ 343, 344.

       82 Am Jur 2d, Workmen’s Compensation §§ 673, 674, 679.
    Doctrine of estoppel or waiver as available to bring within coverage of insurance policy risks not covered by its terms or expressly excluded therefrom. 1 ALR3d 1139.

      Affirmed.
    1. Workmen’s Compensation—Statutes—Effect—Employee’s Injury.
    Statutes in effect on the date of an employee’s injury govern the employee’s entitlement to Workmen’s Compensation benefits.
    2. Workmen’s Compensation—One-Year Back Rule—Second Injury Fund—Liability—Differential Benefits—Application for Benefits—Single Injury—Statutes.
    The "one-year back” rule of the Worker’s Disability Compensation Act does not limit the liability of the Second Injury Fund of the State of Michigan for differential benefits to an injured worker to one year prior to the injured worker’s application for such benefits where the law in effect on the date of the injury obliged the fund to pay such benefits without application by the injured worker, and where the injured worker is not seeking further compensation since there was a single injury for which the worker is seeking compensation different in kind from that previously paid (MCL 418.833[1]; MSA 17.237[833] [1]).
    3. Workmen’s Compensation—One-Year Back Rule—Defenses— Waiver—Jurisdictional Limits—Workmen’s Compensation Appeal Board—Statutes.
    The "one-year back” rule of the Worker’s Disability Compensation Act, which provides that if payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than one year prior to the date of filing of such application, is a defense that can be waived; the rule is not a jurisdictional limit on the Workmen’s Compensation Appeal Board’s authority to order benefits (MCL 418.833[1]; MSA 17.237[833] [1]).

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P. C., for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph M. Binno, Assistant Attorney General, for defendant Second Injury Fund.

      Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   Per Curiam.

The present case involves the application of the so-called "one-year back” rule of the Worker’s Disability Compensation Act. MCL 418.833(1); MSA 17.237(833)(1).

Plaintiff Oliver Bailey suffered a work-related injury on July 29, 1967, which rendered him totally disabled. His employer, General Motors Corporation, paid compensation benefits commencing August 4, 1967. On August 18, 1975, Bailey filed a petition for a hearing to determine his eligibility for compensation for total and permanent disability. The hearing referee’s opinion indicated that the parties agreed that plaintiff was entitled to benefits from both General Motors and from the appellant Second Injury Fund. The only dispute below, and on appeal, is the extent of the fund’s liability.

The hearing referee held that the "one-year back” rule did not apply to the case at bar and ordered the fund to pay differential benefits to Bailey from the date of his injury. The Workmen’s Compensation Appeal Board, in a 5-0 decision, upheld the referee’s order. The fund now appeals by leave granted.

The current "one-year back” rule reads as follows:

"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.” MCL 418.833(1); MSA 17.237(833)(1).

The Workmen’s Compensation Appeal Board held that this rule did not limit the fund’s liability to one year prior to the application (August 18, 1974) for two reasons: (1) plaintiff was not required, under the law on the date of his injury, to apply for differential benefits, and (2) plaintiff was not seeking "further compensation” because he had not previously received scheduled benefits for permanent disability and because his eligibility for differential benefits arose from the same injury that was the basis for his initial benefits.

Although our reséarch reveals that the state of the law concerning the application of the rule is at best confusing, there is support for both aspects of the Workmen’s Compensation Appeal Board’s decision.

At the time of plaintiff’s injury (July, 1967), the governing law on eligibility for differential benefits was MCL 412.9; MSA 17.159, which obligated the fund to pay such benefits "without application” by the employee. The statute was amended by 1968 PA 227, which eliminated the "without application” language. See MCL 418.521; MSA 17.237(521). There is authority for the Workmen’s Compensation Appeal Board’s position that the statute in effect on the date of injury governs plaintiff’s entitlement to benefits. Tarnow v Railway Express Agency, 331 Mich 558; 50 NW2d 318 (1951). In Tarnow, supra, the Supreme Court did not apply the "one-year back” rule to a situation where the injury preceeded the adoption of the rule but the petition for benefits was filed after its enactment.

On firmer ground is the Workmen’s Compensation Appeal Board’s finding that the rule was not applicable since plaintiff was not seeking "further compensation” for his injury. In Morgan v Lloyds Builders Inc, 344 Mich 524; 73 NW2d 880 (1955), the employee suffered an eye injury in 1948 and received compensation benefits for loss of wages. Subsequent developments of the eye injury caused him to lose the sight of that eye in 1951. He filed for benefits for loss of vision in 1953. The compensation commission granted benefits to commence from one year prior to the application.

The Supreme Court reversed the commission’s holding to the extent that it applied the "one-year back” rule (then MCL 413.14; MSA 17.188). The Morgan Court stated:

"In Palchak v Murray Corporation of America, 318 Mich 482 [28 NW2d 295 (1947)] (a case involving facts much like the facts in the instant case), we say at pp 493, 494:
" 'The case at bar does not involve distinct injuries sustained in an accident, but rather 2 results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue of the original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff’s claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the limitations with respect to filing claims, did not apply.’
"We find that the petition entitled, 'application for hearing and adjustment of claim,’ filed by the plaintiff, dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye.” 344 Mich at 528.

In Drake v Norge Division, Borg-Warner Corp, 48 Mich App 88; 210 NW2d 131 (1973), the employee suffered a heart attack in 1953. He was awarded 750 weeks compensation for total disability. At the conclusion of that time period, he petitioned for differential benefits from the Second Injury Fund, alleging total and permanent disability since the 1953 injury. This Court, citing Morgan, supra, held that the "one-year back” rule did not apply:

"Plaintiff in the case at bar is not alleging a second and separate injury sustained at the time of the first injury. There was but a single injury in this case.” 48 Mich App at 95.

We find the Palchak-Morgan-Drake line of cases to control the case at bar. There is no dispute between the parties that plaintiffs claim for permanent disability benefits arises from the injury suffered in 1967. There is but a single injury here, for which plaintiff seeks compensation different in kind from that previously paid. Under the cited authority the "one-year back” rule is not applicable.

In order to avoid this result, defendant relies heavily upon this Court’s decision in Baldwin v Chrysler Corp, 67 Mich App 61; 240 NW2d 266 (1976). In Baldwin it was held that the "one-year back” rule is not a statute of limitations, which can be waived by a failure to timely raise it as a defense, but rather is a statutory limit on the Workmen’s Compensation Appeal Board’s authority to order the payment of benefits. An argument could be made that under the Baldwin holding the Workmen’s Compensation Appeal Board can never order benefits to be paid for any period prior to one year before the fund’s liability is raised, either by an application or a petition for a hearing.

Recently, however, the Michigan Supreme Court has implicitly overruled the Baldwin decision. In Kleinschrodt v General Motors Corp, 402 Mich 381; 263 NW2d 246 (1978), the Supreme Court held that the rule is a defense that can be waived. The Court expressly rejected the theory that the rule is a jurisdictional limit on the Workmen’s Compensation Appeal Board’s authority to order benefits. 402 Mich at 384.

Under Kleinschrodt, supra, the "one-year back” rule is a defense that, if applicable, cuts off the liability of the fund. Our previous discussion has shown the inapplicability of the rule to the present facts. The order of the Workmen’s Compensation Appeal Board upholding the hearing referee’s decision was not error.

Affirmed.

No costs, a public question being involved.

       While the substantive decision in Drake v Norge Division, Borg-Warner Corp, 48 Mich App 88; 210 NW2d 131 (1973), concerning the question of loss of industrial use of the employee’s legs due to a heart attack, was effectively overruled in Triplett v Chrysler Corp, 394 Mich 518; 232 NW2d 168 (1975), the Triplett decision does not affect the Drake Court’s discussion of the "one-year back” rule.


source: Caselaw Access Project

author: Per Curiam. T. M. Burns, P. J.

license: Public Domain

text:
    BROWN v CITY OF DETROIT
    Docket No. 77-2552.
    Submitted January 16, 1978, at Detroit.
    Decided May 10, 1978.
    Leave to appeal applied for.
    Offie Brown presented himself at the Detroit General Hospital for treatment of injuries sustained from a gunshot wound to the head. He was examined and sent home to return at a later date. After at least one more visit to the hospital Mr. Brown filed suit in the Wayne Circuit Court against the hospital and the City of Detroit, alleging medical malpractice in the treatment of his injuries. The trial court, Joseph G. Rashid, J., granted defendant’s motion for accelerated judgment on the basis of governmental immunity and subsequently denied plaintiffs motions for rehearing. Plaintiff appeals. Held:

    The operation of a municipality-owned hospital is a governmental function immune from tort liability.
    Affirmed.
    T. M. Burns, P. J., dissents. He would hold that a community is liable for medical malpractice in operating a community hospital.
    Opinion op the Court
    1. Municipal Corporations—Negligence—Governmental Immunity—Municipality-Owned Hospital—Governmental Function.
    The operation of a municipality-owned hospital is a governmental function and, therefore, the municipality is immune from tort liability in connection with its operation.
    Dissent by T. M. Burns, P. J.
    2. Municipal Corporations—Negligence—Governmental Immunity—Municipality-Owned Hospital—Medical Malpractice —Governmental Function.

      It is not a governmental function subject to immunity from tort

      liability for a municipality-owned hospital, through its employees, to commit medical malpractice.

      References for Points in Headnotes

       40 Am Jur 2d, Hospitals and Asylums §§ 20, 22.
    Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital. 25 ALR2d 203.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Sommers, Schwartz, Silver, Schwartz & Tyler, P. C. (by James S. Goulding), for defendant.
    Before: T. M. Burns, P. J., and M. F. Cavanagh and D. C. Riley, JJ.
   Per Curiam.

The plaintiff contends that the operation of a community owned hospital is not a governmental function which is immune from tort liability. This precise question was recently decided against the plaintiff in White v Detroit, 74 Mich App 545; 254 NW2d 572 (1977).

"While other areas may require us to use our 'creative genius’ to resolve the issue of 'governmental function’, Thomas v Department of State Highways, [398 Mich 1, 11; 247 NW2d 530, 533 (1976)] an unbroken line of Michigan authority holds that operation of a community owned hospital is a governmental function. Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950), Nicholson v Detroit, 129 Mich 246; 88 NW 695 (1902), Knight v City of Tecumseh, [63 Mich App 215; 234 NW2d 457 (1975)], Lockaby v Wayne County, 63 Mich App 185, 190-191; 234 NW2d 444, 446 (1975), Snow v Freeman, [55 Mich App 84; 222 NW2d 43 (1974)]. We are compelled to agree that the treatment of plaintiff by Detroit General Hospital was a governmental function, rendering the City of Detroit immune from liability.” White, supra, at 548.

The trial court’s decision is affirmed. Costs to appellees.

T. M. Burns, P. J.

(dissenting). This is a medical malpractice action which in all respects, save one, is not unlike any other malpractice case we might see. The difference from other cases of this nature is that when plaintiff found himself in need of medical treatment, he made the mistake of seeking it at a hospital owned and operated by the City of Detroit. On that basis, the trial court dismissed the case.

The defendants do not rely on any judicially created, policy based immunity. That has all been abrogated; in the case of charitable institutions, such as hospitals, by Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960), and the case of cities, by Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), and finally, the state and its agencies in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976). Instead, they rely on a statute which provides for immunity "in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function”. MCL 691.1407; MSA 3.996(107).

Plaintiff alleged in his complaint that he presented himself for treatment of gunshot wounds to the head on November 27, 1974, was examined and sent home. He further alleged that he returned on November 29, 1974, with complaints of increased pain to his eyes and nausea. He alleges malpractice in the defendant’s failure to admit him to the hospital, remove the pellets from his head, and otherwise comply with the appropriate standard of care. To say that these allegations require an implication of a governmental function is wrong. White v Detroit, 74 Mich App 545, 548; 254 NW2d 572 (1977) (T. M. Burns, J., dissenting), Duncan v Detroit, 78 Mich App 632, 634-635; 261 NW2d 26 (1977) (T. M. Burns, J., dissenting). There is simply nothing governmental about committing medical malpractice.

The defendants have denied the allegations of the complaint. I would require nothing more than that this case proceed on the merits as if any other defendant were being sued. The judgment of the circuit court should be reversed and the case remanded for further proceedings.

       Leave to appeal in the two cited cases has been held in abeyance pending a decision in Parker v Highland Park, lv gtd, 399 Mich 833 (1977). Until the Supreme Court states convincingly otherwise, I will not find immunity in this type of case.


author: Per Curiam.

text:
    PEOPLE v HOUSEWRIGHT
    Docket No. 77-2762.
    Submitted April 12, 1978, at Lansing.
    Decided May 10, 1978.
    Richard L. Housewright was convicted of possession of stolen mail and was sentenced to three years in the Milan Federal Correctional Institution by a judge of the U. S. District Court. At that time he was free on bond on a charge of larceny over $100 in the Washtenaw Circuit Court, William F. Ager, Jr., J. The Washtenaw County Prosecuting Attorney’s office filed a detainer with the Milan Federal Correctional Institution. Defendant was then convicted on his plea of guilty of larceny over $100. Sentencing was postponed and defendant was returned to the Milan Federal Correctional Institution. Defendant moved to dismiss for having been returned to the Federal authorities prior to sentencing. The prosecutor then filed a second detainer with the Milan Federal Correctional Institution. Defendant’s motion was denied. Defendant was then sentenced to 1-1/2 to 10 years to run concurrently with the Federal sentence. Defendant appeals. Held:

    The statute requiring dismissal of any indictment, information or complaint contemplated by the interstate agreement on detainers in the event trial is not had prior to the prisoner’s being returned to the original place of imprisonment requires only that the guilt determination phase be completed prior to defendant’s return; it does not require that defendant be sentenced prior to return.
    Affirmed.
    Criminal Law—Detainers—Definitions—Trial—Statutes.
    The word "trial” as used in a statute providing for dismissal of any indictment, information or complaint contemplated by the interstate agreement on detainers if trial is not had prior to the prisoner’s being returned to the original place of imprisonment means only the guilt-determination portion of the proceedings and does not include sentencing (MCL 780.601; MSA 4.147[1]).

      References for Points in Headnote
    31 Am Jur 2d, Extradition §§ 18, 72, 73.
    75 Am Jur 2d, Trial § 1.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John J. Hensel, Senior Assistant Prosecuting Attorney, for the people.

      Richard B. Ginsberg, for defendant on appeal.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Per Curiam.

On January 13, 1977, defendant was sentenced to a term of three years in prison at Milan Federal Correctional Institution on a charge of possession of stolen mail. On January 14, 1977, a letter was sent to the clerk of the Washtenaw County Circuit Court advising him of defendant’s sentence and whereabouts. On January 24, 1977, the prosecutor filed a detainer with the Milan Federal Correctional Institution pursuant to Art IV(a) of the interstate detainer act, MCL 780.601; MSA 4.147(1). Trial was scheduled for January 31, 1977, but on that day defendant changed his plea to guilty. Sentencing was set for February 4, 1977, and defendant was returned to the Milan Federal Correctional Institution. The date set for sentencing was adjourned twice at the request of the probation department.

On February 10, 1977, defendant filed a motion to dismiss under Art IV(e) of the Interstate Agreement on Detainers for the reason that he had been returned to Milan Federal Correctional Institution prior to being sentenced. This motion was denied. An amended motion was filed and was also denied. Sentence was passed on March 18, 1977, and defendant received a concurrent sentence of 1-1/2 to 10 years in prison. Defendant appeals as of right.

The issue on appeal is whether the word "trial” in the Interstate Agreement on Detainers includes the imposition of a sentence. This is a case of first impression. Art IV(e) of the agreement reads,

"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

The agreement used the word "trial” and the commissioners in using this word must have intended to convey its normal meaning. Normally, trial involves the determination of guilt and ends with that determination, People v DeVine, 271 Mich 635; 261 NW 101 (1935), 75 Am Jur 2d, Trial, § 3, p 122, 88 CJS, Trial, § 2, p 21, 42A Words & Phrases, Trial, Conclusion, p 171. In connection with the use of the word "trial”, the statute says, "[i]f trial is not had * * * [the] indictment * * * shall not be of any further force or effect”. The function of the indictment is to charge the accused and that function ceases with the determination of guilt.

In Michigan cases, outside of the Interstate Agreement on Detainers, the distinction between trial and sentencing is well established, see People v Funk, 321 Mich 617, 621; 33 NW2d 95 (1948), People v DeVine, supra, MCL 771.1; MSA 28.1131. Also, the goals behind the Interstate Agreement on Detainers supports this interpretation. The main goal of the agreement is to remove the harmful uncertainties concerning the defendant’s release that are caused by the filing of detainers concerning unprosecuted crimes. Although the imposition of a sentence can also create uncertainties as to the prisoner’s future, the main concern of the agreement is with the uncertainty which results from unprosecuted charges. As the Court noted in Buchanan v Department of Corrections, 50 Mich App 1, 3-4; 212 NW2d 745 (1973),

"[t]he evil sought to be ended by the agreement on detainers is the oppressive delay in trial or hearing on matters concerning a prisoner already confined, and the corrosive effect on prisoner morale and the rehabilitative process in general arising from a myriad of untried or unheard allegations of other wrongdoing.” (Emphasis supplied.)

The uncertainty caused by the delay in sentencing is minimal when compared with the uncertainty resulting from untried charges. Therefore, we hold that the word "trial” as used in MCL 780.601; MSA 4.147(1), refers to the determination of defendant’s guilt and that the trial ends with that determination.

In any event, appellant did not suffer any prejudice by being returned to Milan before sentencing. There was no uncertainty as to the sentence in this case. The guilty plea was entered pursuant to a plea-bargain agreement by which defendant was to receive a sentence of 1-1/2 to 10 years in prison. This agreement was carried out and so defendant was already aware of his sentence when he was transferred back to Milan.

Affirmed.


text:
    PEOPLE v ROOD
    Docket No. 77-3013.
    Submitted April 11, 1978, at Lansing.
    Decided May 10, 1978.
    Vernon B. Rood was convicted of breaking and entering a building with intent to commit larceny therein, Midland Circuit Court, David Scott DeWitt, J. Defendant appeals, alleging that the trial court erred in refusing the defendant’s request for an instruction to the jury on the offense of receiving and concealing stolen property as a lesser included offense of the charged offense. Held:

    The offense of receiving and concealing stolen property is not a lesser included offense of the crime of breaking and entering a building with intent to commit larceny therein. Therefore, the trial court acted properly in denying the defendant’s request.
    Affirmed.
    1. Criminal Law—Lesser Offenses—Lesser Included Offenses— Common Elements—Same Class.
    To constitute a lesser included offense the lesser offense and the greater offense must (1) share some common elements and (2) must be of the same class or category.
    2. Criminal Law—Receiving and Concealing Stolen Property— Breaking and Entering—Lesser Included Offenses.
    The offenses of receiving and concealing stolen property and breaking and entering a building with intent to commit larceny therein share no common elements whatsoever and, because the receiving and concealing stolen property statute and the breaking and entering statute have distinct purposes, they are not of the same class or category; therefore, it was proper for a trial court judge to deny a defendant’s request for an instruction on the offense of receiving and concealing stolen property as a lesser included offense to the charge of breaking and entering a building with intent to commit larceny.
    Reference for Points in Headnotes

       75 Am Jur 2d, Trial §§ 876-882.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Doyle A. Rowland, Prosecuting Attorney, and Gerald L. White, Chief Assistant Prosecuting Attorney, for the people.

      Whittaker & King, for defendant on appeal.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Per Curiam.

Defendant appeals as of right his June 17, 1977, jury conviction for breaking, and entering a building with intent to commit larceny therein. MCL 750.110; MSA 28.305. On appeal he raises the sole issue of whether the trial judge committed reversible error in refusing his request for an instruction on the crime of receiving and concealing stolen property.

At trial several witnesses stated that they , purchased certain items from Tim Jurek at defendant’s home. Further, one witness testified that he had purchased an item directly from defendant. The evidence established that these items had previously been stolen from the home of Steve Suhan. Tim Jurek testified that he and defendant had broken into Suhan’s home with the intent to commit larceny therein and that they did in. fact commit larceny.

At the conclusion of the evidence, counsel for the defense requested an instruction concerning receiving and concealing stolen property in excels of $100. MCL 750.535; MSA 28.803. This request was denied by the trial judge who stated that:

"although the evidence would tend to substantiate that he might also be guilty of receiving and concealing, the elements of that particular crime are not necessarily included in the crime charged, that is, breaking and entering.”

In People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975), the Court stated:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate’ or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.”

See also People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978). Thus, to constitute a lesser included offense the lesser offense and the greater offense must 1) share some common elements and 2) must be of the same class or category.

The offenses under examination here fail on both counts. The crimes contain no common elements whatsoever. As pointed out in People v Matuja, 77 Mich App 291, 295; 258 NW2d 79 (1977):

"The elements of the breaking and entering charge in this case are: (1) breaking and entering, (2) with felonious intent, (3) of an occupied dwelling. People v D'Argis, 44 Mich App 186, 188; 205 NW2d 19 (1972). The elements of receiving and concealing stolen property are: (1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen. People v Martinovich, [18 Mich App 253, 257; 170 NW2d 899 (1969)].”

In addition, the two offenses are not of the "same class or category”. Although somewhat vague, this requirement was construed in Matuja, supra, 295, to require that the offenses share a "common statutory purpose”. In People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), the Court extensively examined the purpose of the receiving and concealing statute and concluded:

"It is directed toward those who assist the thief or others in the disposition or concealment of stolen property. The everyday understanding of the language employed excludes the person who committed the larceny.” Kyllonen, supra, 145.

However, the purpose of the breaking and entering statute is to protect "the right to peaceful habitation”. People v Winhoven, 65 Mich App 522, 526; 237 NW2d 540 (1975). Thus, the statutes have distinct purposes. Since the offenses are not of the "same class or category”, the second part of the Ora Jones test was not met. Thus, the instruction was properly denied.

Defendant argues that Paterno v Lyons, 334 US 314; 68 S Ct 1044; 92 L Ed 2d 1409 (1948), mandates a contrary result. That case holds that a defendant charged with the offense of receiving and concealing stolen property has notice that he may have to defend against a charge of attempted larceny. However, Paterno grants a criminal defendant no right to be charged with a particular offense. Rather, it merely holds that under the circumstances of that case, no due process violation occurred.

Affirmed.


text:
    PEOPLE v LINDSEY
    Docket No. 30796.
    Submitted March 7, 1978, at Grand Rapids.
    Decided April 5, 1978.
    Wendell W. Lindsey was convicted of arson in Luce Circuit Court, William F. Hood, J. On appeal, defendant questions the sufficiency of the evidence upon which the jury found him guilty. Held:

      Mere opportunity of a defendant to commit arson is insufficient to support a conviction of arson where there is no evidence that the defendant had a motive to burn and where the evidence demonstrates that others also had opportunity to start the fire.
    Reversed.
    1. Arson—Opportunity—Conviction—Wilful and Malicious.
    Mere opportunity of a defendant to commit arson is insufficient to support a conviction of arson; to obtain a conviction under the statute it is necessary to show that a dwelling house was burned by, or at the urging of, or with the assistance of, the defendant and that the fire was wilfully or maliciously set (MCL 750.72; MSA 28.267).
    2. Arson—Evidence—Opportunity—Motive.
    Mere opportunity to commit arson, unaccompanied by indication of motive, is insufficient evidence to support an arson conviction where it is equally plausible that the fire was started by others who also had an opportunity.
    Reference for Points in Headnotes

       5 Am Jur 2d, Arson and Related Offenses §§ 46, 47, 52.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James P. Hoy, Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Lawrence Baron, Assistant State Appellate Defender, for defendant on appeal.

      Before: M. F. Cavanagh, P. J., and D. E. Holbrook, and Beasley, JJ.
   Per Curiam.

Defendant was convicted by a jury of arson. After sentence, he appeals by right.

On appeal, defendant raises five issues, only one of which has any merit.

Although defendant frames the issue somewhat differently, the real question is: Was there sufficient evidence upon which the jury could find the defendant guilty beyond a reasonable doubt?

Mere opportunity of a defendant to commit arson is insufficient to support a conviction of arson. To obtain a conviction under the statute, it is necessary to show that a dwelling house was burned by, or at the urging of, or with the assistance of, the defendant and that the fire was wilfully or maliciously set.

In the within case, there was expert testimony that the fire was started by human means with the use of an accelerant such as paper. But, from that testimony, an inference that the fire was negligently started by defendant or defendant’s wife or defendant’s friend appears equally as plausible as the prosecution’s inference that the fire was wilfully and maliciously set by the defendant. There was no evidence that defendant had a motive to burn his rented house trailer.

The total evidence offered by the prosecution indicates mere opportunity to commit arson. Unaccompanied by indication of a motive, there is insufficient evidence here to support the guilty verdict.

Reversed.

       MCL 750.72; MSA 28.267.

        People v Smock, 63 Mich App 610; 234 NW2d 728 (1975).

        People v Davis, 34 Mich App 678; 192 NW2d 76 (1971).


text:
    PEOPLE v KONKE
    Docket No. 31151.
    Submitted November 2, 1977, at Detroit.
    Decided April 20, 1978.
    Frank Konke and Anthony Oddo were charged with receiving and concealing stolen property. The Wayne Circuit Court, Irwin H. Burdick, J., granted the defendant’s motion to suppress evidence and ordered tape-recorded evidence of statements made by defendants to an informer suppressed. The people appeal, by leave granted, from this order. Held:

    Although the investigation was undoubtedly aimed at gathering evidence against the defendants, none of the elements of compulsion or coercion which trigger the requirement that Miranda warnings be given were present. Defendants were neither in custody nor in the intimidating atmosphere of a police station and they were not questioned by a figure of authority. Defendants were in a public place, engaged in voluntary conversation with one whom they thought to be a friend, and any incriminating statements were made freely and voluntarily, not under compulsion. The fact that the informer was an agent of the police does not change the fact that the incriminating statements were made freely and voluntarily and not under compulsion.
    Reversed and remanded.
    1. Criminal Law—Constitutional Law—Miranda Warnings—Investigative Focus—Coercive Environment.
    Investigative focus is an inappropriate standard upon which to determine whether a coercive environment has developed for purposes of applying the Miranda principles.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 555-557, 566 et seq.

       29 Am Jur 2d, Evidence §§ 435, 436, 572.
    Admissibility of sound recordings in evidence. 58 ALR2d 1024.
    Admissibility, in criminal prosecution of evidence secured by mechanical or electronic eavesdropping device. 97 ALR2d 1283.
    Admissibility of confession as affected by its inducement through artifice, deception, trickery, or fraud. 99 ALR2d 772.
    Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner. 57 ALR3d 172.
    Obtaining evidence by use of sound recordings or of mechanical or electronic eavesdropping device as violation of Fourth Amendment—Federal cases. 17 L Ed 2d 1008.

      2. Criminal Law—Appeal and Error—Evidence—Tape Recordings —Informers—Search Warrants—Miranda Warnings—Compulsion—Coercion—Investigative Focus.
    Tape-recorded evidence of statements made by defendants to an informer equipped with a recording device pursuant to search warrants were erroneously suppressed, in an action for receiving and concealing stolen property, on the ground that the defendants were not given their Miranda warnings prior to being engaged in the conversation where none of the elements of compulsion or coercion which trigger the requirement that Miranda warnings be given were present, although the investigation had focused on the defendants.
    3. Criminal Law—Miranda Warnings—Compulsion—Coercion— Informers—Tape Recordings—Search Warrants—Incriminating Statements—In-Custody Questioning—Authority Figures—Police Agents.
    The elements of compulsion or coercion which trigger the requirement that Miranda warnings be given a defendant were not present when the defendants, in an action for receiving and concealing stolen property, voluntarily engaged in a conversation in a public place with one whom they thought to be a friend, but who in fact was a police informant equipped with a recording device pursuant to search warrants, where any incriminating statements were made freely and voluntarily, where defendants were neither in custody nor in the intimidating atmosphere of a police station, and where they were not questioned by a figure of authority or confronted by a police officer; the fact that the informant was an agent of the police does not change the fact that the incriminating statements were made freely and voluntarily and not under compulsion.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patrick J. Foley, Director, Wayne County Organized Crime Task Force, and John E. Steele, Assistant Prosecuting Attorney, for the people.

      Lawrence B. Macdonald, for defendant Konke.

      Edward A. Khoury, for defendant Oddo.

      Before: Beasley, P. J., and D. E. Holbrook, Jr., and M. J. Kelly, JJ.
   Per Curiam.

In this case the prosecutor appeals, by leave granted, from a trial court order suppressing tape-recorded evidence of statements made by defendants to an informer, who was equipped with a recording device pursuant to search warrants, as required by People v Beavers, 393 Mich 554; 227 NW2d 511 (1975).

Investigators for the Wayne County Organized Crime Task Force were informed by Norman Giveins and two others that they had in the past committed several burglaries, and had disposed of the stolen goods therefrom by consigning them to defendants for resale. On the basis of this information, the task force obtained two search warrants, one in Wayne County on August 6, 1975, and one in Macomb County on August 19, 1975, authorizing them to place hidden recording devices on Giveins before he met defendants in two named bars, one in Wayne County and one in Macomb. The meetings took place as scheduled, and were recorded. Defendants were subsequently charged on October 28, 1975, in Wayne County with receiving and concealing stolen property.

Defendants moved in Wayne County Circuit Court to suppress the tape-recorded evidence of the conversations between defendants and Giveins (who is now deceased), on grounds that their Fifth Amendment right against compulsory self-incrimination had been violated. The motion was granted and this appeal followed.

Defendants successfully argued below that because the investigation had focused on them, the doctrine of People v Reed, 393 Mich 342; 224 NW2d 867 (1975), required that they be given their Miranda warnings prior to being engaged in conversation by Giveins. We disagree. Although the investigation was undoubtedly aimed at gathering evidence against defendants, there were none of the elements of compulsion or coercion which trigger the requirement that Miranda warnings be given. Defendants were neither in custody nor in the intimidating atmosphere of a police station. Indeed, they were not even confronted by a police officer. This was not a case where a suspect is being questioned by a figure of authority, as was the case in Reed, supra, and indeed in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964), from which the "focus” test arose.

Here, defendants were in a public place, engaged in voluntary conversation with one whom they thought to be a friend. Any incriminating statements were made freely and voluntarily, not under compulsion. That Giveins was in fact an agent of the police does not change this fact. See Hoffa v United States, 385 US 293; 87 S Ct 408; 17 L Ed 2d 374 (1966), Osborn v United States, 385 US 323; 87 S Ct 429; 17 L Ed 2d 394 (1966). Moreover, the clear implication of Beavers, supra, that electronic monitoring is a valid investigative tool, if a warrant is obtained, would be rendered useless if Miranda warnings had to be given each suspect on whom an investigation had focused.

An analogy may be drawn from the United States Supreme Court holding in Beckwith v United States, 425 US 341; 96 S Ct 1612; 48 L Ed 2d 1 (1976), wherein it was held that Miranda warnings were not required where special agents of the Internal Revenue Service interviewed a taxpayer who was clearly the focus of a criminal income tax investigation. We relied on Beckwith and Oregon v Mathiason, 429 US 492; 97 S Ct 711; 50 L Ed 2d 714 (1977), in a recent decision rejecting the focus only test relied on by defendants in the case at bar. People v Martin, 78 Mich App 518; 260 NW2d 869 (1977).

The ruling of the trial court is reversed; and the case is remanded for further proceedings not inconsistent with this opinion.


author: Per Curiam:.

text:
    PEOPLE v CARGILE PEOPLE v DYESS
    Docket Nos. 77-2478, 77-2505.
    Submitted March 20, 1978, at Detroit.
    Decided April 21, 1978.
    Leave to appeal applied for.
    Reuben Cargile and Odell Dyess were convicted of first-degree murder in the Recorder’s Court of the City of Detroit, Dalton A. Roberson, J. Defendants appeal and their appeals were consolidated as each raises the same issues dealing with the jury instructions. Held:

    The trial court’s omission of a jury instruction on a general verdict of not guilty was error but not reversible error under circumstances which indicated the omission was not intentional, the jury was not confused as to their power to acquit the defendants if the prosecution did not prove either the charged or included offense, and the court gave proper instructions on the burden of proof and informed the jury that they should acquit either or both defendants if the burden was not met.
    Affirmed.
    1. Appeal and Error—Jury—Jury Instructions—Criminal Law— Omission—Not Guilty Verdict—Reversible Error—Prejudicial Impact—Intention—Burden op Proof.
    The omission of a jury instruction on a general verdict of not guilty, in a trial for first-degree murder, is error; however, such error is not reversible where the instructions, taken as a whole, sufficiently mitigated the prejudicial impact of the omission, where the omission was not intentional, where a review of the instructions convinces the Court of Appeals that the jury was not confused as to their power to acquit the defendants if the prosecution did not prove either the charged or the included offense, and where the court gave proper instructions on the burden of proof and informed the jury that they should acquit either or both defendants if the burden was not met.
    References for Points in Headnotes

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

       40 Am Jur 2d, Homicide §§ 498, 500.

      2. Homicide—First-Degree Murder—Jury—Jury Instructions— Elements—Malice—Definitions—Case Law.
    A trial judge adequately defined the element of malice in his instructions to the jury in a trial for first-degree murder where the instruction given fully comported with Michigan case law on the definition of malice; the court was not obligated to go further and clarify the meaning of the words used in that definition.

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

      Carl Ziemba, for defendants.
    Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   Per Curiam:.

Defendants Reuben Cargile and Odell Dyess were convicted in a jury trial of first-degree murder, contrary to MCL 750.316; MSA 28.548, and sentenced to life imprisonment. Their appeals have been consolidated as each raises the same issues dealing with the trial court’s jury instructions.

At the close of the instructions, the court reiterated the possible verdicts. He stated that, if the prosecution met its burden of proof on the charged offense, the verdict should be guilty on that charge. If the prosecution did not meet that burden, the judge instructed, defendants should be found not guilty of first-degree murder. The judge concluded by instructing that if the proofs showed all of the elements of the included offense of second-degree murder, but not of first-degree, the verdict should be guilty on that charge. It is undisputed that the court failed to give an instruction on a general verdict of not guilty. A tentative objection was raised as to this omission, but was dropped when the court, without reference to the stenographer’s notes, remarked that he believed that the instruction had been given.

While the omission of a not guilty instruction was certainly erroneous, we do not find it to mandate reversal of the convictions under the circumstances of the present case. To determine-the impact this error had on the jury, we must look at the instructions as a whole. See People v Hodo, 51 Mich App 628; 215 NW2d 733 (1974). Our review of the entirety of the instructions convinces us that the jury was not confused as to their power to acquit defendants if the prosecution did not prove either the charged or the included offense. The court gave proper instructions on the burden of proof and informed the jury that they should acquit either or both defendants if the burden was not met. We find that these instructions sufficiently mitigated the prejudicial impact of the later omission. People v Minter, 39 Mich App 550; 197 NW2d 916 (1972).

In addition, the trial court’s error did not appear to be intentional. The present case is thus distinguishable from cases where this Court has found reversible error in a trial court’s affirmative exclusion of a not guilty verdict. See People v Gillespie, 54 Mich App 419; 221 NW2d 246 (1974), People v Gibbs, 50 Mich App 517; 213 NW2d 586 (1973).

Defendants also contend that the trial court erred in failing to adequately define the element of malice. The instruction given fully comported with Michigan case law on the definition of malice. People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971).

We do not believe that the court was obligated to go further and clarify the meaning of the words used in that definition, especially in the absence of any objection by defendants.

Affirmed.


author: Per Curiam. R. M. Maher, J.

text:
    WASON v WASON
    Docket No. 31193.
    Submitted March 20, 1978, at Detroit.
    Decided May 11, 1978.
    Complaint by Cindy Wason against Robert Wason for divorce. Default judgment of divorce granted with an award of child support to the plaintiff for the parties’ one child. A second child was born to the plaintiff three months after the judgment of divorce was entered, and the plaintiff applied for aid to dependent children assistance. The Allegan County Friend of the Court petitioned for modification of the divorce judgment to include support for the second child. Defendant challenged the standing of the Friend of the Court to bring the petition. The Allegan Circuit Court, James R. Corsiglia, J., found that the petition was properly brought and denied defendant’s motion for summary judgment. Defendant appeals by leave granted. Held:

    A statute permits the Friend of the Court, with or without consent of the mother, to petition a court to modify a judgment of divorce to include a child or children of the parties not included in the divorce judgment after the child or children become subjects of public assistance.
    Affirmed.
    R. M. Maher, J., dissented, writing that the majority opinion creates an unjustifiable distinction among the classes of children of divorced parents because it allows the Friend of the Court to petition for modification of the judgment to include post-judgment children when the judgment contains a provision for support but it would not permit such a petition where the judgment contains no provision for the support of children.
    Opinion of the Court
    1. Divorce—Infants—Child Support—Friend of the Court—Public Assistance—Petition for Modification—Judgment.
    A statute permits the Friend of the Court, with or without consent of the mother, to petition a court to modify a judgment of divorce to include a child or children, who are subjects of public assistance, not included in the divorce judgment (MCL 552.252a; MSA 25.172[1]).

      References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation §§ 742, 846, 850.
    Change in financial condition or needs of parents or children as ground for modification of decree for child support payments. 89 ALR2d 7.

      Dissent by R. M. Maher, J.
    2. Divorce—Infants—Child Support—Modification of Judgment —Friend of Court—Petitions—Unjustifiable Distinctions.

      The Friend of the Court is not granted the power by statute to petition a court for the modiñcation of a divorce judgment to include children, who are subjects of public assistance, not included in the judgment; the plain language of the statute setting out the powers of the Friend of the Court in such instances does not support such authorization and an interpretation of the statute which authorizes such action results in unjustifiable distinctions between classes of post-judgment children because it would allow the Friend of the Court to act where the judgment contained a provision for support but not where there was no prior provision for support (MCL 552.252a; MSA 25.172[1]).

      Fred R. Hunter, Prosecuting Attorney, and Douglas E. Ketchum, Assistant Prosecuting Attorney, for plaintiff.

      Stephen M. Kantz, for defendant.
    Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   Per Curiam.

Plaintiff-appellee, Cindy Wason, filed a complaint for divorce against defendant-appellant, Robert Wason, on May 25, 1972. A default judgment of divorce was granted on May 20, 1974, which awarded custody of the parties’ minor child to the mother and required the father to pay child support in the amount of $33 per week. Appellee gave birth to a second child on August 30, 1974, On January 6, 1976, a petition was filed by the Allegan County Friend of the Court for modification of the judgment of divorce to include the second child and to order payment of support for the second child. The petition alleges that plaintiff has received aid to dependent children assistance for both children for some time. The Friend of the Court does not claim to have the express permission of the appellee to file the petition, and an affidavit was filed by appellee wherein she denied granting express authority to the Friend of the Court to file the petition. In addition, she asserts that defendant had "no opportunity or access” to be the father of the second child.

Appellant filed a motion challenging the standing of the Friend of the Court to bring such a petition. The trial court found that the Friend of the Court had statutory authority to file the petition and denied appellant’s motion for summary judgment. Appellant appeals by leave granted.

The sole issue on appeal is whether the Friend of the Court may, without consent of the mother, bring a post-judgment petition to modify a judgment of divorce to request support for a child born approximately three months subsequent to the final judgment, where the child receives aid to dependent children assistance, but was not mentioned in the pleadings or judgment of divorce, paternity has not been litigated and the judgment of divorce was taken by default. The trial court found that the statute empowered the Friend of the Court to bring such a petition saying, among other things:

" * * * Further, the statute does not exclude the post-judgment birth of a child from consideration as a change in economic conditions. The statute does expressly define the receipt of public assistance on behalf of a child who is the subject of a support order to be such a change in economic and financial conditions which would merit the Friend of the [sic] Court petitioning the court.
"In this divorce case, support has been ordered for one child and an additional child has been born to the divorced mother and she is receiving public assistance for both children. All of the statutory requirements are therefore satisfied and the Friend of the Court has standing to petition the court for modification of the divorce under the provisions of MCLA 552.252a.”

The question is entirely one of statutory interpretation. The pertinent statutes delineating the powers of the Friend of the Court are §§ 1, 2, 2a and 3. Section 2a, which was amended in 1968, provides as follows:

"Sec. 2a. The friend of the court shall examine all records and files in divorce cases where judgments have been entered requiring payments for the benefit of a dependent minor child or children and conduct such other investigation as is necessary to ascertain if such payments are sufficient in view of both changing economic conditions and financial condition of the parties, as follows:
"(a) Every 2 years in cases where the dependent minor child or children are being supported in whole or in part by public welfare.
"(b) On his own motion in cases where he is informed and believes that due to such changing conditions the judgments should be modified.
"(c) On oral or written request of the custodian of the dependent minor child or children, but not more than once in every 2 years.
"Whenever a parent or guardian of a dependent minor child or children receiving payments from a judgment entered in a divorce case for the dependent child or children applies for or is receiving any form of public aid or support on behalf of the child or children, this fact may be determined by the court to constitute a change in the economic and ñnancial conditions of the parties and the friend of the court may petition for modiñcation of the judgment.
"The friend of the court shall petition the court for modification of the judgment when he deems it in the interest of the dependent minor child or children or in the interest of the public.” (Emphasis added.)

The apparent intention of the statute was to authorize and empower the Friend of the Court to initiate legal proceedings to require fathers to support their offspring. Where public tax monies are used to support dependent minor children, public policy requires a solid effort to obtain reimbursement from responsible parents when they are economically able. The 1968 amendment was intended to broaden the power of the Friend of the Court to seek payment by fathers and to plug a possible loophole in the statute that might have prevented the Friend of the Court from claiming payment of public assistance could be a basis for modification of support orders.

The question then is whether the statute was intended to empower the Friend of the Court to petition for modification of a divorce judgment to include a child not covered in the divorce judgment.

There is as much reason to seek payment or reimbursement by a father, in lieu of or supplemental to aid to dependent children payments, in the case of a child not included in the divorce judgment as a child who is included. It is the same public pocket from which the payment must be made. We have no difficulty in concluding that the Legislature intended that the Friend of the Court be empowered to seek reimbursement as one means of preventing parents from cheating the public treasury by not mentioning in a divorce judgment a child or children who receive public assistance. In short, we find the statute permits the Friend of the Court, with or without consent of the mother, to petition a court to modify a judgment of divorce to include a child or children not included in the divorce judgment and who are subjects of public assistance.

Therefore, we find the trial judge’s opinion permitting the Friend of the Court to do so was not clearly erroneous.

While we affirm the trial judge’s ruling, this only means that the case is remanded for a hearing regarding paternity. In view of the sworn affidavit filed by the mother, we are somewhat at a loss as to how the Friend of the Court can hope to succeed in establishing paternity. We note that evidence that the child was not born of these parties’ marriage is admissible under Serafin v Serafin. It would appear that the Friend of the Court enjoys only a hollow victory. However, maybe there are facts that have not yet been disclosed.

Affirmed, costs to abide the final result.

R. M. Maher, J.

(dissenting). There is no statutory authority which empowers the Friend of the Court to petition a court to modify a judgment of divorce to include a child born after the judgment who is not included in the provisions of the divorce judgment and who receives public assistance.

Unless specific authority of law is conferred on a third party, the only parties to a divorce action are husband and wife. The Friend of the Court is a specifically authorized third party who derives his power from MCL 552.252a; MSA 25.172(1) which provides that he may examine records in divorce cases when the divorce judgment contains a support provision for a minor child. The Friend of the Court can petition the court for modification of judgment when he deems it in the best interest of the dependent minor child or children or in the interest of the public.

By statute, then, the Friend of the Court can only examine the records in cases in which judgments have been entered requiring payments for the benefit of a dependent minor child or children. Thus the Friend of the Court has authority to petition for modification of the divorce judgment when the judgment contains a support provision. Concomitantly, when the judgment does not contain a support provision, even though minor children may be involved, the Friend of the Court has no power to petition for a modification of the divorce judgment.

The issue before this Court is whether the Friend of the Court can petition to modify a divorce judgment to provide for support payments for a child not mentioned in and born after a divorce judgment when the judgment does contain support provisions for a child born before the judgment. In this particular case, the child born after the judgment does receive aid to dependent children assistance.

The trial court found that the statute empowered the Friend of the Court to petition for modification. The court stated that "the statute does not exclude the post-judgment birth of a child from a consideration as a change in economic conditions”. By the same token, however, the statute does not include the post-judgment birth of a child from consideration as a change in economic conditions. Furthermore, the trial court completely misconstrues the language of the statute. It is not the birth of a child which is to be considered as a change in economic conditions, as the trial court states. The change in economic conditions is the receipt by children—children receiving payments from a judgment entered in a divorce case—of public assistance. There is no statutory mention, no intimation of the birth of a post-judgment child as constituting a change in economic conditions.

The majority, wisely eschewing the trial court’s misguided reasoning, states that the purpose of the part of MCL 552.252a which deals with the factor of public assistance is to obtain reimbursement from responsible parents whose children receive public assistance. The majority opines that there is as much reason to seek payment or reimbursement by a parent in lieu of or supplemental to aid to dependent children payments in the case of a child not included in the divorce judgment as a child who is included. "It is the same public pocket from which the payment must be made.” All of this is, perhaps, true. But nothing in the statute gives the Friend of the Court the power to seek that payment or reimbursement when the child in question is not covered in the divorce judgment.

To interpret the statutory language as the majority does is to create an unjustifiable distinction among the classes of children of divorced parents. While the statute would allow the Friend of the Court to petition for modification because of post-judgment children when the judgment contains a provision for support, it still would not permit the Friend of the Court to petition for support payments for post-judgment children when the judgment contains no provision for the support of existing children.

As for that section of MCL 552.252a which deals directly with children receiving public assistance, it too, under the majority’s interpretation, results in unjustifiable discrimination. I cannot, therefore, agree that MCL 552.252a authorizes the Friend of, the Court to petition for modification of support payments for children born after the judgment of divorce. The plain language of the statute does not support such authorization and an interpretation of the statute which authorizes such action results in unjustifiable distinctions between classes of post-judgment children.

Finally, the plaintiff, if she desires, may herself bring an action to amend the divorce judgment to include a support order for her second child. Weaver v Weaver, 15 Mich App 15; 166 NW2d 4 (1968).

While the result the majority reaches may be laudable, it is unsupported by statutory authority. The Friend of the Court does not have the power the majority grants him.

       MCL 552.251 et seq.; MSA 25.171 et seq.

       MCL 552.252a; MSA 25.172(1).

        Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977).


author: D. E. Holbrook, Jr., J. M. J. Kelly, J.

text:
    MOLDOVAN v ALLIS CHALMERS MANUFACTURING COMPANY
    Docket No. 25084.
    Submitted November 3, 1977, at Detroit.
    Decided May 22, 1978.
    Leave to appeal applied for.
    Martin Moldovan was injured at his place of employment when he was struck by an unoccupied fork truck which unexpectedly went into reverse. He then commenced an action against Allis Chalmers Manufacturing Company and Fraza Equipment, Inc., seeking money damages for personal injuries, under a negligence theory and several breach of warranty theories, contending that a defective safety valve on the forklift had been the cause of the forklift’s unexpected movement. Judgment for defendants, Wayne Circuit Court, Roland L. Olzark, J. Plaintiff appeals. Held:

    The failure of the trial judge to disqualify himself was not error where the plaintiff failed to show actual prejudice of the trial judge. There is nothing in the record, when it is read as a whole, to indicate that the judge was biased against the plaintiff. The trial judge’s modification of a pretrial order to exclude any reference to the plaintiffs prior sex-related convictions, which made the plaintiff choose between introducing an entire video-tape deposition of an expert witness or excluding it totally was not an abuse of the trial court’s discretion. Refusal on grounds of hearsay to allow a representative of plaintiffs employer to read statements on an accident-report form but allowing the form into evidence to show that the accident had taken place and had been reported was a correct ruling. It was a proper exercise of discretion for the trial judge to refuse to allow portions of a deposition to be admitted into evidence where it appeared that those portions were speculative, and the refusal to grant a continuance to allow the plaintiff to bring in a witness out of order late in the trial was not an abuse of discretion. It was proper for the trial judge to refuse to allow plaintiffs counsel to introduce favorable excerpts of deposition testimony of certain witnesses after those witnesses had been excused. The trial judge’s refusal to allow in-court experimentation with a model of the allegedly defective valve and excluding plaintiffs witness’s testimony of out-of-court experiments with a model valve was not an abuse of discretion where the in-court model valve was not set up in the same manner as the one on the forklift which caused the accident and where the witness conceded that he had never seen the forklift nor had he compared the model valve with the allegedly defective one and where the witness could not testify that every part of the out-of-court model valve met specifications. It was not an abuse of discretion for the trial judge to read testimony back to the jury upon its request, after it had retired for deliberations. Plaintiffs motion for a new trial based on the contention that an expert had been located who could rebut the testimony of the defendants’ expert was properly denied. Evidence of design change subsequent to the accident was properly excluded by the trial court.

      References for Points in Headnotes

       46 Am Jur 2d, Judges §§ 94 et seq., 166 et seq.

       75 Am Jur 2d, Trial § 119.
    Remarks or acts of trial judge criticizing, rebuking, or punishing defense counsel in criminal case, as requiring new trial or reversal. 62 ALR2d 166.
    Prejudicial effect of remarks of trial judge criticizing counsel in civil case. 94 ALR2d 826.

       62 Am Jur 2d, Pretrial Conference and Procedure § 37 et seq.

       29 Am Jur 2d, Evidence §§ 493-497.
    30 Am Jur 2d, Evidence §§ 931, 934, 1002.

       23 Am Jur 2d, Depositions and Discovery §§ 99, 112, 119, 120.

       17 Am Jur 2d, Continuance §§ 3, 4.

       23 Am Jur 2d, Depositions and Discovery § 108.

       4 Am Jur 2d, Appeal and Error § 544.

       29 Am Jur 2d, Evidence § 818 et seq.

       76 Am Jur 2d, Trial §§ 1041-1044.

       58 Am Jur 2d, New Trial § 164 et seq.

       29 Am Jur 2d, Evidence §§ 275, 628.

       58 Am Jur 2d, New Trial § 52.
    75 Am Jur 2d, Trial § 116.

      Affirmed.
    M. J. Kelly, J., dissented. He would hold that the plaintiff should have been granted a new trial because of the trial judge’s overtones of antagonism toward plaintiffs counsel throughout the trial. A miscarriage of justice resulted.
    The plaintiff should have been permitted to introduce the video-tape deposition without the portions pertaining to the plaintiffs criminal sexual offenses as the plaintiff properly relied on a pretrial order allowing him to introduce only the other portions of the deposition. The prejudicial effect of those portions dealing with the criminal sexual offenses far outweighed their probative value.
    The trial court abused its discretion in refusing to allow the plaintiff to introduce into evidence a model valve and testimony of out-of-court experiments involving a model valve. The trial court’s foreclosure of the plaintiff’s efforts to explain the differences between a model of the allegedly defective valve and a smoothly operating valve was an abuse of discretion where the defendants had introduced the smoothly operating valve, but the plaintiff’s evidence was excluded on the policy grounds that evidence of subsequent repairs should not be admitted into evidence in negligence actions.
    Opinion op the Court
    1. Judges—Disqualification—Prior Judgment Against Judge— Grounds For Disqualification—Prejudice—Court Rules.
    A plaintiffs contention that a trial judge should have disqualified himself from presiding over a trial wherein the plaintiff was seeking money damages for personal injuries because the judge recently had been found liable for $395,000 in a Federal court civil suit is without merit where the plaintiff has established none of the eight possible grounds for disqualification and has not shown actual prejudice of the trial judge (GCR 1963, 405.1).
    2. Appeal and Error—Colloquy Between Judge and Counsel— Fair Trial.
    The test to be applied in reviewing a claim that a trial judge committed prejudicial error in his verbal exchanges with the appellant’s attorney is whether or not the appellant was denied a fair and impartial trial; in such a determination the record must be reviewed as a whole and not in pieces taken out of context.
    . 3. Trial—Pretrial Orders—Modification of Orders—Discretion.
    A trial court has the discretionary power to modify a pretrial order; where in light of all the factors at trial the trial court properly exercised its discretion in modifying an order, there was no reversible error; such a modification will not be overturned absent clear abuse of discretion.
    4. Evidence—Exclusion—Hearsay—Accident Report.
    Statements on an accident report form filled out by a representative of a plaintiffs employer were properly excluded from evidence by the trial judge in a trial for negligence and products liability as being hearsay evidence where the statements were written by someone no longer employed by the plaintiffs employer and were written before the company representative, who was to read the statements from the witness stand, was employed by the plaintiffs employer.
    5. Evidence—Hearsay—Business Records—Accident Reports. Accident reports are distinguishable from other types of so-called business records for purposes of the hearsay exclusionary rule.
    6. Evidence—Admissibility—Depositions—Rules of Evidence— Discretion—Court Rules.
    The admissibility of depositions is governed by the rules of evidence and it is a proper exercise of judicial discretion to refuse to admit speculative deposition testimony (GCR 1963, 302.4, 302.5).
    7. Continuance—Discretion—Trial Judge. Granting a continuance is within the discretion of the trial judge.
    8. Depositions—-Evidence—Excerpts—Witnesses—Discretion— Court Rules.
    The broad language in the court rule governing the use of depositions at trial does not remove the trial judge’s control of the proceedings and it was proper for a trial judge to refuse to allow plaintiffs counsel to introduce favorable excerpts of deposition testimony of witnessses, who appeared at trial, after the witnesses had been excused (GCR 1963, 302.4[2]).
    9. Appeal and Error—Co-Counsel—Division of Labor—Discretion.
    A plaintiffs claim that a trial judge erred in refusing to permit co-counsel for plaintiff to divide the duties in conducting a lawsuit is without merit where the record indicates no specific request by plaintiffs attorneys to engage in a "division of labor” method and where a review of the instances cited by the plaintiff reveals that the trial judge was acting well within his discretion in limiting arguments before the court.
    10. Evidence—In-Court Experiments—Dissimilar Conditions—Witnesses—Expert Witnesses—Discretion.
    A trial court’s ruling to exclude in-court experiments with a model of an allegedly defective valve because the conditions of the in-court experiment were not sufficiently similar to the allegedly defective valve on the date of the accident wherein plaintiff was injured was not an abuse of discretion where the model valve was mounted on a board, not on a forklift as at the time of the accident, and plaintiffs expert witness conceded that he had never seen the forklift in question nor had he compared the model valve with the allegedly defective valve.

      11. Evidence—Experiments—Admissibility of Evidence—Discretion—Expert Witnesses.
    Admission of test results is within the wide discretion of the trial court; it was not an abuse of the trial court’s discretion to exclude testimony by a plaintiffs expert witness regarding out-of-court experiments with a model of an allegedly defective valve where the expert could not testify that every part of the model valve met specifications.
    12. Trial—Reading Testimony to Jury—Discretion.
    Reading testimony back to a jury after it has begun deliberations is within the discretion of the trial judge.
    13. New Trial—Motions—Newly Discovered Evidence—Discretion—Gross Abuse of Discretion.
    Denial of a new trial where the motion for the new trial is based on newly discovered evidence will not be reviewed absent gross abuse of discretion; where a plaintiff seeking a new trial can only show new evidence which might impeach a defendant’s expert witness, there is no abuse of discretion in denial of a new trial.
    14. Evidence—Negligence—Products Liability—Subsequent Repairs—Design Change.
    Evidence of subsequent repairs or design change should be excluded from negligence cases because of sound policy grounds; these policy grounds are equally applicable to excluding evidence of design change in products liability cases.
    Dissent by M. J. Kelly, J.
    15. New Triai^-Motions—Antagonism of Trial Judge—Miscarriage of Justice.

      A plaintiff’s motion for a new trial should have been granted where the trial judge’s rulings on many of the issues contain overtones of antagonism toward plaintiff’s counsel and it appears that there was a miscarriage of justice.

    16. Evidence—Depositions—Video-Tape Deposition—Admission of Evidence—Criminal Sexual Offenses—Pretrial Order.

      The trial court in a negligence and products liability action should have allowed a plaintiff to introduce a video-tape deposition of plaintiff’s psychiatric witness and delete those portions which pertained to the plaintiff’s criminal record involving two sexual offenses where the prejudicial effect of that portion of the evidence far outweighs its probative value and where the

      plaintiffs counsel was justified in relying on a pretrial ruling to exclude that portion of the deposition.

    17. Evidence—Expert Witnesses—Models—Exclusion of Evidence —Out-of-Court Experiments.

      The trial court abused its discretion in excluding a plaintiffs expert witness’s model valve and in excluding testimony of out-of-court experiments with the model valve where the exclusion was based on the fact that the model was mounted on a board and not on the forklift, which was the 'cause of the accident, because a requirement to introduce the whole vehicle would be unreasonable.

    18. Evidence—Exclusion of Evidence—Negligence—Subsequent Repairs—Expert Witnesses—Models.

      The trial court erred in relying on the rule which excludes from a negligence case evidence of subsequent repairs to foreclose a plaintiff and his expert witness from thoroughly explaining the difference between a model valve, prepared pursuant to the specifications in effect at the time of an accident which was caused by an alleged defect in a similar valve, and a smoothly operating valve where the smoothly operating valve, which was designed subsequent to the accident, was brought into court by the defense; the model valve should have been allowed in evidence.

      Colista, Green, Green & Adams (by Michael Domonkos), for plaintiff.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P. C., for defendant Allis Chalmers Manufacturing Company.

      Sullivan, Ranger, Ward & Bone, for defendant Fraza Equipment, Inc.
    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., J.

Plaintiff Martin Moldovan was injured when he was struck by an unoccupied forklift truck which unexpectedly went into reverse. Basing his claim on negligence and several breach of warranty theories, plaintiff sued defendants Allis Chalmers Manufacturing Company and Fraza Equipment Company. Essentially plaintiffs claim was grounded on the failure of a safety valve device which, plaintiff contends, should have prevented the forklift from operating when unoccupied. After a 15-day trial the jury returned a verdict of no cause of action as to both defendants. Plaintiff appeals, raising 12 allegations of error.

First, plaintiff contends the trial judge should have disqualified himself since the judge had recently been found liable for $395,000 in a Federal court civil suit. Plaintiffs counsel argue their ignorance of this judgment until the day of final argument precluded a timely motion for disqualification as required by GCR 1963, 405. Plaintiff argued this issue in his motion for a new trial, which was denied. Regardless of when counsel discovered the judgment, the argument is without merit. Plaintiff has established none of the eight possible grounds for disqualification under GCR 1963, 405.1 and has not shown "actual prejudice” of the trial judge. Irish v Irish, 59 Mich App 635, 639; 229 NW2d 874 (1975), Armstrong v Ann Arbor, 58 Mich App 359, 369-370; 227 NW2d 343 (1975), lv den, 394 Mich 783 (1975). In the new trial hearing, the trial judge’s remarks indicate that, if anything, he was favorable to plaintiffs case—that he felt plaintiff should recover something for his injury and that perhaps the defendants could have been pressured into a $400,000 settlement (plaintiff rejected a $200,000 settlement offer). The jury, however, found no liability on the part of either defendant. We find no reversible error.

Second, plaintiff complains of several incidents of harsh treatment of plaintiffs counsel in front of the jury. In any hotly contested 15-day trial there are bound to be episodes of judicial impatience with aggressive counsel. The standard of review, however, is whether such exchanges resulted in denying plaintiff a fair and impartial trial. St. Louis v Fisher & Co, Inc, 1 Mich App 55, 58; 134 NW2d 290 (1965). Taken alone and out of context, certain portions of the record could just as easily be used to show trial court bias against the defendants. We must review the record as a whole and we conclude plaintiff was not denied a fair trial.

Third, plaintiff contends the trial judge violated a pretrial order (issued by a different judge) to exclude any reference to plaintiff’s prior sex-related convictions. The violation occurred when the trial judge refused to excise certain references to the sex offenses in a video-tape deposition of plaintiff’s psychiatric witness. Initially we note that one aspect of plaintiff’s claimed injury was impairment of his sex drive and, indeed, plaintiff’s psychiatric witness concluded that plaintiff’s sex drive was impaired. However, the psychiatrist also stated that plaintiff’s sexual problems stemmed in part from his earlier sex offense incidents. The trial judge gave plaintiff the option of introducing the entire video-tape or excluding it totally. Plaintiff opted to let in the entire tape and now appeals. We uphold the ruling of the trial judge for several reasons: a) GCR 1963, 605 permits trial court discretion to require an expert witness to set forth the "data” upon which the expert’s conclusions are based, b) a person’s prior criminal record is relevant if a psychiatrist relied upon it in forming an opinion, People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975), c) in light of plaintiff’s claim of impaired sexual drive, the defense was entitled to have all of plaintiff’s psychiatric witness’s data placed before the jury, see GCR 1963, 302.4(4), and, d) the pretrial judge did not know plaintiffs psychiatrist was going to testify as to plaintiff’s prior history before he (the pretrial judge) made his exclusionary ruling. In light of all these factors the trial judge properly exercised his discretionary power to modify the pretrial order and such a modification will not be overturned absent clear abuse. Hanlon v Firestone Tire & Rubber Co, 391 Mich 558, 564; 218 NW2d 5 (1974), State Highway Comm v Redmon, 42 Mich App 642, 645-646; 202 NW2d 527 (1972).

Fourth, plaintiff argues the trial judge erred by refusing to allow a representative of plaintiffs employer to read statements written on an accident report form (Form 100). The judge ruled the statements hearsay and refused to allow them to be read. However, he offered to allow the form in to show the accident took place and had been reported but refused to admit any statements as to how the accident happened. Plaintiff decided not to introduce the form at all and now appeals. The trial judge ruled correctly. The statements were written by someone no longer employed by plaintiffs employer and were written before the company representative was employed by plaintiffs employer. Since the employer was a third party intervenor and not an adverse party the statements were not admissible as admissions against interest. Nor were they admissible under the "business entry” exception to the hearsay rule. MCLA 600.2146; MSA 27A.2146. There are some ambiguities in that statute. Wade v Bay City, 57 Mich App 581; 226 NW2d 569 (1975), appeal dismissed, 394 Mich 755 (1975). The form is admissible to show the accident occurred and that the employer had knowledge of the accident, but the written conclusions or statements detailing how the accident occurred—a critical fact issue at trial —would be excludable hearsay. In Central Fabricators, Inc v Big Dutchman Division of US Industries, Inc, 398 Mich 352; 247 NW2d 804 (1976), the Michigan Supreme Court quoted with approval from the United States Supreme Court case Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943), which held statements contained in an accident report were not admissible under the Federal business entry statute. For a number of reasons accident reports are distinguishable from other types of so-called business records. We conclude the trial judge ruled correctly on the limited admissibility of the accident report.

Fifth, plaintiff complains the entire deposition of a former Allis Chalmers employee should have been admitted under either the adverse witness rule, or GCR 1963, 302.4(3), or as an "excited utterance”. A review of the judge’s ruling indicates that he excluded portions of the deposition on the grounds that they were speculation and conjecture. The admissibility of depositions is governed by the rules of evidence, GCR 1963, 302.4 and 302.5, and the trial judge properly exercised his discretion in refusing to admit speculative deposition testimony. Plaintiff further complains the trial judge abused his discretion by refusing to grant a continuance so plaintiff could bring the deposition witness to court to testify. The record indicates the plaintiff wished to bring the witness in near the close of trial and the judge felt taking the witness out of order so late in the trial would unduly confuse the jury. Granting a continuance is within the discretion of the trial judge and we find the judge did not abuse his discretion.

Sixth, plaintiff complains he should have been allowed to read selected portions of depositions of witnesses who had already testified and had been excused. The record indicates the judge denied plaintiffs request since plaintiff should have cross-examined the witnesses about their deposition statements when they were on the stand rather than wait until they were excused to read selected highlights from the deposition. Plaintiff claims GCR 1963, 302.4(2) allows the use of depositions "for any purpose”. We do not think this broad language removes the trial judge’s control of the proceedings and we conclude the trial judge properly refused to let plaintiffs counsel introduce favorable excerpts of deposition testimony after the witnesses were excused.

Seventh, plaintiff argues the trial judge erred when he refused to permit co-counsel for plaintiff to divide the duties in conducting the lawsuit. The record indicates no specific request by plaintiffs attorneys to engage in a "division of labor” method. A review of the instances cited by plaintiff reveals the trial judge was acting well within his discretion in limiting arguments before the court. Plaintiffs argument is without merit.

Eighth, plaintiff complains the trial judge erred in excluding in-court experiments with a model of the allegedly defective valve and in excluding plaintiffs witness’s testimony of out-of-court experiments with a model valve. As to the in-court experiments, the trial judge refused to allow the experimentation because the conditions were not sufficiently similar to the allegedly defective valve on the date of the accident. The model valve was mounted on a board, not on a forklift, and plaintiffs expert conceded he had never seen the forklift in question nor had he compared the model valve with the allegedly defective valve. We con-elude the trial judge did not abuse his discretion. Nor did he abuse his discretion in excluding testimony of the out-of-court experiments where plaintiffs expert could not testify that every part of the model valve met specifications. Admission of test results is within the wide discretion of the trial court. Taylor v Hannon-Colvin Post 180 of American Legion, 6 Mich App 398, 405; 149 NW2d 210 (1967), Pohlod v General Motors Corp, 40 Mich App 583; 199 NW2d 277 (1972).

Ninth, plaintiff argues that a pretrial order which excluded any reference to workers’ compensation benefits was violated. A review of the record indicates there was no mention of workers’ compensation, therefore the pretrial order was not violated and the trial judge was correct in refusing to give any curative instruction which may have resulted in exposing the fact of worker’s compensation benefits.

Tenth, after retiring, the jury returned with a question for the trial judge and the plaintiff claims the «judge erred where he responded to the question by having testimony read to the jury. Reading testimony back to the jury is within the wide discretion of the trial judge, Klein v Wagenheim, 379 Mich 558, 561; 153 NW2d 663 (1967), People v Howe, 392 Mich 670, 675; 221 NW2d 350 (1974), and the trial judge did not abuse that discretion in having pertinent testimony read to the jury.

Eleventh, plaintiff contends he should have been granted a new trial since after trial plaintiff located an expert witness who supposedly could rebut testimony of defendants’ expert. GCR 1963, 527.1(6) governs new trials based on newly discovered evidence. Plaintiff has shown no factual basis to show the. evidence is material, not cumulative or that it could not have been discovered before trial. See Parlove v Klein, 37 Mich App 537, 542; 195 NW2d 3 (1972), lv den, 387 Mich 780 (1972). Denials of new trials based on newly discovered evidence will not be reviewed absent gross abuse of discretion, People v Hill, 21 Mich App 178, 180; 175 NW2d 305 (1970), and since all plaintiff really shows is that the new evidence might impeach defendants’ expert, plaintiffs argument must fail. Pociopa v Olson, 13 Mich App 324, 327; 164 NW2d 413 (1968), lv den, 381 Mich 797 (1969).

Twelfth, plaintiff urges the trial court erred by refusing to admit evidence of a post-accident design change in the safety valve. The record indicates defense counsel gave plaintiffs expert a model for illustration purposes, the expert took the model apart and discovered a different sized spring than used in the allegedly defective valve. Defendants immediately objected, the jury was excused and arguments heard, and the judge ruled the evidence of the design change was inadmissible. Excluding evidence of subsequent repairs or design changes is based on sound policy grounds. Unlike the situation in Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976), admission of evidence of a design change would offend the policy grounds behind the exclusionary rule. Here the evidence would have been prejudicial to a party defendant. The policy grounds for excluding design changes to show negligence are equally applicable in a products liability setting. Phillips v J L Hudson Co, 79 Mich App 425; 263 NW2d 3 (1977).

Affirmed. Costs to appellees.

Beasley, P. J., concurred.

M. J. Kelly, J.

(dissenting). 1 agree unequivocally with the majority’s treatment of the first issue and I believe the very raising of that issue reflects the atmosphere which characterizes this record.

However too many of the remaining issues contain overtones of antagonism toward plaintiffs counsel. They may have richly deserved a tight reign at times, but it appears to me that, an over-tried case resulted in a miscarriage of justice. I think the trial judge should have granted a new trial.

Since I am a minority of one there is little to be served by dissecting the record for instances of querulousness. This matter is addressed in the majority opinion as the second issue. The two distinguished former trial judges who sign that opinion perhaps find little sympathy for my view that a too easily aggravated trial judge is as much an impediment to a fair trial as an error of fact or law. I can only say that I come to a different conclusion and disagree that both sides were treated evenly. More than anything else it is the cumulative effect of the atmosphere of impatience which compels my vote for reversal.

On the issue addressed as number 3 by the majority I am tempted to excoriate appellant for failure to supply the video-tape deposition with the exhibits submitted on this appeal. I understand that steps are being taken to require the filing of such tape or a written verbatim certified transcript of the same in future cases. This video-tape deposition issue appeared to me to be extremely troublesome and was recognized to be so by the trial judge. If I read the record correctly the plaintiff was guilty of two criminal sexual episodes, one in 1964 (homosexual) and one in 1973 (defendants refer to it as a "1974 sex episode”) with a female minor and defendants further say that the first time they learned of the second sex offense was at the taking of Dr. Danto’s deposition.

The deposition was taken after a pretrial rule which unequivocally excluded such evidence from jury consideration. It is unclear to me how defense counsel could have, in the face of the pretrial ruling, taken the opportunity to inquire into the criminal sexual conduct in violation thereof. I was unable to view the video tapes without taking extraordinary measures and it became unnecessary to do so when the majority opinion was forwarded to me by my colleagues. It appears that although the plaintiffs attorneys obtained a stipulation to exclude the prior criminal record at pretrial and subsequently obtained a letter from the pretrial judge amending the pretrial order to expressly exclude such evidence, nevertheless, it came to be included in a deposition taken thereafter. The majority opinion refers to GCR 1963, 302.4(4) which prohibits piecemeal or selective introduction. That is beside the point here. At the very least there should have been an attempt on the part of the defendants to get a modification of the pretrial ruling instead of waiting until the time came to introduce the deposition at trial. The laying back placed plaintiffs’ attorneys on the horns of a dilemma. They either had to forego the entire video tape deposition which, besides being expensive, may have been critical to their presentation of damages or be forced to allow the exposure of the criminal sexual misconduct, which may have been devastating to some of the jurors. In any event I find the prejudicial effect of the evidence far outweighed its probative value and I believe further that plaintiffs counsel were justified in relying on the pretrial ruling and expecting that evidence to be excluded.

The only other issues I address have to do with the expert witnesses. The majority in issue 8 condones disallowing the model valve because it was mounted on a board, not on a forklift. I think that’s ridiculous on the face of it and consider that the trial judge extracted too stringent a requirement that the model be an exact duplicate of the entire vehicle. This is tantamount to requiring the introduction of a whole automobile to prove a hydraulic valve defective. I think the court abused its discretion in excluding the model valve and in excluding the testimony of the out-of-court experiments.

In issue 12 likewise I believe the majority came to the wrong conclusion. Each party’s principal expert came to court with a safety device model to use for demonstration purposes. The plaintiffs’ expert’s model had a tendency to stick. The defendant’s expert’s device operated smoothly. During the plaintiffs’ expert’s testimony he was allowed to disassemble defendant’s device and upon doing so he discovered in the presence of the jury that the model brought to court by the defense contained a longer spring that the spring specified in the manufacturer’s list of components. How this occurred was suggested to be by design change which took effect about six months after plaintiffs’ accident. Defendants had placed the device in evidence as exhibit three. I believe the trial court erred reversibly in foreclosing the plaintiff and his expert from thoroughly explaining the differences between the device prepared pursuant to the specifications in effect at the time of plaintiff’s accident and the smoothly operating device brought into court by the defendant and/or its expert. The jury apparently later confused this safety device spring with an inching spring and directed a question to the court shortly after retiring to deliberate. The net effect of the ruling was that the defendant’s false model, a telling weapon indeed, was subtracted from the plaintiffs’ rebuttal arsenal, which gave a totally false complexion to what should have been a crucial blow to the defense. Whether this single specification of error should result in reversal to both defendants or only to the manufacturer I do not choose to address in dissent as it would only unnecessarily add to the volume of unavailing literature (my dissents).

I would reverse.