text:
    HILTON v GENERAL MOTORS CORPORATION
    1. Workmen’s Compensation — Employers-Employees—Sufficient Notice — Injury to Employees — Statutes.
    The complaints by an employee to his supervisors regarding dust conditions in his place of employment were not sufficient, under the workmen’s compensation statute regarding notice of death or disability, to give the employer notice of the employee’s injured or disabled condition resulting from the dust where the employee never informed his supervisors that the dust conditions were causing him injury or were disabling him (MCLA 418.441; MSA 17.237[441]).
    2. Appeal and Error — Workmen’s Compensation — Workmen’s Compensation Appeal Board — Employers-Employees—Occupational Injuries — Fact of Disability — Cause of Disability— Timely Notice — Statutes.
    The Workmen’s Compensation Appeal Board erred in failing to appreciate the significance of sickness and accident benefit information submitted to an employer by an employee 6 days after the employee had been informed by his own doctor of his occupationally-related emphysematous condition where such information provided the employer with notice of the fact of disability, as distinguished from notice of the cause of disability; this notice of the fact of disability was timely under the workmen’s compensation statute which provides that an employee must inform the employer of his disability within 120 days after he learns of his disability and of its work-related nature (MCLA 418.441; MSA 17.237[441]).
    3. Workmen’s Compensation — Employers-Employees—Injury—Notice — Sufficiency—Fact of Injury — Cause of Injury — Statutes.
    Notice of a work-related injury occurring to an employee is sufficiently given to his employer if the employer is informed thereby of the fact of injury or disability; the sufficiency of such notice does not turn upon whether the employer is or is not informed of the cause of disability; therefore, the fact that the employee indicates in sickness and accident benefit reports to the employer that the injury he received was not work-related does not make his notice insufficient under the workmen’s compensation statute regarding notice of death or disability (MCLA 418.441; MSA 17.237[441]).

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 442-456.

       82 Am Jur 2d, Workmen’s Compensation § 540 et seq.

      4. Workmen’s Compensation — Work-Related Injuries — Determinations — Referees.
    A determination regarding the work-related nature of an injury under the workmen’s compensation law is to be made by the workmen’s compensation referee and not by the employer.
    Appeal from the Workmen’s Compensation Appeal Board.
    Submitted June 13, 1977, at Lansing.
    (Docket No. 29797.)
    Decided January 24, 1978.
    Claim by Clyde H. Hilton against General Motors Corporation for workmen’s compensation. Compensation granted. The Workmen’s Compensation Appeal Board reversed. Plaintiff appeals by leave granted.
    Reversed.

      MacDonald, FitzGerald & MacDonald, for plaintiff.

      Munroe & Nobach, P. C. (by Richard R. Weiser), for defendant.
    Before: D. E. Holbrook, Jr., and Allen and D. R. Freeman, JJ.

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

   Per Curiam.

Plaintiff appeals to this Court from an adverse decision entered by the Workmen’s Compensation Appeal Board barring the plaintiff from relief under the Worker’s Disability Compensation Act because he had failed to give timely and sufficient notice of his disability to his employer under MCLA 418.441; MSA 17.237(441).

It is undisputed that the plaintiff was disabled as a result of an occupationally-related emphysematous condition. Plaintiff testified before the hearing referee that he had been employed at the Buick Motor Division of General Motors from 1955 to 1958, during which time he worked in the area of heat treatment and assembly. After a long layoff, the plaintiff returned to work in 1967, and from then until February 29, 1970, worked in the Buick Motor foundry, principally as a grinder. While working in the foundry he found the grinding machine dirty and dusty and filed a grievance complaining about dust emissions. He also complained to his foreman who advised plaintiff to wear a mask. Plaintiff tried wearing a mask but gave it up when he found he could not work with a mask, and informed his foreman. After working in the foundry for a year, plaintiff developed a shortness of breath, finding it generally difficult to breathe.

On February 27, 1970, plaintiff was transferred to the transmission plant where he was assigned to assembly and sub-assembly. On March 1, 1971, the appellant resigned his employment due to breathing difficulties and pains in his back and chest. On March 3, 1971, the plaintiff was medically informed by his own doctor of his emphysematous condition and its work-related nature. On March 9, 1971, the appellant submitted to the defendant an application for accident and sickness benefits. In the application form, the applicant was asked the question: "Do you claim that this disability was caused by your work for General Motors?” The plaintiff responded "No” to this question. When asked at the time of hearing why he had denied work relation of his disability, the plaintiff stated that he did not know why he had so answered the form.

On appeal, the plaintiff contends that complaints as to dust levels made by plaintiff to his employer during his foundry employment constituted sufficient notice, as a matter of law, to satisfy the requirements of MCLA 418.441; MSA 17.237(441). This contention lacks support in the record. Although the plaintiff made various complaints about the dust conditions in the foundry to supervisory personnel during his employment at the foundry, the record does not reveal that the plaintiff ever informed supervisory personnel that the dust conditions were causing him injury or were disabling him. In the absence of such notice, we hold that complaints by an employee about the dust conditions in foundries are not sufficient to give an employer notice of an employee’s injured or disabled condition under the test enunciated by the Supreme Court in Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974). Contrast West v Northern Tree Co, 365 Mich 402; 112 NW2d 423 (1961). As such, the board’s finding in this regard was not lacking in evidentiary support and cannot be questioned upon appeal by this Court.

The board’s decision was nonetheless erroneous in that it failed to appreciate the significance of the sickness and accident benefit information submitted by the plaintiff to the defendant on March 9, six days after the plaintiff had been informed of his disability by his own doctor. This notice of the fact of disability (as distinguished from notice of the cause of disability) was clearly timely under MCLA 418.441; MSA 17.237(441), which provides that an employee must inform the employer of his disability within 120 days after he learns of his disability and of its work-related nature. Lewis v Chrysler Corp, 394 Mich 360; 230 NW2d 538 (1975). The fact that the employee-plaintiff indicated therein that the injury was not work-related did not make this notice "insufficient” under the test of sufficiency enunciated in Norris, supra. Under Norris, notice is sufficient if the employer is informed thereby of the fact of disability or injury. Under the Norris test, sufficiency of notice does not turn upon whether the employer is or is not informed of the cause of disability. A determination of work relation is to be made by the hearing referee and not by the employer. Norris, supra, at 480.

Under Lewis, supra, the notice was timely, and under Norris, supra, the notice was sufficient; therefore, the board erred, as a matter of law, in holding the plaintiff barred from obtaining relief under the act. Accordingly, we reverse the decision of the Workmen’s Compensation Appeal Board and reinstate the decision of the hearing referee awarding plaintiff benefits under the act.

We reached an opposite result in Meads v General Motors Corp, 78 Mich App 494; 260 NW2d 143 (1977), a case presenting very similar facts. However, in Meads, the plaintiff took normal retirement at age 65 and never complained to anyone about the poor air quality or its effects on his lungs. By contrast, this plaintiff repeatedly complained about the conditions, quit his job at age 50, and almost immediately filed a request for sickness disability benefits. Given these additional factors, we believe that Norris, supra, and the recently released Krol v Hamtramck, 398 Mich 341; 248 NW2d 195 (1976), require reversal of the appeal board’s decision.

Reversed, costs to plaintiff.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MONCADA v MONCADA
    1. Appeal and Error — Equity—Parent and Child — Child Support Orders — Presumption of Validity — Clear Error.
    The standard of review on appeals from orders for child support provides that the lower court’s decision is to be presumed correct and that the appellant bears the burden of showing the decision to be clearly erroneous; however, because of the history of appellate review in equity, the appellant may establish clear error more readily in an equity case than in cases historically heard at law.
    2. Appeal and Error — Clear Error — Evidence—Parent and Child —Laws of Employment — -Ambiguous Evidence.
    Clear error by a lower court in finding that a petitioner’s act in leaving the site of his employment rendered him responsible, at least in part, for the loss of his employment was not shown on the evidence admitted at trial where the evidence regarding the loss of his job was ambiguous and the record was silent on the questions of whether petitioner ever returned to the work site, under what circumstances he was informed that he had lost his job, and whether he made any effort to regain it.
    3. Divorce — Parent and Child — Child Support Modification — Father’s Income — Reduction—Unexercised Ability to Earn.
    The father’s income is one of the factors to which a court must look when entertaining a petition for modification of child support payments provided for in a judgment of divorce; in some cases a reduction in the father’s income would compel a modification; however, the father’s duty to pay support is not limited by his income and the court may also look to his unexercised ability to earn.
    4. Divorce — Parent and Child — Child Support — Modification—Father’s Income — Voluntary Reductions — Bad Faith — Unconscionable Disregard for Welfare.
    Voluntary reductions in a father’s income will not warrant a modification of child support payments provided for in a judgment of divorce where the reduction was made in bad faith or where the father voluntarily worsens his financial position through unconscionable disregard for the welfare of his dependents.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 704.

       5 Am Jur 2d, Appeal and Error § 844.

       24 Am Jur 2d, Divorce and Separation § 844 et seq.

       24 Am Jur 2d, Divorce and Separation § 848.

      5. Divorce — Parent and Child — Child Support Modification — Father’s Income — Voluntary Reduction — Bad Faith — Wilful Disregard of Interests.
    A father’s voluntary reduction in income is not an adequate reason for a trial court’s refusal to modify a child support order where bad faith or a wilful disregard for the interests of the dependent children by the father are absent.
    Appeal from Eaton, Richard Robinson, J.
    Submitted June 13, 1977, at Grand Rapids.
    (Docket No. 30461.)
    Decided January 24, 1978.
    Complaint by Jean Moncada against Joe Moncada for divorce. Divorce granted. Defendant subsequently petitioned for a reduction in his weekly child support payments. The court ordered his obligation for current payments reduced and further ordered that the difference between the former and the revised payments would continue to accrue for the duration of defendant’s unemployment. Defendant appeals.
    Reversed and remanded.
    Greater Lansing Legal Aid Bureau, Inc. (by Philip E. Hodgman and Chris Campbell), for defendant.
    Before: M. J. Kelly, P. J., and M. F. Cavanagh and J. R. Rood, JJ.

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

   Per Curiam.

Petitioner was brought before the lower court on a motion to show cause why he should not be held in contempt for failure to make weekly child support payments of $133. Mr. Moneada was without work at the time, and was receiving unemployment compensation of $136 per week. He petitioned the lower court to reduce his weekly payments to a level commensurate with his income. The court ordered that his obligation for current payments be reduced to $105 per week, but that a further $28 per week (the difference between the former and the revised payments) would continue to accrue for the duration of his unemployment. From this order petitioner appeals as of right.

Petitioner had previously been employed as a construction worker with a gross income of $338 per week. It was on the basis of this income that his support payments had been set at $133 weekly. Petitioner lost this job, and the circumstances under which he did so define the issues herein raised.

Petitioner testified that he reported to work as usual at 8 a.m. on a Monday morning. He worked until noon, when a piece of machinery broke and everyone was sent home. He reported back to work the next morning, but by 11:30 the machinery still hadn’t been repaired. Petitioner, who had work to do at home and was not being paid for his time at the job site, thought that the equipment might not be repaired that day, and asked his employer if he could leave. His employer expressed indifference, and petitioner went home.

At the time of the hearing on his petition to modify support, petitioner still hadn’t returned to work. A letter from the treasurer of the company was read into evidence. According to this letter, petitioner had voluntarily walked off the construction site, which act the company regarded as self-termination of employment. However, this letter was contradicted by a subsequent letter from the president of the company, who stated that petitioner had been temporarily laid off from work, and would be put back on the payroll at a later date. This version of events was corroborated by petitioner’s testimony that he began receiving unemployment compensation immediately after termination of his employment. See MCLA 421.29(l)(a); MSA 17.531(l)(a).

Petitioner testified that after losing his construction job he had worked part-time picking pickles, and had applied part of his $150 to $200 of earnings from this work to the payment of child support. Petitioner further testified that he was seeking work through friends and through cooperation with the Michigan Employment Security Commission.

At the conclusion of the hearing the trial court announced its order, and,, addressing petitioner, stated:

"I figure your unemployment problems are self-generated, and you are responsible for them, or at least you contributed to it.”

The central questions on this appeal are whether the foregoing evidence was sufficient to establish that petitioner contributed to his own decrease in income and, if so, whether this was a legally sufficient ground for refusing him the relief he sought.

In Causley v LaFreniere, 78 Mich App 250, 254-255, n 2; 259 NW2d 445 (1977), this Court addressed the apparent conflict in the authorities regarding the standard of review on appeals from orders for child support. As we explained in Causley, the lower court’s decision is presumed correct, and the appellant bears the burden of showing that decision to be clearly erroneous. However, because of the history of appellate review in equity, the appellant may establish clear error here more readily than in cases historically heard at law.

The evidence in the instant case regarding petitioner’s loss of his job is ambiguous. The record is silent on the question of whether petitioner ever returned to the work site, under what circumstances he was informed that he had in fact lost his job, and whether he made any effort to regain it. However, on the evidence admitted, we cannot say that the lower court clearly erred in finding that petitioner’s act in leaving the work site rendered him responsible, at least in part, for the loss of his employment. The question then becomes whether this is good cause for denying a reduction in child support.

The father’s income is one of the factors to which a court must look when entertaining a petition for modification of child support. McCarthy v McCarthy, 74 Mich App 105, 109; 253 NW2d 672, 674 (1977). Indeed, this Court has speculated that "in some cases a reduction in income would compel a modification”. See Cymbal v Cymbal, 43 Mich App 566, 568; 204 NW2d 235, 236 (1972). However, the father’s duty to pay support is not limited by his income; the court may also look to the father’s unexercised ability to earn. Travis v Travis, 19 Mich App 128, 130; 172 NW2d 491, 492 (1969). See also Baird v Baird, 368 Mich 536, 541; 118 NW2d 427, 429 (1962).

Although we have found no Michigan cases directly on point, there is well-reasoned authority for the rule that voluntary reductions in income, if made in bad faith, will not warrant a modification of support payments. Nelson v Nelson, 225 Or 257; 357 P2d 536 (1960). See also 89 ALR2d 7, 54-58, Anno: Change in ñnancial condition or needs of parents or children as ground for modiñcation of decree for child support payments. We also believe that no modification is warranted where the father voluntarily worsens his financial position through unconscionable disregard for the welfare of his dependents. Cf. Cullimore v Laureto and Sword v Sword, in footnote 1, supra. However, absent bad faith or willful disregard for the interests of the dependent children, a voluntary reduction of income is not an adequate reason for refusing modification of a support order.

In this case the lower court denied petitioner an adequate adjustment of support obligations solely because he had "at least * * * contributed” to his own unemployment problems. There was no finding, nor any evidence to support a finding, that petitioner had acted in bad faith or willful disregard of his children’s needs. Accordingly, the lower court’s order was clear error. The case is reversed and remanded for further consideration of Mr. Moncada’s petition in light of the views expressed herein. No costs.

M. J. Kelly, P. J., concurs in the result only.

       In the related but arguably distinguishable area of contempt proceedings to enforce support orders there is precedent from this Court and the Supreme Court for viewing unrealized earning capacity in light of the father’s state of mind. In Cullimore v Laureto, 66 Mich App 463; 239 NW2d 409 (1976), the Court reviewed a trial court order holding the defendant in contempt for failure to make support payments. MCLA 552.201; MSA 25.161. The trial judge had "found the defendant to be a recalcitrant,' whether conscious or merely unconcerned”. 66 Mich App at 465; 239 NW2d at 410. In affirming, the Court stated:
      "The record amply supports a conclusion that this defendant comfortably accepts his unemployed status. Given the defendant’s seven-year record of nonpayment and his self-proclaimed ability as a mechanic, it is difficult to dispute the judge’s finding that he was able but unwilling to assume his support obligations.” 66 Mich App at 466; 239 NW2d at 410.
      The same issue was before the Michigan Supreme Court in Sword v Sword, 399 Mich 367, 379; 249 NW2d 88, 92 (1976), wherein the Court stated:
      "If the judge concludes from the testimony of defendant and others that defendant has 'sufficient ability to comply with’ the order or 'by the exercise of due diligence could be of sufficient ability, and has neglected or refused’ to comply, defendant may be found in contempt of court.”

        Nelson defined bad faith as follows:
      "To find bad faith it would be necessary to show that defendant acted with a purpose of jeopardizing the interests of his children.” 225 Or at 261; 357 P2d at 538.


text:
    PEOPLE v HENDRIX
    1. Witnesses — Criminal Law — Res Gestae Witnesses — Robinson Hearing — Production of Witnesses — Due Diligence.
    A trial judge’s finding at a Robinson hearing that although the prosecutor lacked due diligence in the production of a res gestae witness due diligence would not have produced the missing witness was error where the prosecution attempted to serve the subpoena only two days prior to trial and, had the police contacted the witness a reasonable time before trial, she would have known not to leave when she did for a two-week vacation and would have been available as a witness.
    2. Witnesses — Criminal Law — Res Gestae Witnesses — Production of Witnesses — Cumulative Testimony.
    An exception to the general rule requiring the production of res gestae witnesses exists where the testimony of the witness would be merely cumulative.
    3. Witnesses — Criminal Law — Res Gestae Witnesses — Production of Witnesses — Evidence—Cumulative Testimony — Relevant Testimony.
    The testimony of a res gestae witness who was not produced at trial would have been relevant and would not have been merely cumulative to that of three other witnesses who were produced where (1) a defendant was identified by the three witnesses as one of the perpetrators of a robbery, (2) there was no dispute that the robbery had taken place and therefore only the identity of the perpetrators was at issue, (3) the nonproduced witness had viewed the perpetrator from a unique vantage point, yet was unable to identify the defendant as the perpetrator, and (4) the missing witness’s nonidentification of the defendant would have been in conflict with the identification testimony of those who did testify; therefore, the trial judge erred in his conclusion that the witness’s testimony would have been merely cumulative.
    References for Points in Headnotes

       81 Am Jur 2d Witness § 2.

      Appeal from Recorder’s Court of Detroit, John P. O’Brien, J.
    Submitted December 13, 1977, at Detroit.
    (Docket No. 30564.)
    Decided January 24, 1978.
    Leave to appeal applied for.
    Bobby J. Hendrix was convicted of assault with intent to rob being armed. Defendant appeals.
    Reversed and remanded.

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

      Campbell & McDonald, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   Per Curiam.

Bobby Jack Hendrix was charged with assault with intent to murder, MCLA 750.83; MSA 28.278 (Count I) and assault with intent to rob being armed, MCLA 750.89; MSA 28.284 (Count II). A jury found him not guilty on Count I and guilty on Count II. He was sentenced to a 10 to 20 year prison term and appealed as of right.

On March 26, 1976, this Court in an unpublished per curiam opinion remanded the case for a "Robinson hearing”. On July 26, 1976, a Robinson hearing was held and the court found that due diligence would not have produced the missing witness and, further, that her testimony in any event would have been cumulative. Defendant appeals as of right from this decision.

The prosecutor’s proofs indicated that on February 1, 1974, a Detroit tavern was robbed by three armed men. An off-duty Detroit police officer was shot and wounded. The three men escaped. Defendant was arrested the next day. Various employees and patrons of the tavern testified as to the occurrences of February first. Defendant was identified by three of these witnesses. Some witnesses thought the defendant went to the back of the bar and held a gun on the cook and others testified that defendant sat at the bar and pulled out a gun and announced a robbery. Testimony was given by various witnesses that they saw the assailants fire their guns.

During the trial, defense counsel and the prosecutor stipulated that the robbery and assault had taken place and also stipulated that the only issue for the jury was the identity of the criminals.

At trial, the trial judge found that the prosecutor lacked due diligence in the production of the res gestae witness, Mrs. McMichael. The prosecutor admitted this to be true. The trial judge at the Robinson hearing found that due diligence would not have produced the missing witness. We do not agree.

The identity of Mrs. McMichael was known to the police and her name was indorsed on the information filed March 11, 1974. It can hardly be said to be a duly diligent effort by the prosecution to attempt to serve the subpoena only two days prior to trial on August 6, 1974. Had the police contacted Mrs. McMichael a reasonable time before trial, she would have known not to leave on August 3, 1974, for a two-week vacation and would have been available as a witness. Therefore, the trial judge erred in finding that due diligence would not have produced the missing witness.

An exception to the general rule requiring production of res gestae witnesses exists when the testimony of the witness would be merely cumulative. People v Cornell Harris, 56 Mich App 267; 224 NW2d 57 (1974), People v Gordon, 60 Mich App 412, 416; 231 NW2d 409 (1975), People v Keefe, 69 Mich App 431; 245 NW2d 78 (1976).

The issue then becomes whether the testimony of Mrs. McMichael would be cumulative. After listening to the testimony of Mrs. McMichael at the Robinson hearing, the trial judge determined that her testimony would have been cumulative. We do not agree.

The cases of People v Castelli, 370 Mich 147; 121 NW2d 438 (1963) and People v Gordon, supra, are apposite. In Castelli, supra, three witnesses testified to a robbery and the robber’s flight from the scene. The three corroborated each other in description of the robber and where he ran. According to a police report, another woman sitting in a nearby car told police that at that time and place she, too, saw a man running where the others testified that they had seen him. Her description of the man differed from that of the other witnesses. The Court stated in 370 Mich at 155 in part as follows:

"She was not called as witness by the people nor was her name indorsed on the information. The first that defendant or his counsel heard of her was at trial. The court stated that it did not appear from the police report that the witness had been able to get a good view or more than a fleeting glimpse of the running man or that she would be able to identify him and that, hence, it did not feel that the trial should be delayed so that she could be brought in to testify because it did not appear that her testimony would be helpful to either party. Inasmuch as identity of the robber was a major issue in the case, the testimony of every witness who could describe him was of utmost importance. If, as the police report indicates, the description by one not called as a witness would be in conffict with that of those who did testily, defendant was entitled to the beneñt thereof before the jury. Her testimony would not have been merely cumulative. Failure to indorse this woman’s name on the information and to produce her at trial was reversible error.” (Emphasis added.) (Citation omitted.)

Thus, in a case practically "on all fours” with the case at bar, the Michigan Supreme Court concluded the testimony of an additional res gestae witness as to the identity of a robber, which differed from that of three other witnesses who had identified defendant as the robber, was of the utmost importance, was not cumulative, and her failure to testify was reversible error.

In People v Gordon, supra, the res gestae witness whom the prosecutor failed to produce was one of several persons who had the opportunity to view the perpetrators of an unarmed robbery. The witness testified at the Robinson hearing that he had witnessed the robbery but at a lineup two days later he could not identify defendant Gordon as the perpetrator. This Court stated in part in 60 Mich App at 416:

"There has been no showing by the prosecutor of why the witness was not endorsed. Although the witness’s testimony concerning the description of the robbery was cumulative, the fact that he had a favorable vantage point and yet was unable to subsequently identify the defendant was relevant testimony.”

In the case at bar, defendant was identified as one of the perpetrators of the robbery by three witnesses. There was no dispute that the robbery and assault had taken place; only the identity of the perpetrators was at issue. The res gestae witness who was not produced at trial had viewed the perpetrator from a unique vantage point when she handed him change at the bar, yet she was unable to identify defendant Hendrix as the perpetrator. Her testimony would thus have been relevant and would not have been merely cumulative in that her nonidentification of defendant would be in conflict with that of those who did testify. The trial judge therefore erred in his conclusion that Mrs. McMichael’s testimony would have been merely cumulative.

Reversed and remanded.

        People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).


text:
    PIERCE v RILEY
    1. Appeal and Error — Law of the Case — Subsequent Trial. A conclusion reached in an earlier appeal to the Michigan Supreme Court becomes the law of the case and is not subject, to review on appeal from a subsequent trial; courts will not review former decisions made by the same court in the same cause and based on the same facts.
    2. Appeal and Error — Equity—Findings of Facts.
    The Court of Appeals reviews equity cases de novo but will not disturb the trial court’s findings unless convinced that a different result would have been reached had the Court occupied the trial court’s position.
    3. Waters and Water Courses — Riparian Rights — Inland Lakes— Uses — Reasonableness.
    Reasonableness remains the criterion for use of water by riparian owners; where there are several owners to an inland lake, such proprietors and their lessees and licensees may use the whole lake for boating, swimming, fishing and other similar riparian rights, so far as they do not interfere with the reasonable use of the waters by other riparian owners.
    4. Waters and Water Courses — Riparian Rights — Artificial Uses —Reasonableness.
    Matters to be considered in determining whether a use of riparian rights is reasonable include (1) what the use is for, (2) its extent, duration, necessity, and its application, (3) the nature and size of the stream, and the several uses to which it is put, (4) the extent of the injury to the one proprietor, and of the benefit to the other, and (5) all other factors which may bear upon the reasonableness of the use.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 991.

       5 Am Jur 2d, Appeal and Error § 822.

       78 Am Jur 2d, Waters § 54.
    Rights of fishing, boating, bathing, or the like in inland lakes. 57 ALR2d 569.

       78 Am Jur 2d, Waters § 286.

       78 Am Jur 2d, Waters §§ 275, 276.

       78 Am Jur 2d, Waters § 256.

      5. Waters and Water Courses — Riparian Rights — Inland Lakes and Streams Act — Proceedings—Statutes.
    There is nothing in the Inland Lakes and Streams Act that limits the rights of a riparian owner to institute proceedings in any circuit court of the state against any person when necessary to protect the owner’s riparian rights (MCLA 281.961; MSA 11.475[11]).
    6. Equity — Courts—Equitable Solution — Economic Burden — Development With Issue In Litigation.
    The Court of Appeals should not weigh the economic positions of the respective parties and consider the burden placed on each to arrive at an equitable and enlightened solution to an equity case where the economic burden of the defendants was caused by the defendants’ decision to proceed with further development of a marina at their own risk while the issue of the reasonableness of the development was still in litigation.
    Appeal from Oceana, Harold VanDomelen, J.
    Submitted November 3, 1977, at Grand Rapids.
    (Docket No. 31302.)
    Decided January 24, 1978.
    Leave to appeal applied for.
    Complaint by Don Pierce and others in the Stony Lake Cottage Owners Association against Stanley D. Riley and others, individually and doing business as Holiday Shores on Stony Lake, to enjoin the defendants’ unreasonable use of their riparian rights. Judgment for defendants. Plaintiffs appeal. Defendants cross-appeal.
    Reversed.

      Peter W. Steketee and Cholette, Perkins & Buchanan (by Don V. Souter), for plaintiffs.

      Walter A. Urick, for defendants.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   Per Curiam.

The original complaint in this action was filed in August, 1966. This is the fourth time the matter has come before this Court. Plaintiffs are owners of property on Stony Lake in Oceana County. They originally filed suit in circuit court seeking to enjoin defendants, also owners of land abutting Stony Lake, from granting right of way easements for lake access to nonriparian owners in a development called Holiday Shores. In June, 1967, the trial court dismissed plaintiffs’ complaint, but this Court, on appeal, remanded for further consideration in light of Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967). See Pierce v Riley, 16 Mich App 419; 168 NW2d 309 (1969). (Stony Lake I).

On remand, the trial court again dismissed plaintiffs’ complaint. This Court reversed that decision in Pierce v Riley, 35 Mich App 122; 192 NW2d 366 (1971), (Stony Lake II), and enjoined defendants from granting riparian rights to nonriparian owners. Defendants’ proposed use of the lot as the site of a dredged channel was deemed unreasonable. The Supreme Court, on December 22, 1971, denied defendants’ application for leave to appeal.

Plaintiffs then requested, at the trial court level, that the dredged area in the riparian lot be filled and the docks removed. The trial court refused the request, plaintiffs appealed, and in Pierce v Riley (Supplemental Opinion) 51 Mich App 504; 215 NW2d 759 (1974), (Stony Lake III), this Court ordered the filling of the channel.

On leave to appeal, the Supreme Court on June 27, 1974, reversed the Court of Appeals and ordered the circuit court to hold the cause in abeyance pending findings of fact and a decision by the Department of Natural Resources on an application by defendants pursuant to MCLA 281.951 et seq.; MSA 11.475(1) et seq., the Inland Lakes and Streams Act, and to grant appropriate relief thereafter. 392 Mich 765; 219 NW2d 434 (1974).

When the DNR had completed its review, the trial court made various findings: it held that the Court of Appeals decision finding defendants’ originally proposed use of the riparian lot unreasonable (Stony Lake II) had not been reversed; that the Supreme Court order of June 27, 1974, found the Court of Appeals remedy in Stony Lake III (to refill and restore the channel) was inequitable relief; that, therefore, defendants were not required to fill the channel in the riparian lot but that they could still not grant riparian rights to the owners of nonriparian lots in Holiday Shores; and, finally, that defendants were not prohibited from using the riparian lot as a marina according to a lawful permit from the DNR. The court enjoined plaintiffs from exercising any administrative rights before the DNR.

On December 6, 1976, the trial court adopted most of the restrictions which defendants had unilaterally imposed on their use of the riparian lot, including a limitation on the number of boat slips (down from 100 to 60), a restriction on usage of the marina to only owners of the Holiday Shores subdivision, their families and guests, and a limitation allowing lot owners the right to dock no more than one boat at the marina. Plaintiffs appeal from this judgment. Defendants cross-appeal, requesting this Court to hold that defendants’ present use of its recreational outlet is reasonable in light of the DNR’s study and the circuit court opinions entered in this matter. Thus have we arrived at Stony Lake IV.

The core of the present controversy is the Supreme Court’s Delphic order of June 27, 1974, 392 Mich 765. We do not construe that order as overruling either Stony Lake I or Stony Lake II. The use of the lot as described in Stony Lake II is still unreasonable. In its order, the Supreme Court concerned itself with the remedy, not the finding of unreasonableness. The law of Stony Lake II remains the law of the case. Defendants applied for leave to appeal the decision in Stony Lake II, an application which was denied by the Supreme Court. A conclusion reached in an earlier appeal to the Michigan Supreme Court becomes the law of the case and is not subject to review on appeal from a subsequent trial. Leland v Ford, 252 Mich 547; 233 NW 410 (1930), Watkins v Gabriel Steel Co, 268 Mich 264; 256 NW 333 (1934), Detroit Power Screwdriver Co v Ladney, 39 Mich App 629; 197 NW2d 857 (1972), Allen v Michigan Bell Telephone Co, 61 Mich App 62; 232 NW2d 302 (1975).

"It is the well-settled rule that courts will not review former decisions made by the same court in the same cause, and on the same facts.” The People’s Savings Bank v Eberts, 96 Mich 396, 398; 55 NW 996 (1893).

The question, therefore, is not now subject to review on appeal to this Court.

Further uncertainty engendered by the Supreme Court’s June 27 order pertains to the filling of the channel.

We do not agree with the trial court that the Supreme Court, by its order instructing the circuit court to hold the cause in abeyance pending findings of fact by the DNR, found the refilling and restoration of the channel to be inequitable relief. Granted, the order is subject to various interpretations, but we do not believe it foreclosed the trial court from considering the refilling of the channel as one of the possible remedies in this protracted legal battle. It was error for . the trial court to preclude the possibility from its consideration.

True, the DNR in making its findings found that, within limitations, the marina would have no adverse impact on the lake. But it is likewise true that the DNR’s review of the matter concluded that filling the channel, should such a remedy be chosen, would not adversely affect Stony Lake, provided certain safeguards were effectuated. A permit is required for both the maintenance of a marina and the filling of the channel, a fact upon which the Supreme Court order does not comment.

The Inland Lakes and Streams Act, pursuant to which the DNR makes its findings, states that one of its purposes is to protect riparian rights and the public trust in inland lakes and streams. We must view the Supreme Court order from the perspective of the purpose of the act. In protecting the public trust, the Legislature was keeping watch over the environmental impact of various operations on inland lakes and streams.

It was sound business sense for defendants to apply for a permit to maintain a marina to which the DNR has given its stamp of approval. But the business acumen of defendants cannot preclude this Court from protecting the interests for which the Legislature had regard nor can it preclude plaintiffs from exercising their rights as riparian owners. The act explicitly states that it shall not modify the rights and responsibilities of any riparian owner to the use of his or her riparian water.

Accordingly, the DNR’s approval of the marina does not end the matter. Its simultaneous approval of a landfill (undoubtedly because it was unable to interpret the Supreme Court’s order) confronts us again with the question of a proper final remedy. The Court of Appeals reviews equity cases de novo, but we will not disturb the trial court’s findings unless we are convinced that we would have reached a different result had we occupied that court’s position. Pyne v Elliott, 53 Mich App 419; 220 NW2d 54 (1974).

The original use contemplated by defendants called for the granting of easements to 90 nonriparian lot owners to and through the riparian lot, #91, in which a channel was built. In Stony Lake II, this Court found and it is the law of the case that such use is unreasonable, since the number of families having access to the lake would have increased 66% and the number of families per surface acre of lake would have increased from about 0.5 to 0.89. 35 Mich App at 124.

"[T]he construction of 90 residences with ready access to the lake at all times, will not significantly decrease the number of people using the lake as members of the general public, but it will increase drastically the use of the lake by local residents, the people who put the heaviest burden on a lake this small in area.” 35 Mich App at 127.

Reasonableness remains the criterion for use of water by riparian owners. When there are several owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating, swimming, fishing and other similar riparian rights, so far as they do not interfere with the reasonable use of the waters by other riparian owners. Battle Creek v Goguac Resort Association, Ltd, 181 Mich 241; 148 NW 441 (1914), Burt v Munger, 314 Mich 659; 23 NW2d 117 (1946), Tobias v Tobias, 345 Mich 263; 75 NW2d 802 (1956). Cf. Botton v State, 69 Wash 2d 751; 420 P2d 352 (1966), 3 Tiffany, Law of Real Property (3d ed), § 739, p 151.

In Thompson v Enz, supra, at 687, our Supreme Court propounded standards for determining what constitutes reasonable usage. See also, Stony Lake I and Stony Lake II. The factors there set forth must be applied suitably in each situation.

"No statement can be made as to what is such reasonable use which will, without variation or qualification, apply to the facts of every case. But in determining whether a use is reasonable we must consider what the use is for; its extent, duration, necessity and its application; the nature and size of the stream, and the several, uses to which it is put; the extent of the injuries to the one proprietor, and the benefit to the other; and all other factors which may bear upon the reasonableness of the use.”

In the instant case, that the DNR approved defendants’ use of the channel as a marina does not ipso facto make that use reasonable in the circumstances, i.e., where there are competing reasonable uses. It must be conceded that the trial court put certain restrictions on the use of the marina. We are, however, bound by and agree with the concept of reasonableness delineated in Stony Lake II.

The limitations imposed are irrelevant to the fact that, just as in Stony Lake II, the usage of the small lake will increase substantially because of the presence of a much larger number of persons, viz., the Holiday Shores owners, with ready access to the lake. The particular usage proscribed in Stony Lake II is not significantly changed through the concept of a marina. Indeed, defendants assert that from the outset the channel has been advertised as and used as a marina. This only enforces a finding that if the channel was being so used at the time of Stony Lake II, such usage continues to be unreasonable. The present marina concept "drastically increases the use of the lake by local residents, the people who put the heaviest burden on a lake this small in area”. 35 Mich App at 127.

The DNR report itself noted on page 9 that "[t]here will predictably come a time when the scope of use presently deemed reasonable will become unreasonable”. Neither we nor plaintiffs are bound by the DNR’s findings as to present reasonableness. The Inland Lakes and Streams Act specifies that nothing in the act limits the right of a riparian owner to institute proceedings in any circuit court of the state against any person when necessary to protect his or her riparian rights. MCLA 281.961; MSA 11.475(11).

The only effective relief in this case is the refilling and restoration of the channel. The DNR has reported, pursuant to the Supreme Court order, that such action will have no adverse impact on Stony Lake if the department’s recommendations are followed.

Refilling the channel is the only way in which all riparian owners will be able to make a reasonable use of the lake without interfering with the rights of others. Only by refilling the channel can this protracted litigation be ended; another remand would simply lead to more proposed uses for the channel. The problem, however, lies as much in the fact that the channel is used at all as it does in the way the channel is used. Providing residents of Holiday Shores with a means of ready access places an undue burden on the lake which unreasonably interferes with the rights of other riparian owners.

We are not unaware that use of the channel is no longer proposed, but is now reality. Defendants chose to proceed with the development at their own risk while the issue was still in litigation. They cannot now ask us to be persuaded by a factor they have intentionally created. Courts do well, in cases of this sort, to weigh the economic positions of the respective parties and consider the burdens placed on each to arrive at an equitable and enlightened solution. But defendants have so imposed the economic burden on themselves that it would be inappropriate for this Court to take it into account.

We therefore order defendants to fill the channel in compliance with a permit issued by the Department of Natural Resources. Guidelines provided by the department must be followed. These include provision for a silt screen or some other suitable measure to reduce the drift of fill material into the lake proper. In addition erosion control measures, such as sodding, seeding, revegetation and riprap, must be implemented.

The judgment of the trial court is reversed.


text:
    IN THE MATTER OF AMENDMENT OF PLAT OF SEQUANOTA HEIGHTS (BELFY v KRCHAK)
    Statutes — Plats—Vacation of Plats — Amendment of Plats — Construction of Statutes — Standing.
    The statute which sets forth the requirements of who has standing to apply to a circuit court to "vacate, correct, alter or revise” a recorded plat contains a conflict as to whether such action may be brought by a single lot owner in a subdivision or whether two-thirds of the landowners must join in the action; a rule of statutory construction that whenever possible all portions of a statute should be given effect leads to a construction which allows standing to the owner of a single lot as well as to a group of two-thirds of the lot owners if such a group should bring an action; this construction is further reinforced by the presence of a section which confers standing upon a single lot owner to bring an action to "amend” a plat (MCLA 560.222; MSA 26.430[222]).
    Reference for Points in Headnote
    82 Am Jur 2d, Zoning and Planning § 343.
    Appeal from Charlevoix, Martin B. Breighner, J.
    Submitted June 14, 1977, at Grand Rapids.
    (Docket No. 31322.)
    Decided January 24, 1978.
    Complaint by John Belfy, Audrey Belfy, and others against George Krchak, Sylvia Krchak, and others to amend a recorded subdivision plat. Accelerated judgment for defendants. Plaintiffs appeal.
    Reversed and remanded.

      Michael D. Lewis, for plaintiffs.

      Hoffman & Hoffman, for defendants George Krchak, Sylvia Krchak and Eveline Township.

      Before: M. J. Kelly, P. J., and M. F. Cavanagh and J. R. Rood, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

Plaintiffs brought this action seeking to amend the plat of the Sequanota Heights subdivision to widen a private road and decrease the size of certain lots. Plaintiffs are the proprietors of lots 10, 11, and 12 of this 16-lot subdivision. Defendants Krchak are the owners of lots 8 and 9; defendants Marme own lots 1, 14, 15, and 16.

According to plaintiffs’ complaint, a private road 20 feet in width is located between lots 7 and 8 along the southern boundaries of lots 9 through 16. This road is impassable in winter and contains 90-degree turns which prohibit snow removal and service to plaintiffs’ lots by fire trucks and other emergency vehicles. Plaintiffs averred that to correct these alleged defects the road had to be widened to a minimum of 40 feet and lots 7 through 16 each reduced in size by 20 feet along the boundary of the road.

The several defendants answered, denying plaintiffs’ allegations, and also moved for accelerated judgment claiming that since 2/3 of the subdivision’s property owners had not signed plaintiffs’ petition, plaintiffs lacked standing.

The trial court held that since this Court had construed MCLA 560.222; MSA 26.430(222) to require 2/3 of the property owners to join in a petition to vacate a plat, plaintiffs’ petition must be dismissed. From this grant of accelerated judgment, plaintiffs appeal as of right.

A reading of the relevant statutory provisions discloses the problem herein:

"Sec. 221. The circuit court may as provided in sections 222 to 229:
"(a) Order a recorded plat to be amended by a change in a dimension which results in changing the size or shape of any part of the plat.
"(b) The circuit court may vacate, correct, alter or revise all or any part of a recorded plat.” MCLA 560.221; MSA 26.430(221).
"Sec. 222. (1) To amend a recorded plat, the proprietor of the subdivision or any lot in the subdivision may apply to the appropriate circuit court.
"(2) To vacate, correct, alter or revise a recorded plat or any part of it, the proprietor of a subdivision or any lot in a subdivision; the governing body of a municipality which considers it necessary or advisable in the interests of the welfare, health or safety of its citizens; 2/3 of the proprietors collectively, of lands in the subdivision, and who also own 2/3 by area of the lands may apply to the appropriate circuit court.” MCLA 560.222; MSA 26.430(222).

There is an obvious conflict between the portion of MCLA 560;222(2) before the first semicolon, allowing the proprietor of any lot in a subdivision to bring an action; and the portion of MCLA 560.222(2) after the last semicolon, requiring 2/3 of the landowners to join in an action.

The trial court resolved this conflict against the plaintiffs based upon this Court’s decisions in Feldman v Monroe Township Board, 51 Mich App 752; 216 NW2d 628 (1974), lv den 391 Mich 837 (1974), and In re Vacation of Plat of Mollie Britton Estate, 57 Mich App 468; 226 NW2d 526 (1975). In both of those cases the 2/3 requirement was held to be a prerequisite to standing. However, the majority opinion in Britton, supra, offers a well-reasoned critique of Feldman, supra, in the following language:

"Looking into my somewhat murky crystal ball I think that something like the following occurred. When the act was written the 2/3 language was taken out of old § 63 and put into the section governing standing. Then, probably because the Supreme Court regarded it as unconstitutional, the provision making it mandatory that the court grant the relief prayed for was eliminated. However, due to an oversight the 2/3 language was left in the statute. Perhaps, as the plaintiff suggests, the Legislature meant to shift the burden of proof when the 2/3 requirement was met. However, the Legislature left out any mention of what significance the 2/ 3 requirement would have.
"I also think that a comparison of the language used in subsection 1 of § 222 with the language of subsection 2 is instructive. Subsection 1 confers standing on the proprietor of the subdivision or any lot in the subdivision. Subsection 2 uses the same language and then lists others who have standing. It seems to me that the Legislature meant that a larger class was to have standing under subsection 2 than under subsection 1. Yet, under Feldman the class in subsection 2 is narrowed.
"I agree with Feldman that the statute is inartfully drafted. I also agree that it is unlikely that the Legislature added the 2/3 language only to have it negated by the earlier language. However, I would point out that it is equally unlikely that the. Legislature would confer standing on a proprietor of a lot only to have it taken away by a later clause.
"The rule of statutory construction that whenever possible all portions of the statute should be given effect is violated by Feldman. It is not necessary to find a conflict between two portions of the statute. Effect can be given to both provisions if the statute is interpreted as it is written. Granted not many people will ever make use of the 2/3 provision but at worst this approach treats surplusage as surplusage. The Feldman approach uses surplusage to reach a result contrary to the legislative intent.” 57 Mich App at.471-472.

To us, this construction is preferable. We are free to adopt it as the denial of leave by the Supreme Court in Feldman, supra, does not constitute an affirmance.

We are further persuaded that this is the better interpretation of the statute in light of the unequivocal language of § 222(1). Here, plaintiffs, defendants, and the trial court all treated plaintiffs’ petition as it was named: a petition to amend the plat. Under § 222(1), petitioners clearly have standing to amend a recorded plat. Because of the statute’s failure to define any distinction between "amending” and "vacating, correcting, altering or revising”, we prefer not to base our interpretation solely upon the terminology which a petitioner utilizes. The presence of that section, however, reinforces a construction of the statute which would confer standing upon these plaintiffs. Each of them is a proprietor of a lot in the subdivision and each would be affected by the proposed amendment to the plat. The statute should not be interpreted in a manner which denies them the opportunity of having a court review the merits of their petition.

The judgment below is reversed and the cause is remanded for trial. No costs.

       Further reference to the problem relating to the lack of definition of terms in the act appears in Cunningham, Public Control of Land Subdivision in Michigan: Description and Critique, 66 Mich L Rev 3, 75 (1967).


text:
    PEOPLE v ROBERT L. THOMPSON
    1. Searches and Seizures — Automobiles—Traffic Violation — Suspicion of Other Offense.
    A general search of an automobile by police after a stop for a traffic violation is not justified where there is no suspicion of an offense other than the traffic violation.
    2. Searches and Seizures — Automobiles—Probable Cause — Search Incident to Arrest.
    A police officer was justified in searching a defendant’s automobile where the defendant was stopped for a traffic violation and upon approaching the defendant, who was standing outside his automobile, the officer detected- the smell of burning marijuana, placed the defendant under arrest, and searched his person, finding marijuana and a large sum of money; the officer had reasonable cause to believe that the automobile contained more contraband or additional evidence of possession or use of marijuana.
    3. Searches and Seizures — Automobiles—Investigative Stop — Reasonableness.
    Reasonableness is the test that is to be applied for both the stop of and the search of moving motor vehicles; said reasonableness will be determined from the facts and circumstances of each case; fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved, and a stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.
    Appeal from Ingham, Jack W. Warren, J.
    Submitted December 8, 1977, at Lansing.
    (Docket No. 31352.)
    Decided January 24, 1978.
    References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 39, 68.

       68 Am Jur 2d, Searches and Seizures §§ 45, 58, 99.

       68 Am Jur 2d, Searches and Seizures § 16.

      Robert L. Thompson, Jr., was convicted of possession of-.heroin and possession of cocaine. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and John E. Steele, Assistant Prosecuting Attorney, for the people.

      Kenneth A. Birch, for defendant on appeal.
    Before: R. B. Burns, P. J., and Allen and R. M. Maher, JJ.
   Per Curiam.

On the morning of February 18, 1974, defendant was arrested and charged with possession of marijuana, MCLA 335.314(c); MSA 18.1070(14)(c), MCLA 335.341(4)(d); MSA 18.1070(41)(4)(d), possession of heroin, MCLA 335.306; MSA 18.1070(6), MCLA 335.314(b); MSA 18.1070(14)(b), MCLA 335.341(4)(a); MSA 18.1070(41)(4)(a), and possession of cocaine, MCLA 335.316; MSA 18.1070(16), MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b). A fourth count was dropped. Defendant pled guilty to possession of marijuana. He received and served a 90-day sentence.

After a motion to suppress the evidence and a motion for reconsideration of the motion to suppress were both denied, a jury convicted defendant of possession of heroin and possession of cocaine. Defendant appeals, seeking reversal of the trial court’s denial of his motion to suppress and requesting a new trial.

Defendant had been validly stopped by state police for traffic violations. The officer who approached defendant as he was standing outside his car smelled burning marijuana. He arrested defendant, searched him and found six marijuana cigarettes. The officer then searched defendant’s vehicle, finding suspected controlled substances in a small black leather coin purse in the console.

It is the search of his automobile which defendant contests. The initial stop of defendant’s car, for traffic offenses, was valid. People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). But when there is no suspicion of an offense other than the traffic violation, a stop does not warrant a general search of the automobile. People v Gonzales, 356 Mich 247; 97 NW2d 16 (1959), People v Marshall, 25 Mich App 376; 181 NW2d 578 (1970).

The police action at issue, however, is more than a general search accompanying a traffic stop. After defendant was stopped, the state police officer detected the smell of burning marijuana and validly placed defendant under arrest. Probable cause existed for the officer to believe a crime was being committed in his presence. People v Parisi, 46 Mich App 322; 208 NW2d 70 (1973), rev’d on other grounds, 393 Mich 31; 222 NW2d 757 (1974), People v Hilber, 69 Mich App 664; 245 NW2d 156 (1976), People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977).

The search of defendant’s person incident to the arrest was also valid. Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969), People v Hall, 57 Mich App 553; 226 NW2d 562 (1975). While it is true that People v Hilber, supra, holds that the smell of marijuana does not justify a search of the vehicle without a warrant, the officer here relied on more than the smell of marijuana. The search of defendant’s person incident to his arrest produced six marijuana cigarettes and a large sum of money. These facts, together with the knowledge that defendant had recently been in his car with access to the console, were sufficient to give the officer probable cause to believe the console contained more contraband or additional evidence of possession or use of marijuana.

We note that the search in this case was of a motor vehicle. The standard used to determine the validity of such a search was enounced in People v Whalen, supra.

“1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.

"2. Said reasonableness will be determined from the facts and circumstances of each case.

"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.

"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.” 390 Mich at 682.

Applying the Whalen standard in this case, we find that the officer possessed sufficient evidence and information on which to make a warrantless search of defendant’s automobile.

We deem defendant’s other assignments of error to be without merit. See Crampton v 54-A District Judge, 397 Mich 489; 245 NW2d 28 (1976), People v Goans, 59 Mich App 294; 229 NW2d 422 (1975), People v Burrell, 21 Mich App 451; 175 NW2d 513 (1970), People v McPherson, 38 Mich App 534; 197 NW2d 173 (1972).

Affirmed.


text:
    GUERRERO v BRIGHTON ATHLETIC ASSOCIATION
    1. Workmen’s Compensation — Award—Interest—Statutes.
    A workmen’s compensation award is grounded in contract, and is not a money judgment, therefore, the interest rate on an award is 5%, the statutory contract rate, and not 6%, the money judgment rate (MCLA 438.31; MSA 19.15[1]).
    2. Workmen’s Compensation — Enforcement of Awards — Appeal and Error — Evidence—Admissions.
    A trial judge’s refusal, in an action to enforce a workmen’s compensation award, to permit any testimony by the individual defendants directed to the question of who were the officers and directors of the defendant association at the time the plaintiff' was injured was error where (1) the trial judge relied upon a 1973 annual corporation report to establish the identities of the individual officers and directors to be liable, (2) that report was filed after the injury occurred, (3) the 1972 report, which was the last one filed prior to the injury, lists two directors not shown on the 1973 report, and (4) the trial judge concluded that the defendants’ answer, in which they admitted the existence and content of the records, precluded them from asserting that the officers or any of them, were not in fact the proper defendants.
    Appeal from Shiawassee, Peter J. Marutiak, J.
    Submitted October 12, 1977, at Lansing.
    (Docket Nos. 31374, 31375.)
    Decided January 24, 1978.
    Complaint by Juan F. Guerrero against the Brighton Athletic Association, also known as Brighton Athletic Club, Inc., and A. David Marsh, Dale Leming, Fred Dymond, George Kirchner, Skip Davis, Ernie Buck and Tom Jarvis, to enforce an award of workmen’s compensation. Judgment for plaintiff. Defendants appeal.

      References for Points in Headnotes

       45 Am Jur 2d, Interest and Usury §§ 63, 64, 68, 74.
    81 Am Jur 2d, Workmen’s Compensation § 4.

       82 Am Jur 2d, Workmen’s Compensation §§ 553, 565-568, 631.

      Affirmed in part, reversed in part and remanded.

      Russell O. Vail, for plaintiff.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P. C. by (David K. Barnes), for defendants.
    Before: Danhof, C. J., and Allen and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

This is an appeal from a circuit court proceeding to enforce a workmen’s compensation award entered on May 30, 1975. Defendant association failed to appear and defend against the workmen’s compensation claim and also failed to appeal timely from the award entered thereon. A motion for delayed appeal to the Workmen’s Compensation Appeal Board was denied on February 20, 1976, and on June 8, 1977, this Court denied leave to appeal from that denial.

Plaintiff commenced the present action to enforce the award in circuit court pursuant to § 863 of the Worker’s Disability Compensation Act, MCLA 418.863; MSA 17.237(863), and, on December 14, 1976, the trial court entered judgment for plaintiff as follows:

"It is further ORDERED, that upon entry of this ORDER FOR JUDGMENT, Plaintiff may immediately proceed and liquidate the Defendant, Brighton Athletic Club, Inc., and account to the Court for proceeds received, and if any portion is returned unsatisfied and then immediately proceed against all other Defendants, jointly and severally, until said ORDER FOR JUDGMENT is satisfied.”

On appeal defendants raise several claims of error, only two of which we need address. First, we are of the opinion that the circuit judge erred in enforcing the referee’s award of interest at the rate of 6% per annum. The rate of interest is unrelated to the underlying merits of the compensation award, and therefore the rule of Simm v Dearborn, 54 Mich App 263, 265; 220 NW2d 768 (1974), does not fetter the trial court’s discretion to amend the referee’s award by incorporating the proper statutory rate of interest in the judgment entered thereon. It is clear from a careful reading of Solakis v Roberts, 395 Mich 13, 18-22; 233 NW2d 1 (1975), that no question of retroactivity is here involved; the Court in Solakis merely "restated” the rule first announced in Wilson v Doehler-Jarvis Division of National Lead Co, 358 Mich 510; 100 NW2d 226 (1960), that a workmen’s compensation claimant has a contractual right to interest on his award at the rate of 5% pursuant to MCLA 438.31; MSA 19.15(1).

In framing the judgment entered below, the trial judge relied upon a 1973 annual corporation report to establish the identities of the individual officers and directors to be liable. That report was filed after the injury occurred. The 1972 report, which was the last one filed prior to the injury, lists two directors not shown on the 1973 report. The trial judge concluded that defendants’ answer, in which they admitted the existence and content of the records, precluded them from asserting that the officers and directors shown on the 1973 report, or any of them, were not in fact the proper defendants. He therefore refused to permit any testimony directed to the question of who were officers and directors of the association when the injury occurred. In this the trial judge erred, and a remand is required to determine this question. At most, defendants can be said to have admitted that the 1973 report containing the names listed thereon existed at a date subsequent to the time of plaintiffs injury, according to the date shown on the report itself. Defendants did not thereby necessarily admit that they were officers or directors of the defendant association at the time plaintiff suffered injury, as alleged by plaintiff. The trial judge should have granted defendants’ request for a hearing to determine who were the officers and directors of defendant association at the time of plaintiffs injury, and on remand he shall do so if the judgment properly entered against the association is returned unsatisfied and enforcement of the award as against the individual officers and directors is sought by plaintiff pursuant to MCLA 418.647; MSA 17.237(647).

Our disposition makes it unnecessary to decide whether the judgment entered, which permitted plaintiff to proceed against the individual defendants only after any portion of the judgment against the association was returned unsatisfied, complied with the requirements of Wyrybkowski v Cobra Pre-Hung Doors, Inc, 66 Mich App 555; 239 NW2d 660 (1976). A separate enforcement proceeding against the individual defendants will now be necessary in any event.

Nor is it necessary for us to consider for the first time on appeal defendants’ collateral attack, on due process grounds, on the compensation award that plaintiff sought to enforce in circuit court. If the individual defendants again attempt to raise their due process claim on remand, however, the circuit court should determine whether such a claim may be raised for the first time in an enforcement proceeding.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. No costs, neither party having prevailed in full.

       Plaintiff was awarded $94 per week for 215 weeks, for loss of industrial use of his leg, plus reimbursement of plaintiffs hospital and medical expenses in the amount of $1,201.88.

       The circuit court did not rule on defendants’ due process arguments because it concluded that it was precluded from doing so under MCLA 418.863; MSA 17.237(863), which provides simply that the circuit court "shall render judgment in accordance * * * [with the award] unless proof of payment is made”. See Simm v Dearborn, 54 Mich App 263; 220 NW2d 768 (1974).
      Although we express no opinion on the question, it appears that the gist of defendants’ claim was that the want of due process alleged deprived the referee of personal jurisdiction to render an award enforceable as against the individual defendants, and that therefore the award was void and unenforceable as to them. If that were true, the individual defendants would not be foreclosed from raising such a claim to bar enforcement of the award as against them. See generally, 49 CJS, Judgments, § 421, pp 822, 828, § 422, p 828.


text:
    DOCHOD v CENTRAL MUTUAL INSURANCE COMPANY
    1. Insurance — -Insurers—Duty to Defend — Allegations in Complaint.
    The duty of an insurer to defend an action brought by a third party against the insured depends upon the allegations in the complaint of the third party.
    2. Insurance — Insurers—Duty to Depend — Duty to Pay.
    The duty of an insurer to defend an action brought against the insured by a third party is severable from the duty to pay; that an insurer may ultimately be found not liable is a matter separate and apart from its obligation to defend the insured.
    3. Insurance — -Insurers—Duty to Defend — Theories of Recovery.
    An insurer’s duty to defend its insured extends to the defense of actions of the nature and kind covered by the policy, and the insurer has a duty to defend, despite theories of liability asserted against the insured which are not covered under the policy, if there are any theories of recovery that fall within the policy.
    4. Insurance — Ambiguities in Policy — Resolution Against Insurer.
    Ambiguities in an insurance policy are to be resolved against the insurer and most favorably to the premium-paying insured.
    5. Insurance — Insurers—Duty to Defend — -Intentional Act of Insured — Allegations of Complaint — -Negligence.
    An insurer has a duty to defend its insured in an action brought against the insured by a third party even though the insured admits and it is stipulated that the insured inflicted injury upon the third party intentionally and the policy excludes liability for intentional acts of the insured where the complaint asserts, among several causes of action, negligence, which comes within the coverage of the insurance policy.
    References for Points in Headnotes

       44 Am Jur 2d, Insurance §§ 1538-1542.
    Allegations in third person’s action against insured as determining liability insurer’s duty to defend. 50 ALR2d 458.

      Appeal from Kent, R. Stuart Hoffius, J.
    Submitted November 1, 1977, at Grand Rapids.
    (Docket No. 77-378.)
    Decided January 24, 1978.
    Complaint by John Dochod against Central Mutual Insurance Company for recovery of the costs of defending an action for damages brought against the plaintiff by a third party which the defendant refused to defend, and for damages for mental suffering. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      Reamon, Williams, Klukowski & Craft, P. C. (by William G. Reamon and Themis J. Fotieo), for plaintiff.

      Hillman, Baxter & Hammond (by Joel M. Boy-den and Phillip J. Nelson), for defendant.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   Per Curiam.

Defendant appeals as of right from a January 19, 1977, judgment awarding plaintiff damages in the amount of $2,371, together with interest and costs, following a nonjury trial.

The case arises from an incident which occurred in the early morning hours of July 28, 1974, when John Womble was struck and injured by an automobile driven by the plaintiff in this matter, John Dochod. At approximately 11 p.m. on the preceding evening, plaintiff had met several friends, including John Womble, at "Nutsy’s Pub”. After having several drinks at the bar, the group proceeded to the home of Jerome Keller where more drinks were consumed.

As time went on, Dochod and Womble had a sharp disagreement which turned into a fight. After losing this scuffle, plaintiff left the Keller home, went to his own house, obtained two handguns and returned to Keller’s about 15 to 20 minutes later. Following a heated discussion with Jerome Keller, plaintiff again drove from the scene, threw one of the guns down a sewer manhole and put the other in the trunk of his car. He then returned to the Keller home.

Shortly after his return, Dochod again became involved in a dispute with Womble. It is apparent from the testimony that Womble tried to reach for Dochod while plaintiff sat in his car. Dochod pulled away in the car and then tried to back into Womble as he lay in the street. Plaintiff finally hit him with the car after several passes.

On July 31, 1975, Womble filed suit against Dochod. The three count complaint asserted causes of action in negligence, wilful and wanton misconduct or gross negligence and assault and battery.

The incident was reported by plaintiff to his insurance company, which declined to accept the tendered defense of Womble v Dochod due to the fact that during its investigation, which occurred before the commencement of Womble’s suit, Dochod informed Central Mutual that he had intentionally struck Womble. Central Mutual’s decision not to defend Dochod was based upon a provision in the insurance contract which excluded any application of the contract in cases in which the bodily injury complained of was caused intentionally by the insured.

Dochod then retained private counsel to defend him in the action brought by Womble. Plaintiff also commenced the present action seeking to recover the costs of his defense in the case of Womble v Dochod and seeking damages for mental suffering. Dochod alleged that defendant had wrongfully refused to assume his defense.

The matter was submitted to the court sitting without a jury on the basis of stipulated facts. It was stipulated that for purposes of this particular case it could be assumed that a finder of fact would determine that the actions of John Dochod were intentional within the relevant provisions of the policy issued by defendant. The trial court found that defendant had wrongfully refused to defend plaintiff in his prior action and accordingly judgment was entered for plaintiff. From this judgment, defendant appeals.

In Michigan the duty of the insurer to defend the insured depends upon the allegations in the complaint of the third party in his or her action against the insured. Guerdon Industries, Inc v Fidelity & Casualty Company of New York, 371 Mich 12; 123 NW2d 143 (1963), 7A Appelman, Insurance Law and Practice, § 4683.

"The insurer’s duty to defend under an insurance contract is measured by the allegations in the pleadings of the person who is suing the insured, Guerdon Industries, Inc. v Fidelity & Casualty Company of New York, [supra], * * * and is not dependent on the insurer’s ultimate liability to pay. * * * City Poultry & Egg Co v Hawkeye Casualty Co, 297 Mich 509; 298 NW 114 (1941) * * * . The insurer’s duty to defend is not limited to meritorious suits * * * and may even extend to actions which are groundless, false, or fraudulent, * * * so long as the allegations in the action against the insured even arguably come within the policy coverage. * * * The insurer is under a duty to defend if the complaint alleges facts constituting a cause of action within the insurance coverage, even if other facts constituting causes of action not covered by the policy, are also alleged.” Space Conditioning, Inc v Insurance Company of North America, 294 F Supp 1290, 1293 (ED Mich, 1968).

When considering whether the insurer has a duty to defend the insured, it must be remembered that the duty to pay is severable from the duty to defend. Zurich Insurance Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970). The one is not dependent on the other. That an insurer may ultimately be found not liable, therefore, is a matter separate and apart from its obligation to defend the insured.

In the instant case, Womble asserted three counts in his complaint against Dochod. At least one of those counts, the claim for negligence, comes within the coverage of plaintiffs insurance policy. The duty to defend extends to the defense of actions of the nature and kind covered by the policy, irrespective of what the ultimate finding may be. Zurich Insurance Company v Rombough, supra. Hence, an action for negligence is one to which Central Mutual’s duty to defend extends.

There was at least one count, for assault and battery, which was quite clearly excluded from coverage by a clause in the policy. But an insurer has a duty to defend, despite theories of liability asserted against an insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. The Western Fire Insurance Co v J R Snyder, Inc, 76 Mich App 242; 256 NW2d 451 (1977).

Moreover, the competing provisions of the policy, that which excludes coverage for intentionally caused injuries and that which provides coverage for negligently inflicted harm, produce an ambiguity. Ambiguities in an insurance policy are resolved against the insurer. Nickerson v Citizens Mutual Insurance Co, 393 Mich 324; 224 NW2d 896 (1975). Our Supreme Court examined similarly competing provisions in Zurich Insurance Co v Rombough, supra, and concluded that the insurer in such a situation is still obliged to defend. Relying upon the language of Justice Tobriner in Gray v Zurich Insurance Co, 65 Cal 2d 263; 54 Cal Rptr 104; 419 P2d 168 (1966), the Court noted that ambiguous policy provisions must be decided against the insurance company and most favorably to the premium-paying insured. 384 Mich at 232.

Appellant Central Mutual argues that this case is distinguishable from the class of cases dealing with an ambiguous policy resulting from competing provisions. In this case, it was stipulated and plaintiff Dochod admitted that his actions were intentional. Therefore, Central Mutual claims, it relieved itself of a duty to defend. An insurer’s duty to defend, however, is predicated not on facts disclosed by an insurer’s independent investigation which indicates or even proves noncoverage, but only upon allegations in the complaint against the insured. See Campidonica v Transport Indemnity Co, 217 Cal App 2d 403; 31 Cal Rptr 735 (1963), McFadyen v North River Insurance Co, 62 111 App 2d 164; 209 NE2d 833 (1965), Missionaries of the Company of Mary, Inc v Aetna Casualty & Surety Co, 155 Conn 104; 230 A2d 21 (1967), Employers’ Fire Insurance Co v Beals, 103 RI 623; 240 A2d 397 (1968).

As Judge Learned Hand has stated, the duty to defend means

"that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury 'covered’ by the policy; it is the claim which determines the insurer’s duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact 'covered.’ ” Lee v Aetna Casualty & Surety Co, 178 F2d 750, 751 (CA 2, 1949).

At most, the stipulation makes the issue of plaintiffs insurance coverage ambiguous. The policy coverage provision, which favors the insured, and the stipulation, which does not, are at odds. We deem it reasonable in this situation to follow Michigan policy as to insurance contracts and resolve any doubts in favor of the insured.

Central Mutual was under an obligation to defend plaintiff and wrongfully refused to do so. The judgment of the trial court is affirmed. Costs to appellee.


text:
    PEOPLE v JOHNSON
    1. Arrest — Criminal Law — Arrest Without Warrant — Investigatory Stops — Criminal Activity Afoot — Probable Cause.
    Probable cause to arrest without a warrant is not necessary for an investigatory stop; what is necessary is a reasonable belief that criminal ¿ctivity may be afoot.
    2. Arrest — Criminal Law — Arrest Without Warrant — Probable Cause — Statutes.
    Any peace officer may, without a warrant, arrest a person when a felony has been committed and he has reasonable cause to believe such person committed it (MCLA 764.15[c]; MSA 28.874[c]).
    3. Arrest — Criminal Law — Arrest Without Warrant — Probable Cause.
    The reasonable or probable cause required to support an arrest without a warrant stems from some fact, circumstance, or information which creates an honest belief in the mind of a reasonable, prudent man that the person arrested has committed a felony; actual facts creating an actual belief can alone give rise to probable cause.
    4. Arrest — Criminal Law — Arrest Without Warrant — Suspicion of Criminal Activity — Probable Cause.
    A suspicion of criminal activity is an insufficient basis on which to justify an arrest without a warrant.
    References for Points in Headnotes
    [1, 3, 4] 5 Am Jur 2d, Arrest §§ 44, 45.
    What constitutes probable cause for arrest — Supreme Court cases. 28 L Ed 2d 1978.

       5 Am Jur 2d, Arrest § 24 et seq.

       68 Am Jur 2d, Search and Seizure §§ 37, 93.

       68 Am Jur 2d, Search and Seizure §§ 84, 85, 89-91.
    Constitutionality of searching premises without search warrant as incident to valid arrest — Supreme Court cases. 23 L Ed 2d 966.

       68 Am Jur 2d, Search and Seizure § 88.

       29 Am Jur 2d, Evidence § 425.
    Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure. 50 ALR2d 531.

      5. Arrest — Criminal Law- — Arrest Without Warrant — -Probable Cause — After-Acquired Facts.
    Information obtained after an arrest without a warrant can have no bearing on the determination of probable cause to make the arrest; therefore, a defendant’s statements and articles discovered after a search of his person are not articulable facts giving the police probable cause to make the arrest.
    6. Arrest — Criminal Law — Arrest Without Warrant — Probable Cause — Person’s Home — Forcible Intrusion.
    It is impermissible to allow law enforcement officials to forcibly intrude upon the privacy of a person’s home to obtain the factual bases required for probable cause to make an arrest without a warrant.
    7. Searches and Seizures — Without Warrant — Plain View — Justifiable Intrusion.
    Police officers must be rightfully in a position in which evidence is plainly visible in order to apply the plain view doctrine; to justify a seizure of evidence without a warrant, there must be a prior justification for the officer’s intrusion and discovery of the evidence must be inadvertent.
    8. Searches and Seizures — -Probable Cause — Inadmissible Evidence.
    A finding of probable cause for a search and seizure without a warrant cannot be grounded on legally inadmissible evidence.
    Appeal from Oakland, Steven N. Andrews, J.
    Submitted December 8, 1977, at Lansing.
    (Docket No. 77-1106.)
    Decided January 24, 1978.
    Charles Johnson was charged with delivery of a controlled substance. Defendant’s motion to suppress evidence and quash the information was granted. The people appeal.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

      Robert Mann, for defendant.

      Before: R. B. Burns, P. J., and Allen and R. M. Maher, JJ.
   Per Curiam.

On February 10, 1976, defendant was arrested and charged with delivery of a controlled substance, MCLA 335.316; MSA 18.1070(16) and MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). After a preliminary examination in the district court, defendant was bound over for trial to the circuit court. On February 17, 1977, the circuit court entered an order granting defendant’s motion to suppress the evidence and quash the information. The people appeal as of right.

According to testimony given at the preliminary exam, George Hartley, a Ferndale undercover officer assigned to the Oakland County Narcotics Enforcement Team, met with Palmer Johnson, an unnamed codefendant, in the parking lot of an apartment complex in Southfield. Hartley and Palmer Johnson conversed briefly about Hartley’s purchase of cocaine from Palmer Johnson. During the conversation another car pulled into the parking lot; Palmer Johnson stated, "That is my man”; after walking over he entered the other car which left the immediate area. Officer Hartley could not describe the driver of the car nor could he determine whether the car proceeded to park in the apartment lot.

A second undercover officer, on surveillance inside the apartment building in a small room off the lobby, saw Palmer Johnson and another man come into the building but could not see well enough to identify the other man. The officer watched them get on the elevator and then observed at which floor the elevator stopped. He next saw Palmer Johnson, wearing a brown coat and black gloves, come off the elevator alone and leave the apartment building.

Palmer Johnson returned to Officer Hartley’s car where the two discussed the purchase of cocaine. They settled on a price of $1,630 for an ounce. Palmer Johnson then departed the vehicle and reentered the apartment building. He signed the register in the main foyer and took the elevator to the eighth floor. Ten or fifteen minutes later, he reappeared without the brown coat and gloves he had been wearing. He delivered the cocaine in a clear plastic bag. Officer Hartley paid the $1,630 and promptly arrested Palmer Johnson.

The second undercover officer, after learning of Palmer Johnson’s arrest, checked with the desk guard and learned that Palmer Johnson had jotted down apartment 804 in the register. The officer, along with four or five other men, without either a search warrant or an arrest warrant, proceeded to the eighth floor, approached apartment 804 and knocked on the door. Someone inside asked who was there. The officer identified himself.

In the next four or five minutes, the officer testified, he heard doors opening and closing, water running, and a toilet flushing. During this four to five minute period, the police continued pounding on the door and yelling obscenities at the occupant.

At length, defendant Charles Johnson opened the door. He was wearing black trousers with a white substance on them, later determined to be cocaine. The officer could see a brown coat folded on a chair in the living room. Charles Johnson was then informed he was under arrest.

Defendant lay spread-eagled on the floor of the apartment with two officers standing over him while he was advised of his rights. During this time, defendant made the statements that he had flushed three dope quarters of cocaine down the toilet; that the cocaine delivered to Officer Hartley was mostly mixed; and that he did not have much cocaine left.

At the preliminary examination the district court found that a crime was committed and that there was probable cause to believe that defendant committed the crime. The circuit court, however, determined that the arrest of Charles Johnson was illegal because the police were without probable cause. Consequently, the court found the evidence seized — the pair of pants — was unlawfully obtained and granted defendant’s motion to suppress.

The prosecutor relies upon the stop and frisk cases — Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and its progeny — to justify the arrest of defendant. In so relying, the prosecutor as much as admits the lack of probable cause, since that line of cases, as is pointed out in the prosecutor’s brief, deals with forcible stops of individuals in connection with the investigation of possible criminal behavior, even though there is no probable cause to make an arrest.

Probable cause to arrest is not necessary for an investigatory stop. What is necessary is a reasonable belief that criminal activity may be afoot. People v Lillis, 64 Mich App 64; 235 NW2d 65 (1975). But the reliance on Terry v Ohio, supra, is misplaced. The police conduct here involved was much more than a stop and frisk to ask defendant his name, his address and for an explanation of his activities. It was a forcible intrusion into defendant’s home by five or six police officers pounding on the door and yelling obscenities.

Only if probable cause existed could police make a valid warrantless arrest of the defendant. The statute states, "Any peace officer may, without a warrant, arrest the person * * * when a felony has been committed and he has reasonable cause to believe that such person has committed it”. MCLA 764.15(c); MSA 28.874(c).

Reasonable or probable cause stems from some fact, circumstance or information which creates an honest belief in the mind of a reasonable and prudent person. People v Napolitano, 2 Mich App 601; 141 NW2d 356 (1966), People v Langston, 57 Mich App 666; 226 NW2d 686 (1975). Actual facts creating an actual belief can alone give rise to probable cause. People v Panknin, 4 Mich App 19; 143 NW2d 806 (1966).

The only actual fact linking defendant to criminal activity was that Palmer Johnson signed the register at the desk with the notation "apartment 804”. When police approached the apartment, they had only a suspicion of criminal activity, an insufficient basis on which to justify an arrest. People v Griffin, 33 Mich App 474; 190 NW2d 266 (1971), People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975).

The police had no other bases upon which probable cause could be predicated. Information obtained after the arrest can have no bearing on the determination of probable cause. People v Gwinn, 47 Mich App 134; 209 NW2d 297 (1973). Defendant’s statements and the articles discovered after a search of his person, therefore, are not articulable facts giving the police probable cause to make an arrest. There were no facts connecting defendant directly to the crime for which Palmer Johnson was arrested.

The pants seized by the police do not provide the necessary probable cause, nor does anything the officers may have seen in the apartment. Defendant opened his door only after the police pounded on it continuously and yelled abusively at him inside. Such conduct is essentially coercive; defendant did not consent to the police entrance. What the police saw when the door was opened must be discounted for the probable cause determination. Before they forced defendant to open the door of his home, no probable cause existed to arrest or to search. It is impermissible to allow law enforcement officials to forcibly intrude upon the privacy of a person’s home to obtain the factual bases required for probable cause.

The prosecutor argues further that the laboratory report which stated that defendant’s pants were sprinkled with cocaine was admissible in evidence since the pants were seized after a plain view search. We disagree.

For the plain view doctrine to apply, the officers must be rightfully in a position in which evidence is plainly visible, there must be a prior justification for the officers’ intrusion and discovery of the evidence must be inadvertent. People v Harden, 54 Mich App 353; 220 NW2d 785 (1974). The police must see contraband from a place where they have a right to be. People v Walker, 64 Mich App 138; 235 NW2d 85 (1975).

Only after intimidating police behavior did defendant open his door, allowing the officers to see his cocaine-covered pants. Defendant did not willingly open the door but was harassed by the police until he opened it. The initial intrusion was not otherwise legitimate. The police were not properly in the place. As the requisites were not met, the pants could not have been seized as the result of a plain view search. People v Walker, supra. As evidence, the pants were legally inadmissible. A finding of probable cause cannot be grounded on legally inadmissible evidence. People v Staffhey, 70 Mich App 737; 246 NW2d 364 (1976). Here the evidence was the product of impermissible police conduct. Because it was the only evidence introduced, the circuit court acted properly in suppressing the evidence and quashing the information.

The decision of the circuit court is affirmed. Our disposition of this case does not preclude the prosecutor from bringing defendant to trial on the basis of other legally admissible evidence.