author: N. J. Kaufman, J.

text:
    LIGHT v SCHMIDT
    Docket No. 77-3650.
    Submitted May 2, 1978, at Lansing.
    Decided June 6, 1978.
    Russell F. Light, doing business as R. F. Light Diving & Salvage, entered into an agreement with Donald C. Schmidt, doing business as Michigan Marine Salvage, wherein Light was to provide divers for salvage operations to recover the cargo of a ship which had sunk in Lake Huron. Plaintiff had been informed that the project was to be financed by Peter Bill. Bill was present at some of the meetings at which the agreement was discussed. The salvage operation ultimately was unsuccessful. Light remained unpaid for much of his and his divers’ services and brought an action for damages for breach of contract against both Schmidt and Bill. The Alpena Circuit Court, Philip J. Glennie, J., granted a motion for a directed verdict in favor of defendant Schmidt, finding him to have been merely an agent of defendant Bill, and entered a judgment on a jury verdict in favor of the plaintiff against Bill. Defendant Bill appeals, contending, among other things, that the circuit court did not have subject matter jurisdiction over the controversy. Held:

    1. The circuit court did have jurisdiction over the subject matter. Although the contract was maritime in nature and therefore subject to the admiralty jurisdiction of a Federal district court, a saving clause of the Federal law which grants jurisdiction of admiralty cases to the Federal court's allows any competent forum with jurisdiction over the parties to entertain a civil suit at law where the nature of the right to be enforced is such that relief may be given in an action at law.

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Admiralty § 61.
    [2] 68 Am Jur 2d, Salvage § 40.
    [3] 2 Am Jur 2d, Admiralty §§ 61, 72.
    [4] 2 Am Jur 2d, Admiralty § 12 et seq.

    20 Am Jur 2d, Courts §§ 12,13,105.
    [5] 75 Am Jur 2d, Trial § 472.
    [6] 5 Am Jur 2d, Appeal and Error § 886.
    75 Am Jur 2d, Trial §§ 489, 490.
    [7] 75 Am Jur 2d, Trial § 525.
    Direction of verdict in favor of one or more of several defendants after plaintiff has completed his evidence. 48 ALR2d 535.

      2. The circuit court properly granted defendant Schmidt’s motion for a directed verdict because the evidence supported the conclusion that Schmidt was merely an agent for Bill.
    Affirmed.
    1. Contracts — Admiralty—Maritime Contract — Jurisdiction.
    A contract, to be of a maritime nature and therefore subject to the jurisdiction of a court of admiralty, must have a connection with navigation of a ship, its equipment, its preservation, or the maintenance or preservation of its crew; neither the place where the contract is made nor the place where obligations arising therefrom are to be performed is, in and of itself, conclusive of the maritime nature of the agreement.
    2. Admiralty — Contracts—Maritime Contract — Salvage Services.
    A contract which involves salvage services to vessels both afloat or wrecked on the high seas or on the public navigable waters of the United States or to property being transported on such vessels is generally held to be maritime in nature.
    3. Admiralty — Contracts—Maritime Contract — Salvage Services —Jurisdiction.
    A contract for the services of divers for inspection and salvage of the cargo of a vessel sunk in Lake Huron is of a maritime nature and is subject to the admiralty jurisdiction of a Federal district court.
    4. Courts — Jurisdiction—Civil Suit — Admiralty—Federal Courts —Circuit Courts — Statutes.
    Any competent forum that has jurisdiction of the parties may entertain a civil suit at law for the enforcement of a right conferred by the maritime laws where the right is of such a nature that relief may be given in an action at law; therefore, an action for damages for breach of a maritime contract brought by a Michigan plaintiff against defendants who were located in Michigan, which was also subject to the admiralty jurisdiction of a Federal court, was properly brought and maintained in a state circuit court (28 USC 1333).
    5. Motions — Directed Verdict — Court Rules.
    A motion for directed verdict may be offered at the close of the opposing party’s proofs (GCR 1963, 515.1).

      6. Appeal and Error — Motions—Directed Verdict — Test.
    The Court of Appeals will view the evidence presented in the light most favorable to the nonmoving party when reviewing a trial court’s order granting a party’s- motion for a directed verdict; the proper test for determining whether a motion for a directed verdict should be granted is whether or not evidence was offered upon which reasonable minds could differ.
    7. Trial — Directed Verdict — Codefendants.
    A trial court may grant a motion for a directed verdict as to one of several codefendants; such a motion was properly granted in favor of a codefendant in an action for breach of contract where the evidence presented supported the conclusion that that codefendant was merely an agent for the second defendant, who was held liable on the contract.

      Gillard, Bauer & Mazrum, for plaintiff.

      Lowell Blumberg, for defendant Peter Bill.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

This is an appeal by defendant Bill from an adverse verdict by a jury in the trial court, holding him liable to plaintiff in the amount of $20,672. Plaintiff had alleged that he provided certain diving services for inspection and salvage operations for which defendants failed to pay. It was also alleged that certain checks issued by defendant Schmidt and Michigan Marine Salvage were returned unpaid and that payment was wrongfully and fraudulently stopped on another check.

Plaintiff testified that he was a commercial diver who did substantial salvage work. In February, 1974, Schmidt contacted him concerning the possible salvage of a load of steel aboard a sunken vessel known as the "Monrovia”. During the meeting, plaintiff and Schmidt discussed the cost of the operation and Schmidt informed plaintiff at that time that there was a third party who was backing the project financially. He did not disclose the name of that third party. It was not until later that plaintiff came to the conclusion that defendant Bill was in charge.

After their discussion, Schmidt agreed to the rates quoted by plaintiff. Under the terms of the agreement, plaintiff would furnish four divers in addition to himself (who were to be paid once a week), and Schmidt and Bill would furnish the equipment.

Pursuant to the parties’ agreement, plaintiff arrived in Alpena on May 17, 1974. The parties intended to inspect the "Monrovia” the next day. However, on that occasion, they were unable to locate the wreck. It was when they returned from this trip that plaintiff met defendant Bill. The sunken vessel was located on May 27, 1974. It was after the ship was discovered that defendant Bill called in four extra divers against the recommendation of plaintiff and defendant Schmidt. Of the four weeks that plaintiff and his divers were on the job, they were in the water only seven days and retrieved only a small amount of steel from the ship.

Financial difficulties arose shortly after the project began. Schmidt instructed plaintiff to hold a check issued on June 4, 1974, until sufficient funds could be put in the account to cover it. A stop-payment order was later issued by Mr. Schmidt. Other checks issued by Schmidt were returned marked "non-sufficient funds”.

When it became apparent that the divers might not be paid, they met with plaintiff and defendants Schmidt and Bill, and informed the latter that unless they were paid, they would stop working. At that time, Bill guaranteed payment of the money and ordered Schmidt to pay the fees of the divers. It was plaintiffs opinion that Bill was guaranteeing payment with his personal finances, since at no time did he mention a corporation.

The evidence at trial showed that plaintiff knew of the existence of a corporation that was connected with defendant Bill and also knew it was named after Peter Bill. However, plaintiff was not told nor was he aware that Peter Bill & Associates, Incorporated, was financing the project, if that in fact was the case. Plaintiff did acknowledge that checks had been made out by Peter Bill & Associates to plaintiff; however, there was no other writing between plaintiff and Peter Bill & Associates.

Plaintiff Light was the only witness called by plaintiff at trial. Following Light’s testimony, a motion for directed verdict as to defendant Schmidt was granted by the trial court. The trial court held that Schmidt was an agent for Bill and was therefore not liable on the contract with plaintiff or on the checks issued for payment of plaintiff’s services.

Defendant Bill was found liable for the difference between the amount plaintiff received, $1,813, and the total cost of the project, $22,485, as of June 18, 1974 — the day operations were halted.

On appeal, defendant’s (hereinafter, unless otherwise specified, reference to "defendant” shall mean reference to defendant Bill) major contention is that the trial court lacked subject matter jurisdiction to hear this case. Defendant argues that, by definition, this was a case properly cognizable only in admiralty jurisdiction.

The extent of Federal admiralty and maritime jurisdiction is set forth in 28 USC 1333:

"The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.”

It is claimed here that the contract with plaintiff was of a maritime nature and therefore subject to admiralty jurisdiction. In order for a contract to be of a maritime nature, it must have a connection with navigation of a ship, its equipment, its preservation, or the maintenance or preservation of its crew. As noted in The W T Blunt, 291 F 899, 901 (ED Mich, 1923):

"If a contract pertains to maritime service or a maritime transaction, that is, if it has a direct or substantial connection or relation to navigation, it is maritime in nature and may afford a sufficient basis for the jurisdiction of a court of admiralty.”

Thus, it is the subject matter of the contract or the nature of the transaction that determines whether the contract is maritime in nature and subject to Federal court jurisdiction and neither the place where the contract is made nor the place where obligations arising therefrom are to be performed is, in and of itself, conclusive of the maritime nature of the agreement. Franks v Land & Marine Applicators, Inc, 347 F Supp 243 (ED La, 1972). Accord, Ocean Science & Engineering Inc v International Geomarine Corp, 312 F Supp 825, 828 (D Del, 1970), where Judge Latchum observed:

"Romero v International Terminal Operating Co, 358 US 354, 360; 79 S Ct 468, 474; 3 L Ed 2d 368 (1958) recognized the organic growth and evolving nature of maritime law and jurisdiction by pointing out that Article III, § 2, Cl. 1 (3d provision) of the United States Constitution 'empowered the federal courts in their exercise of the admiralty and maritime jurisdiction * * * to continue the development of this law within constitutional limits.’ Whether a contract is maritime is not a static concept; it depends, as always, upon the nature of the contract and the service to be rendered and performed and its manner of performance.”

When a contract involves salvage services to vessels both afloat or wrecked on the high seas or on the public navigable waters of the United States or to property being transported on such vessels, it is generally held that such a contract is maritime in nature. Houseman v The Cargo of the Schooner North Carolina, 40 US (15 Peters) 40; 10 L Ed 653 (1841). It is not material that the salvage services were performed under a written contract and that the compensation was not dependent on result but was regulated by the terms of the contract. The Roanoke, 50 F 574, 577 (ED Wis, 1892).

Therefore, the contract in this case is of a maritime nature and subject to the admiralty jurisdiction of a Federal district court. However, that conclusion does not settle the issue. Account must be taken of the "saving to suitors” clause of 28 USC 1333. That clause has been held to authorize any competent forum that has jurisdiction of the parties to entertain a civil suit at law for the enforcement of a right conferred by the maritime laws where the right is of such a nature that relief may be given in an action at law. In Atlantic & Gulf Stevedores, Inc v Ellerman Lines, Ltd, 369 US 355, 359-360; 82 S Ct 780; 7 L Ed 2d 798 (1962), reh den, 369 US 882; 82 S Ct 1137; 8 L Ed 2d 284 (1962), the United States Supreme Court concluded:

"Congress since 1789, in giving Federal District Courts original jurisdiction of civil cases in admiralty, has saved 'to suitors in all cases all other remedies to which they are otherwise entitled.’ 28 USC § 1333(1). Therefore, a suit for breach of a maritime contract, while it may be brought in admiralty, may also be pursued in an ordinary civil action, since, unlike the proceeding in The Moses Taylor [v Hammons, 71 US 408] 4 Wall 411 [18 L Ed 397 (1867)], it is a suit in personam. 'Where the suit is in personam, it may be brought either in admiralty or, under the saving clause, in an appropriate non-maritime court, by ordinary civil action.’ Gilmore and Black, The Law of Admiralty (1957), p. 36.” (Footnote omitted.)

Accord, Thornes v Socony Vacuum Oil Co, 37 F Supp 616 (SD NY, 1940), noting that "[a]s a general proposition rights arising out of maritime contracts are thus enforceable at law as well as in admiralty”. See also, Granger v Judge of Wayne Circuit Court, 27 Mich 406 (1873), Adams v John R White & Son, Inc, 41 RI 157; 103 A 230 (1918).

Therefore, the cause of action in this case comes within the "saving to suitors” clause and was properly brought and maintained in the trial court. Having concluded that the trial court had jurisdiction in this matter, we pass to defendant’s other contentions on appeal. After careful examination of those issues, we hold that none are meritorious. There was sufficient evidence to support the jury’s verdict. Thus, we affirm the judgment arrived at in the trial court. However, we do want to elucidate on defendant’s argument that the trial court committed reversible error in granting a directed verdict for codefendant Schmidt on the ground that Schmidt was acting as an agent for defendant.

A directed verdict is properly granted where there are no factual questions in dispute. Thus, this Court is faced with the question of whether there was sufficient evidence presented at the conclusion of plaintiffs proofs to raise the issue of whether Schmidt was other than an agent for Bill. As noted earlier, the trial court held that there was not sufficient evidence and granted codefendant Schmidt’s motion for directed verdict.

When a defendant is seeking a directed verdict, the motion may be offered at the close of plaintiffs evidence. GCR 1963, 515.1. On appeal from a trial court order granting defendant’s motion for a directed verdict, this Court will view the evidence presented in the light most favorable to the plaintiff. Cody v Marcel Electric Co, 71 Mich App 714; 248 NW2d 663 (1976), lv den, 399 Mich 851 (1977), Hensley v Colonial Dodge, Inc, 69 Mich App 597; 245 NW2d 142 (1976). The proper test for determining whether the motion should be granted is whether or not evidence was offered upon which reasonable minds could differ. Armstrong v LeBlanc, 395 Mich 526; 236 NW2d 419 (1975). It should also be noted that the trial court may grant a directed verdict as to one of several codefendants. Annis v Reiser & Co, 209 Mich 512; 177 NW 212 (1920).

Examining the facts in this case, it will be remembered that plaintiff Light was the only person to testify during plaintiffs case in chief. Following this testimony, codefendant Schmidt moved for a directed verdict which was granted by the trial court. We hold that the evidence presented supported the conclusion that Schmidt was merely an agent for defendant. There was no evidence to suggest that Schmidt was an independent contractor hired by defendant to procure divers and equipment on his own. The trial court’s grant of codefendant Schmidt’s motion did not constitute reversible error.

Affirmed. Costs to appellee.


source: Caselaw Access Project

author: V. J. Brennan, J.

license: Public Domain

text:
    PEOPLE v HAMMOND
    Docket No. 77-4051.
    Submitted April 6, 1978, at Lansing.
    Decided June 6, 1978.
    William L. Hammond was charged with armed robbery. Trial commenced on August 20, 1975, in Ingham Circuit Court, Ray C. Hotchkiss, J. The trial court sustained the defendant’s objection to the admission of his confession and granted a defense motion to suppress the testimony of an accomplice. The prosecutor subsequently challenged these orders by interlocutory appeal to the Court of Appeals which reversed the trial court on April 20, 1976, in an unpublished order. Defendant’s application for leave to appeal to the Supreme Court was denied, 397 Mich 878 (1976). The case was again set for trial. Defendant filed a motion to dismiss for lack of a speedy trial because trial was not concluded until 27 months after arrest. That motion was granted by the trial court on May 20, 1977, and an order was entered on September 21, 1977, dismissing the charges. The people appeal. Held:

    The trial court erred in finding that the defendant was denied a speedy trial since the defendant did not assert his right to a speedy trial until nearly 27 months after his arrest, no prejudice to the defendant was demonstrated by the record, and the defendant was not incarcerated for more than 180 days during the 27 months between his arrest and the granting of the speedy trial motion. Furthermore, delay attributable to the defendant or an aggressive defense and time reasonably consumed on appeal is not considered in derogation of the defendant’s right to a speedy trial.
    Reversed.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 241-247.
    Accused’s right to speedy trial under Federal Constitution — Supreme Court cases. 21 L Ed 2d 905.
    [2-5, 7] 21 Am Jur 2d, Criminal Law § 251.
    [5] 21 Am Jur 2d, Criminal Law § 245.
    [6] 21 Am Jur 2d, Criminal Law §§ 252-254.
    Waiver or loss of accused’s right to speedy trial. 57 ALR2d 302.

      1. Constitutional Law — Criminal Law — Speedy Trials.
    The right of an accused to have a speedy criminal trial is guaranteed by both the United States and Michigan Constitutions (US Const, Am VI, Const 1963, art 1, § 20).
    2. Criminal Law — Trial—Time Frames — Legislature—Speedy Trial — Indictments—Imprisoned AcCuseds — Statutes.
    The Legislature has imposed certain time frames for the prosecution of indicted and imprisoned persons which provide that every person held in prison upon an indictment shall, if he requires it, be tried at the next term of court after the expiration of 6 months from the time when he was imprisoned, and in regard to untried warrants or complaints against an inmate already imprisoned, such inmate shall be brought to trial 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information or complaint is pending written notice of the place of imprisonment and a request for a final disposition (MCL 767.38, 780.131; MSA 28.978, 28.969[1]).
    3. Constitutional Law — Criminal Law — Speedy Trial — Balancing Test — Factors.
    A balancing test is employed in attempting to resolve whether a defendant’s right to a speedy trial has been violated; such test considers the following four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
    4. Criminal Law — Trial—Delay—Balancing Test — Speedy Trials.
    A delay of 27 months between a defendant’s arrest and a trial court’s grant of his motion to dismiss on lack of speedy trial grounds is a sufficient length of time to require the balancing of the four factors used to weigh lack of speedy trial claims.
    5. Criminal Law — Trial—Speedy Trial — Calculation of Time — Appeals.
    Time reasonably consumed on appeal is not considered in derogation of a defendant’s right to a speedy trial; time expended by a prosecutor’s interlocutory appeal from a trial court’s order suppressing a defendant’s confession and an accomplice’s testimony and time expended by the defendant’s application for leave to appeal to the Supreme Court are taken out of the calculation of a speedy trial.
    6. Criminal Law — Trial—Delay—Speedy Trials.
    Delay attributable to the defendant or an aggressive defense cannot support a demand for a speedy trial.

      7. Criminal Law — Appeal and Error — Trial—Speedy Trials — Assertion of Right — Prejudice—Incarceration—Statutes.
    A trial court erred in granting a criminal defendant’s motion to dismiss charges against him on the ground that he had been denied a speedy trial when his trial commenced within the statutorily mandated 180 days after arrest but had not concluded 27 months after arrest, where the defendant did not assert his right to a speedy trial till nearly 27 months after his arrest, and no prejudice is demonstrated by the record, and where the defendant was not incarcerated for more than the statutorily mandated 180 day period during the 27 months necessitated by a prosecutor’s interlocutory appeal to the Court of Appeals and the defendant’s application for leave to appeal to the Supreme Court (MCL 767.38, 780.131; MSA 28.978, 28.969[1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Attorney, for the people.

      William E. Collette, for defendant.
    Before: Allen, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.
   V. J. Brennan, J.

Defendant William Lee Hammond was charged with armed robbery, contrary to MCL 750.529; MSA 28.797. Trial commenced in Ingham County Circuit Court before Judge Ray C. Hotchkiss on August 20, 1975. Due to delay resulting from the trial court’s orders regarding admission of defendant’s confession and competency of an alleged accomplice to testify in the interlocutory appeal to this Court from the trial judge’s order, defendant filed a motion to dismiss for lack of a speedy trial which was argued before the trial judge on May 20, 1977, and subsequently granted. The people appeal as of right from the resulting order dismissing the charge against defendant. GCR 1963, 806.1.

This prosecution arose out of an incident occurring at a Seven-Eleven Food Store on February 28, 1975. At that time, Rodney Kroes, attending the store, was approached by two men with a pistol who robbed the store of $196. David Forquer, one of the assailants, was the person in possession of the gun, a J. C. Higgins, .22-caliber pistol. Forquer and his accomplice, Steven Gossett, were apprehended shortly afterward by Lansing police officers who observed the suspects running from the store. Rodney Kroes immediately identified the suspects as the men who had assaulted and robbed him.

Defendant Hammond became involved with the case when the J. C. Higgins .22-caliber pistol was traced to his possession through the registered serial number. Testimony at defendant’s trial indicated that the pistol had been in defendant’s possession. Further testimony of Dale Davis, a Lansing police officer, indicated that defendant had taped a confession on March 4, 1975. Though ruled voluntary and, therefore, admissible in a separate pre-trial hearing, the trial court later sustained defendant’s objection to admission of the confession on grounds that the corpus delicti of aiding and abetting an armed robbery had not been established. The trial court also granted a defense motion to suppress the testimony of accomplice Steven Gossett. Plaintiff subsequently challenged these orders by interlocutory appeal to this Court and we reversed the trial court’s action on April 20, 1976. After an appeal of our decision by defendant to the Michigan Supreme Court was denied, the case was set for trial again on May 24, 1977. Defendant then moved to dismiss for lack of a speedy trial, which motion was granted by the trial court, and from the order on which the prosecution now appeals.

We must decide whether the trial court erred in granting defendant’s motion to dismiss charges on the ground that defendant had been denied a speedy trial where defendant’s trial commenced within the statutorily mandated 180 days after arrest but had not concluded 27 months after arrest.

Before commencing review of the plaintiff s claim, we would refer to the included chronology of events in this case. We recognize at the outset that the right of an accused to have a speedy trial is guaranteed by both the United States and Michigan Constitutions. US Const, Am VI, Const 1963, art 1, § 20. In addition, the Legislature has imposed certain time frames for the prosecution of indicted and imprisoned persons. MCL 767.38; MSA 28.978. This statute provides:

"Every person held in prison upon an indictment shall, if he require it, be tried at the next term of court after the expiration of 6 months from the time when he was imprisoned * * * .”

MCL 780.131; MSA 28.969(1) also provides in pertinent part:

" * * * such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint.”

According to the stipulated facts, defendant’s trial commenced within six months after the date he was imprisoned. Therefore, the threshold question we must resolve is whether defendant’s failure to receive a speedy judgment violated his right to a speedy trial.

Speedy trial cases have for the most part focused on either the length of time between the defendant’s arrest and trial or the length of time between indictment and arrest. We find only one reported decision in which the defendant challenged a protracted trial as a denial of his right to a speedy trial. Campodonico v United States, 222 F2d 310 (CA 9, 1955).

In Campodonico, defendant was charged with income tax evasion. Judgment against defendant was entered approximately 10 months after final argument in his case and approximately one year and two months after the commencement of his trial. Although the Court of Appeals did not expressly rule that the right to a speedy trial extends to a speedy judgment or resolution of the case against the defendant, its analysis implies that the right does so extend. The Court in that case excused the delay between the end of trial and judgment on the basis that the case involved a complex legal issue and that defendant did not demand a speedy trial, thereby waiving any such right.

We find appropriate in this instance an analogy with cases involving undue delay between arrest and commencement of trial. See Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972). In attempting to resolve whether a speedy trial right has been, violated, both the United States and Michigan Supreme Courts have employed a "balancing test”. In Barker, the Court devised an approach to speedy trial claims which weigh the following four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. The Barker approach has been adopted by Michigan courts. People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), People v Collins, 388 Mich 680; 202 NW2d 769 (1972).

Although not determinative of a speedy trial claim, length of delay is a factor that triggers an investigation of the speedy trial issue. People v Chism, 390 Mich 104; 211 NW2d 193 (1973), People v Classen, 50 Mich App 122, 126; 212 NW2d 783 (1973). Approximately 27 months elapsed between defendant’s arrest and the trial court’s grant of his motion to dismiss on speedy trial grounds. We find this length of time sufficient to require a balancing of the factors involved in this case. People v Petrov, 75 Mich App 532; 255 NW2d 673 (1977).

Time reasonably consumed on appeal is not considered in derogation of defendant’s speedy trial right. People v Chism, supra, at 113, People v Stewart, 61 Mich App 167; 232 NW2d 347 (1975). The seven months expended by the prosecutor’s interlocutory appeal from the trial court’s order suppressing defendant’s confession and an accomplice’s testimony and defendant’s application for leave to appeal to the Supreme Court are taken out of the calculation. In any event, defendant stipulated to a continuation of the trial until after the conclusion of the prosecutor’s interlocutory appeal.

Delay attributable to the defendant or an aggressive defense cannot support a demand for a speedy trial. People v Classen, supra, at 126. In this case, three adjournments occurred which were either requested, stipulated to by the defendant, or occasioned by the unavailability of defense counsel.

Although defendant’s failure to assert his right to a speedy trial does not automatically waive that right, this failure is one of the factors considered by the Court on appeal. People v Grimmett, supra, at 607, People v Classen, supra, at 126-127. In the present matter, defendant did not assert his right to a speedy trial until May 11, 1977, two weeks prior to the date scheduled for resumption of his trial after the resolution of the interlocutory appeals and nearly 27 months after his arrest. This factor of the Barker balancing test clearly militates against the defendant.

Further, we find no prejudice demonstrated by the record. Defendant did assert at the hearing on his motion that he had been personally prejudiced by incarceration for seven months. However, the stipulated facts mutually adopted by the parties indicates that defendant was incarcerated for five months and 19 days. As the period of incarceration occurred within the statutory 180-day provision, we hold that defendant was not prejudiced by this period of incarceration. Moreover, for the next 21 months, defendant was free on bail. Defendant most certainly felt anxiety about the outcome of the appeals and the ultimate disposition of the case against him. Nonetheless, when compared with the defendant’s five-year wait in Barker, we must conclude that defendant was not personally prejudiced by the delay.

Having weighed the factors required to be balanced by both Barker and existing Michigan decisions, we find no basis to justify the trial court’s dismissal of defendant’s prosecution. Defendant was not denied his right to a speedy trial.

Reversed and remanded.

       Defendant’s prosecution has been outlined in the following chronology:

        1975

      2/28 Alleged armed robbery occurs.
      3/6 Complaint and warrant are issued charging defendant with armed robbery.
      3/11 Defendant arrested and arraigned.
      3/25 Defendant waived preliminary examination.
      6/18 Jury trial set, defendant waived it.
      8/20 Nonjury trial begins. The People present all of their proofs except the confession.
      8/27 Trial court rules that the confession is inadmissible since the corpus delicti has not been proven. The prosecution’s motion to endorse the codefendant is granted. The defense motion for a continuance is also granted. Defendant is released on $2,000 bond after serving 5 months, 16 days.
      9/19 Stipulation and order for adjournment signed by both attorneys and trial court.
      11/4 Case scheduled but adjourned on motion of the court.
      12/9 Case scheduled but adjourned on motion of the court.

        1976

      1/21 Trial court granted defense motion to suppress testimony of the accomplice and continued the matter for further trial.
      3/11 Stipulation and order for adjournment was filed pending interlocutory appeals.
      3/15 Prosecution filed an emergency application for leave to appeal, the Court of Appeals immediately considered the matter and reversed the trial court’s orders of August 27, 1975, and January 21, 1976.
      5/7 Defendant filed a motion for rehearing.
      5/17 Motion for rehearing denied.
      6/9 Defendant filed an application for leave to appeal to the Supreme Court.
      10/20 Defendant’s application is denied.
      12/21 Ingham County assignment clerk set the continued trial date as March 16, 1977.

        1977

      3/16 Defense counsel was representing another individual in another Circuit Court case. Matter is adjourned. Trial is rescheduled for May 24, 1977.
      5/20 Defendant’s motion to dismiss due to lack of a speedy trial is granted by the trial court after hearing oral arguments.
      9/21 Order entered dismissing the armed robbery charges


author: J. H. Gillis, J.

text:
    SEXTON v RYDER TRUCK RENTAL, INC.
    Docket No. 77-4340.
    Submitted April 3, 1978, at Grand Rapids.
    Decided June 6, 1978.
    Leave to appeal applied for.
    Richard W. Sexton, an employee of the Kalamazoo Valley Plant Growers, and a co-worker, both Michigan residents, were operating a truck leased to the Plant Growers by Ryder Truck Rental, Inc., a Florida corporation. The truck overturned in Virginia and Mr. Sexton sustained serious personal injuries. Mr. Sexton and his wife filed suit in Kalamazoo Circuit Court against Ryder Truck Rental, Inc. The court, Robert L. Borsos, J., granted summary judgment to defendant for the reason that Virginia law, which did not provide for liability of owners of motor vehicles, governed. Plaintiffs appeal. Held:

    The ancient doctrine of lex loci delicti applies to suits for personal injury arising out of motor vehicle accidents and the mere fact that Michigan statutory regulations of the rights of accident victims may vary from- the provisions of the lex loci, or even the common law governing such rights, is not a reason for holding that the lex loci contravenes Michigan public policy.
    Affirmed.
    D. C. Riley, J., concurred in result only.
    1. Automobiles — Conflicts of Law — -Lex Loci Delicti.
    The doctrine of lex loci delicti applies to suits arising out of motor vehicle accidents.
    2. Automobiles — Conflicts of Law — Lex Loci Delicti — Public Policy.
    The fact that Michigan statutory regulations of the rights of motor vehicle accident victims may differ from the lex loci delicti, or even the common law regarding such rights, is not a reason for holding that the law of the foreign jurisdiction contravenes public policy.
    Reference for Points in Headnotes
    [1, 2] 8 Am Jur 2d, Automobiles and Highway Traffic § 466.

      Randolph McCarthy, Jr., for plaintiffs.

      James, Dark, Craig & Brill, for defendant.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

This matter involves the ancient doctrine of lex loci delicti. This writer was faced with a similar case some ten years past and took that opportunity to urge the Supreme Court to abandon the lex loci delicti doctrine and adopt the new "dominant contacts” approach in determining what law should govern in conflict situations.

The Supreme Court decided to retain the Michigan position and declined to adopt the new approach, which is now used by a majority of states. Hence, this writer is bound to follow the mandate of the Supreme Court and apply the outmoded doctrine of lex loci delicti to this case. In doing so, this writer reaches what he perceives to be an inequitable result, and urges plaintiffs to appeal this case to the Supreme Court, who will hopefully abandon the lex loci delicti doctrine and adopt the more equitable "dominant contacts” approach.

The facts in this matter are not in dispute.

Plaintiff and a co-employee, both residents of Michigan, were operating a truck in the course of their employment for the Kalamazoo Valley Plant Growers. The truck overturned in Wythe County, Virginia, and plaintiff sustained serious, disabling injuries.

The truck in question was leased in Michigan by the Kalamazoo Valley Plant Growers from defendant, Ryder Truck Rental, Inc., a Florida corporation authorized to do business in Michigan.

Plaintiffs commenced an action against defendant in Kalamazoo County Circuit Court pursuant to MCL 257.401; MSA 9.2101, the owner liability statute.

Defendant filed a motion for summary judgment on the basis that Virginia tort law, which does not provide for owner liability suits, governed the matter in accordance with the doctrine of lex loci delicti.

The trial court applied the doctrine and granted defendant’s motion for summary judgment.

The question presented to this Court is simply drawn.

"Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?” Babcock v Jackson, 12 NY2d 473, 477; 240 NYS2d 743; 191 NE2d 279 (1963) (footnote omitted).

The Supreme Court has answered this question in the analogous case of Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969).

In Abendschein, the Court specifically rejected the modern trend of cases which have adopted the "dominant contacts” approach in determining what law should be applied in any given conflict situation and steadfastly affirmed the doctrine of lex loci delicti.

"That rule has been settled unanimously, understood thoroughly, and thought to be fair to all affected thereby as man might reasonably conceive unless, of course, we are to make equity causes out of law actions. In a word, the law applicable to the presently reviewed question is the rule stare decisis, a rule all of us are supposed to follow save only when persuasion leads to abiding conviction that some undeniably better rule is available for proper supersession. There is no such persuasion, since the quagmire of unanswered and perceivably unanswerable questions arising out of the proposed new doctrine appears less attractive than our admittedly hard and fast — and occasionally unjust, it is true — rule that the law of the place of the wrong is applied when the forum is a Michigan court.

However, this seemingly hard and fast rule is not without exception^ A handful of Michigan cases have declined to follow the lex loci delicti doctrine when it contravenes the public policy of this state.

For example, in Sweeney v Sweeney, 402 Mich 234, 242; 262 NW2d 625 (1978), the Supreme Court concluded that:

"The state of residence has a substantial interest in the parent-child legal relationship. Michigan’s announced public policy is to permit a child 'to maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent’. That public policy should apply to Michigan residents suing in Michigan courts even though the alleged negligence occurred in Ohio.
"Automatic application of lex loci delicti in this daughter against father suit would frustrate an announced Michigan public policy. Whether lex loci delicti should be applied in other situations is not decided here.”

Also, see Kircher v Kircher, 288 Mich 669; 286 NW 120 (1939), and Branyan v Alpena Flying Service, Inc, 65 Mich App 1; 236 NW2d 739 (1975).

Plaintiffs contend that Virginia tort law, which does not provide for owner liability suits, contravenes the public policy of this state and therefore an exception to the lex loci delicti rule is warranted in the instant case.

Plaintiffs’ argument, while logical and persuasive, has been specifically rejected by the Supreme Court.

"The fact Michigan statutory regulations of the rights of a motor vehicle guest passenger may differ from Ontario statutory provisions, or even the provisions of the common law governing like rights, is not a reason for holding the statute of the foreign jurisdiction contravenes public policy here.” Kaiser v North, 292 Mich 49, 57; 289 NW 325 (1939).

Plaintiffs’ other public policy contention, in respect to the no-fault act, fails in light of the aforementioned case.

Plaintiffs next contend that the lease agreement executed between the parties incorporates Michigan statutes and, therefore, Michigan law should govern the instant case. In support of their contention, plaintiffs direct us to Kline v McCorkle, 330 F Supp 1089 (ED Va 1971), which ruled that statutory provisions can become part of the contract.

It should be noted that the Kline case, supra, was reversed by the Fourth Circuit in Kline v Wheels by Kinney, Inc, 464 F2d 184, 187 (CA 4, 1972).

Even if we were to accept plaintiffs’ argument and incorporate MCL 257.517; MSA 9.2217 and MCL 257.520; MSA 9.2220, into the lease, the liability of the lessor would not be determined by the lease. The aforementioned statutes concern the proof and amount of financial responsibility required in order to operate a motor vehicle registered in this state. Hence, liability could be determined by reference to Michigan law or that of another state, and then these provisions could be applied.

Accordingly, we reluctantly affirm the trial court’s order dismissing plaintiffs’ suit.

Affirmed. Costs to appellee.

D. C. Riley, J., concurs in result only.

       The right of action on the tort is determined by the law of the state where the injury occurred.

       The "dominant contacts” approach to choice of law situations requires the trial judge to assess the equities of the parties, the contacts involved between the forums and the relevant state policies in an effort to determine what law should apply to the case.

       For example, see Ingersoll v Klein, 46 Ill 2d 42; 262 NE2d 593 (1970), Beaulieu v Beaulieu, 265 A2d 610 (Me 1970), Kennedy v Dixon, 439 SW2d 173 (Mo 1969), Clark v Clark, 107 NH 351; 222 A2d 205 (1966), Wilcox v Wilcox, 26 Wis 2d 617; 133 NW2d 408 (1965), Wessling v Paris, 417 SW2d 259 (Ky App 1967), First National Bank in Fort Collins v Rostek, 182 Colo 437; 514 P2d 314 (1973), Brickner v Gooden, 525 P2d 632 (Okla 1974), Fabricius v Horgen, 257 Iowa 268; 132 NW2d 410 (1965).

       A Michigan corporation.

       "Application of the substantive law of the jurisdiction where the tort occurred has been the unanimously accepted rule in Michigan since Wingert v Wayne Circuit Judge (1894), 101 Mich 395 [59 NW 662].” Abendschein v Farrell, supra, at 516.


author: Danhof, C. J.

text:
    ARNOLD v AUTO-OWNERS INSURANCE COMPANY
    Docket No. 77-4341.
    Submitted April 11, 1978, at Lansing.
    Decided June 6, 1978.
    Leave to appeal applied for.
    Elmer P. Arnold was employed as a truck driver by Square Deal Cartage Company. On August 18, 1975, Mr. Arnold ruptured a disc in his back while lifting onto the upper deck of the truck which he was operating a ramp used for loading automobiles onto trucks. As a result plaintiff became disabled and has been drawing workers’ compensation benefits. Mr. Arnold commenced an action against Auto-Owners Insurance Company and Michigan Mutual Insurance Group to recover no-fault insurance benefits. Auto-Owners had issued a policy to the plaintiff covering his personal automobile. Michigan Mutual had issued a policy to the plaintiffs employer covering the truck operated by the plaintiff. Summary judgment for defendants, Ingham Circuit Court, Ray C. Hotchkiss, J., based on the trial court’s interpretation of a provision of the no-fault automobile insurance act which provides that no-fault insurers are liable for paying certain claims arising from accidents involving parked motor vehicles when the injury "was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process”. Plaintiff appeals. Held:

    The statutory language in question is to be interpreted as containing two independent clauses; therefore, the injuries which were suffered by the plaintiff are compensable under the no-fault act.
    Reversed and remanded for further proceedings.
    Automobiles — Insurance—No-Fault—Compensable Injuries— Parked Vehicles — Equipment on Vehicle — Statutes.
    A section of the no-fault automobile insurance act which provides in part that no-fault insurers are liable for paying certain claims arising from accidents involving parked motor vehicles where "the injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process” makes compensable injuries which are a direct result of physical contact with property being lifted onto or being lowered from the parked vehicle in the loading or unloading process (MCL 500.3106[b]; MSA 24.13106[b]).

      References for Points in Headnotes
    New Topic Service Am Jur 2d, No-Fault Insurance § 14.

      Sinas, Dramis, Brake, Turner, Boughton, McIntyre & Reisig, P. C. (by George T. Sinas), for plaintiff.

      Fraser, Trebilcock, Davis & Foster, for defendant Auto-Owners Insurance Company.

      Foster, Swift, Collins & Coey, P. C. (by John L. Collins and Michael Schmedlen), for defendant Michigan Mutual Insurance Company.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Danhof, C. J.

This appeal involves § 3106(b) of the no-fault motor vehicle insurance act, MCL 500.3106(b); MSA 24.13106(b). Plaintiff appeals from a circuit court order entered October 19, 1977, denying his motion for a rehearing and reaffirming the circuit court’s order of August 17, 1977, granting defendants’ motions for summary judgment.

Plaintiff was employed by Square Deal Cartage Company. His duties included loading, driving and unloading a truck used to haul automobiles. On August 18, 1975, plaintiff ruptured a disc in his back while lifting a loading dock "skid” (ramp) onto the upper deck of the truck he operated. As a result, plaintiff became disabled and has been drawing workers’ compensation benefits.

Plaintiff brought this suit to recover no-fault insurance benefits. Defendant Michigan Mutual had issued a no-fault policy to the plaintiffs employer covering the truck operated by plaintiff. Defendant Auto-Owners had issued a no-fault policy to the plaintiff covering his own personal automobile.

In granting defendants’ motions for summary judgment the circuit court dealt with one issue, the meaning of MCL 500.3106(b); MSA 24.13106(b), which provides that no-fault insurers are liable for paying certain claims arising from accidents involving parked motor vehicles when:

"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.” (Emphasis added.)

Defendant insurers claim that the emphasized clause is a dependent clause subject to the requirements set forth in the first part of the section. Thus, in their view, an injury occurring during the loading process is compensable only if it was the direct result of physical contact with equipment permanently mounted on the vehicle. Plaintiff argues that the emphasized clause is independent and that therefore an injury occurring as a direct result of physical contact with property being lifted onto or lowered from a vehicle during the loading or unloading process is compensable, regardless of whether the injury was caused by physical contact with equipment permanently mounted on the vehicle. Since plaintiffs injury was caused by lifting a loading dock ramp (not permanently mounted on the vehicle) onto the truck, acceptance of defendants’ interpretation disposes of the claim under § 3106(b). The circuit court agreed with defendants’ reading of the statute, stating:

"Section 3106, taken as a whole, attempts to restrict those instances in which no-fault benefits are payable for injuries resulting from accidents or occurences involving parked vehicles. Section 3106(b) may be inartfully drawn and subject to numerous grammatical improvements and interpretations, many of which have been offered by the parties, but this Court is obligated to deal with the statute in the form in which it is written. Within this framework, the most natural and logical reading of Section 3106(b) is that the portion of the subsection which follows the comma modifies that portion which precedes the comma. Recovery of benefits is therefore limited to those instances in which injury is a direct result of physical contact with equipment permanently mounted on the vehicle. Plaintiff was not so injured and is therefore not entitled to the recovery of no-fault insurance benefits.”

The statute is ambiguous. Neither of the interpretations contended for by the parties is clearly correct on the face of the statute. Hence, we look to legislative intent to discern the correct interpretation. However, there is very little helpful legislative history. As originally introduced on June 2, 1971, SB 782 divided this section of the statute into two subsections:

"Sec. 6. Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(b) The injury was a direct result of physical contact with (i) equipment permanently mounted on the vehicle, while the eqipment was being operated or used or (ii) property being lifted onto or lowered from the vehicle in the loading or unloading process.”

As finally enacted, the wording and punctuation remained unchanged but the subsection numbering had been removed. We have been unable to find any record of why this change was made. It is unclear whether the change was merely cosmetic or intended to make the second clause dependent on the first.

Next we turn for guidance to the administrative interpretation of the statute. See Lane v Dept of Corrections, Parole Board, 383 Mich 50, 56; 173 NW2d 209 (1970). In April of 1973, after the no-fault law had been enacted but prior to its effective date, the insurance commissioner issued guidelines interpreting the act (Michigan Personal Injury Protection Endorsement, pp 1-2), in relevant part as follows:

"Exclusions
"This insurance does not apply
"(j) to bodily injury sustained by any person arising out of the ownership, operation, maintenance or use, including loading or unloading, of a parked motor vehicle unless
"2. such bodily injury was a direct result of physical contact with
"a. equipment permanently mounted on such motor vehicle while such equipment was being operated or used, or
"b. property being lifted onto or lowered from such motor vehicle in the loading or unloading process, or.”

This administrative interpretation, which reads § 3106(b) as containing two independent clauses, is entitled to be given great weight. Lane, supra.

Dembinski v Aetna Casualty & Surety Co, 76 Mich App 181, 183; 256 NW2d 69 (1977), involved the interpretation of insurance policy language which followed the insurance commissioner’s guidelines quoted above. In comparing the policy language with the statutory language Judge R. B. Burns observed:

"The [policy] clause is not ambiguous in the instant case. The insurance contract excludes 'bodily injury * * arising out of * * * use, including loading and unloading, of a parked vehicle unless * * * such bodily injury was the direct result of physical contact with * * * property being lifted onto or lowered from such motor vehicle in the loading or unloading process’. The wording of this exclusion is similar to and complies with the deñnition of accidental bodily injury arising out of use of a parked vehicle contained in MCLA 500.3106; MSA 24.13106.” (Emphasis added.)

While not the holding of the case, this observation from Dembinski is further support for adoption of the insurance commissioner’s construction of the statute. This interpretation is not clearly wrong, nor is any other construction clearly required. See Lane, supra, at 56. Therefore, we conclude that § 3106(b) makes compensable injuries which are a direct result of physical contact with property being lifted onto or lowered from the parked vehicle in the loading or unloading process.

Reversed and remanded for further proceedings consistent with this opinion. No costs, a public question being involved.


author: Per Curiam. J. H. Gillis, J.

text:
    PEOPLE v McPHERSON
    Docket No. 30151.
    Submitted December 6, 1977, at Detroit.
    Decided June 6, 1978.
    Leave to appeal applied for.
    Robert D. McPherson was charged with first-degree murder and found guilty of manslaughter in Recorder’s Court of Detroit, Michael J. Connor, J. Defendant appeals, alleging that the trial court erred by finding that the prosecutor’s failure to produce an endorsed witness was excusable because he used due diligence in attempting to produce him and in denying the defendant’s motion for a directed verdict of acquittal on the first-degree murder charge. Held:

    1. The trial court’s finding of due diligence was not an abuse of discretion. The witness was properly found not to be a res gestae witness, and the police had checked numerous sources in an effort to locate the witness, all to no avail. Production of the witness was properly excused.
    2. The trial court should have granted the defendant’s motion for a directed verdict. On the basis of the evidence presented, the jury would have had to impermissibly draw inference upon inference in order to find the elements of premeditation and deliberation necessary for a verdict of guilty of first-degree murder.
    Reversed and remanded.
    J. H. Gillis, J., dissented. He would find that the evidence presented was sufficient to establish premeditation and deliberation on the part of the defendant, and that the trial court therefore properly denied the defendant’s motion.
    References for Points in Headnotes
    [1, 2] 41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    [3] 29 Am Jur 2d, Evidence § 148.
    75 Am Jur 2d, Trial §§ 532, 548 et seq.

    [4] 29 Am Jur 2d, Evidence §§ 161, 162.
    40 Am Jur 2d, Homicide § 263 et seq.

    [5] 40 Am Jur 2d, Homicide §§ 263 et seq., 438, 439.
    Homicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.
    [6] 40 Am Jur 2d, Homicide § 467 et seq.

      Opinion of the Court
    1. Witnesses — Criminal Law — Indorsed Witnesses — Production of Witnesses.
    A prosecutor need not indorse a person who is not a res gestae witness but, if such a witness is indorsed, such voluntary indorsement carries with it the burden of production.
    2. Witnesses — Criminal Law — Indorsed Witnesses — Production of W itnesses — Diligence.
    The nonproduction of an indorsed witness will be excused where the prosecutor’s efforts to obtain the witness’s presence at trial are diligent; the question of due diligence is within the discretion of the trial judge, and the exercise of that discretion will not be overturned unless a clear abuse is shown.
    3. Criminal Law — Acquittal—Directed Verdict — Evidence—Elements of Crime.
    It is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged.
    4. Homicide — First-Degree Murder — Directed Verdict — Evidence —Inferences.
    A trial court erred by denying a defendant’s motion for a directed verdict of acquittal of a charge of first-degree murder where from the evidence presented the jury would have to draw an inference from an inference in order to find premeditation and deliberation.
    Dissent by J. H. Gillis, J.
    5. Homicide — First-Degree Murder — Premeditation and Deliberation — Inferences—Evidence.

      The presence of premeditation and deliberation can be inferred from the character of the weapon used, the wound indicted, the prior relationships between the parties, and other evidence surrounding a killing; sufdcient evidence to establish premeditation and deliberation was presented by evidence that the defendant admitted shooting dve shots into the victim’s head, the body was found partially burned and there was evidence the burning was not accidental, and the defendant testided that he kept his gun unloaded and that the bullets were left in a separate room.

      6. Homicide — First-Degree Murder — Evidence—Submission to Jury.

      The issue of whether a charge of ñrst-degree murder should be submitted to a jury must be decided upon a determination of whether, taking the evidence in the light most favorable to the state, there is any evidence upon which a jury can predicate a ñnding of guilty of ñrst-degree murder.

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

      John C. Mouradian, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   Per Curiam.

Defendant was charged with the first-degree murder of Yvonne Johnson, MCL 750.316; MSA 28.548. A jury convicted him of manslaughter, MCL 750.321; MSA 28.553, and he was sentenced to 9 to 15 years imprisonment. He appeals by right.

Ms. Johnson’s nude and partially burned body was found in the bedroom of defendant’s apartment. Death was caused by five gunshot wounds to the head and neck. The wounds were made by a gun fired while its muzzle was in contact with the victim’s skin. A police expert in firearms identification testified that the bullets came from defendant’s gun.

On prior occasions defendant and the deceased had been seen playing pool and drinking together. Witnesses observed both of them at the same bar on the evening preceding Ms. Johnson’s death, but they were not together.

In a statement to the police, defendant gave the following account of the events. The deceased accompanied defendant to his apartment, where they had sexual intercourse. During the night the deceased, armed with defendant’s gun, wakened defendant and demanded his money. When defendant replied that he had none, the deceased accused him of lying and said that she had seen him cash his check at the bar. Defendant, afraid that Ms. Johnson would pull the trigger, wrestled the gun away from her, at which time she fell on the bed and the first shot hit her. The deceased then "got shot again out of fear and panic”, after which defendant fled the apartment.

At some time the mattress caught fire, and the firemen responding to the call discovered the body.

The first issue raised on appeal is whether the trial court erred in finding that the people had exercised due diligence in attempting to procure the presence of an endorsed witness, one Reverend Morgan, and in ruling the nonproduction of the witness excused. Reverend Morgan resided in defendant’s apartment house. When interviewed by the police the day the body was found, he told them that he had seen smoke coming from the upstairs window but had not heard any gunshpts the night before or that morning. The police had no further contact with the witness until the time of trial, at which time a subpoena for the witness was returned with no response and with no forwarding address. A police sergeant testified that on May 3, 1976, the third day of trial, in an attempt to locate the witness, the police had checked the place of employment which the witness had listed in the November interview, the Wayne.County Morgue, the church of which the witness was a pastor, Wayne County Social Services, the Detroit House of Correction, the Wayne County Jail, Detroit Edison, the gas company, and the post office, all to no avail.

The trial court, after reading the statement which the witness had given the police, ruled that he was not a res gestae witness and found that the prosecution, surprised by the witness’s absence, had made a showing of due diligence in attempting to produce the witness.

While the prosecutor need not endorse the name of a person who is not a res gestae witness, the voluntary endorsement of such a witness carries with it the burden of production. People v Mitchell, 48 Mich App 361, 364; 210 NW2d 509, 510 (1973), lv den, 391 Mich 752 (1973), and cases cited therein. The nonproduction of an endorsed witness will be excused when the prosecution’s efforts to obtain the witness’s presence at trial are diligent. Id. at 365; 210 NW2d at 511, People v Schwartz, 62 Mich App 188, 191; 233 NW2d 517, 519 (1975), lv granted, 395 Mich 794 (1975). The diligence required of the prosecution is "devoted and painstaking application to accomplish an undertaking”. People v Johnson, 51 Mich App 224, 230-231; 214 NW2d 713, 716 (1974). The question of due diligence is within the discretion of the trial judge, and the exercise of that discretion will not be overturned unless a clear abuse is shown. People v Bersine, 48 Mich App 295; 210 NW2d 501 (1973), lv den, 391 Mich 837 (1974).

People v Harris, 43 Mich App 531; 204 NW2d 549 (1972), upon which defendant relies to claim that the prosecution’s efforts were untimely, is distinguishable. In Harris the prosecution, having reason to believe that the accomplice witness would be absent from trial, not only waited until the day of the trial to procure his presence, but at that time made insufficient efforts to find him. Here, the prosecution, surprised by Reverend Morgan’s absence, pursued a number of leads to the witness’s location. The trial court did not err in finding due diligence and excusing the nonproduction of the witness. People v Yarborough, 61 Mich App 303; 232 NW2d 394 (1975).

The second issue raised by defendant is whether the trial court erred in denying defendant’s motion for a directed verdict of acquittal on the charge of first-degree murder, and in submitting this charge to the jury. Defendant contends that there was insufficient evidence from which the jury could find premeditation and deliberation. See People v Vail, 393 Mich 460; 227 NW2d 535 (1975).

The prosecution relies heavily upon the testimony indicating that defendant’s revolver was kept unloaded, that the bullets were kept separate from the gun, and that the gun was seen, unloaded, the night before the crime. From this evidence the prosecution contends that the jury could infer premeditation and deliberation. Defendant argues that such proof depends upon an inference drawn from an inference, in contravention of People v Atley, 392 Mich 298, 315; 220 NW2d 465, 473-474 (1974).

In the landmark case of People v Morrin, 31 Mich App 301, 333; 187 NW2d 434, 451 (1971), Judge (now Justice) Levin stated the rule controlling here:

"Where the use of a deadly weapon has been held to evidence premeditation there were other circumstances showing motive or plan which would make reasonable the inference that the use of the deadly weapon was not a spur-of-the-moment decision, but rather that it was acquired or positioned with the thought beforehand of using it to kill the victim.” (Footnote omitted.)

Given the circumstances of this homicide, the motion for a directed verdict presented the trial court with a close, difficult question. Before ultimately denying it, contrary to his initial inclination, the learned trial judge listened to extensive argument which finally persuaded him that the evidence was sufficient for submission to the jury.

We note that the prosecution presented no evidence of a prior relationship between the defendant and the deceased which would indicate a motive. Neither was there evidence of any threat against the deceased, nor hostile feelings toward her by the defendant, nor of any plan which preexisted the killing. There was only the evidence that the gun was kept unloaded and separate from the bullets as late as the night before their use. However, there is no evidence that it was defendant who ultimately loaded the gun. Although this could perhaps be inferred, one would then have to make the further inference that defendant loaded the gun with the intent to kill Ms. Johnson, and yet another inference that all this transpired under circumstances indicating that defendant’s thought processes were "undisturbed by hot blood”. People v Morrin, supra, 31 Mich App at 329-330; 187 NW2d at 449. We are constrained to agree with defendant that under People v Atley, supra, the evidence of premeditation and deliberation was insufficient.

Based upon the foregoing, our disposition is mandated by People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975), which states:

"Thus, where a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant’s chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. For this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged.”

Defendant’s conviction is reversed and this cause is remanded for retrial.

J. H. Gillis, J.

(dissenting). I respectfully dissent. I believe that sufficient evidence was produced at trial to establish premeditation and deliberation on the part of defendant when he committed the killing charged herein.

"The presence of premeditation and deliberation can be inferred from the character of the weapon used, the wound inflicted, the prior relationships between the parties, and other evidence surrounding the killing. People v Berthiaume, 59 Mich App 451, 459; 229 NW2d 497 (1975), lv den, 394 Mich 788 (1975), People v Gill, 43 Mich App 598, 602-603; 204 NW2d 699 (1972), lv den, 389 Mich 785 (1973), People v Lem Dumas, 25 Mich App 173; 181 NW2d 89 (1970). See People v Griner, 30 Mich App 612; 186 NW2d 800 (1971), People v Wolf, 95 Mich 625, 629; 55 NW 357 (1893).” People v Melvin, 70 Mich App 138, 146-147; 245 NW2d 178 (1976).

In the instant case, defendant admitted shooting five shots from a .38-caliber pistol into decedent’s neck and head. The muzzle of the pistol was pressed against the decedent’s skin when the shots were fired.

The body was found in a partially burned state and the evidence adduced at trial indicated that the burning was not accidental.

Defendant also testified that he kept his gun unloaded and that the bullets were kept in a separate room. Another witness verified this testimony on the basis of having seen the unloaded gun in its hiding place the night before the killing.

A logical inference can be drawn from this set of circumstances. In order to kill the decedent, the defendant would have had to have gone to two separate rooms to get the gun and the bullets and then return to the bedroom to fire the fatal shots.

Defendant alleges that he did not bring the gun into the bedroom. Instead, he contends that the decedent somehow discovered the gun in its hiding place and also found the bullets in his dresser drawer. The decedent then allegedly loaded the gun and attempted to rob defendant.

Defendant’s version of how the gun came to be in the room seems highly improbable.

"We are dealing here with a very narrow issue involving. submission of a charge of first-degree murder to the jury. Thus, we must determine that if taking the evidence in the light most favorable to the state there was any evidence upon which a jury could predicate a finding of guilty of murder in the first-degree.” People v Watkins, 388 Mich 717, 722; 202 NW2d 780 (1972).

Applying the aforementioned rule to the instant case leads this writer to the conclusion that the trial court properly denied defendant’s motion to dismiss the first-degree murder charge. Accordingly, I would affirm the defendant’s conviction.


author: Per Curiam.

text:
    PEOPLE v HILL
    Docket No. 30191.
    Submitted April 12, 1978, at Lansing.
    Decided June 6, 1978.
    Edward W. Hill was convicted of armed robbery in Washtenaw Circuit Court, William F. Ager, Jr., J. Defendant appeals claiming that the trial judge erred in not holding an evidentiary hearing to establish that in-court identifications made by two witnesses had a basis independent from any pretrial photographic lineups and in excluding expert testimony on the process by which people perceive and remember events and how pretrial identification procedures could affect this process. Held:

    1. Eyewitnesses may not be shown photographs for the purpose of identifying a defendant while he is in custody and without his counsel being present. In-court identifications by eyewitnesses who have participated in improper pretrial procedures must be suppressed unless there is a showing at an evidentiary hearing, by clear and convincing evidence, that some basis other than the pretrial procedure was used to make the identification.
    2. Remand for an evidentiary hearing is necessary where it was claimed that in-court identifications were based on improper pretrial identification procedures and no evidentiary hearing was held or where the record of the hearing is insufficient for the purposes of appellate review.
    3. Expert testimony on the process by which people perceive and remember events and how pretrial identification procedures can affect this process can be relevant and important in some cases; the decision to admit or exclude this evidence is entrusted to the discretion of the trial court. The trial judge in this case did not commit reversible error in excluding such evidence. The ruling does not appear inconsistent with substantial justice.
    Remanded for further proceedings.
    References for Points in Headnotes
    [1-6] 29 Am Jur 2d, Evidence §§ 371-373, 791.
    Admissibility of evidence as to extrajudicial or pre-trial identification of accused. 71 ALR2d 449.

      1. Witnesses — Criminal Law — Identification—Photographic Display — Evidentiary Hearing — Independent Basis — Attorney and Client.
    A trial judge is required to hold an evidentiary hearing to determine whether in-court identifications have a sufficient independent basis where eyewitnesses were shown photographs for the purpose of identifying a defendant while he was in custody and without his counsel being present.
    2. Witnesses — Criminal Law — Identification—Improper Pretrial Procedures — Independent Basis.
    An in-court identification by an eyewitness who has participated in improper pretrial procedures must be suppressed unless there is a showing by clear and convincing evidence that the in-court identification was made on some other basis than the pretrial identification procedure.
    3. Witnesses — Criminal Law — Identification—Evidentiary Hearing — Independent Basis.
    Mere reiteration of a witness’s ability to recognize, or the certainty of recognition, is not enough to support an in-court identification allegedly based on an improper pretrial identification procedure; the facts and circumstances of the conditions under which the initial identification was made must be considered.
    4. Witnesses — Criminal Law — Photographs—Identification—Evidence — Evidentiary Hearing — Independent Basis — Question of Law — Question of Fact.
    A witness’s failure to make a positive identification from photographs does not necessarily mean that a later identification was not influenced by the photographic lineup; the failure of a witness to identify an accused from the pictures may be sufficiently clear and convincing evidence to support a finding of fact that an in-court identification had an independent basis but it does not establish an independent basis as a matter of law so as to preclude the introduction of any contrary evidence on the issue; this finding of fact is to be determined after an evidentiary hearing.
    5. Witnesses — Criminal Law — Identification—Independent Basis —Appeal and Error.
    The admission of in-court identifications is not harmless error where the record is insufficient for appellate review concerning such factors as opportunity for observation, prior knowledge, accuracy of description, discrepancies, prior identification, lapse of time, idiosyncracies or special features which are necessary to support an independent basis for an in-court identification, how these factors affected the accuracy of the identification or interacted in the particular case, and whether the people had shown an independent basis by clear and convincing evidence.
    6. Witnesses — Evidence—Pretrial Identification — Mental Processes — Admissibility—Judge’s Discretion.
    Generally, expert testimony on the processes by which people perceive and remember events and how pretrial identification procedures can affect these processes is excluded; however, in some cases such testimony could be relevant and important and the decision to admit or exclude it is in the trial court’s discretion.

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

      J. Michael Schroer, for defendant on appeal.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Per Curiam.

On June 29, 1976, defendant was convicted by a jury of armed robbery in contravention of MCL 750.529; MSA 28.797 and was sentenced to a term of life imprisonment. He appeals as of right claiming that the trial judge erred in not holding an evidentiary hearing to establish that the in-court identifications made by two witnesses had a basis independent from any pretrial photographic lineups and in excluding expert testimony on the process by which people perceive and remember events and how pretrial identification procedures could affect this process.

At trial, two eyewitnesses testified that they had been shown photographs for the purpose of identifying the robber. This occurred while defendant was in custody and without his counsel being present in contravention of the holding in People v Anderson, 391 Mich 419; 216 NW2d 780 (1974). Therefore, before any in-court identifications were admitted into evidence, the trial judge was required to hold an evidentiary hearing to determine whether the in-court identifications had a sufficient independent basis, People v Anderson, 389 Mich 155, 167; 205 NW2d 461 (1973). In People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), the Supreme Court set out the principles on which such determination should be based. The in-court identification by an eyewitness who has participated in improper pretrial procedures must be suppressed unless there is a showing by clear and convincing evidence that the in-court identification was made on some other basis than the pretrial identification procedure, Kachar, supra. "It is not enough that the witness merely reiterates an ability to recognize, or the certainty of recognition, but the facts and circumstances of the conditions under which the initial identification was made must be considered.” Kachar, supra, 94.

"The court should attempt, in its evidentiary hearing, to examine as many factors as are applicable to a particular case. All will not be of equal weight, but it is within the trial court’s discretion, keeping in mind the appropriate legal and psychological principles to determine, on balance, whether the prosecution has carried its burden of proof.
"Upon consideration of such relevant factors, the trial court must state on the record the reasons for determining whether the prosecution has established by clear and convincing evidence that the in-court identification has a sufficient independent basis to purge the taint caused by the illegal confrontation.” Kachar, supra, 97.

At trial, there was no record made of any evidentiary hearing concerning the independent basis of Miss Colbin’s testimony. The prosecutor, on appeal, contends that Miss Colbin’s inability to identify defendant from the photographs shown to her establishes a sufficient independent basis, see People v Manuel Johnson, 58 Mich App 347; 227 NW2d 337 (1975). We decline to hold that the witness’s failure to positively identify the defendant establishes, as a matter of law, a sufficient independent basis. As the Court noted in Anderson, supra, many factors which influence the accuracies of identifications are subconscious or hard to recognize. The witness’s failure to make a positive identification from the photographs shown to her, does not necessarily mean that a later identification was not influenced by this photographic lineup. While the failure of the witness to identify the accused from the pictures may be sufficiently clear and convincing evidence to support a finding of fact that the in-court identification had an independent basis, it does not establish an independent basis, as a matter of law, so as to preclude the introduction of any contrary evidence on the issue. This finding of fact is to be determined after an evidentiary hearing. If, as the prosecutor claims, no photographs of defendant were shown to the witness, then the prosecutor should establish this fact at the hearing. Normally, this burden on the prosecutor is not great since this evidence is usually readily available to him.

Defendant also made a motion to suppress the testimony of Mr. Downer. After his testimony, the jury was excused and objections were raised concerning it. He was questioned about the identification procedure and his ability to identify defendant. However, the record of this discussion is insufficient for the purposes of appellate review under the standard enunciated in Kachar, supra. The record does not show any inquiry into the factors enumerated in Kachar, supra, as affecting the accuracy of the identification. Also, there is no finding by the trial court on how these factors interacted in this particular case and no conclusion as to whether the people had shown an independent basis by clear and convincing evidence. The admission of these in-court identifications cannot be considered harmless error under People v Anderson, 389 Mich 155, 169; 205 NW2d 461 (1973).

Consequently, a remand for an evidentiary hearing on this issue is required. If, at this hearing, the people can establish by clear and convincing evidence that the in-court identification by these two witnesses had a basis independent of the pretrial identification procedure, the conviction is affirmed. If an independent basis cannot be shown, the conviction is reversed and a new trial is ordered.

The second issue raised by defendant involves the trial judge’s decision not to admit expert testimony on the process by which people perceive and remember events and how pretrial identification procedures can affect this process. The trial judge, in exercising his discretion, excluded this evidence on the basis that; the expert had not interviewed any of the eyewitnesses; that the subject matter of his testimony was within the experiences of ordinary laymen; and that its introduction would result in counter-expert testimony by the people on this subject and this would not be an efficient use of limited judicial resources. He did not exclude this evidence on the basis that it embraced an ultimate issue of fact, see GCR 1963, 605. The judge ruled that this issue could be presented to the jury during closing argument but that it was not proper to introduce testimony on it.

Historically, expert testimony on this issue has been excluded unless the witness suffered from physical or mental disorders or delusions, 20 ALR3d 684. The holdings in Michigan Cases, People v Cowles, 246 Mich 429; 224 NW 387 (1929), People v Bastian, 330 Mich 457; 47 NW2d 692 (1951), are consistent with this analysis. Proper expert testimony on the perception and memory processes and how pretrial identification procedures can affect it may be relevant in some cases. The emphasis the Supreme Court in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), placed on the psychological factors involved in this process, demonstrates the importance of these factors. However, the decision to admit or exclude evidence involves more than a determination of mere relevancy. See MRE 403. The decision to admit or exclude such evidence is entrusted to the trial court’s discretion, People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), and this decision will not be reversed absent an abuse of discretion. Furthermore, under GCR 1963, 529.1, "No error in * * * the exclusion of evidence * * * is ground for * * * setting aside a verdict * * * unless refusal to take such action appears to the court inconsistent with substantial justice”.

The trial judge in this ’ case did not commit reversible error in excluding this testimony. The expert had not interviewed or questioned any of the eyewitnesses about whom he was to testify and had only observed them in the courtroom. Also, the trial judge did not completely foreclose the presentation of this issue since he offered to let counsel pursue the matter during closing argument. Furthermore, the decision not to reverse the judge’s ruling on this issue does not appear inconsistent with substantial justice and so the verdict cannot be set aside, GCR 1963, 529.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

       On appeal, defendant also assigns as error the introduction of an in-court identification by Mr. Rosen, who was shown a photographic lineup. However, since this issue was not presented to the trial court and no motion to surpress was made, the issue has not been preserved for review, People v Tofil, 31 Mich App 342; 188 NW2d 63 (1971), People v Matthews, 22 Mich App 619; 178 NW2d 94 (1970).


text:
    BOUSSON v MITCHELL
    Docket No. 77-2687.
    Submitted April 14, 1978, at Detroit.
    Decided June 6, 1978.
    In 1968 Alfred Bousson, a married man, purchased some land on land contract. A divorce action was instituted and the trial court issued a preliminary injunction enjoining Mr. Bousson from selling or encumbering his property. While his divorce was pending, Frances and Louis Mitchell obtained a default money judgment against Mr. Bousson. The trial court in that case then enjoined Mr. Bousson from transferring or encumbering his property. On November 14, 1969, a levy of execution on the property in favor of the Mitchells was issued and recorded. On January 7, 1971, a divorce judgment was entered and duly recorded giving Elizabeth Bousson all of Alfred Bousson’s interest in the property. In 1973 Loren E. Bodem was appointed receiver of Alfred Bousson. He filed suit against Mr. Bousson alone to foreclose his interest in the property. The court entered an order adjudging the receiver’s interest superior to that of Mrs. Bousson by virtue of the notice and levy of execution. Mrs. Bousson, not a party to the suit, moved the court to vacate the levy of execution because it had expired; the motion was heard and denied, as was a motion for rehearing. Mrs. Bousson appealed to this Court but her claim of appeal was denied because the order appealed from was not a final judgment and was a post-judgment order, which was appealable only by leave. Mrs. Bousson did not file an application for leave to appeal. Mrs. Bousson for herself and as trustee of her minor children filed an action in Macomb Circuit Court against the Mitchells and Mr. Bodem to quiet title to the property. The court, Edward J. Gallagher, J., granted summary judgment to defendants on the grounds of res judicata. Plaintiff appeals. Held:

    1. The doctrine of res judicata applies where three prerequisites are satisfied: (1) the former action must have been decided on the merits; (2) the same matter raised in the second action must have been decided in the first; and (3) the two actions must be between the same party or their privies.

      References for Points in Headnotes
    [1] 46 Am Jur 2d, Judgments § 394 et seq.

    [2] 46 Am Jur 2d, Judgments §§ 524, 529 et seq., 535.

      2. The identity of parties requirement is met where one party, while not a named party to the former lawsuit, was an active participant in it and is a party to the latter suit.
    Affirmed.
    1. Judgment — Res Judicata.
    The doctrine of res judicata bars the redetermination of an issue where three prerequisites are met: (1) the former action must have been decided on the merits; (2) the same matter raised in the second action must have been decided in the first; and (3) the two actions must be between the same parties or their privies.
    2. Judgment — Res Judicata — Named Parties.
    The fact that a person is not a named party to a lawsuit does not forestall the application of the doctrine of res judicata as long as the party was an active participant in the first lawsuit.

      VanDeGraaf & VanDeGraaf, for plaintiff.

      Steve S. Michaels, for defendants.
    Before: T. M. Burns, P. J., and N. J. Kaufman and Bashara, JJ.
   Per Curiam.

Plaintiff appeals an order granting defendants’ motion for summary judgment based on the doctrine of res judicata. The present lawsuit is an action by plaintiff to quiet title to her ex-husband’s interest in a certain parcel of land.

In 1968, plaintiff’s ex-husband, Alfred Bousson, was in the process of purchasing the land in question together with another person, by means of a land contract. Each party had a one-half interest in the land contract. In October of that year, a divorce action was instituted. The trial court in that case issued a preliminary injunction enjoining Alfred Bousson from selling or otherwise encumbering his property.

During the pendency of the divorce action, a default judgment was entered against Alfred Bousson in a negligence suit in favor of the Mitchells, defendants in this case. The trial court in the negligence case also prohibited Alfred Bousson from transferring or otherwise encumbering his property, pursuant to MCL 600.6104; MSA 27A.6104, which enumerates the powers of a court in supplementary proceedings after judgment.

On November 14, 1969, a levy of execution on the property in question was issued in favor of the Mitchells and recorded. On January 7, 1971, a divorce judgment was entered, giving plaintiff all of Alfred Bousson’s interest in the property in question. A receiver was appointed in 1973, to protect the rights of the judgment creditors, and on August 13 of that year, the receiver was directed to foreclose on any interest Alfred Bousson might have in the property in dispute.

Pursuant to the court order of August 13, 1973, the receiver filed a new lawsuit seeking to foreclose on Alfred Bousson’s interest in the property. On November 14, 1973, the trial court entered an order adjudging the receiver’s interest superior to that of plaintiff by virtue of the notice and levy of execution. Plaintiff filed a motion in the receiver’s lawsuit to vacate the levy of execution. The motion was heard, denied, and a motion for rehearing the matter was also denied. Upon denial of the motion for a rehearing, plaintiff appealed the decision to this Court. The claim of appeal was not accepted because the order was not a final judgment from which a claim of appeal was appropriate, but was instead a post-judgment order which is only appealable by leave. No leave to appeal was filed.

Thereafter, plaintiff filed the present action to quiet title to the land in question. As noted earlier, summary judgment for defendants was granted by the trial court.

Although plaintiff raises a multitude of issues on appeal concerning who is the rightful owner of the property in question, the only real issue in this case is whether the present suit is barred by the doctrine of res judicata.

There are three prerequisites to the application of this doctrine. First, the former action must have been decided on the merits. Second, the same matter raised in the second action must have been decided in the first. Third, the two actions must be between the same parties or their privies. Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975), Fry v Kaiser, 60 Mich App 574, 578; 232 NW2d 673 (1975), lv den, 394 Mich 830 (1975).

There can be no dispute that the first action was decided on the merits, and thus, the first criterion of the res judicata doctrine was satisfied. There can also be no dispute that the same issues were raised in both suits. A comparison of plaintiff’s brief on appeal with her reply brief in the former action clearly demonstrates that the present action merely reiterated the same issues addressed and resolved by the trial court in the first case.

Thus, the only issue that remains is whether the third criterion, regarding the identity of the parties, is satisfied. Plaintiff contends that she was never a party to the first suit and, therefore, her interest in the property was never adjudicated. Review of the prior proceeding, however, clearly shows that plaintiff, although not an actual party to the suit, was a most active participant in the action. Plaintiff filed the motions, and argued the merits of the issue by briefs. Plaintiff controlled the course of the litigation and asserted her allegedly superior rights to the property, by virtue of the divorce decree. Thus, it cannot be denied that she received an adjudication of her rights to the property.

The fact that a person is not a named party to a lawsuit does not forestall the application of the doctrine of res judicata as long as the party was an active participant in the first lawsuit.

"A person who is not a party but who controls an action, individually or in co-operation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary or financial interest in the judgment or in the determination of a question of fact or a question of law with reference to the same subject matter or transaction * * * .” Restatement Judgments, § 84, p 390. Accord, Carpenter v Carpenter, 136 Mich 362; 99 NW 395 (1904).

Plaintiffs activity clearly made her a participating, if not a controlling, party in the first lawsuit. Thus, the third criterion of the res judicata doctrine has also been satisfied.

Therefore, since the former action to vacate the execution levy was decided on the merits, and there was identity of issues and parties between that suit and the present suit, the doctrine of res judicata is applicable, and the present lawsuit is barred.

Affirmed.

       The defense of res judicata is properly raised by a motion for accelerated judgment, not summary judgment. GCR 1963, 116.1(5). This mislabeling, however, is harmless in the present case and thus does not necessitate reversal, since both parties understood the substance of the motion and were not prejudiced by the mislabeling. See, Curry v Detroit, 394 Mich 327; 231 NW2d 57 (1975), Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 D C L Rev, Issue 3, pp 397, 398-399.

       Had plaintiff owned an interest in the disputed land, we note that she could have maintained an action to quiet title as to that interest, despite the fact that the action would be res judicata as to her ex-husband’s interest in the property.