author: C. W. Simon, J.

text:
    MARTIN v JOHNSON
    Docket No. 30075.
    Submitted June 10, 1978, at Detroit.
    Decided December 5, 1978.
    Plaintiff Tony Martin and defendant Juanita Johnson were involved in an automobile accident wherein Martin sustained' both physical injury and property damages. Martin’s insurer, Motors Insurance Corporation, paid him for the property damages to his automobile and, therefore, became subrogated to Martin’s claim for property damages. Motors Insurance Corporation, as Martin’s subrogee, thereafter filed suit in the Common Pleas Court of Detroit to recover from Johnson. Johnson’s motion to have Martin joined as a party plaintiff in that action was denied and a judgment of no cause of action was rendered. Martin then instituted the present circuit court action against Johnson to recover for the damages from personal injuries which he allegedly sustained in the accident. Johnson moved for accelerated judgment, citing the prior common pleas adjudication and Martin’s failure to join in that suit. The Wayne Circuit Court, Thomas Roumell, J., denied the motion on the ground that Martin’s suit was not barred by the prior adjudication because he was neither a party nor in privity with any party to that action. Defendant appeals, by leave granted. Held:

    1. The propriety of the Common Pleas Court’s decision to deny the defendant’s motion to join Martin in such action is not subject to collateral attack on appeal since the denial of such motion was never appealed by the defendant.
    2. The common law rule against splitting a cause of action has been replaced by GCR 1963, 205.1, regarding the necessary joinder of parties; since joinder is mandatory rather than permissive, the rule makes it obvious that such joinder is required for the benefit of the opposite party and thereby places the burden of objecting to misjoinder on the opposite party.

      References for Points in Headnotes

       1 Am Jur 2d, Actions §§ 100-126.

       1 Am Jur 2d, Actions §§ 118-132.

       1 Am Jur 2d, Actions §§ 100-132.

       1 Am Jur 2d, Actions §§ 66, 72.

      3. The action in common pleas court by an insurer for property damages as subrogee of an insured, who also suffered personal injury in the collision, is not res judicata in the circuit court action brought by the insured seeking damages for the personal injuries suffered.
    Affirmed.
    1. Action — Causes of Action — Torts.
    Michigan law considers two causes of action to comprise but one cause of action where both causes arise out of one tortious act.
    2. Action — Cause of Action — Splitting Causes — Common Law Rule — Parties—Joinder of Parties — Misjoinder—Court Rules.
    The common law rule against splitting a cause of action has been replaced by the court rule regarding the necessary joinder of parties; since joinder is mandatory rather than permissive, the rule makes it obvious that such joinder is required for the benefit of the opposite party and thereby places the burden of objecting to misjoinder on the opposite party (GCR 1963, 205.1).
    3. Action — Parties—Joinder—Failure to Join — Waiver—Splitting Cause of Action — Court Rules.
    The general rules of pleading provide that a lack of objection to a failure to join a party in an action results in a waiver of the defense of failure to join and, therefore, would allow a cause of action to be split (GCR 1963, 111.3).
    4. Appeal and Error — Action—Parties to Action — Joinder—Col-lateral Attack.
    The propriety of a trial court’s decision to deny a defendant’s timely motion to join a party in an action is not subject to collateral attack on appeal, where such denial was never appealed.
    5. Action — Trial of Whole Dispute — Joinder.
    The courts and public have an important interest in the complete, consistent and efficient settlement of controversies which necessitates the settling of disputes by wholes; whenever possible, these interests should be served by joinder.
    6. Action — Automobile Collision — Subrogee—Property Damage— Personal Injuries — Res Judicata.
    Action in common pleas court for property damages in an automobile collision by an insurer, as subrogee of an insured who also suffered personal injuries in the collision, is not res judi-cata in a circuit court action brought by the insured seeking damages for those personal injuries.

      Thurswell, Chayet, Rosen & Weberman, for plaintiff.

      Jennifer B. Wendover, Wayne County Neighborhood Legal Services, for defendant.
    Before: Bashara, P.J., and Bronson and C. W. Simon, JJ.

       Circuit judge sitting on the Court of Appeals by assignment.

   C. W. Simon, J.

This interlocutory appeal concerns the splitting of a cause of action arising from an automobile accident. On February 14, 1973, appellee, Tony Martin, and appellant, Juanita Johnson, were involved in a collision wherein Martin allegedly sustained both physical injury and property damage. Martin, however, was insured and, therefore, reimbursed $503.16 by his insurance carrier, Motors Insurance Corporation (hereinafter referred to as MIC), for the damage to his automobile. Because of this payment, MIC became subrogated to Martin’s claim for damage, and on January 10, 1974, filed suit in the Common Pleas Court of Detroit to recover from Johnson.

On April 10, 1974, Johnson, defendant in this action, moved pursuant to GCR 1963, 205.1 to join Martin as a party plaintiff. However, MIC opposed the motion and prevailed in having Martin excluded. Thereafter, the cause proceeded to trial on the merits where, despite Martin’s testimony which was proffered by MIC, a judgment of no cause of action was rendered.

The present action was instituted on August 12, 1974, in the Wayne County Circuit Court. It was brought by Martin against Johnson to recover for the personal injuries he allegedly sustained in the accident. Johnson responded by asserting the prior common pleas adjudication and Martin’s failure to join in the previous suit. She moved for accelerated judgment under GCR 1963, 116.1(5), but such motion was denied by the trial court on the ground that Martin’s suit was not barred by the prior adjudication because he was neither a party nor in privity with any party to the former action. We granted leave to appeal.

This case poses an interesting twist to a classic, yet recurring, problem which arises out of the insurance practice providing for subrogation of the insurer for its insured with regard to the insured’s claim against a third-party tortfeasor after payment by the insurer of only part of that claim. See Anno: Simultaneous injury to person and property as giving rise to single cause of action, 62 ALR2d 977; Anno: Rights and remedies incident to subro-gation to one but not both elements of a single cause of action for injury to person and damage to property, 140 ALR 1241; 166 ALR 870. In such case, either or both could commence suit against the wrongdoer. GCR 1963, 201.2. See Worth v Wagner, 255 Mich 433; 238 NW 175 (1931). Their rights being distinct, the insured would seek recovery on the basis of personal injury or damage to his automobile caused by the collision, and the insurer upon the basis of damage which it had been compelled to pay on account of the collision, under the terms of the policy. 15 Blashfield, Automobile Law & Practice (3d ed), § 484.2, p 177.

Traditionally, since both causes arose out of one tortious act, Michigan law considered them to comprise but one cause of action. General Accident Fire & Assurance Corp, Ltd v Sircey, 354 Mich 478; 93 NW2d 315 (1958), Coniglio v Wyoming Valley Fire Ins Co, 337 Mich 38; 59 NW2d 74 (1953). Thus, an action by the insurer against the tortfeasor for property damage would operate to preclude a subsequent action by the insurer for personal injury, or vice-versa. 1 Am Jur 2d, Actions, § 149, pp 662-663. The policy behind this rule, of course, was to protect the defendant from a vexatious multiplicity of suits. Coniglio v Wyoming Valley Fire Ins Co, supra.

Modernly, while there is still but one cause of action, GCR 1963, 205.1 has replaced the common law rule against splitting a cause of action. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), committee comment (3), p 544. Chunko v LeMaitre, 10 Mich App 490; 159 NW2d 876 (1968). Since joinder is mandatory rather than permissive, the rule makes it obvious that such joinder is required for the benefit of the opposite party and thereby places the burden of objecting to misjoinder on the opposite party. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), committee comment (3), pp 544-545. Under GCR 1963, 111.3 failure to object would result in waiver of the defense of failure to join and allow the cause of action to be split. Chunko v LeMaitre, supra.

Here, defendant Johnson posed a timely motion, but, according to the Common Pleas Court, failed to demonstrate sufficient grounds to justify joinder. The motion was denied and never appealed. Thus, regardless of the propriety of the Common Pleas Court’s decision, it is not now subject to collateral attack. 56 Am Jur 2d, Motions, Rules and Orders, § 46, p 40.

This is not to say that we condone the splitting of a cause of action. Certainly, had the facts at the time of the common pleas determination been as they appear now joinder would have been required. Not only does the individual party have an interest in avoiding the burden of multiple litigation, but the courts and public have an important interest in the complete, consistent and efficient settlement of controversies which necessitates the settling of disputes by wholes. Provident Tradesmens Bank & Trust Co v Patterson, 390 US 102; 88 S Ct 733; 19 L Ed 2d 936 (1968). Whenever possible, these interests should be served by joinder.

Since, however, defendant Johnson waived objection to the cause of action being split, the question arises whether the common pleas adjudication adverse to MIC in any way effects an estoppel against Martin in the case at bar. As with the initial question, whether a cause of action may be split, there is no agreement among the jurisdictions on this point. Anno: Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action growing out of same accident by or against one not a party to earlier action, 23 ALR2d 710; Anno: Judgment for insurer who paid property damage as bar to another action against same tortfeasor by owner or another subrogated insurer for additional property damage arising from same tort, and vice versa, 22 ALR2d 1455.

Now, Johnson contends that the common pleas adjudication is res judicata in the present litigation, and arguably, implicit in the common pleas determination of no cause of action is a finding either that Johnson was not negligent or that Martin was contributorially negligent. That there was damage to the automobile proximately caused by the accident was not seriously contested. Thus, assuming the doctrine of res judicata would apply it would bar recovery in the present suit.

However, this Court has previously addressed and rejected the identical argument, Chunko v LeMaitre, supra, and we see no reason to diverge from that holding. In Chunko, this Court stated:

"Under the facts of this case the common pleas case concerning property damages was not res judicata in the circuit court personal injury action. To hold otherwise would prevent a real litigation of the personal injury claim, would be contrary to the logic and reality of automobile accident subrogation law, and would ignore the complex court rules which were designed to meet this very situation.” 10 Mich App at 496-497.

Although such result lacks logic in that it could allow recovery for the subrogor where the subrogee has failed, any other result would be equally unjust and not conducive to economical judicial administration. While the court rules attempt to bring all the potential litigants to bar in one action, revival of the doctrine of res judicata in this context would promote strategic waiver of their joinder mandate and encourage a more or less sporting theory of justice. To allow an insured who was without control over the action, without the power to decide when and where the action should be commenced, or if an appeal should be taken, to be bound by an adverse decision in a suit by his insurer would be to place too high a price on collision insurance. Reardon v Allen, 88 NJ Super 560; 213 A2d 26 (1965).

Moreover, we are quick to recognize that it is not only defendants who could seek to make a travesty of the court rule. Since the injured and his insurer are at least arguably in privity, see Guarantee Ins Co v Great American Indemnity Co, 163 F Supp 320 (ED Mich, 1958), application of res judicata would be mutual. Thus, an insured with a personal injury claim unknown to the defendant might forego intervention to avail himself of the doctrine should perchance the lesser sum involved in the property damage suit evoke concessions regarding liability that would not otherwise be made. This form of gamesmanship we find equally offensive. By adopting GCR 1963, 205.1 the Supreme Court has set forth an appropriate means of preventing the undesirable results caused by splitting a cause of action, Detroit v Spivey, 68 Mich App 295; 242 NW2d 561 (1976), and we are not inclined to detract from it.

Affirmed.

       Since there exists only one cause of action, split though it may be, the doctrine of collateral estoppel is inapplicable. Where relitigation of the same cause of action is attempted the bar is properly termed res judicata. See 46 Am Jur 2d, Judgments, § 397, pp 563-566.

       Since we hold that the doctrine of res judicata is inapplicable in this context it is unnecessary to reach the question whether Martin was in privity with his insurer, MIC.


source: Caselaw Access Project

author: Beasley, P. J.

license: Public Domain

text:
    PEOPLE v FISHER
    Docket No. 30792.
    Submitted October 18, 1978, at Detroit.
    Decided December 5, 1978.
    Harold H. Fisher was convicted of two counts of second-degree murder, Recorder’s Court of Detroit, Robert L. Evans, J. The defendant appeals, raising the following issues:
    1. Did error occur when the court failed to order the defendant to undergo a forensic examination prior to trial, upon the defendant’s raising a defense of insanity?
    2. Was error committed in allowing a forensic center psychologist to testify as a "court” witness?
    3. Did the trial court err in allowing the psychologist’s testimony regarding the defendant’s confession of the crime?
    4. Was the defendant denied the effective assistance of counsel where defense counsel presented the defendant’s half-brother as his only expert witness?

      Held:

    1. The applicable statute does not preclude the ordering of the forensic examination after trial has commenced. The failure to order a forensic examination for the defendant prior to trial was not reversible error.
    2. Although there were no provisions applicable at the time of trial which allowed the trial court to call a "court” witness, there was no prejudice to the defendant under the circumstances of the case. Further, if a new trial were ordered the trial court would be able to call such a witness as a "court” witness because the Michigan Rules of Evidence, now in effect, allow such a procedure. Any error on this issue was harmless.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 48-54, 65-69, 365.
    29 Am Jur 2d, Evidence §§ 354, 575, 576.
    31 Am Jur 2d, Expert and Opinion Evidence §§ 85-90.
    Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition. 32 ALR2d 434.
    Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case. 17 ALR3d 146.

       29 Am Jur 2d, Evidence §§ 250, 269. 75 Am Jur 2d, Trial §§ 62, 145, 146. 81 Am Jur 2d, Witnesses § 657.

       81 Am Jur 2d, Witnesses §§ 3, 620.

       Mental subnormalty of accused as affecting voluntariness or admissibility of confession. 69 ALR2d 348.

       21 Am Jur 2d, Criminal Law §§ 315, 318-323.
    Incompetency of counsel chosen by accused as affecting validity of conviction. 74 ALR2d 1390.

      3. The psychologist’s testimony regarding the defendant’s confession was not improper because the testimony was probative only to the issue of the defendant’s insanity at the time of the offense and was not considered relative to the defendant’s guilt and because this was a bench trial with no jury.
    4. The decision of defense counsel to call the defendant’s half-brother, who was a psychologist, as the only expert witness for the defense was a conscious choice of trial strategy and did not deprive the defendant of the effective assistance of counsel.
    Affirmed.
    1. Criminal Law — Defense of Insanity — Forensic Examination— Statutes.
    It is not necessarily reversible error for the trial court, in a case where a defendant has raised the defense of insanity, to order a forensic examination for the defendant after trial has begun, rather than prior to trial (MCL 768.20a; MSA 28.1043[1]).
    2. Witnesses — Rebuttal Witnesses.
    A rebuttal witness is one called upon to contradict, repel, explain, or disprove evidence produced by an opposing party.
    3. Witnesses — Criminal Law — Evidence—Michigan Rules of Evidence — "Court’s” Witness.
    Prior to the adoption of the Michigan Rules of Evidence, a trial court could not determine a witness to be the court’s witness by simply calling the witness sua sponte; however, it was harmless error for the court in a criminal case to so call an expert psychiatric witness, prior to the adoption of the MRE, where 1) the witness’s report was made immediately available to defense counsel, 2) the court deliberately gave defense counsel an extra day adjournment to have the defendant further examined in order to counteract the witness’s testimony, and 3) there was no unfairness to the defendant in the way the trial court handled the matter of a forensic examination and where, if a new trial were to be granted, the testimony of the witness would now be available under the MRE which are now in effect (MRE 706).

      4. Witnesses — Criminal Law — Forensic Psychologist — Defendant’s Confession to Psychologist — Admissibility of Evidence —Statutes.
    Testimony by a forensic center psychologist wherein the witness related a defendant’s confession to him regarding one of two murder counts was properly admitted as evidence where 1) the testimony was not considered relative to the defendant’s guilt, 2) the trial was a bench trial, and 3) the testimony was probative only to the issue of the insanity of the defendant at the time of the offense (MCL 768.20a[5]; MSA 28.1043[1][5]).
    5. Criminal Law — Assistance of Counsel — Effective Assistance— Standard.
    The standard to determine whether a defendant had effective assistance of counsel in a criminal trial is that defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations.

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

      Raymond E. Willis, P.C., for defendant on appeal.
    Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

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

   Beasley, P. J.

Charged with two counts of murder in the first degree in the killing of a woman and a child, defendant was found guilty in a bench trial of two counts of second-degree murder contrary to MCL 750.317; MSA 28.549. After being sentenced to life imprisonment on each count, defendant appeals as of right, raising five issues for consideration.

I.

Did error occur when the court failed to order defendant to undergo a forensic examination prior to trial?

The 1975 amendments to the Code of Criminal Procedure set forth the statutory procedure to be followed when a defendant asserts an insanity defense. Defendant filed notice within the statutory period; however, not until the third day of trial did the court notice that defendant had not been ordered to undergo a forensic examination. The trial judge then recessed trial and ordered defendant to undergo such an examination. Copies of the forensic center report were sent to the prosecuting and defense attorneys immediately upon completion.

MCL 768.20a; MSA 28.1043(1) reads, in pertinent part, as follows:

"Sec. 20a. (1) If a defendant in a felony case proposes to offer in his defense testimony to establish his insanity at the time of an alleged offense, the defendant shall file and serve upon the court and the prosecuting attorney a notice in writing of his intention to assert the defense of insanity not less than 30 days before the date set for the trial of the case, or at such other time as the court directs.
"(2) Upon receipt of a notice of an intention to assert the defense of insanity, a court shall order the defendant to undergo an examination relating to his claim of insanity by personnel of the center for forensic psychiatry for a period not to exceed 30 days. When the defendant is to be held in jail pending trial, the center, in its discretion, may perform the examination in the jail, or may notify the sheriff to transport the defendant to the center for the examination, and the sheriff shall return the defendant to the jail upon completion of the examination. When the defendant is at liberty pending trial, on bail or otherwise, the defendant shall make himself available for the examination at the place and time established by the center. If the defendant, after being notified by the center of the place and time of the examination, fails to make himself available for the examination, the court may, without a hearing, order his commitment to the center.”

Defendant contends that this language requires the forensic examination to be conducted prior to trial. On its face, the statute does not preclude a trial court from ordering a forensic examination after trial has begun. Of course, it is better practice for the Center for Forensic Psychiatry to conduct its examination and evaluation prior to trial. But, under the circumstances of this case, we decline to find reversible error in ordering the examination and evaluation after trial had begun.

II.

Was error committed in allowing the forensic center psychologist to testify as a "court” witness?

MCL 768.21(2); MSA 28.1044(2) provides that failure of the prosecution to file a notice of rebuttal of the insanity defense precludes the admission of rebuttal evidence. As a result of the prosecution’s failure to file the requisite notice, defendant objected to the testimony of the forensic center psychologist, Dr. Jackson. Defendant claims that the trial judge’s calling the psychologist a "court witness” was merely a method of circumventing the statute.

A rebuttal witness is one called upon to contradict, repel, explain, or disprove evidence produced by the defense. See, People v Martin.

Appellant was told on July 2, 1976, that Dr. Jackson’s testimony would be heard six days later. The court then committed itself to hearing that testimony before any knowledge of what the testimony might reveal. It precluded the prosecution from calling anyone else in rebuttal should Dr. Jackson’s testimony be unfavorable to them. MCL 768.20a(7); MSA 28.1043(1)(7) gives the judge discretion to allow the prosecutor to file late notice of a rebuttal witness. It states that the prosecutor shall file the names "not later than five days before the trial of the case, or at such other time as the court directs”. Clearly, the court could have let the prosecutor call Dr. Jackson as a rebuttal witness, but chose not to do so.

The new Michigan Rules of Evidence were not in effect at the time of trial. Subsequent to March 1, 1978, when the rules took effect, MRE 706 provides that the court could appoint its own expert witness, by its own motion. Nothing comparable to this section was in force at the time. Therefore, even though we have determined Dr. Jackson to be a "court” rather than a "rebuttal” witness, under case law in effect at the time of this trial, the court could not determine a witness to be its own by simply calling the witness sua sponte.

People v Dickerson held unconstitutional a state statute requiring the court to appoint an expert witness in homicide cases. The Court, prior to the enactment of MRE 706, said:

"The power of selecting and appointing witnesses who shall, after appointment, acquaint themselves with the matter in controversy, and testify concerning the same, is in no sense a judicial act, and, if exercised by the court in accordance with the mandate of section 3, would entirely change the character of criminal procedure, and would seriously endanger, if not absolutely destroy, those safeguards which our Constitution has so carefully enacted for the protection of the accused. The most cursory examination of section 3 will disclose its vice. The court is directed to appoint one or more suitable, disinterested persons to investigate and testify. This appointment is to be made without notice to either the prosecuting attorney or the accused. The reasons which impel the court to make the selection are not of record and can never be known. The names of the selected experts cannot be indorsed upon the indictment by the prosecuting attorney as required by law, for he himself is as ignorant of their identity as is the accused. The right of one accused of crime to know in advance the names of the witnesses who will testify against him and to examine into their character, means of knowledge, etc., in order that he may properly prepare his defense, is a right as ancient as our criminal jurisprudence.” 164 Mich at 153-154.

Although we find that Dr. Jackson could not have been called by the court, we find the error to be harmless under the circumstances of this case. A copy of Dr. Jackson’s report was made immediately available to defense counsel. The court deliberately gave defense counsel an extra day adjournment to have appellant further examined in order to counteract Dr. Jackson’s testimony. No adjournment was requested in order for defendant to have further preparation time; there was no unfairness to defendant in the way the trial court handled this matter of a forensic examination. Further, if we were to grant a new trial, under MRE 706 now in effect, the testimony of Dr. Jackson as a "court” witness would now be available.

III.

Did the trial court err in allowing the psychologist’s testimony regarding defendant’s confession of the crime?

During the cross-examination of the psychologist for the defense, the prosecuting attorney asked if defendant had told the psychologist during the mental examination "that he shot and killed a person known as Linda Anderson Cook”. Over defense counsel’s objection, the witness was allowed to answer. Later, the psychologist from the forensic center related defendant’s confession to him regarding one of the murder counts.

In People v Martin, the Supreme Court decision in 1971 and not the 1977 Court of Appeal’s decision in an unrelated case of the same title referred to previously in this opinion, the potential for self-incrimination in the examining psychiatrist’s testimony where an insanity defense was asserted was discussed. The Court cited Parkin v State, wherein the Court said, "Like the decision to testify in one’s behalf and risk incrimination during cross-examination, the decision to plead insanity and tender proof is not a pathway without stones”.

In affirming defendant’s conviction in Martin, the reasoning of United States v Albright was adopted. That reasoning states:

" 'The manifest purpose of the examination in this case was, and the proper objective of a mental examination in any criminal case where a defendant’s sanity is in issue should be, to obtain knowledge not about facts concerning defendant’s participation in the criminal acts charged, but about facts concerning a defendant which are themselves material to the case. Cf. United States v Wade, 388 U.S. 218, 219, 222, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The purpose is not to prove by evidence wrested from a defendant whether he is guilty as charged but, rather, to prove whether a defendant possesses the requisite mentality to be guilty as charged, assuming that his guilt is otherwise established, or whether, legally, he cannot be held criminally responsible, irrespective of what other proof may establish he has done.’ ” Martin, supra, p 428.

Martin is not in conflict with MCL 768.20a(5); MSA 28.1043(1X5) which states:

"(5) Statements made by the defendant to personnel of the center for forensic psychiatry or to any independent examiner during an examination shall not be admissible or have probative value in court at the trial of the case on any issues other than his mental illness or insanity at the time of the alleged offense.”

In the case at bar, the testimony of the psychologist was not considered relative to defendant’s guilt. There was no jury. This was a bench trial. The testimony was probative only to the issue of the insanity of the defendant at the time of the offense and, therefore, did not violate MCL 768.20a(5); MSA 28.1043(1)(5).

IV.

Was defendant denied the effective assistance of counsel where defense counsel presented defendant’s half-brother as his only expert witness?

The evidence of defendant’s guilt was overwhelming. The only issue to be resolved in the case was defendant’s mental state during the commission of the crime. To support defendant’s claim of insanity, Dr. Fisher, a psychologist and defendant’s half-brother, was called as the only expert by defense counsel. Prior to calling this witness, the trial court indicated that it would appoint an unrelated psychiatrist if defense counsel so desired. Defense attorney chose not to do so. From a tactical standpoint, the defense believed that defendant’s brother would have more of an impact upon the court. He stated that a psychiatrist with a working knowledge of defendant’s background would be more valuable than a psychiatrist who would be meeting the defendant for the first time.

Later, in rendering its decision, the court indicated that the evaluation of Dr. Jackson from the forensic center proved to be the testimony adopted by the court rather than that of defendant’s half-brother.

We find that the decision of defense counsel to present Dr. Fisher as the sole expert witness was a conscious choice of trial strategy. The Court, in People v Garcia, adopted the reasoning of Beasley v United States. Beasley held:

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations.”

In People v Mays, the Court addressed the issue of a defense attorney’s judgment that one trial tactic would be more successful than another and said: "This Court will not substitute its judgment for that of trial counsel on matters of trial strategy”.

We do not know what facts were revealed to trial counsel within the ambit of the attorney-client privilege. Neither do we know whether trial counsel had other psychiatric advice regarding defendant’s mental condition which led him to believe his client’s best chance lay in not risking additional psychiatric evaluation.

We neither permit second-guessing trial counsel, nor do we speculate what the outcome of the case at bar might have been if additional expert witnesses had been introduced by defendant. We find, under the Beasley-Garcia standard, that defense attorney’s trial strategy did not deprive defendant of the effective assistance of counsel.

Other issues raised by defendant are without merit. Affirmed.

       But neither defense counsel nor the assistant prosecutor brought the fact to the court’s attention prior to trial. The usual procedure would be for defense counsel to prepare the order of referral to the Center for Forensic Psychiatry, have it approved as to form by the prosecutor and then to submit it to the court for entry.

       75 Mich App 6; 254 NW2d 628 (1977).

       MRE 101-1102, effective March 1, 1978.

       164 Mich 148; 129 NW 199 (1910).

       386 Mich 407; 192 NW2d 215 (1971).

       283 So 2d 817, 821 (Fla, 1970).

        Martin, supra, p 426.

       388 F2d 719 (CA 4, 1968).

       398 Mich 250, 264; 247 NW2d 547 (1976).

       491 F2d 687, 696 (CA 6, 1974).

       64 Mich App 453, 457; 236 NW2d 513 (1975).


author: Allen, J. Bronson, P.J. T. M. Burns, J.

text:
    BERGER v CITY OF BERKLEY
    Docket Nos. 31382, 77-716.
    Submitted November 15, 1978, at Detroit.
    Decided December 5, 1978.
    Ford Berger and Peggy Berger, his wife, brought a tort action in Oakland Circuit Court against the City of Berkley and 57 other municipalities, police departments and individuals to recover for personal injury to Ford Berger, an employee of the Royal Oak Police Department, who was totally blinded and suffered severe facial disfigurement when he was struck in the face by rice kernels fired from a shotgun by a fellow police officer while they were participating in a police training exercise of the tactical support unit of the South Oakland County Municipal Aid Pact. Farrell E. Roberts, J., dismissed the complaint against all defendants holding (1) that plaintiffs’ exclusive remedy was under the Worker’s Disability Compensation Act, and (2) that the defendants were entitled to governmental immunity. Plaintiffs appeal. Held:

      References for Points in Headnotes

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 27, 28.
    Municipal immunity from liability for torts. 60 ALR2d 1198.

       57 Am Jur 2d, Minicipal, School, and State Tort Liability §§ 31, 32, 243.
    Municipal immunity from liability for torts. 60 ALR2d 1198.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 243, 250.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 118-120.
    What is "motor vehicle” or the like within statute waiving governmental immunity as to operation of such vehicles. 77 ALR2d 945.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 30. Municipal immunity from liability for torts. 60 ALR2d 1198.

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 199, 200.
    57 Am Jur 2d, Municipal, School, and State Tort Liability § 27.
    Municipal immunity from liability for torts. 60 ALR2d 1198.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 85, 89.

       46 Am Jur 2d, Judgments §§ 770, 775, 776, 780.

       81 Am Jur 2d, Workmen’s Compensation §§ 50, 51.

       82 Am Jur 2d, Workmen’s Compensation §§ 547, 635.

       73 Am Jur 2d, Summary Judgment § 4.

      1. No immunity is granted to an individual for personal acts of negligence solely because he is a governmental employee; therefore, the grant of accelerated judgment in favor of the individual police officers was improper and the issue of negligence of the individual officers should be remanded for trial.
    2. Injury to a plaintiff by the act of a coemployee in a situation covered by the Worker’s Disability Compensation Act bars tort recovery. On remand, before reaching the issue of individual liability, the trial court must determine whether the police exercise was a joint venture creating a coemployer-coem-ployee relationship and whether plaintiffs are therefore barred from proceeding against the individual defendants by the exclusive remedy provision of the compensation act.
    3. Governmental immunity applies in all cases wherein a governmental agency is engaged in the exercise of a governmental function. The management, operation and control of a police department is a governmental function, and since officer training is part of the operation of a police department, participation in a police training exercise is a governmental function; therefore, tort actions directed against the police department are defeated on the grounds of governmental immunity.
    Reversed and remanded on the issue of individual liability of the police officers. Affirmed as to the grant of accelerated judgment in favor of the municipalities and police departments not in default.
    Bronson, J., concurred with Judge Allen, not so much because he agrees with the policy of governmental immunity announced in Judge Allen’s opinion, but because he feels that the Supreme Court has not yet embraced a position which would allow the decision to go the other way.
    T. M. Burns, J., dissented in part. He would hold that governmental immunity cannot be established until after the facts are developed and the relationship of the various defendants to each other and to the plaintiffs can be determined. He would reverse and remand for further proceedings.
    Opinion of Allen, J.
    1. Torts — Governmental Agencies — Governmental Immunity— Statutes.
    Governmental agencies are immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function (MCL 691.1407; MSA 3.996[107j).
    2. Municipal Corporations — Police Departments — Torts—Governmental Immunity.
    The management, operation and control of a police department is a municipal function and tort actions directed against such departments are defeated on the grounds of governmental immunity.
    3. Municipal Corporations — Police Training — Governmental Function.
    Officer training is part of the operation of a police department and participation in a police training exercise is therefore a governmental function.
    4. Statutes — Torts—Governmental Agencies — Governmental Immunity — Operation of Vehicle — Discharge of Firearm.
    A statute provides that governmental agencies shall be liable for bodily injury resulting from the negligent operation of an agency owned motor vehicle by an officer of the agency; the statute clearly requires that the injury result from the operation of a vehicle and does not apply where injury results from the discharge of a firearm which was in no way caused by, or the result of, the operation of the vehicle (MCL 691.1405; MSA 3.996[105]).
    Concurrence by Bronson, J.
    5. Torts — Governmental Immunity — Injury to Individual.

      The doctrine of governmental immunity is a carryover from days when it was thought that "it is better that an individual should sustain an injury than that the public should suffer an inconvenience”; such an idea is not the prevailing mood today and a concept which imposes the entire burden of government’s wrongful acts on the single injured individual is abhorrent to our social philosophy.

    6. Torts — Governmental Immunity — Societal Interests — Interests of Individual.

      A balance should be struck in examining the doctrine of governmental immunity so that society is no longer automatically viewed as the superior and the individual necessarily as the inferior; instead the rights of the individual should be considered paramount and the government must be able to justify interfering with those rights.

      7. Torts — Governmental Immunity — Liability—Policy for Immunity.

      Governmental immunity should not be invoked merely because a government agency or official performed the activity which caused an injury, but should be invoked only when there are sound policy reasons behind exempting the government from tort liability; governmental immunity should be the exception not the norm.

    8. Torts — Governmental Immunity — Governmental Activities.

      Government activities, for purposes of analyzing the application of governmental immunity, generally can be divided into two categories: 1) policy making, and 2) policy implementing.

    9. Torts — Governmental Immunity — Policy-Making Activities.

      Policy making activities are uniquely governmental in nature and should be insulated from liability for society to function; thus there is justification for invoking the doctrine of governmental immunity for policy making activities.

    10. Torts — Governmental Immunity — Government Officials — Policy Implementing Activities.

      Governmental immunity should not be available as a defense to actions for damages for injuries caused by governmental officials engaged in policy implementing activities; policy implementing activities have numerous counterparts in the private sector and there is no justifiable reason in denying recovery to persons injured during the course of these activities merely because they were unfortunate enough to be injured by a negligent governmental official instead of his counterpart in the private sector.

    11. Torts — Governmental Immunity — Policy Making Decisions— Police Training Exercises — Balancing of Policy Considerations.

      A decision to conduct a police training exercise is clearly a policy making decision which should not subject a governmental body to liability; however, the actual shooting of a person by an official involved in the exercise is simply the negligent act of a government official and involves no balancing of policy considerations and public concerns, it is merely the negligent implementation or operation of a previously determined policy decision and as such should not be shielded from liability by the defense of governmental immunity.

      Dissent in Part by T. M. Burns, J.
    12. Judgment — Default Judgment — Court Rule.

      Once a default of any party has been duly hied or entered, that party shall not proceed with his case until his default has been set aside; since a party cannot proceed with his case until the default is set aside, it is improper for the court to grant judgment in his favor (GCR 1963, 520.1).

    13. Workmen’s Compensation — Torts—Exclusive Remedy Provision — Statutes.

      A tort suit is barred by the exclusive remedy provision of the Worker’s Disability Compensation Act where a plaintiff was injured by the act of a coemployee in a situation covered by the statute (MCL 418.131; MSA 17.237[131]X

    14. Torts — Workmen’s Compensation — Employment—Evidence— Jury.

      The issue of whether a plaintiff was an employee of the defendant in a tort suit, as opposed to a worker’s compensation hearing, should be submitted to a jury, under proper instructions, for a determination based on all the evidence.

    15. Municipal Corporations — Police Officers — Negligence—Governmental Immunity.

      Police officers have an individual common-law duty to exercise due care in the performance of their duties; no immunity is granted to an individual for personal acts of negligence solely because he is a governmental employee.

    16. Judgment — Summary Judgment — Torts—Duty of Care — Material Fact — Court Rules.

      Summary judgment for a defendant may be proper in a tort action where there is no question of material fact concerning a breach of the defendant’s duty to the plaintiff, that is, if the defendant is not involved with the injury (GCR 1963,117.2[3]X

      Lacey & Jones (by John L. Salter), for plaintiffs.

      Lakin & Worsham, P.C., for defendants City of Oak Park and R. Howell.

      John N. Highland, for defendants Bloomfield Township and Bloomfield Township Police Department.

      Bernard Girard, for defendants City of Bloomfield Hills and Bloomfield Hills Police Department.

      Conklin & Maloney, for defendants City of Claw-son, Clawson Police Department, Lathrup Village, Lathrup Village Police Department, Farmington, Farmington Police Department, City of Novi, and City of Novi Police Department.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for defendants City of Southfield, Southfield Police Department, Daniel Mead and James Gu-tenburr.

      Johnson, Campbell & Moesta, for defendants City of Troy and Troy Police Department.

      Harvey, Kruse & Westen, P.C., for defendants City of Huntington Woods, Huntington Woods Police Department, Huntington Woods Department of Public Safety, Village of Beverly Hills, Beverly Hills Police Department and Officer Danaher.

      Dice, Sweeney, Sullivan & Feikens, P.C., for defendants City of Madison Heights and Madison Heights Police Department.

      Stewart, O’Reilly, Cornell, Donovan, Lascoe & Rancilio, P.C., for defendants City of Ferndale, Ferndale Police Department and Officer Kellogg.

      Plunkett, Cooney, Rutt, Waters, Stanczyk & Ped-ersen (by Joseph V. Walker and Jeannette A. Paskin), for defendants City of Berkley, Berkley Police Department, City of Birmingham and Birmingham Police Department.

      Davidson, Gotshall, Kohl, Secrest, Wardle,

      Lynch & Clark (by Wayne C. Gardner), for defendant Village of Bingham Farms.
    Before: Bronson, P.J., and Allen and T. M. Burns, JJ.
   Allen, J.

This author and Judge Bronson, who writes separately, concur in the opinion of Judge T. M. Burns except that portion thereof holding that the defense of "governmental immunity” does not apply to the municipal defendants themselves. We simply cannot agree that the police training exercise being conducted when plaintiff was struck in the face by rice pellets was not a governmental function. Therefore, we would affirm the grant of summary judgment in favor of those municipalities and police departments not in default. In all other respects we agree with Judge Burns’s opinion.

The pertinent section of Michigan’s governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., reads:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407; MSA 3.996(107). (Emphasis supplied.)

While our courts have frequently disagreed as to whether a specific negligent act was committed "in the exercise or discharge of a governmental function” nothing seems clearer or more settled than the doctrine that the management, operation and control of a police department is a municipal function, and tort actions directed against such department are defeated on the grounds of governmental immunity. McPherson v Fitzpatrick, 63 Mich App 461, 463; 234 NW2d 566 (1975), Anderson v Detroit, 54 Mich App 496; 221 NW2d 168 (1974), Walkowski v Macomb County Sheriff, 64 Mich App 460, 463; 236 NW2d 516 (1975). The only difference between those cases and the instant case is that in the cited cases the officers’ actions were committed while on routine police duty whereas in the case before us the wrongful action took place during a training exercise. We find the difference inconsequential. Training is part of the operation of a police department, and participation in a police training exercise is therefore a governmental function. As was stated in Dionne v City of Trenton, 79 Mich App 239, 246; 261 NW2d 273 (1977), an opinion released subsequent to oral argument in the instant case:

" * * * [W]e would have little hesitation in finding that the training of police officers, including the establishment and operation of a shooting range to accomplish that purpose, is of a public nature, for the public good, and the exercise of a governmental function. If the injury had occurred as the result of a shot negligently ñred by a policeman or by an instructor in the course of police training, there would be a basis for holding that immunity from liability existed.” (Emphasis supplied.)

Plaintiffs acknowledge the McPherson-Walkowski rule that "the operations of police departments are governmental functions” but claim that pursuant to Thomas v Dept of State Highways, 398 Mich 1; 247 NW2d 530 (1976), such case law no longer has force. To support this contention, plaintiffs cite footnote 4 at page 17 of Thomas. However, that footnote appeared in the dissenting opinion in Thomas. The Thomas majority approach looks to existing case law to determine what is and what is not a governmental function. Under existing case law the operation of a police department is a governmental function.

Subsequent to oral argument in the instant case our Supreme Court issued its opinion in Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978). In that opinion the justices divided evenly on the question of whether or not the conduct complained of was in the exercise or discharge of a governmental function. Three justices opted to adopt the policy making/policy implementing test as set forth in the minority opinion in Thomas, supra. Three justices would follow the majority in Thomas and look to the common law for guidance in deciding whether a specific activity was in the discharge of a governmental function. One justice felt it unnecessary to reach that decision. It is this author’s opinion that even if a majority of the justices had adopted the policy making/policy implementing test, it would not follow that the training exercise in the present case would not be a governmental function. On this issue, this author and Judge Bronson disagree. But since that test did not command a majority of the justices, both Judge Bronson and I agree that given the current state of the law, governmental immunity is a defense in the case before us.

Lastly, we address an issue which Judge Burns found it unnecessary to touch upon. Plaintiffs claim that even if participation in a police training exercise is a governmental function, § 5 of the Michigan governmental immunity act, MCL 691.1405; MSA 3.996(105), permits recovery. That section provides:

"Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948.” 1964 PA 170, § 5, eff. July 1, 1965. (Emphasis supplied.)

Under this section liability attaches only to the single governmental unit owning the vehicle. Plaintiffs argue that the vehicle from which the injured officer was "escaping” was in a "state of being at work” in that it was being used as a mobile jail. However, the statute clearly required that the injury result from the operation of the vehicle. In the instant case the injury resulted from the discharge of a firearm. The firearm discharge was in no way caused by or a result of the operation of the vehicle. It was the negligence of the other officers participating in the training exercise and not the negligence of the driver of the vehicle, which caused the injury. The trial court did not err in finding that the § 5 exception to governmental immunity did not apply.

In summary, the grant of accelerated judgment in favor of the individual defendants is therefore reversed. The issue of individual negligence is remanded for trial. Before reaching this issue, however, the trial court will first have to determine whether the South Oakland Tactical Support Unit was a joint venture and whether plaintiffs are therefore barred from proceeding against the individual defendants by the exclusive remedy provision of the worker’s compensation act. MCL 418.131; MSA 17.237(131). The grant of accelerated judgment in favor of defendants who have not moved to set aside the entry of default is also reversed. The grant of accelerated judgment in favor of those municipalities and police departments not in default is affirmed.

No costs, a public question being involved.

Bronson, P.J.

(concurring). With reluctance, I concur in the decision. I do so not because I agree with the policy announced in the opinion, but because I feel that the Supreme Court of this state has not yet embraced a position which would allow the decision to go the other way. It is for this reason that I write separately.

Plaintiff police officer was horribly injured while engaging in a police training exercise when another officer fired a rice pellet loaded shotgun directly into his face at a distance of about three feet. As a result of the blast plaintiff suffered total and permanent blindness and severe facial disfigurement. Due to the present state of the law, however, plaintiff is left without a suitable remedy. The reason for this is the rigid application of the doctrine of governmental immunity, a concept which as presently interpreted has outlived its usefulness.

The doctrine of „ governmental immunity is a carryover from days when it was thought that "it is better that an individual should sustain an injury than that the public should suffer an inconvenience”. Russell v Men of Devon, 2 Durnford & East Term Rep 667, 673; 100 Eng Rep 359, 362 (1788). One can state with assuredness that such an idea is not the prevailing mood today. The social climate which fostered the creation of the doctrine of sovereign immunity "has long since been tempered with the warm winds of humanitarianism and individual freedom[] * * * [and a concept which imposes] the entire burden of government’s wrongful acts on the single injured individual is abhorrent to our social philosophy”. Brown v Wichita State University, 219 Kan 2, 39-40; 547 P2d 1015, 1043 (1976) (Fatzer, C.J., concurring and dissenting), appeal dismissed 429 US 806; 97 S Ct 41; 50 L Ed 2d 67 (1976).

This change in social climate from the time when sovereign immunity was established should also cause a change in the way courts perceive the doctrine. In striking the balance between the rights of the society and the rights of the individual, we no longer automatically view society as the superior and the individual necessarily as the inferior. Instead the rights of the individual are considered paramount, and government must be able to justify interfering with tfrose rights.

This same balance should ^so be struck in examining the doctrine of governmental immunity. Governmental immunity should be the exception not the norm. Immunity should not be invoked merely because a government official or agency performed the activity which caused the injury, but only when there are sound policy reasons behind exempting the government from liability. See Cooperrider, The Court, the Legislature and Governmental Tort Immunity in Michigan, 72 Mich L Rev 187, 282-283 (1973).

Government activities can generally be divided into two categories, policy making and policy implementing. Policy making activities are uniquely governmental in nature and have no counterpart in the private sector. An individual or corporation may make decisions which affect themselves or affect others but they are not entrusted with the authority to weigh various policy considerations and public concerns in order to formulate public policy which is applicable to all members of the society. This latter function is solely governmental, and there are strong policy reasons for insulating this type of activity from liability.

Government by its very nature must address and attempt to resolve complex policy questions. Moreover, the resolution of policy questions must, on occasion, injure certain individuals or groups in society. If every such decision subjected the government to potential liability to people allegedly injured by the chosen policy, there could be no government. These decisions are the essence of government and as Justice Jackson stated, "it is not a tort for government to govern”, Dalehite v United States, 346 US 15, 57; 73 S Ct 956, 979; 97 L Ed 1427 (1953) (dissenting opinion). These decisions must be insulated from liability for society to function so there is justification for invoking the doctrine of governmental immunity in these instances.

Policy implementing activities, however, are an entirely different matter. Although there is something uniquely governmental in the decision on the need for and the location of a school or a road, there is nothing uniquely governmental about the construction of the building or the laying of the pavement. See Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978) (Fitzgerald, J., with Kavanagh, C.J., and Levin, J., concurring). These latter activities have numerous counterparts in the private sector, and there is no justifiable reason in denying recovery to persons injured during the course of these activities merely because they were unfortunate enough to be injured by a negligent government official instead of his counterpart in the private sector. Since there is no justification for invoking the doctrine in these situations, governmental immunity should not be available as a defense.

Application of this policy making/policy implementing test to the present case would call for a rejection of the defense of governmental immunity. The decision to conduct a police training exercise was clearly a policy decision which would not subject the various governmental bodies to liability. However, the actual shooting of plaintiff was simply the negligent act of a government official. He was in no way making a policy decision. There was no balancing of policy considerations and public concerns; it was merely the negligent implementation or operation of a previously determined policy decision. As such there should be no defense of governmental immunity.

But should be and is are not the same. I am not writing on a clean slate, and a majority of the Supreme Court has, as yet, not embraced this position. Except for this fact, I would willingly join in the decision reached by my learned brother Thomas Burns, but as matters now stand I feel constrained to concur in Judge Allen’s decision.

T. M. Burns, J.

(dissenting in part). Plaintiff Ford Berger filed this tort suit against 58 municipalities, police departments and individuals to recover for personal injury. Plaintiff was totally blinded and suffered severe facial disfigurement when he was struck in the face by rice kernels fired from a shotgun by a fellow police officer while they were participating in a training exercise of the tactical support unit of the South Oakland County Mutual Aid Pact.

Plaintiff was an employee of the Royal Oak Police Department at the time of the injury. During the training exercise he was acting as a sniper and was "captured” by other police officers. The injury occurred when he attempted to "escape” from a police vehicle and a shotgun loaded with rice was discharged at his face from a distance of less than five feet.

The lower court dismissed the complaint against all defendants on two bases: (1) that all defendants were either coemployees or the employer of plaintiff and, therefore, his exclusive remedy was under the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), or (2) the defendants were entitled to governmental immunity under MCL 691.1407; MSA 3.996(107). Plaintiff appeals by right to challenge these findings.

I

The trial court granted blanket relief to all defendants. Perhaps this was the result of the large number of defendants as noted above. We are sympathetic with the judge’s response to the problem, having received several hundred pages of briefs and documents on appeal ourselves. However, in granting the blanket relief, the court granted judgment in favor of a number of defendants who had never appeared and against whom defaults had been entered. Plaintiff claims this was improper and we agree.

GCR 1963, 520.1 provides in part that, "[0]nce a default of any party has been duly filed or entered, that party shall not proceed with his case until his default has been set aside by the court in accordance with sub-rule 520.4.” If a party cannot proceed with his case until the default is set aside, it is improper for the court to grant judgment in his favor. As to those defendants who had been defaulted at the time the judgments were entered, the judgments are reversed and the case remanded to allow plaintiff to move for entry of a default judgment or other appropriate action. See note 2.

II

Several of the defendants who did answer below and eventually moved for summary or accelerated judgment under GCR 1963, 116.1(2) or 117.2(1) based those motions on the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131). These defendants reasoned that under the mutual aid pact signed by the various cities, a type of joint venture had been entered into and, therefore, all the cities and police departments were coemployers and all the individuals were coemployees of plaintiff. The joint venture construction of the aid pact was adopted by the circuit court and has now been adopted by substantially all of the defendants participating in the appeal.

If plaintiff was injured by the act of a coem-ployee in a situation covered by the worker’s compensation act, this tort suit would be barred by the exclusive remedy provision of the act. Ayers v Genter, 367 Mich 675; 117 NW2d 38 (1962). The parties and the trial court seem to have assumed both the existence of a joint venture and that all employees of one party to the venture were coem-ployees of all other parties to the venture. The second assumption is not supported by Michigan law. Our Supreme Court specifically refused to answer the question in Goodwin v S A Healy Co, 383 Mich 300, 313; 174 NW2d 755 (1970), rev’g, 13 Mich App 514; 164 NW2d 693 (1968). Nor is it necessary to determine the question, on the present record, in this case.

The appropriate question is who was plaintiff’s employer? The answer to the question is determined by applying the "economic reality” test. Smith v Martindale, 81 Mich App 682; 266 NW2d 49 (1978), and cases cited therein. It is only where it can be determined under this test that the defendants were plaintiff’s employers or coemploy-ees that the exclusive remedy provision would bar this suit.

The present record is insufficient to make that determination. Certainly, referring only to the agreement between the municipalities, while important, will not completely answer the question. In a tort suit, as opposed to a worker’s compensation hearing, the issue of whether plaintiff was an employee of the defendants should be submitted to the jury, under proper instructions, for determination based on all the evidence. Goodwin v S A Healy Co, 383 Mich at 311.

The trial court erred in basing judgment on this ground.

Ill

The trial court also granted a blanket judgment in favor of all defendants on the basis of governmental immunity. MCL 691.1407; MSA 3.996(107). In Section I of the opinion we held this was improper as to those defendants in default. The immunity of the other defendants must be considered separately, although they may be classified in three groups.

(a) Liability of the municipal police departments and departments of public safety.

Plaintiff made the police departments and departments of public safety of the various municipalities separate defendants. Many of these defendants claimed below and argue on appeal that they cannot be sued as a separate entity, apart from their parent municipality.

Early in the development of the doctrine of governmental immunity the inability to raise funds, through taxation or otherwise, was one justification given for finding immunity. O’Leary v Marquette Board of Fire & Water Commissioners, 79 Mich 281; 44 NW 608; 7 LRA 170; 19 Am St R 169 (1890). Some later cases have referred to the inability to raise funds as an independent ground for nonliability without critical analysis. See, McPherson v Fitzpatrick, 63 Mich App 461; 234 NW2d 566 (1975), lv den, 399 Mich 830 (1977). However, the inability to raise funds was nothing more than one of the stated justifications for the doctrine of governmental immunity, not a separate immunity. Bush v Oscoda Area Schools, 72 Mich App 670, 685; 250 NW2d 759 (1976) (Opinion of W. R. Peterson, J.), lv gtd, 399 Mich 895 (1977).

The police departments and departments of public safety stand on the same footing as the municipalities themselves. There is no immunity simply because of their inability to raise funds, it rests on the same statute as the immunity of the municipalities. This is the clear import of Allen v Womack, 399 Mich 833; 250 NW2d 68 (1977), reversing a judgment in favor of the Detroit Police Department on the basis of governmental immunity.

This group of defendants is bound by the standards applicable to the municipalities set out below.

(b) Liability of the individual officers.

In granting judgment for all defendants, the trial court concluded that the individual officers were entitled to immunity under the statute. This is incorrect on these facts. The officers had an individual common-law duty to exercise due care when dealing with plaintiff. Cole v Rife, 77 Mich App 545; 258 NW2d 555 (1977). The statute grants no immunity to an individual for personal acts of negligence solely because he is a governmental employee. The complaint in this case is sufficient to avoid summary judgment under GCR 1963, 117.2(1) as to the individual defendants and, therefore, the judgments in favor of these defendants must be reversed.

The judgments in this case were granted before discovery was begun and the record does not satisfactorily explain the relationship of some of the individual officers to plaintiffs injury. After discovery is completed, it would not be inappropriate for the trial court to consider individual motions for summary judgment under GCR 1963, 117.2(3), the absence of material fact. If there is no question of material fact concerning the breach of the individual’s duty to plaintiff, i.e., if the individual is not involved with the injury, the summary judgment would be proper. However, the trial court acted prematurely in dismissing the suit against all the individual officers on the present record.

(c) Liability of the municipalities.

The most difficult question in this appeal is which, if any, of the municipal defendants were properly dismissed on the present record. It is my view that the record is insufficient to show which of this group of defendants may be responsible for the acts of the individual officers directly causing plaintiffs injury and, therefore, the appropriate action is to reverse the blanket grant of judgment for the defendants and remand for further proceedings. Cf. Kriger v South Oakland County Mutual Aid Pact, 399 Mich 835; 250 NW2d 67 (1977) rev’g 49 Mich App 7; 211 NW2d 228 (1973).

The body of law collectively known as "governmental immunity” is presently ever changing in an attempt to settle on a doctrine which can be accepted as just, both by the citizens of the state and the judges of the various courts. The recent efforts of the Supreme Court have done little to bring certainty to the area or to quiet the cries of injustice. We can only hope that either the Supreme Court or the Legislature act soon to correct a situation which, judging from the number of cases and the lack of uniform disposition in this Court, has resulted in much confusion. See Justice Levin’s dissent in Thomas v Dept of State Highways, 398 Mich 1, 25; 247 NW2d 530 (1976). Perhaps an answer will come with the opinion in Parker v Highland Park, lv gtd, 399 Mich 833 (1977).

Until the Supreme Court speaks with more unanimity, this Court is free to address the question on a case by case basis. In dealing with the problem, I have found the possibility of governmental liability to be dependent on the type of activity engaged in by the governmental agents and the proximity of the plaintiffs to the governmental defendant. Compare, Wojtasinski v Saginaw, 74 Mich App 476; 254 NW2d 71 (1977) (one prisoner beaten by another in a county jail) and Allen v Dept of Mental Health, 79 Mich App 170, 173; 261 NW2d 247 (1977), (T.M. Burns, J., concurring) (patient committing suicide while on temporary leave from the state defendant) with Gerzeski v Dept of State Highways, 68 Mich App 91, 101; 241 NW2d 771 (1976) (T. M. Burns, J., dissenting), rev’d, 403 Mich 149; 268 NW2d 525 (1978), White v Detroit, 74 Mich App 545, 548; 254 NW2d 572 (1977) (T. M. Burns, J., dissenting), Duncan v De troit, 78 Mich App 632, 634; 261 NW2d 26 (1977) (T. M. Burns, J., dissenting) and Brown v Detroit, 83 Mich App 342; 268 NW2d 400 (1978) (T. M. Burns, J., dissenting).

In this case, plaintiff claims he was injured when he was negligently shot in the face by a police officer. He also claims negligence in allowing rice filled shells to be used in the police training exercise. I cannot believe that either of these specific claims of negligence is in any way a governmental function. Certainly there are many situations where a private entity would be liable for such actions.

Which of the municipal defendants are responsible for these negligent acts depends on facts which can only be developed by further proceedings. It is only after the facts are developed that the relationship of the various defendants to each other and to the injured plaintiff can be determined, see section II of this opinion, and based upon those relationships which governmental units were responsible for the acts of the individual officers.

The judgments of the circuit court are reversed and the case remanded for further proceedings not inconsistent with this opinion. No costs, a public question.

       Compatible with Judge Burns’s opinion we would: (as to Issue I)— -reverse the judgments entered against those defendants who were defaulted, and remand to allow plaintiffs to move for entry of a default judgment or other appropriate relief; (as to Issue II) — remand to the trial court for determination by the trier of fact whether plaintiff was an employee of defendant; (as to Issue III) — reverse judgment in favor of the individual defendant and allow discovery and consideration of individual motions for summary judgment.

       "The mere fact that a governmental agency is doing a certain act does not make such act a 'governmental function’ if a private person or corporation may undertake the same act. Thus, 'governmental function’ is not delineated by questions of the broad scope of an activity undertaken or by financial or insurance considerations which may be indicative of a governmental undertaking, but rather by viewing the precise action allegedly giving rise to liability, and determining whether such action is sui generis governmental — of essence to governing. Supervision of road construction (as opposed to the making of decisions as to whether to build a road), operation of hospitals and schools (as opposed to planning or deciding what health services to offer or what subject to teach), operation and supervision of playgrounds and swimming pools (as opposed to deciding whether to operate such playgrounds or pools) are not governmental functions within this definition. On the other hand, certain aspects of the exercise of the executive, legislative, or judicial powers are by their very nature governmental functions and necessarily removed from the undertakings of the private sector." Thomas, supra, at 21-22. (Emphasis supplied.)
      This author believes that the underscored words would preclude police operations from being considered nongovernmental. Unlike road building, the operation of hospitals or the construction of swimming pools, the operation of a police department does not have a counterpart in the private sector.

       Having found in plaintiffs’ favor on the issue of "governmental function” it was unnecessary to reach this issue.

       On this point one legal commentator has stated:
      "The continuation of plaintiff 'sacrifices’ offered in the name of governmental immunity is without a doubt the most deplorable circumstance in Michigan jurisprudence * * * . As a legal policy, governmental immunity from tort liability is immoral and legally unjustifiable. In a purportedly enlightened society that requires its citizens to pay lawful judgments or, within ordinary prudence, requires them to insure against unreasonable risks of harm to others, governmental immunity is an embarrassing anomaly.” Littlejohn, Torts, 1974 Annual Survey of Mich Law, 21 Wayne L Rev 665-666 (1975).

       Smith, Municipal Tort Liability, 48 Mich L Rev 41, 48 (1949).

       By statute, government agencies are only immune from suit when "engaged in the exercise or discharge of a governmental function”, MCL 691.1407; MSA 3.996(107). Since this phrase was not assigned a legislative definition, it is "presumably subject to judicial refinement”. Thomas v Dept of State Highways, 398 Mich 1, 18; 247 NW2d 530 (1976) (Kavanagh, C.J., Fitzgerald, J., and Levin, J., dissenting), quoting Cooperrider, The Court, the Legislature and Governmental Tort Immunity in Michigan, 72 Mich L Rev 187, 282 (1973). As described more fully further on in this opinion, I would define governmental functions as those activities in which the government officials or agencies are involved in policy making or planning functions.

       This policy making/policy implementing test has been adopted under various names in numerous jurisdictions. See, e.g., Driscoll v United States, 525 F2d 136 (CA 9, 1975), construing 28 USC 2680 (planning/operational), Johnson v State, 69 Cal 2d 782; 73 Cal Rptr 240; 447 P2d 352 (1968) (discretionary/ministerial) and seems to be the test preferred by legal commentators. See, e.g., Littlejohn and Kotch, Torts, 1977 Annual Survey of Mich Law, 24 Wayne L Rev 655, 676-680 (1978), Restatement of Torts 2d, § 895, B & C, Tentative Draft No 19, 1973.

       At footnote 4 and the accompanying text of the majority opinion, Judge Allen contends that the policy making/policy implementing test espoused here and previously adopted by Chief Justice Kavanagh and Justices Fitzgerald and Levin would still permit the defense of governmental immunity in the present case. I do not agree. In Thomas v Dept of State Highways, 398 Mich 1; 247 NW2d 530 (1976) (Kavanagh, C.J., Fitzgerald, J., and Levin, J., dissenting), the justices cited the case of Downs v United States, 522 F2d 990 (CA 6, 1975), which held that governmental immunity was not applicable to a case where the actions of the F.B.I. "allegedly caused a highjacker to shoot several hostages”. Thomas, supra, at 22, fn 12. The citation of this case demonstrates that the justices did not regard the performance of an ordinary police function as an activity which would trigger the application of the defense of governmental immunity. The majority opinion also recognized this fact. Thomas, supra, at 13-14. Cf. Armstrong v Ross Township, 82 Mich App 77; 266 NW2d 674 (1978).
      Since the activity complained of in the present case was an ordinary police function, the defense of governmental immunity would not be applicable under the above-mentioned test.

        See Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), Thomas v Dept of State Highways, 398 Mich 1; 247 NW2d 530 (1976).

       Although the test espoused by my learned colleague Thomas Burns would most likely yield the same results as the test adopted here, it is my opinion that the terminology of the policy making/ policy implementing test is preferable. Under Judge Burns’ test, the doctrine of governmental immunity is accepted in theory, but eliminated in practice. This is so because the specific activity complained of is always negligence, and negligence is never a governmental function. Therefore there is never a defense of governmental immunity. The test adopted here, however, acknowledges that there is a legitimate sphere in which the doctrine is applicable and then specifically limits the doctrine to that sphere.

       The complaint also included a derivative action by Mrs. Peggy Berger. Plaintiff will be used to describe the claims of both Mr. & Mrs. Berger throughout the opinion.

       Plaintiff claims that there were ten defendants in default at the time the judgments were entered. Our review of the record shows that there were defaults outstanding against the City of Pleasant Ridge and its police department, Sterling Township and its police department, Mike Mahoney, Officer Stevenson, the Chiefs of Police Association and the South Oakland Tactical Support Unit at the time the judgments were entered. The City of Sterling Heights, which was the successor to Sterling Township, had moved to have its default set aside. The trial court has never passed on this motion and the motion to set aside should be decided before a default judgment is entered against Sterling Heights.

       Only the police departments and Cities of Ferndale, Huntington 1Woods, Madison Heights, Troy and Beverly Hills and several individuals relied on this ground below.

       In Nichol v Billot, 80 Mich App 263; 263 NW2d 345 (1977), lv gtd, 402 Mich 922 (1978), the panel held that in a tort suit the "control” test was still the appropriate test. We believe the weight of authority requires application of the economic reality test in tort suits also.

       This issue would be for the court only if there are no disputed facts. Smith v Martindale, supra.

       With the demise of common-law governmental immunity for the ■ state and its agencies in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), all immunity in this state is statutory. The present statute provides: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofor, which immunity is affirmed.” MCL 691.1407; MSA 3.996(107).

        Cole drew support from Lovitt v Concord School District, 58 Mich App 593; 228 NW2d 479 (1975). Lovitt was criticized by Justice Williams in his opinion in Galli v Kirkeby, 398 Mich 527, 536; 248 NW2d 149 (1976), and cited with approval by Justice Coleman in her opinion in the same case. 398 Mich at 544.

       For example, the City of Bingham Farms claims that it is not a member of the mutual aid pact and had no officers present at the training exercise. Apparently, the City of Bingham Farms has no police force at all. An individual motion for summary judgment based on the absence of any material fact would be appropriate after the remand.

        Thomas v Dept of State Highways, 398 Mich 1; 247 NW2d 530 (1976), Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976), and Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976).

       Application for leave to appeal in White and Duncan has been held in abeyance pending disposition of Parker v Highland Park.


author: R. H. Campbell, J.

text:
    COATS v UHLMANN
    Docket No. 77-767.
    Submitted June 8, 1978, at Grand Rapids.
    Decided December 5, 1978.
    Eli Coats and Sarah S. Coats purchased some land from Robert C. Uhlmann and Eleanor A. Uhlmann. The buyers were represented by Russell Klaasen Realtors, Milton Beelen and Roger MacLeod throughout the transaction until the closing on July 8, 1971. The final deed excepted a portion of the land that the buyers thought was to be included. At the closing the realtors misrepresented this exception as a mere license or easement in favor of the sellers. It later became apparent that the sellers were claiming full ownership of the excepted parcel.
    The buyers commenced an action against the sellers on July 25, 1972, seeking reformation of the deed. Subsequently, in an amended complaint, the buyers’ realtors were added as defendants on November 12, 1975. The amended complaint charged them with failure to apprise the buyers of the true nature of the exception in the deed. The sellers later filed a counter-complaint for damages for interfering with the sellers’ attempts to sell the parcel in question to another buyer. The sellers also filed third-party complaints against Klaasen Realty and Beelen and against Francis Seats, doing business as L & F Seats Realty, the real estate agency that represented the sellers in the transaction, seeking a judgment for all sums that might be judged to be due to the buyers from the sellers.

      References for Points in Headnotes

       17 Am Jur 2d, Contracts §§ 403, 509.
    37 Am Jur 2d, Fraud and Deceit §§ 317-320.

       37 Am Jur 2d, Fraud and Deceit §§ 102-104.
    51 Am Jur 2d, Limitation of Actions §§ 102-106.
    Tort liability for misrepresentation as to area of real property sold or exchanged. 54 ALR2d 660.

       22 Am Jur 2d, Damages § 236 et seq.

    Power of equity court to award exemplary or punitive damages. 48 ALR2d 947.

       7 Am Jur 2d, Attorneys §§ 184-187. 51 Am Jur 2d, Limitation of Actions §§ 102-106. 61 Am Jur 2d, Physicians and Surgeons §§ 181-185.

       Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 320.

      Ottawa Circuit Court, Calvin L. Bosman, J., found that the buyers’ realtors had acted as agents for the buyers and had negligently misrepresented the nature of the deed exception, but held the plaintiffs’ claim against their realtors to be barred by the two-year statute of limitations for malpractice. The plaintiffs appeal. Held:

    The plaintiffs’ action against their realtors was clearly a personal action but not one for damages for injuries to persons or property, and was, therefore, subject to a six-year statute of limitations. The statute of limitations applicable to malpractice applies to actions against licensed professionals only and not licensed occupations. Thus, the action was timely.
    Reversed and remanded.
    1. Contracts — Torts—Property—Deeds—Exceptions in Deed— Negligent Misrepresentations — Realtors.
    Negligent misrepresentation by a realtor of an exception in a deed conveying property to a buyer represented by the realtor is a breach of contract as well as a tort.
    2. Limitation of Actions — Realtors—Misrepresentation—Personal Action-Buyer’s Expectations — Statutes.
    A buyer’s action against a realtor for misrepresentation of the true extent of property which was purchased by the buyer with the realtor acting as his agent is a personal action, and, as such, is subject to a six-year period of limitations; because the harm is to the buyer’s expectation it is not an action to recover damages for injuries to persons or property (MCL 600.5805, 600.5813; MSA 27A.5805, 27A.5813).
    3. Damages — Exemplary Damages — Moral Culpability of Defendant — Victim’s Harm.
    Exemplary damages are granted and measured primarily by reference to a defendant’s moral culpability, rather than according to the victim’s harm, although they are awarded to compensate the injured person, and not as a punishment to the defendant.
    4. Limitation of Actions — Malpractice—Injury to Persons — Injury to Property.
    The statute of limitations applicable to actions for malpractice only governs actions for damages for injuries to persons or property.

      5. Limitation of Actions — Malpractice—Licensed Professionals— Licensed Occupations.
    The statute of limitations applicable to actions for malpractice only applies to actions against licensed professionals and does not apply to actions against just any licensed occupation.

      Willingham, Coté, Hanslovsky, Griffith & Fores-man, P.C, for plaintiffs.

      Cholette, Perkins & Buchanan (by Robert A. Benson), for defendants Russell Klaason Realtors, Milton Beelen and Roger J. MacLeod.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   R. H. Campbell, J.

This appeal arises out of a suit precipitated by a sale of land in Holland, Michigan. Defendant realtors, Russell Klaasen Realtors, Milton Beelen and Roger MacLeod, represented the buyers, plaintiffs in this suit, throughout the sale until its closing on July 8, 1971.

The final deed excepted a portion of the land the buyers thought was to be included for the purchase price. At the closing, the realtors misrepresented the exception as a mere license or easement in favor of the sellers. Later, it became apparent to the buyers that the sellers were claiming full ownership of the excepted tract.

The buyers sued the sellers on July 25, 1972, seeking reformation of the deed. After substantial procedural delays, the realtors were joined as defendants on November 12, 1975. The amended complaint charged them with failure to apprise the buyers of the true nature of the exception in the deed.

The trial court found the realtors had acted as agents for the buyers and had negligently misrepresented the nature of the deed exception, but ruled the buyers’ claim barred by the two-year statute of limitations for malpractice, MCL 600.5805(3), 600.5838(2); MSA 27A.5805(3), 27A.5838(2).

On appeal the buyers argue theories of delayed accrual and relation back. Alternatively, they urge us to apply the six-year statute of limitations for contract claims, MCL 600.5807(8); MSA 27A.5807(8). We agree to reverse, but on different grounds.

The negligent misrepresentation of the deed exception by the realtors was a breach of contract as well as a tort. See 3 Am Jur 2d, Agency, §§ 200, 299, pp 581-582, 687-688; Anno: Broker’s liability for damages or losses sustained by vendor of real property to vendee because of broker’s misrepresentations; 61 ALR2d 1237. See generally, Anno: Right of principal to recover punitive damages for agent’s or broker’s breach of duty, 67 ALR2d 952. Relevant to such situations are several statute of limitations provisions.

The starting point is MCL 600.5813; MSA 27A.5813, which provides that all personal actions "shall be commenced within the period of 6 years after the claim accrues, and not afterwards unless a different period is stated in the statutes”. An exception to this general six-year rule is found in MCL 600.5805; MSA 27A.5805, which requires "any action to recover damages for injuries to persons or property”, not including certain specified tort actions, to be commenced within three years after the claim first accrues. There is an exception to the exception in MCL 600.5807(8); MSA 27A.5807(8) that re-establishes a six-year period of limitations on "actions to recover * * * for breach of contract”, which according to the most recent Supreme Court interpretation applies to actions for damages to persons and property, so long as the suit is based on an express promise rather than a duty implied in law. Huhtala v Travelers Ins Co, 401 Mich 118; 257 NW2d 640 (1977). Finally, a special two-year limit has been worked out for malpractice suits, MCL 600.5805(3), 600.5838(2); MSA 27A.5805(3), 27A.5838(2). It governs claims based on malpractice by "a member of a state licensed profession” and by other expressly enumerated health care workers.

Our research of Michigan law does not reveal a clear statement of reasons underlying these rules. They can, however, be reconciled with two policies identified by the commentators. In modern legal history, personal and property damage liability is on the upswing, due to the courts’ willingness to impose a broader spectrum of implied duties, to uphold excessive jury awards of damages, and to establish new causes of action. In fairness to defendants and in recognition of the administrative restraints on courts, the short period of limitations in § 5805 practically limits the instance of personal and property damage suits. See Peyton, Case Comment: U.C.C. — Statute of Limitations— Conflicts Between Personal Injury and Sales Contract Statute of Limitations, 75 W Va L Rev 201, 206-207 (1972). The six-year period under § 5807 has been opened by Huhtala only to the narrow class of personal and property damage claims based on expressly assumed duties. Huhtala also accords with the evidentiary function of the statute of limitations, since express contracts are more likely to be reduced to writing and, therefore, preserved as evidence. See Developments in Law-Statutes of Limitations, 63 Harv L Rev 1177, 1185 (1950). But see Crawford, Comment: Tort in Contract: A New Statute of Limitations, 52 Ore L Rev 91, 101 (1972) (historic validity of difference between tort and contract statutes of limitations eroded by modern practices of data storage and investigation).

Applying the above statutes with their judicial gloss, we find the buyers’ claim falls within the six-year rule of § 5813, and is not removed by any other code provision.

The buyers’ action is clearly personal. Through it they seek to recover damages caused by the realtors’ misrepresentations, alleged to equal the amount necessary to acquire the disputed tract from the sellers. In addition they have pled general and punitive damages. We find these are not allegations of injury to persons or property within the meaning of § 5805.

This Court does not ascribe to the view that "injuries”, as that term is used in § 5805, means "physical injuries”. Accord, Stringer v Board of Trustees of Edward W Sparrow Hospital, 62 Mich App 696; 233 NW2d 698 (1975). But see Case v Goren, 43 Mich App 673; 204 NW2d 767 (1972). Such a narrow reading would be inconsistent with the social policies discussed above. Section 5805 should be construed comprehensively to include actions brought for injuries resulting from invasions of rights that inhere in persons as persons and property owners. However, the injury must be to the person or specific property, and not simply relating to the person or specific property. See Sweet v Shreve, 262 Mich 432, 435; 247 NW 711, 712 (1933); Schenburn v Lehner Associates, Inc, 22 Mich App 534; 177 NW2d 699 (1970). In the case at bar, the realtors’ misrepresentations did not invade any property interest the buyers had in the Holland land, they merely led the buyers to expect more than they ■ received. Framed this way, the case is controlled by Sweet v Shreve, supra, which held that damages caused by a real estate dealer’s misrepresentations to a buyer as to the value of land, were not injuries to persons or property within the meaning of the three-year statute of limitations. The judgment recovered by plaintiffs in that case — roughly equal to the difference between the actual and represented values of the land — are closely analogous to the damages sought in this case. While the realtors’ misrepresentations in the instant dispute were of physical boundaries, the harm remains in the first instance, as in Shreve, to the buyers’ expectations. The fact that the present controversy arises from negligence, rather than fraud, does not alter the nature of the injury. Nor does the circumstance that the buyers claim punitive damages. Although it is stated in Michigan that "[ejxemplary damages are awarded to compensate the injured person, and not as a punishment to the defendant”, 9 Mich Law & Practice, Damages, § 91, p 87, they are granted and measured, not according to the victim’s harm, but primarily by reference to the defendant’s moral culpability. Id. §§ 92, 93, pp 89, 90.

Since the buyers’ suit is not for injuries to person or property, it is unnecessary to consider whether the claim is based on malpractice, as the malpractice period of limitations, by its language, only governs suits for injuries to persons or property. It is also fruitless to determine whether plaintiffs’ action is based on a breach of contract under Huhtala, since the period proscribed by the contracts provision would not change our result.

Applying the rule of § 5813, we find the buyers’ suit is not time barred. The record shows the negligent misrepresentation occurred July 8, 1971, and the realtors were joined November 12, 1975. Under any theory of accrual the action was commenced within six years.

Reversed and remanded. Costs to plaintiffs. We retain no jurisdiction.

       Plaintiffs were put on notice of the sellers’ claim in 1972, by a letter offering to sell the disputed tract to plaintiffs, and by the sellers’ subsequent acts of showing the land to prospective purchasers.

       There have been earlier indications to the contrary. Thus, in State Mutual Cyclone Ins Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968), the Supreme Court found "a total absence of any legislative mandate or thought that we distinguish between actions on express contracts to recover damages for injury to person or property and actions based upon implied contract”. Id. at 325; 161 NW2d at 576. See also Huhtala v Travelers Insurance Co, 401 Mich 118, 135-137; 257 NW2d 640, 648-649 (1977) (Coleman, J. dissenting).
      Writing for the majority in Huhtala, Justice Levin reconciled State Mutual on its facts, reading the case as one based on an implied term of an express contract. This reading is difficult to understand, since the duty breached in that case — the duty to supply electricity at an appropriate rate — was apparently expressed in the contract. According to the pleadings:
      " 'It was the agreement on the part of the defendant to the plaintiff that it would supply such current and the current would be supplied in quantities to serve the purposes of light and power in voltages acceptable to the use of such appliances owned by the plaintiffs assignors either of 110-volt or 220-volt current.’ ” 381 Mich at 320; 161 NW2d at 574. (Emphasis added.)

        Huhtala could be construed as applying the contract statute of limitations only to express duties, not otherwise implied in law. That interpretation, however, would be inconsistent with Weeks v Slavik Builders, Inc, 384 Mich 257; 181 NW2d 271 (1970), which held the three-year statute applicable in a case based on an express warranty of fitness for the particular purpose, though such a warranty is also implied by law. See MCL 440.2315; MSA 19.2315. To the extent State Mutual is inconsistent with Huhtala we might read it as effectively overruled. Yet, we find Justice Levin’s discussion of the case unnecessary to the result in Huhtala, as the injury in Huhtala was not an injury to persons or property. See 401 Mich at 130-132; 257 NW2d at 646-647.
      We nevertheless follow Huhtala because it is the Supreme Court’s most recent statement on the topic, the statement is undeniably clear, and it is consistent with the most sound reasons for distinguishing between contract and tort for the purposes of setting a prescribed period of limitations. See text at notes 3-6, infra.

       Commenting on the failure of courts to draw clear lines between contract and tort statutes of limitations, Dean Prosser notes, "there has been a failure to think the thing through, and the courts have been little concerned with principles, while preoccupied with the problems at hand”. Prosser, The Borderland of Tort and Contract, in Selected Topics on The Law of Torts, pp 380, 451-452 (1953). Legislators are also to blame: “So firmly have statutes of limitations become imbedded in our law in the course of centuries that legislatures seldom reconsider them in the light of the various functions they actually perform.” Developments in the Law-Statutes of Limitations, 63 Harv L Rev 1177, 1185 (1950).

       For example, the liabilities of landlords and business invitors have been dramatically increased by recognition of a duty on their part to guard tenants and customers from foreseeable criminal acts of third persons. E.g., Samson v Saginaw Professional Building, Inc, 393 Mich 393, 224 NW2d 843 (1975) (landlord); Earle v Colonial Theatre Co, 82 Mich App 54; 266 NW2d 466 (1978). See also Farwell v Keaton, 396 Mich 281; 240 NW2d 217 (1976) (social companions owe affirmative duty to come to each other’s aid).

        E.g., Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976) (upholding precedent shattering damage award of 1.725 million dollars for lost wages, pain and suffering, and loss of consortium).

       The most notable of recent origin are causes based upon the negligent or intentional infliction of mental distress, and an injured spouse’s independent action for loss of consortium. Contrary to the courts of other states that have considered the question, this Court has even gone so far as to recognize a cause of action for loss of parental consortium. Berger v Weber, 82 Mich App 199; 267 NW2d 124 (1978).

       We note that under a different statute relating to "professionals” our Supreme Court has expressly ruled "[r]eal estate agencies are no more professions than any other business agencies”. Pennock v Fuller, 41 Mich 153, 155; 2 NW 176, 177 (1879), and in Kambus v St. Joseph’s Mercy Hospital of Detroit, 389 Mich 249; 205 NW2d 431 (1973), held that the broadened coverage of the malpractice statute of limitations includes only licensed professionals, thereby rejecting the notion that it also includes any licensed occupation.

       We also believe it is wise not to venture an interpretation of Huhtala as applied to the circumstances of this case. In their briefs the parties have not dealt with Huhtala. Our reading of the case reveals several open questions. The two classes of actions distinguished by Justice Levin — those based on expressed promises and those based on obligations implied in law — do not exhaust the possibilities. Thus, there may be nonexpress duties implied "in fact”, rather than "in law”. 1 Corbin on Contracts, § 17, pp 38-39. Also of uncertain impact under Huhtala is the distinction, among implied duties, between those that are rebuttable (e.g., under the Uniform Commercial Code, the implied warranties of merchantability and fitness may be disclaimed, see MCL 440.2316; MSA 19.2316) and those that are irrebuttable (e.g., the Uniform Commercial Code’s duty of good faith in the performance or enforcement of contracts, MCL 440.1203; MSA 19.1203). These issues probably should be resolved, like the question of what constitutes an injury to person or property, by reference to the policies underlying the varying periods of limitation. However, absent a clear legislative or Supreme Court statement of these policies, and without benefit of an adversary presentation, we should not unnecessarily establish case precedent in this area.