author: R. B. Burns, P. J.

text:
    WILLIAMS & WORKS, INC. v SPRINGFIELD CORPORATION
    1. Mechanics’ Liens — Notice—Intent to Claim Lien — Dealing With Owner — Statutes.
    Notice of intent to claim a mechanics’ lien is not required where the lien claimant deals directly with the owner of the property subject to the lien; to permit an owner who has actual notice of a claim to defeat a lien on the basis that he did not receive statutory notice would be inconsistent with the purpose of the mechanics’ lien act (MCLA 570.1 et seq.; MSA 26.281 et seq.).

    2. Mechanics’ Liens — Liberal Construction — Attachment of Lien — Statutes.
    The mechanics’ lien act is to be construed liberally as to the determination of whether a lien has attached (MCLA 570.1 et seq.; MSA 26.281 et seq.).

    3. Mechanics’ Liens — Notice—Dealing With Owner — Statutes.
    Mechanics’ lienors dealt directly with the owner of the property subject to foreclosure and were thereby exempt from the requirement of serving upon the owner their statements of account and lien within 90 days of completing their work where the property was owned by a copartnership whose sole partners were an individual and a corporation wholly owned by that individual, and where all of the lienors’ dealings were with that individual (MCLA 570.6; MSA 26.286).
    4. Mechanics’ Liens — Subcontractors—Owners—Statutes.
    Parties claiming mechanics’ liens were subcontractors, not original contractors, for purposes of the mechanics’ lien statute where a part owner of the property was also the general contractor on the construction project (MCLA 570.1 et seq.; MSA 26.281 et seq.).

      References for Points in Headnotes

       53 Am Jur 2d, Mechanics’ Liens § 171.

       53 Am Jur 2d, Mechanics’ Liens § 23.

       53 Am Jur 2d, Mechanics’ Liens § 66.

       53 Am Jur 2d, Mechanics’ Liens § 67.

       53 Am Jur 2d, Mechanics’ Liens §§ 291, 400.

       53 Am Jur 2d, Mechanics’ Liens § 281.

       16 Am Jur 2d, Constitutional Law §§ 119, 120.

       53 Am Jur 2d, Mechanics’ Liens § 26.

       53 Am Jur 2d, Mechanics’ Liens § 179.

       53 Am Jur 2d, Mechanics’ Liens §§ 11, 14.

      5. Mechanics’ Liens — Evidence—Parol Evidence — Waiver of Claim — Intent of Parties.
    Parol evidence was properly admitted to determine the intent of the parties where the waivers of claim of mechanics’ lien executed by subcontractors were ambiguous.
    6. Mechanics’ Liens — Priority—Commencement of Building — Actual Construction —Statutes.
    A mechanics’ lien has priority over all encumbrances recorded subsequent to the commencement of building; "commencement” does not mean actual construction, but includes engineering services prior to actual construction (MCLA 570.1, 570.9; MSA 26.281, 26.289).
    7. Mechanics’ Liens — Constitutional Law — Standing—Owners— Mortgagees.
    The owner of real estate subject to a mechanics’ lien has standing to raise the issue of the constitutionality of the mechanics' lien statute; a mortgagee of the real estate does not.
    8. Mechanics’ Liens — State Action. The placement of mechanics’ liens upon property involves state action because mechanics’ liens are created, regulated and enforced by the state.
    9. Mechanics’ Liens — Possession of Premises — Right of Alienation — Deprivation of Property Interest.
    A mechanics’ lien, although it clouds title, does not disturb possession or right of alienation until after a foreclosure action; in effect, a lien is merely notice to others of the existence of a potential foreclosure action, and the filing of a mechanics’ lien does not constitute a significant deprivation of a property interest.
    10. Mechanics’ Liens — Cqnstitutional Law — Due Process — Notice of Liens.
    Due process of law is a flexible concept not requiring any particular procedural requisites, and the mechanics’ lien statute is not rendered unconstitutional for failure to provide for notice prior to filing of a lien or for a hearing prior to or immediately after filing of a lien.

      Appeal from Genesee, Philip C. Elliott, J.
    Submitted December 8, 1977, at Lansing.
    (Docket Nos. 26617, 26618, 26619, 26625, 26626, 26628.)
    Decided February 22, 1978.
    Leave to appeal applied for.
    Complaint by Williams & Works, Inc., against Springfield Corporation for foreclosure of a mechanics’ lien, joining as defendants all parties with recorded interests in the property. Judgments of foreclosure were entered in favor of plaintiff and several other mechanics’ lienors, and the mechanics’ liens were held to be superior to a mortgage held by defendant Kelly Mortgage and Investment Company. Kelly Mortgage and Investment Company and Bristol Square Properties Group, the successor in title to Springfield Corporation, appeal.
    Affirmed.

      Russell, Ward, Hodgkins & Heaney, for defendant Kelly Mortgage and Investment Company.

      Smith, Miro, Hirsch, Brody & Zweig, (by Martin C. Weisman), for defendant Bristol Square Properties Group.

      Brownell, Andrews, Philpott & Piper, for defendants Garno Brothers Heating and Cooling, Inc., PPG Industries, Inc., and Shank, Coupland & Long Company.
    Before: R. B. Burns, P. J., and Allen and R. M. Maher, JJ.
   R. B. Burns, P. J.

The trial court entered judgments of foreclosure against the owner of an apartment project, appellant Bristol Square Properties Group, in favor of mechanics’ lienors and appellees Shank, Coupland & Long Co., PPG Industries, Inc., and Garno Brothers Heating and Cooling, Inc., with priority over the mortgage held by appellant Kelly Mortgage and Investment Company. It is argued on appeal that appellees did not comply with the procedural requirements of the mechanics’ lien act, MCLA 570.1 et seq.; MSA 26.281 et seq.; that they waived whatever liens they had; that the liens are not entitled to priority; that the act is unconstitutional; and that the award of attorneys fees was excessive. We affirm.

The property which is the subject of foreclosure underwent several changes of ownership during construction of the apartment complex. It was originally owned by Kelly Mortgage and Investment Company with LAW Development Co., Inc., with Springfield Corporation as an optionee. Springfield is a close corporation wholly owned by its president, Robert L. Foote, and was at all times the general contractor on the project. Springfield subcontracted engineering work to Williams & Works, Inc., which did the first work on the project in June, 1972. On January 4, 1973, Kelly Mortgage and LAW conveyed the property to Springfield, which in turn executed mortgages to City National Bank and Kelly Mortgage. City National Bank subsequently conveyed its mortgage to Kelly Mortgage. On December 27, 1973, Springfield conveyed the property to Bristol Square Properties Group, a limited copartnership in which Mr. Foote and Springfield Corporation are the sole general partners. Appellees are subcontractors who began supplying labor or materials while the project was owned by Springfield Corporation, and completed their work after Springfield conveyed to Bristol Square Properties Group. At all times they dealt with Mr. Foote. Williams & Works, Inc., brought suit to foreclose its mechanics’ lien, joining as defendants all persons with recorded interests in the property. See MCLA 570.10; MSA 26.290. The validity of the mechanics’ lien of Williams & Works, Inc., is not before this Court.

Most of the issues raised on appeal concern the alleged failure of appellees to comply with the procedural requirements of obtaining a mechanics’ lien. Appellees argue that the requirements were inapplicable or substantially complied with.

Appellants first argue that Garno Brothers Heating and Cooling, Inc. and PPG Industries, Inc. failed to provide Bristol Square Properties Group with written notice of their intent to claim liens within 90 days of first furnishing labor or materials. MCLA 570.1; MSA 26.281. However, the owner of the property at the time both appellees first started work or supplied materials was Springfield Corporation. Notice is not required where the lien claimants deal directly with the owner. Wallich Lumber Co v Golds, 375 Mich 323, 328-329; 134 NW2d 722 (1965), Mielis v Everts, 264 Mich 363, 364; 249 NW 875, 876 (1933), J Altman Companies, Inc v Saginaw Plumbing & Heating Supply Co, 42 Mich App 747, 753-754; 202 NW2d 707, 711 (1972). In Burton Drywall, Inc v Kaufman, 69 Mich App 85; 244 NW2d 367 (1976), lv granted, 399 Mich 875 (1977), a panel of this Court declined to follow the above cases, reasoning that Mielis was wrongly decided. Your author dissented because we are bound to follow Supreme Court precedent. In P H I Construction Co v Riverview Commons Associates, 80 Mich App 518; 264 NW2d 50 (1978), another panel declined to follow Burton Drywall, also explaining that it was bound by Supreme Court precedent, and observing that it would be inconsistent with the purpose of the act to permit an owner who has actual notice of the claim to defeat a lien on the basis that he did not receive statutory notice. The decision of the Supreme Court in Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184; 253 NW2d 646 (1977), that the act is to be construed liberally as to the determination of whether a lien has attached strengthens the PHI Construction Co analysis, since a basic premise of the Burton Drywall decision was that the act must be construed strictly until the lien has attached. We therefore follow Mielis and Wallich and hold that notice of intent to claim a lien was unnecessary. The fact that ownership of the property changed within the 90-day period within which PPG Industries, Inc., was to provide notice cannot be the basis for defeating the lien, particularly where both of the general partners in Bristol Square Properties Group were themselves dealing directly with appellee. See Williams & Works, Inc v Springñeld Corp, 76 Mich App 541, 549; 257 NW2d 160, 164 (1977).

All of the appellees filed their statements of account and lien within 90 days of completing their work. MCLA 570.5; MSA 26.285. However, appellants argue that all appellees failed to properly serve the statements upon the owner, Bristol Square Properties Group. MCLA 570.6; MSA 26.286. The service statute specifically exempts those persons dealing directly with the owner or part owner of the premises. MCLA 570.6; MSA 26.286. Since appellees were dealing directly with Mr. Foote, they were as a practical matter dealing directly also with Springfield Corporation and Bristol Square Properties Group. To fail to hold that appellees were dealing directly with the owner, Bristol Square Properties Group, or the part owners, Mr. Foote and Springfield Corporation, would be to elevate form over substance so as to defeat the purpose of the statute. MCLA 570.27; MSA 26.307; Williams & Works, Inc v Springfield Corp, supra.

Appellants next argue that if Springfield Corporation and Bristol Square Properties Group are to be treated as the same entity for the purpose of notice, then Springfield Corporation should be treated as the owner under MCLA 570.4; MSA 26.284. This statute provides that an original contractor who desires to draw money from an owner must give the owner a statement under oath listing his subcontractors and the amounts due them. It is appellants’ theory that, if Springfield Corporation is treated as the owner, then appellees are original contractors. This however ignores the fact that Springfield Corporation was wearing two hats throughout much of the construction, as owner and general contractor. Appellees were subcontractors of Springfield Corporation, general contractor. As such they were not original contractors and MCLA 570.4; MSA 26.284 is inapplicable.

During the course of construction Shank, Coup-land & Long Co. and Garno Brothers Heating and Cooling, Inc., executed waiver forms supplied by Burton Abstract & Title Company, disbursement agent for Kelly Mortgage and Investment Company, whenever they received partial payment. These forms provided that appellees waived any claims of lien which they "now have or may have hereafter * * * ”.

"Before one entitled to a lien under the statute should be declared to have waived it, it ought clearly and unequivocally to appear that he has expressly waived it.” Saginaw Lumber Co v Wilkinson, 266 Mich 661, 665; 254 NW 240, 242 (1934), see Williams & Works, Inc v Springfield Corp, supra.

The waiver form was ambiguous, and parol evidence was properly admitted to determine the intent of the parties. See, e.g., In re Landwehr’s Estate, 286 Mich 698, 703; 282 NW 873, 875 (1938). The trial court’s determination that the parties understood the payment and waiver procedure to waive any right to a lien only on work already completed is amply supported by the record. GCR 1963, 517.1. These liens were not waived.

It is next argued that the mortgages held by Kelly Mortgage and Investment Company have priority over the mechanics’ liens held by appellees. MCLA 570.9; MSA 26.289 provides that mechanics’ liens have priority over all encumbrances recorded subsequent to the "commencement” of building. Appellants argue that "commencement” means actual construction, and actual construction did not start until after Kelly Mortgage and City National Bank had recorded their mortgages. We cannot accept appellants’ interpretation. Included within the act are engineering services. MCLA 570.1; MSA 26.281. Unless "commencement” means when engineering services are first performed, engineering firms will not be protected and receive all of the benefits of the act. The act must be liberally construed to carry out its intended purpose of benefiting subcontractors. MCLA 570.27; MSA 26.307; Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich at 188; 253 NW2d at 649. See Bankers Trust Co v El Paso Pre-Cast Co, — Colo —; 560 P2d 457, 460-461 (1977). Williams & Works, Inc. commenced work prior to the recording of the mortgages. Appellees’ liens are therefore entitled to priority over the mortgages. MCLA 570.9; MSA 26.289; see Kay v Towsley, 113 Mich 281, 283; 71 NW 490, 491 (1897).

Appellants contend that the mechanics’ lien act is repugnant to the due process clauses of US Const, Am XIV and Const 1963, art 1, § 17 for failure to provide for notice prior to filing of a lien and for a hearing prior to or immediately after filing of a lien. See North Georgia Finishing, Inc v Di-Chem, Inc, 419 US 601; 95 S Ct 719; 42 L Ed 2d 751 (1975), Mitchell v W T Grant Co, 416 US 600; 94 S Ct 1895; 40 L Ed 2d 406 (1974), Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972), Sniadach v Family Finance Corp, 395 US 337; 89 S Ct 1820; 23 L Ed 2d 349 (1969). We conclude that the mechanics’ lien act is constitutional.

We must preliminarily dispose of two sub-issues. First, we find that Bristol Square Properties Group, as owner of the premises, has standing to raise this issue, although Kelly Mortgage and Investment Company, as mortgagee, does not. See Williams & Works, Inc v Springfield Corp, supra at 546-548; 257 NW2d at 163. Second,, we find that placement of mechanics’ liens upon the premises involved state action, because mechanics’ liens are created, regulated, and enforced by the state. Barry Properties, Inc v The Fick Brothers Roofing Co, 227 Md 15; 353 A2d 222 (1976), Connolly Development, Inc v Superior Court of Merced County, 17 Cal 3d 803; 553 P2d 637; 132 Cal Rptr 477 (1976), appeal dismissed, 429 US 1056; 97 S Ct 778; 50 L Ed 2d 773 (1977).

The United States Supreme Court summarily affirmed a decision by a three-judge district court that held the Arizona mechanics’ lien act did not deprive a property owner of a significant property interest without due process of law. Spielman-Fond Inc v Hanson’s, Inc, 417 US 901; 94 S Ct 2596; 41 L Ed 2d 208 (1974), affirming 379 F Supp 997 (D Ariz, 1973). Although a summary affirmance cannot necessarily be read as an affirmance of the reasoning of the lower court, it is nonetheless a resolution on the merits of the issues presented to the Supreme Court and is consequently precedent binding upon lower courts. See Edelman v Jordan, 415 US 651, 670-671; 94 S Ct 1347, 1359-1360; 39 L Ed 2d 662, 677 (1974), Fusari v Steinberg, 419 US 379, 391-392; 95 S Ct 533, 541; 42 L Ed 2d 521, 530-531 (1975) (Burger, C. J., concurring), B & P Development v Walker, 420 F Supp 704 (WD Penn, 1976). Roundhouse Construction Corp v Telesco Masons Supplies Co, Inc, 168 Conn 371; 362 A2d 778 (1975), vacated and remanded, 423 US 809; 96 S Ct 20; 46 L Ed 2d 29 (1975), reaffirmed, 170 Conn 155; 365 A2d 393 (1976), cert den, 429 US 889; 97 S Ct 246; 50 L Ed 2d 172 (1976), one of two cases which have held states’ mechanics’ lien acts unconstitutional, did so because it deduced a standard of due process from Sniadach, Fuentes, Mitchell and North Georgia Finishing, Inc, and found that its state’s act did not meet that standard. Its analysis failed to recognize the precedential significance of Spielman-Fond. We need not attempt to derive a standard of due process applicable to mechanics’ lien acts from Supreme Court cases dealing with other creditor’s remedies if SpielmanFond is directly on point. Because a summary affirmance does not explicate the reasons for affirmance, our task is to look to the opinion of the lower court and the opinions of other courts which have examined the constitutionality of various states’ mechanics’ lien acts in order to determine the possible reasons for affirmance, and then to determine whether those reasons apply to the instant case. Cf., B & P Development v Walker, supra, In re Thomas A Cary, Inc, 412 F Supp 667 (ED Va, 1976), Barry Properties v Fick Brothers Roofing Co, supra. There have been a sufficient number of such opinions that the issues are clearly drawn. We deduce that there can be but two possible reasons for the affirmance in Spiel-man-Fond.

The first reason is that advanced by the lower court in Spielman-Fond. Unless filing a mechanics’ lien constitutes a taking of a significant property interest, the procedural requisites announced by the Supreme Court in Sniadach, Fuentes, Mitchell and North Georgia Finishing, Inc are inapplicable. Although a mechanics’ lien clouds title, no disturbance of possession or right of alienation occurs until after a foreclosure action, and the inconvenience of the lien can be ameliorated by bonding. 379 F Supp at 999, accord, In re Thomas A Cary, Inc, supra, Ruocco v Brinker, 380 F Supp 432 (SD Fla, 1974), Cook v Carlson, 364 F Supp 24 (D SD, 1973), Bankers Trust Co v El Paso Pre-Cast Co, — Colo —; 560 P2d 457 (1977), Tucker Door & Trim Corp v Fifteenth Street Co, 235 Ga 727; 221 SE2d 433 (1975), Carl A Morse, Inc v Rentar Industrial Development Corp, 56 App Div 2d 30; 391 NYS2d 425 (1977), Silverman v Gossett, 553 SW2d 581 (Tenn, 1977). Theoretically, the amount of the lien is equivalent to the increase in value of the structure due to the work done, so that there is no actual deprivation overall. Cook v Carlson, supra, Carl A Morse, Inc v Rentar Industrial Development Corp, supra. In effect, a lien is merely notice to others of the existence of a potential foreclosure action, analogous to a notice of lis pendens. Tucker Door & Trim Corp v Fifteenth Street Co, supra.

It is the majority view that no significant deprivation occurs upon filing a mechanics’ lien, and this may have been the basis for the Supreme Court’s affirmance in Spielman-Fond. But see Connolly Development, Inc v Superior Court of Merced County, supra, Barry Properties v Fick Brothers Roofing Co, supra. If so, this rationale would compel affirmance in the instant case.

Assuming that a significant deprivation had occurred, the second possible reason for the affirmance is that the mechanics’ lien statute provided sufficient procedural requisites to pass constitutional muster. Due process is a flexible concept not requiring any particular procedural requisites. Dow v State of Michigan, 396 Mich 192, 204-205; 240 NW2d 450, 456 (1976). It may be argued that the taking, while significant, is relatively minor compared to the countervailing interests of mechanics’ lienors, and that the procedural requisites in Spielman-Fond were adequate. See Ruocco v Brinker, supra, Cook v Carlson, supra, Connolly Development, Inc v Superior Court of Merced County, supra, Silverman v Gossett, supra. Although this reasoning is subject to attack, primarily because of the absence of the hearing prior to or soon after imposition of a lien that Fuentes, Mitchell and North Georgia Finishing, Inc, appear to require, see Connolly Development, Inc v Superior Court of Merced County, supra, (Richardson, J., dissenting), Roundhouse Construction Corp v Telesco Masons Supplies Co, Inc, supra, those Supreme Court cases are sufficiently inconsistent as to render this rationale for affirmance a substantial likelihood. Barry Properties v Fick Brothers Roofing Co, supra, the second of the two cases which have held mechanics’ lien acts unconstitutional, did so because its act did not contain procedural requisites as rigorous as those contained in the Spielman-Fond act. Using a similar analysis, the Court in Connolly Development, Inc v Superior Court of Merced County, supra, found the California act substantially similar to the Arizona act, and therefore constitutional. Accord, B & P Development v Walker, supra. Because the Michigan act is substantially similar to the Arizona act, we find Spielman-Fond to be controlling precedent for affirmance in the instant case. See Connolly Development, Inc, supra, B & P Development v Walker, supra.

Finally, appellants argue that the award of attorney fees was excessive. The award of attorney fees was within the trial court’s discretion, MCLA 570.12; MSA 26.292, and we detect no abuse of discretion.

Affirmed.

       At the time at which each claimant signed waivers, it could be said that the claimant already had a right of lien for the work done, or it could be said the lien claimant had no right to a lien until he thereafter complied with the procedural requirements of the act. Under the former view, the right of lien which the claimant "may have hereafter” would refer to a lien for work subsequently done, whereas under the latter view, it would refer to a lien for work already done but for which the procedural requirements had not been met.

       For purposes of analysis, we assume the due process protections of Const 1963, art 1, § 17 are equivalent to those of US Const, Am XIV. See Dow v State of Michigan, 396 Mich 192; 240 NW2d 450 (1976).


source: Caselaw Access Project

author: V. J. Brennan, J.

license: Public Domain

text:
    PEOPLE v McNEILL
    1. Witnesses — Criminal Law — Identification of Defendant — Photographs — Lineups—Attorney and Client.
    Generally, Michigan decisions specify: (1) except in exigent circumstances, photographs of an accused known to be in custody or who can be readily produced for a lineup may not be shown to witnesses for purposes of identification; (2) a lineup cannot be conducted without providing a defendant with proper representation.
    2. Criminal Law — Attorney and Client — Custody—Identification —Photographic Showups — Mug Books.
    The rule that a defendant is entitled to counsel at pretrial identification procedures does not apply to the pre-custody, prequestioning, mere suspicion phase of a criminal investigation because it is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the "mug book”, would require the representation of counsel which would be both impossible and absurd.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 313, 314, 368, 369.
    Accused’s right to counsel under the Federal Constitution-Supreme Court cases. 18 L Ed 2d 1420.
    Accused’s right to assistance of counsel at or prior to arraignment. 5 ALR3d 1269.
    Admissibility, and prejudicial effect of admission, of "mug shot”, "rouges’ gallery” photograph, or photograph taken in prison, of defendant in criminal trial. 30 ALR3d 908.
    Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedure. 39 ALR3d 1000.

       5 Am Jur 2d, Appeal and Error § 611.

       75 Am Jur 2d, Trial § 855.
    81 Am Jur 2d, Witnesses §§ 88-93.

       29 Am Jur 2d, Evidence §§ 321, 322.
    Admissibility in prosecution for sexual offense, of evidence of other similar offenses. 77 ALR2d 841.

      3. - Criminal Law — Attorney and Client — Custody—Photographic Showups — Right to Counsel.
    The mere fact that an investigation has focused on a defendant who is not in custody does not give him the right to counsel at a photographic showup.
    4. Criminal Law — Photographic Identification — Pre-Custody Situations — Corporeal Lineups.
    Identification by photograph may not be used in pre-custody situations where the accused can be readily produced for a corporeal lineup.
    5. Witnesses — Criminal Law — Appeal and Error — Testimony of Child Witnesses — Failure to Object — Statutes.
    Failure to object to the admission of the testimony of child witnesses as incompetent waives the right to assert the alleged error on appeal (MCLA 600.2163; MSA 27A.2163).
    6. Witnesses — Criminal Law — Testimony of Child Witnesses — Instructions on Credibility — Weight of Testimony.
    Instructions on the weight and credibility of testimony of child witnesses was adequate where both prosecution and defense counsel in opening argument directed the jury’s attention toward carefully weighing the testimony of these witnesses and where the court itself gave an instruction couched particularly in terms of weighing the credibility of such young witnesses.
    7. Criminal Law — Evidence—Similar Defenses — Admissibility— Prejudice — Probative Value — Statutes.
    No abuse of discretion in a trial court’s admission of evidence of prior sexual offenses has been shown in a trial for criminal sexual conduct where the acts were clearly similar and could serve as a positive basis for identification of the defendant and where the probative value of such acts as evidence outweighed any prejudicial effects (MCLA 768.27; MSA 28.1050).
    Appeal from Washtenaw, Edward D. Deake, J.
    Submitted November 7, 1977, at Lansing.
    (Docket No. 27457.)
    Decided February 22, 1978.
    Clifford F. McNeill was convicted of first-degree criminal sexual conduct. Defendant appeals.
    Affirmed.

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

      Mark G. Rogow, for defendant on appeal.
    Before: Quinn, P. J., and V. J. Brennan and C. L. Bosman, JJ.

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

   V. J. Brennan, J.

Defendant Clifford Floyd Mc-Neill was charged with first-degree criminal sexual conduct, contrary to MCLA 750.520(b); MSA 28.788(2). He was convicted by jury in Washtenaw County Circuit Court on November 17, 1975. On December 4, 1975, he was sentenced to prison for a term of from 15 to 25 years. Defendant appeals as of right pursuant to GCR 1963, 806.1. He requests that his conviction be reversed and the case be remanded for new trial.

The record indicates the circumstances leading to defendant’s conviction occurred on May 19, 1975. While playing in a wooded field behind his house in Ann Arbor, complainant, aged 5 years, was approached by a stranger wearing a green shirt and green pants. Complainant was in the company of two friends of approximately the same age. Offering to show the three boys a tree house, the stranger enticed them to a more secluded area. He offered them ice cream and money if one of them would allow him to place his penis in the mouth. He then placed his penis in complainant’s mouth; ejaculated on the child’s shirt; inserted an old chair leg, the tip of which was covered by a piece of plastic, into his own anus and then discarded the chair leg and plastic. Complainant testified that the stranger walked and talked "funny”. Defendant limped slightly from a foot operation and wore false teeth.

Shortly after the assault, the two other boys related the incident to their mother, who in turn advised complainant’s mother. Complainant’s mother called the police.

The police arrived at the complainant’s residence at approximately 5 p.m. They interviewed the three boys, visited the scene of the crime with them and found the chair leg and piece of plastic. After obtaining a lead from another individual they encountered in the area, they drove to defendant’s house, which was less than half a mile from the victim’s house. They advised defendant of his Miranda rights and asked him if he would accompany them to the police station to talk about an incident that had occurred in the neighborhood that day.

Defendant consented. Defendant was not placed under arrest. He was handcuffed as a routine precaution, but the cuffs were removed after a few minutes when he appeared uneasy. He was wearing a green shirt and bluejeans at this time. During the period between the time the police contacted defendant and the time they arrived with him at the station, defendant stated that he had changed his clothes and that he had been "skinny-dipping” in a local gravel pit, Killings Pond, at unspecified earlier points in the day.

Defendant was interviewed at the pólice station. He stated that he had been watching skinny-dippers and swimming at Killings Pond between 12:30 and 3:10 p.m. that day. He had returned home and worked on his bicycle and done some lawn and garden work. He denied any knowledge of the incident. He was photographed and fingerprinted. He was not placed under arrest.

All three boys selected defendant’s picture at photographic showups conducted by the police on May 20, 1975. They later identified defendant in court as the man who committed the criminal sexual conduct.

At trial, a prosecution witness, aged 13 years, testified that one day late in April he had been walking through the same wooded area in which the complainant was assaulted. Defendant had approached him and asked him if he knew who had been pulling up construction markers the city had installed. Defendant offered the witness one dollar to try and find out who had pulled up the stakes and had taken him over near the creek to look at some stakes. He had then offered him one dollar to pull his pants down and display his genitals. The witness fled. This youth also selected defendant’s picture at a photographic showup conducted by the police on May 20, 1975. He later identified defendant at trial as the man who had sexually solicited him.

A State Police Crime Laboratory scientist testified on the basis of his analysis of the semen stains found on complainant’s shirt and blood and saliva samples taken from defendant. He stated that defendant was one of a group comprising about 36% of the population who could have deposited the semen on the shirt.

A Walker hearing was held to determine the voluntariness of defendant’s statements to the police that he had changed his clothing and gone "skinny-dipping” on the day in question. The voluntariness of these statements is not challenged on appeal. A Wade hearing was held to determine the admissibility of the pretrial and in-court identification testimony.

On appeal, defendant raises several allegations of error. We will address those which merit discussion.

We must first determine whether defendant was entitled to have corporeal rather than photographic showups conducted or to have counsel present at the four pretrial photographic showups held.

Prior to trial, defendant moved to suppress evidence of photographic identification obtained at the photographic showup held without benefit of counsel prior to his arrest. A Wade hearing was held, the only testimony taken being from an Ann Arbor police officer and a Washtenaw County detective. Testimony of Detective Lawrence Hoffman indicated that police were led to defendant’s house after the assault was reported on May 19, 1975. Several police cars arrived in front of defendant’s house at the same time. Defendant did not attempt to run. He was asked his name and if he would mind accompanying the police officers to the station in order to discuss an incident that had occurred earlier in the day. Defendant consented. He was not placed under arrest and he could have refused to cooperate. Before defendant was asked to accompany the officers, he was advised of his right to an attorney and given Miranda warnings.

Officer William Canada interviewed defendant at the police station on the evening of May 19, 1975. He was advised that defendant had come in voluntarily and he interviewed him outside of the security area. He was not under arrest and could have left at any time. He was not in custody. Defendant did not have handcuffs on when he was interviewed. Defendant was not arrested because insufficient evidence against him existed. He was merely a suspect in the case. After the interview, Officer Canada took defendant’s photograph and fingerprints. At the time defendant was advised that the photograph would be shown.

On May 20, 1975, Officer Canada separately showed defendant’s photograph and seven other photographs to complainant and his two companions. All identified defendant as the man who confronted them on May 19, 1975. Officer Canada then went to the house of the 13-year-old prosecution witness on advice that the witness had been sexually accosted late in April. This witness also Selected defendant’s photograph as being the man who had accosted him. No attorney was present at any of these photographic identifications.

The trial court ruled that the factual question of whether defendant was in "actual custody” at the time the photograph was taken was dispositive of the propriety of the identification procedure. He held that defendant was not in custody, but had accompanied the officers to the police station voluntarily. The photograph thus was not the fruit of an illegal detention and defendant was not entitled to have counsel present at the photographic displays. The court made no separate finding regarding defendant’s availability for a corporeal lineup on May 20, 1975. We will review defendant’s claim of error solely on the basis of the Wade hearing record. People v Kaigler, 368 Mich 281, 288; 118 NW2d 406 (1962).

Generally, Michigan decisions specify that except in exigent circumstances, photographs of an accused "known to be in custody or who can readily be produced for a lineup” may not be shown to witnesses for purposes of identification and that a line-up cannot be conducted without providing defendant proper representation. People v Jackson, 391 Mich 323, 338-339; 217 NW2d 22 (1974), People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973).

Recently, the Michigan Supreme Court refused to extend these requirements to the pre-custody, pre-questioning, mere suspicion phase of the criminal investigation. People v Lee, 391 Mich 618, 625; 218 NW2d 655 (1974). In Lee, the Court recognized the problems which would attend requiring counsel in the circumstances:

"It is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the 'mug book’ would require the representation of counsel. That would be impossible and absurd.” People v Lee, supra at 625.

The Court stated in particular that where defendant was not in custody the mere fact that an investigation had focused on him would not give rise to the right to counsel. People v Lee, supra at 625. Consequently, for purposes of defendant’s claim that counsel was required for the photographic showup, we need address only the question whether defendant was in custody on May 20, 1975.

The record is clear that defendant was not in custody on the date the photographs were displayed to the four boys. Defendant had voluntarily agreed to accompany police to the station in order to answer some questions concerning the incident earlier in the day. He was not placed under arrest at that time and he could have refused to cooperate with the police. Certainly, the evidence as available at that point would have required more investigation before any further action could have been taken against defendant. Officer Canada had interviewed defendant with the understanding that defendant had appeared voluntarily, was not under arrest and could have left at any time. From the basis of this evidence, we can conclude without hesitation that defendant was not in custody. Therefore, defendant had no right to counsel at the point when photographs were shown to the four boys.

However, we must address the further question whether the photographic showup was legally justifiable at all in view of the fact that defendant might possibly have been available for corporeal lineup. Beyond the rule laid down in Anderson that photographic identification could not be used where the accused is in custody, this Court has established the corollary that identification by photograph may not be used in pre-custody situations where the accused can be readily produced for a corporeal lineup. People v Smalls, 61 Mich App 53, 59-60; 232 NW2d 298 (1975), People v Beasley, 55 Mich App 583, 585-586; 223 NW2d 77 (1974), People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972). See also People v Jackson, 391 Mich 323, 338; 217 NW2d 22 (1974). One question we must address then regarding the propriety of holding a photographic rather than a corporeal showup is whether defendant was readily available for a lineup on that date. The trial court failed to make a specific finding of fact in this regard and we find this omission error.

We are not willing to infer that defendant was readily available for a corporeal lineup on May 20, 1975. Though defendant had cooperated in the initial stages of the investigation, the proceedings up to that point had been simply investigative and nothing more. No indication appears from the facts as to what reaction defendant would have had had he been requested to participate in a corporeal lineup. Clearly, police had little evidence isolating defendant as a principal suspect. He had not been taken into custody nor detained in any other way. He was allowed to leave the station after being interviewed and photographed. In essence, the police had no legal means at that point to force defendant to participate in the corporeal lineup. Consequently, we do not find that defendant was "readily available” for a corporeal lineup or that the trial court was in error by failing to infer such availability. We thus hold that the photographic showup was a permissible means of identification at this early stage of investigation. See People v Smalls, supra at 59-60, People v Beasley, supra at 585-586. See also People v Jackson, supra at 339, fn 16.

Regarding defendant’s second allegation, we would merely state that failure to object to the admission of the testimony of the three child witnesses as incompetent waived his right to now assert the alleged error on appeal. See MCLA 600.2163; MSA 27A.2163. See also People v Gay, 15 Mich App 484, 486; 166 NW2d 618 (1969).

We also believe the trial court adequately instructed the jury as to the weight and credibility to be given the testimony of the three child witnesses where both prosecution and defense counsel in opening argument directed the jury’s attention toward carefully weighing the testimony of these witnesses and where the court itself gave an instruction couched particularly in terms of weighing the credibility of such young witnesses. See People v Strunk, 11 Mich App 99, 101; 160 NW2d 602 (1968).

Neither do we find an abuse of discretion in the trial court’s admission into evidence pursuant to MCLA 768.27; MSA 28.1050 of testimony regarding the alleged prior sexual offense involving the 13-year-old witness where the acts were clearly similar and could serve as a positive basis for identification of defendant and when their probative value as evidence outweighed any prejudicial effect. See People v Frank Johnson, 58 Mich App 1, 4-5; 226 NW2d 730 (1975).

Having reviewed and addressed those questions raised by defendant which we feel merit discussion and finding none persuasive, we sustain the trial court.

Affirmed.

Quinn, P. J., did not participate.

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

         People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965).

        United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).


author: D. R. Freeman, J.

text:
    ELSASSER v AMERICAN MOTORS CORPORATION
    1. Products Liability — Automobiles—Negligence—Foreseeable Injury — Reasonable Care — Implied Warranty.
    An automobile manufacturer Has a duty to so design and manufacture his prodúct as to eliminate any unreasonable risk of foreseeable injury to the occupants of an automobile as a result of a collision; for the lack of reasonable care in the face of such duty, he may be answerable in a negligence action, and for the sale of a vehicle defective in such respect, he may be answerable for breach of implied warranty.
    2. Products Liability — Implied Warranty — Proof of Defect — Injury — Reasonable Fitness — Foreseeable Uses — Misuse of Product.
    A product liability suit based upon an implied warranty theory requires proof of a defect in manufacturing or design and injury caused by or resulting from the defect; under the implied warranty theory a defect is established by proof that the product is not reasonably fit for its intended, anticipated or reasonably foreseeable use; misuse of a product may be within the intended or foreseeable use upon which a cause of action for defective design or manufacture may be based.

      References for Points in Headnotes

       8 Am Jur 2d, Automobiles and Highway Traffic §§ 646-649.
    63 Am Jur 2d, Products Liability §§ 62, 63.
    Manufacturer’s or seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.
    Liability of manufacturer or seller for injury caused by automobile or other vehicle, aircraft, boat, or their parts, suppliers, or equipment. 78 ALR2d 460.
    Liability of manufacturer, seller, or distributor of motor vehicle for defect which merely enhances injury from accident otherwise caused. 42 ALR3d 560.

       8 Am Jur 2d, Automobiles and Highway Traffic § 661.

       63 Am Jur 2d, Products Liability §§ 26, 69.

       63 Am Jur 2d, Products Liability § 22.

       63 Am Jur 2d, Products Liability §§ 66, 79.
    Admissibility in evidence, on issue of negligence, of codes or standards of safety issued or sponsored by governmental body or by voluntary association. 75 ALR2d 778.

       74 Am Jur 2d, Torts §§ 76, 78.

       31 Am Jur 2d, Expert and Opinion Evidence §§ 26, 29, 31, 32.

       46 Am Jur 2d, Judges §§ 220, 221.

      3. Products Liability — Automobiles—Collisions—Reasonable Fitness.
    A manufacturer of automobiles is not required to manufacture a crash proof vehicle, but he must recognize the existence of accidents and build his product so that it is reasonably fit in case of a collision.
    4. Products Liability — Foreseeability—Reasonable Preventive Measures — Jury.
    The questions of foreseeability of injury and reasonableness of protective and preventive measures in products liability actions are for the trier of fact to decide.
    5. Products Liability — Defects—Injury—Proximate Cause.
    A plaintiff in a products liability case needs only to establish that a defect was a proximate cause of his injury, not that it was the proximate cause.
    6. Products Liability — Industry Standards — Reasonableness of Standards.
    A manufacturer may show compliance with an industry standard to indicate the reasonableness of the manufacture of his product, but the industry standard itself is always open to the question of reasonableness.
    7. Damages — Products Liability — Apportionment of Damages— Instructions to Jury.
    An instruction to a jury in a products liability action involving enhanced injuries that they must apportion damages between defendants is not necessary where the defendants have previously agreed to an apportionment between themselves.
    8. Witnesses — -Expert Witnesses — Qualification to Testify — Discretion of Court.
    The determination of whether an expert witness is qualified to testify rests within the sound discretion of the trial court.
    9. Appeal and Error — Judicial Rulings — Prejudice.
    Numerous rulings in favor of one party to a legal action do not necessarily indicate a prejudice on the part of the court.
    10. Judges — Prejudice or Bias — Burden of Proof.
    A party alleging prejudice or bias on the part of a trial judge bears the burden of showing that prejudice or bias.

      Appeal from Ingham, Donald L. Reisig, J.
    Submitted June 16, 1977, at Lansing.
    (Docket No. 27725.)
    Decided February 22, 1978.
    Complaint by Richard Elsasser and Gayle Elsasser against American Motors Corporation for damages for breach of implied warranty arising from an automobile collision and against Susan K. Leighton for damages for negligence. Defendant Leighton was dismissed from the action as a result of a settlement agreement. Judgment for plaintiffs. Defendant American Motors Corporation moved for judgment notwithstanding the verdict, or in the alternative for a new trial or for remittitur. Motions denied. Defendant American Motors Corporation appeals.
    Affirmed.

      Sinas, Dramis, Brake, Turner, Boughton, McIntyre and Boughton, P. C., for plaintiff.

      Ronald R. Pawlak, P. C., for defendant.
    Before: D. E. Holbrook, Jr., P. J., and Allen and D. R. Freeman, JJ.

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

   D. R. Freeman, J.

In this product liability case defendant appeals a jury verdict of $300,000 to plaintiff Gayle Elsasser and $175,000 to plaintiff Richard Elsasser. Following the November 6, 1975 jury verdict, defendant moved for a new trial, a judgment notwithstanding the verdict, and remittitur. These motions were denied in an opinion and order dated February 24, 1976.

On December 11, 1970, plaintiffs were driving on 1-94 in their 1971 AMC Gremlin which they had purchased new from an American Motors Corporation (hereinafter AMC), dealer about two months before. Due to inclement weather the driving conditions were very poor. A car was blocking one of the lanes. Jerome Burg, a motorist who had previously stopped, was flagging down traffic in the area of the blocked expressway lane. After seeing Burg, Richard ElsasSer brought thé pláintiffs’ car to a halt and joined several other cars in the congestion caused by the blocked lane. Susan Leigh-ton, operating a 1970 Plymouth Duster, approached the scene and saw Burg but did not see the line of stopped cars until a few short moments before she collided with the rear of plaintiffs’ stopped vehicle. The parties disagreed as to the speed of the Leighton vehicle at impact; and testimony at trial gave estimates ranging from 20 miles per hour to 55 miles per hour.

The impact from the collision drove plaintiffs’ car forward into the car in front of it. The Leigh-ton car struck plaintiffs’ car in the rear, to the left of center, and crushed plaintiffs’ car approximately 30 inches on the left side. The gas tank of plaintiffs’ car ruptured and the floor pan separated from the left side of the automobile. A fire broke out inside and outside of the plaintiffs’ car.

Richard Elsasser escaped through a window. Gayle Elsasser, apparently dazed by the collision, was pulled frdm the burning car by bystanders. Both plaintiffs received severe burns, including burns to their hands and faces. Neither plaintiff was permanently disabled; although both were scarred and suffered severe pain. Plaintiffs’ injuries required substantial surgery. Susan Leighton received only a superficial injury to her nose, which struck her steering wheel.

Plaintiffs sued defendant AMC for breach of implied warranty and Susan Leighton for negligence. Plaintiffs alleged four design defects — improperly located gasoline tank which was too large for the vehicle, inadequate protection of the gas tank, an inadequate connecting flange on the floor pan and inadequate fire wall protection between the gas tank and passenger compartment — and one workmanship defect — defective welds on the left side of the floor pan. Plaintiffs contended that gasoline from the ruptured tank entered the passenger compartment through the vacancy caused by separation of the floor pan from the side of the Gremlin. According to plaintiffs, the separation was the result of the defective welding.

During the course of the trial, plaintiffs reached a settlement with Susan Leighton in the amount of $75,000. All of the parties involved, including AMC, agreed that the jury would determine the damages necessary to compensate plaintiffs in full. From any such award the trial court would credit AMC with $50,000 against any judgment for Gayle Elsasser, and with $25,000 against any judgment for Richard Elsasser, reflecting the $75,000 settlement with Susan Leighton.

I

Defendant first contends that there is no duty owed by a manufacturer to build an automobile fit for a collision. Defendant urges us to adopt a rule, expressed in Evans v General Motors Corp, 359 F2d 822 (CA 7, 1966), and its progeny, that a manufacturer need only produce a vehicle fit for its intended use, which does not include collisions, despite the foreseeability of such collisions. We think a better rule was set forth in Larsen v General Motors Corp, 391 F2d 495 (CA 8, 1968), which was adopted in Rutherford v Chrysler Motors Corp, 60 Mich App 392, 400; 231 NW2d 413 (1975), lv granted, 394 Mich 823 (1975):

"Agreeing with Larsen, we hold that a manufacturer of any automobile has a duty to so design and manufacture his product as to eliminate any unreasonable risk of foreseeable injury to its occupants as a result of a collision for which the manufacturer may not be responsible. For the lack of reasonable care in the face of such duty, he may be answerable in a negligence action; and for the sale of a vehicle defective in such respect, he may be answerable for breach of implied warranty.”

Larsen dealt with a negligence cause of action. Its reasoning, however, lends itself equally well to an implied warranty suit, as noted by the Rutherford Court. Adoption of the Larsen reasoning was not the dramatic judicial step that defendant indicates it was. Rutherford was consistent with the trend of prior Michigan cases holding that misuse of a product may be within the intended or foreseeable use giving rise to a cause of action for defective design or manufacturing. Coger v Mackinaw Products Co, 48 Mich App 113; 210 NW2d 124 (1973), Byrnes v Economic Machinery Co, 41 Mich App 192; 200 NW2d 104 (1972). Under Larsen and Rutherford, a manufacturer must recognize the existence of accidents. A manufacturer is not required to manufacture a "crash proof’ automobile, but rather one that is reasonably fit in case of a collision.

A product liability suit based on an implied warranty theory requires proof of a defect in manufacturing or design and injury caused by or resulting from the defect. Piercefield v Remington Arms Co, 375 Mich 85, 96; 133 NW2d 129 (1965). Under the implied warranty theory a defect is established by proof that the product is not reasonably fit for its intended, anticipated or reasonably foreseeable use. Dooms v Stewart Bolling & Co, 68 Mich App 5, 14; 241 NW2d 738 (1976), lv den 397 Mich 862 (1976).

In the instant case plaintiffs alleged design defects and a manufacturing defect. These alleged defects arose from a failure on the part of defendant to eliminate unreasonable risks of injury in light of the intended and foreseeable use of the product. This blurring of the distinction between the concepts of implied warranty and negligence is not uncommon in product liability cases. See, for example, Dooms v Stewart Bolling & Co, supra, Smith v E R Squibb & Sons, Inc, 69 Mich App 375; 245 NW2d 52 (1976), lv den, 399 Mich 804 (1977), and Rutherford v Chrysler Motors Corp, supra. Defendant had a duty to produce a reasonably fit product under both negligence and implied warranty concepts.

II

Defendant’s second contention is that the evidence presented by plaintiffs was insufficient to show a breach of an implied warranty or a legal duty.

Proofs were presented by plaintiffs to show that faulty welding and a flange of inadequate design permitted gasoline to enter the passenger compartment and cause plaintiffs’ injuries. Plaintiffs showed that defendant was aware or should have been aware of the safety problems and the suggested remedies. Defendant produced countervailing testimony and evidence which, among other things, showed that some of plaintiffs’ arguments (e.g, the use of a fire wall) were impractical. Defendant also contends that plaintiffs failed to show the prevailing "state of the art”.

The questions of foreseeability of the injury and reasonableness of the protective and preventive measures taken are questions for the jury. Casey v Gifford Wood Co, 61 Mich App 208, 217-218; 232 NW2d 360 (1975), lv den, 395 Mich 810 (1975). We find that plaintiffs presented the issues of defect and injury therefrom in a sufficient manner for the questions of unreasonableness of the defect and foreseeability of the risk to go to the jury. Plaintiffs presented a prima facie case. Smith v E R Squibb & Sons, Inc, supra at 380, absent any inquiry concerning proximate cause. Since plaintiffs needed to establish only that the defect was a proximate cause and not the proximate cause, their proofs were sufficient to go to the jury. Dooms v Stewart Bolling & Co, supra, at 17-18.

A comment should be made concerning the "state of the art” or industry custom as evidence. It is hornbook law that a manufacturer may show compliance with industry standards to indicate reasonableness, but the industry standard itself is always open to the question of reasonableness. Prosser, Torts (4th Ed), § 33, 96, pp 166-168, 645. Reasonableness is ultimately a question for the jury.

Ill

Defendant next raises several alleged procedural errors concerning, for the most part, an instruction to the jury and expert testimony adduced by plaintiffs.

In a case such as this dealing with "enhanced injuries”, or a "secondary collision”, damages are usually apportioned between the defendant manufacturer and the negligent defendant who precipitated the initial collision. Defendant’s contention that an apportionment instruction should have been given would usually be correct. In this case, however, as part of the settlement with Susan Leighton, AMC agreed in open court that the jury would only make a determination as to total damages and that the trial court would then make set deductions from any award against AMC. It was not error to decline to instruct on apportionment.

The determination of whether an expert witness is qualified to testify rests within the sound discretion of the trial court. National Pharmaceutical Services, Inc, v Harrison Community Hospital, 67 Mich App 286, 293; 241 NW2d 76 (1976), lv den 397 Mich 824 (1976), Coger v Mackinaw Products Co, supra, at 123. There was no abuse of discretion here, where plaintiffs’ expert was an engineer with extensive background in automobile collisions and had published articles which defendant’s employees admittedly read. The expert’s testimony as to the speed of the Leighton vehicle was not precluded due to eyewitness lay testimony on the same point. Under the facts of this case the lay testimony was subject to considerable doubt in light of the poor weather conditions and sudden nature of the collision. People v Zimmerman, 385 Mich 417; 189 NW2d 259 (1971), does not preclude such testimony.

IV

Defendant’s final issue raises questions concerning the fairness of the trial in light of the trial court’s alleged bias in favor of plaintiffs.

This was a long and complex case which required numerous rulings on the part of the trial court. Even if it were true that the rulings were for the most part favorable to plaintiffs, that would not necessarily indicate reversible prejudice. Mahlen Land Corp v Kurtz, 355 Mich 340, 350-351; 94 NW2d 888 (1959). We note that many rulings were actually in favor of defendant. As the prior discussion indicated, we found no error in ruling made by the trial court.

At the outset of the case, defendant moved to disqualify the trial judge under GCR 1963, 405. The major ground was alleged bias due to the fact that Gayle Elsasser was employed by the Ingham County Friend of the Court. Pursuant to GCR 1963, 405.2, another judge held a hearing and ruled that disqualification was unnecessary. We find no error in this ruling. There was no relationship whatsoever between the trial judge and Gayle Elsasser, the two had never even met, and there was no indication of bias on the part of the trial judge.

More significant in this case is the fact that 48 days after rendering a decision on defendant’s post-trial motions, the trial judge left the bench and became a partner in the law firm which represented plaintiffs throughout the proceedings of this case. While this action took place 48 days after the proceedings ended at the circuit court level, it occurred 4-1/2 years after plaintiffs’ initial complaint was filed and six months after the trial itself began.

It is not enough to say that the defendant received an error-free trial. People v Lobsinger, 64 Mich App 284-286; 235 NW2d 761 (1975). However, where a party relies on alleged prejudice or bias of the trial judge, that prejudice or bias must be shown. People v Rayford Johnson, 68 Mich App 54, 58; 242 NW2d 35 (1976), reversed on other grounds, 397 Mich 686; 246 NW2d 836 (1976), Meshriy v Sun Oil Co, 67 Mich App 709, 712; 242 NW2d 497 (1976), Wayne County Prosecutor v Doerfler, 14 Mich App 428, 441; 165 NW2d 648 (1968). In the case at bar, defendant did not show any actual bias or prejudice whatsoever, and our review of the record reveals none. In light of this lack of prejudice we cannot say that it was reversible error, if error at all, for the trial judge to preside over this jury trial. Defendant received a fair trial in all respects.

The employment agreement between the trial judge and the law firm expressly excluded the trial judge from any monetary benefits that might result from the instant case. We find that the instant circumstances did not create a pecuniary interest in the trial judge. Nor do we find that the trial judge was consulted or employed as counsel in regards to this case within the meaning of GCR 1963, 405.1(5).

Affirmed, costs to plaintiff.


author: R. E. A. Boyle, J.

text:
    PEOPLE v GAYTON
    1. Criminal Law — Trial Court — Duty of Trial Judge — Defendant’s Theory of Case — Failure to Object — Appeal and Error — Court Rules.
    It is the duty of the trial court in a criminal case to present adequately the defendant’s theory of the case to the jury; failure to do so is reversible error despite the fact that no request or objection is made (GCR 1963, 516).
    2. Criminal Law — Mistrial—Instructions to Jury — Defendant’s Theory of Case — Entirety of Instructions.
    A defendant was not entitled to a mistrial on the basis of the instructions given by the judge to the jury relating to the defendant’s theory of the case where the instructions, when considered in their entirety, fairly presented the defendant’s theory of the case to the jury.
    3. Criminal Law — Motions—Directed Verdict — Acquittal—Evidence-Elements of Crime Charged — Murder—Inferences.
    The question presented in a criminal trial by a motion for a directed verdict of not guilty is whether there is sufficient evidence from which a jury can reasonably infer all of the elements of the crime charged; when determining whether there Was sufficient evidence on each essential element of a charge of murder in the first degree so as to permit submission of that charge to the jury, the prosecutor’s evidence must be taken as true, and it must be viewed in a light most favorable to the prosecution so that the prosecution may benefit from every reasonable inference to be drawn therefrom.
    References for Points in Headnotés

       75 Am Jur 2d, Trial § 699.

       75 Am Jur 2d, Trial §§ 548-558.

       40 Am Jur 2d, Homicide §§ 263-266.
    Homicide: presumption of deliberation or premeditation from circumstances attending the killing. 96 ALR2d 1435.

       75 Am Jur 2d, Trial § 993.
    Prejudicial effect of jury’s procurement or use of book other than lawbook during deliberations. 54 ALR2d 738.

      4. Homicide — Motions—-Directed Verdict — Acquittal—First-Degree Murder — Evidence—Elements of Crime Charged.
    A motion for a directed verdict of acquittal should be denied in a defendant’s trial for first-degree murder if there is any evidence at all on each of the elements of murder in the first degree.
    5. Homicide — Evidence—Premeditation—Deliberation—First-Degree Murder — Inferences—Circumstances of Killing.
    Evidence of premeditation and deliberation sufficient to sustain a conviction of first-degree murder may be inferred from the character of the weapon used, the wound inflicted and the circumstances surrounding the killing.
    6. Criminal Law — Motions—Setting Aside Verdict — Jury Deliberations — Improper Items in Jury Room — Discretion.
    The denial of a criminal defendant’s motion to set aside a guilty verdict returned by a jury because one juror took two volumes of Collier’s Encyclopedia into jury deliberations and another juror took in a slip of paper with the definitions of two words written on it was not an abuse of the trial court’s discretion where the trial court held hearings on the issue at which the jurors testified and it was determined that the items did not enter into and weré not considered in the jury verdict and where the defendant has not shown any prejudice sufficient to set aside the verdict; a showing of mere potential for prejudice from some article improperly in the jury room is insufficient to warrant granting a mistrial.
    Appeal from Oakland, Robert B. Webster, J.
    Submitted January 9, 1978, at Lansing.
    (Docket No. 29330.)
    Decided February 22, 1978.
    Clarence B. Gayton was convicted of second-degree murder. Defendant appeals.
    Affirmed.

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

      Lynn V. Hooe, Jr., for defendant on appeal.

      Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   R. E. A. Boyle, J.

Defendant was convicted by a jury of murder in the second degree and was sentenced to 20 to 40 years in prison. He appeals as of right.

There is no marked dispute about the facts of this case. On the afternoon of November 15, 1975, several people had gathered together to socialize at 410 Central Street in Pontiac, Michigan. Among them were the defendant and the decedent, Mr. Willard Washington. At some point in time the defendant and the decedent began discussing an incident that had occurred the previous night and which had involved the defendant and the decedent’s son, Jimmy Leroy Washington.

The defendant, when questioned by the decedent as to what had happened the previous night, stated, "You better check him [decedent’s son], if that damn gun had gone off last night he would have been a dead son-of-a-bitch.” As testified to by a witness to this discussion, the defendant further stated that, although the gun did not go off last night, it would go off today.

Later that afternoon, subsequent to this discussion, the defendant left the house and went to a grocery store and returned to the house approximately 15 minutes later to retrieve his coat. He remained in the house only a few minutes before again leaving.

The decedent followed him to the front door soon afterwards, opened it, and addressed the defendant. Although there is no agreement as to the exact words used by the decedent, the gist of decedent’s statement to defendant is agreed upon. A witness testified that the decedent opened the front door and said to the defendant, " '[Y]ou don’t have to leave because nobody is mad at you, come on back.’ ” She further testified that the decedent had done nothing other than address the defendant.

Another witness testified that decedent said, " 'We know you got your gun; you don’t have to run, you don’t have to hide.’ ” A third witness testified that the decedent stated to the defendant, " 'You don’t have to leave. No one is mad at you. We know you got your little ole gun.’ ”

A 12-year old witness testified he witnessed this scene from about five feet away from the defendant. He testified that he saw the defendant standing on the sidewalk and the decedent standing in the doorway. He heard the defendant say to the decedent, "If you say another word, I’ll shoot you.” To this, the decedent responded, "Nobody’s going to hurt you. Come on back.”

It is uncontroverted that the decedent had nothing in his hands at the time that he addressed the defendant. Immediately after the decedent made this statement, the defendant turned towards him and shot two times at him with a handgun.

At this, the decedent stepped back into the house, having been shot in his left hip. The defendant, with gun in hand, ran back up the steps to the porch and opened the front door. The decedent then grabbed the defendant’s arm and they began to grapple for the gun. In the process of doing so, they fell off the front porch. The defendant fell to the ground and the decedent fell on top of him. When they got to their knees, face to face, the defendant’s gun discharged three times.

Defendant raises three issues, each of which we will discuss. He initially contends that he had argued the absence of premeditation and deliberation but that the trial court erroneously instructed the jury that one part of defendant’s theory of the case was that there was an absence of premeditation and deliberation and that, therefore, the jury should consider only murder in the second degree and manslaughter.

It was the duty of the trial coúrt to present adequately the defendant’s theory of the case to the jury. GCR 1963, 516; People v Savoie, 75 Mich App 248; 255 NW2d 11 (1977), and a failure to do so is reversible error despite the fact no request or objection is made. People v Stanley Jones, 69 Mich App 459, 462; 245 NW2d 91 (1976). Here, the trial court did direct the attention of the jury to defendant’s theory of self-defense. Defendant did not object to the substance of this charge by the trial court. It was the duty of defense counsel to submit to the trial court at the close of the evidence a statement of the issues and his theory of the case as to each issue. GCR 1963, 516.7. He failed to do so. The trial court on his own motion instructed the jury as follows:

"THE COURT: * * * Now, the Defendant in this case stated as I understand the situation two things:
"One that the act of the Defendant was without premeditation and deliberation and accordingly first degree murder should not be considered by you and that you should consider only second degree murder and manslaughter.
"Of course the Defendant strongly contends for a verdict of not guilty.
"One of those theories that the Defendant contends is that the actions of the Defendant were justifiable and excuseable [sic] by reason of the defense of self-defense.”

Defendant contends that this instruction, in effect, told the jury that one of defendant’s theories in the case was that he was guilty of second-degree murder only. When this was brought to the attention of the trial court by defense counsel, the court denied such was the effect or intent of the instruction. The trial court offered to reinstruct the jury before they began deliberations to cure any possible misstatement of defendant’s theory of the case. Defense counsel refused the judge’s offer to reinstruct the jury — even though this action was one which defense counsel had requested.

At one point during their deliberations, the jury requested reinstruction on murder in the second degree and manslaughter. The trial court took this opportunity to reinstruct the jury on all charges against defendant, as well as on defendant’s theory of the case. Defense counsel did not object to this instruction on defendant’s theory of the case.

We find that, considering the instructions in their entirety, the trial court fairly presented defendant’s theory of the case to the jury. Defendant was not entitled to a mistrial on the basis of such instructions.

Defendant next contends that the people did not present sufficient evidence of premeditation and deliberation to take the question of murder in the first degree to the jury, and that he was entitled to a directed verdict as to that charge.

The issue presented by a motion for a directed verdict of not guilty is whether there is sufficient evidence from which a jury can reasonably infer all of the elements of the crime charged. People v Moore, 51 Mich App 48; 214 NW2d 548 (1974). When determining whether there was sufficient evidence on each essential element of a charge of murder in the first degree so as to permit submission of that charge to the jury, the people’s evidence must be taken as true, and it must be viewed in a light most favorable to them so that they may benefit from every reasonable inference to be drawn therefrom. People v Garcia, 398 Mich 250, 256; 247 NW2d 547 (1976).

A motion for directed verdict must be denied if there is any evidence at all on each of the elements of murder in the first degree. People v Wesley Brown, 35 Mich App 153; 192 NW2d 281, lv den, 386 Mich 768 (1971). Evidence of premeditation and deliberation sufficient to sustain a conviction of first-degree murder may be inferred from the character of the weapon used, the wound inflicted, and the circumstances surrounding the killing. People v Macklin, 46 Mich App 297; 208 NW2d 62 (1973).

An examination of the record discloses sufficient evidence upon which a jury could find premeditation and deliberation.

Finally, defendant contends the trial court erred in denying defendant’s motion to set aside the verdict, claiming one member of the jury took two volumes of Collier’s Encyclopedia and another juror took the definition of two words written down on a piece of paper into the jury deliberations. He argues that the mere presence of such articles constituted prejudicial error and also contends the articles were in fact considered by the jury in arriving at their verdict as he believes the record indicates.

The trial court held hearings at which jurors testified as to the encyclopedia and the notes. The juror who took the encyclopedia into the jury room testified that she did not read the definitions of two words that she had looked up and marked with pieces of paper until after the jury verdict had been reached. Further, she stated that no other juror looked up the definitions of those two words in the encyclopedia prior to the time that they had agreed upon a verdict. The trial court having found this to be true, defendant has suffered no prejudice by the presence of these two volumes of Collier’s Encyclopedia in the jury room.

After testimony by jurors at a hearing before the trial court concerning one of the jurors having looked up the definitions of two words, written them down on a piece of paper, and taken the paper into the jury room, the judge apparently found the articles did not enter into and were not considered in the jury verdict, and that defendant suffered no prejudice.

In People v McCrea, 303 Mich 213, 266; 6 NW2d 489 (1942), the Supreme Court stated:

" 'When by mistake or inadvertence on the part of a juryman or the court, or even through error of judgment on the part of the court, an article has been taken to their room by the jury which ought not to have been, then before a verdict will be set aside for that cause, it must appear, either from an examination of the objectionable article itself, or from facts properly presented by the bill of exceptions, that such article must have been, in the nature of the case, or in point of fact was, considered by the jury in arriving at the conclusion reached by their verdict.’ ” (Citations omitted.)

In People v Parker, 76 Mich App 432; 257 NW2d 109 (1977), a jury had been exposed to a newspaper article containing an account of the trial in which they were sitting. Only two jurors recalled having seen that article. The court in Parker questioned both of these jurors and determined that neither was prejudiced by the article. This Court stated in Parker, at 448, that a showing of mere potential for prejudice from some object improperly in the jury room is insufficient to warrant granting a mistrial. This Court went on to state, at 449 of 76 Mich App:

"The mere probability or supposition that jurors may have read prejudicial accounts of the case on which they are serving is not sufficient to support a finding that the trial court abused its discretion in refusing to grant a mistrial. * * * Under the circumstances of this case, in which all jurors who were aware of the article’s publication disclaimed any knowledge or recollection of its contents, we hold that the trial judge did not abuse his. discretion in refusing to declare a mistrial.” (Citations omitted.)

The defendant has not shown any prejudice sufficient to warrant granting a mistrial or to set aside the verdict. The trial court did not abuse its discretion in denying the motions. People v Parker; supra, People v Iaconis, 29 Mich App 443; 185 NW2d 609 (1971), aff'd in People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972).

The conviction of defendant is affirmed.