text:
    PEOPLE v MEATTE
    Docket No. 78-5319.
    Submitted April 9, 1980, at Detroit.
    Decided June 4, 1980.
    Richard L. Meatte was convicted in a bench trial of manslaughter in Macomb Circuit Court, Robert Chrzanowski, J. Defendant appeals by leave granted upon his delayed application for appeal. Held:

    1. A pathologist may testify regarding the capability of shotgun charges to carry material from a steel door into body wounds.
    2. A neighbor who was infirm, hard of hearing and sound asleep throughout the altercations which resulted in the homicide was not a res gestae witness.
    3. A trial judge has more discretion in questioning witnesses in bench trials than in trials before juries.
    4. The determination of whether to bifurcate a trial or to try a case to more than one jury rests in the sound discretion of the trial judge.
    5. A defendant’s claim of insanity in a criminal trial does not necessarily negate a defendant’s claim that he took the life of another in an honest belief that his own life was in danger.
    Affirmed.
    1. Witnesses — Criminal Law — Experts — Pathologists.
    A pathologist may testify regarding the capability of shotgun charges to carry material from a steel door into body wounds.
    2. Witnesses — Criminal Law — Res Gestae — Homicide — Hearings.
    A neighbor who was infirm, hard of hearing and sound asleep throughout an altercation which resulted in a homicide is not a res gestae witness to the homicide.
    References for Points in Headnotes

       31 Am Jur 2d, Expert and Opinion Evidence § 111.

       29 Am Jur 2d, Evidence § 724.

       75 Am Jur 2d, Trial § 88.

       75 Am Jur 2d, Trial § 17.

       21 Am Jur 2d, Criminal Law § 45.

      3. Judges — Trial — Witnesses — Questioning.
    A trial judge has more discretion in questioning witnesses in bench trials than in trials before juries.
    4. Trial — Bifurcation — Judges — Discretion.
    The determination whether to bifurcate a trial or to try a case to more than one jury rests in the sound discretion of the trial judge.
    5. Criminal Law — Defenses — Insanity — Self-Defense.
    A defendant’s claim of insanity in a criminal trial does not necessarily negate a defendant’s claim that he took the life of another in an honest belief that his own life was in danger.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, and Robert J. Berline, Assistant Prosecuting Attorney, for the people.

      George E. Michaels, for defendant on appeal.
    Before: Danhof, C.J., and Cynar and Mackenzie, JJ.
   Per Curiam.

The defendant was charged with second-degree murder and was convicted in a bench trial of manslaughter. Sentenced to imprisonment for a term of 10 to 15 years, he appeals by leave granted upon his delayed application for appeal.

The killing occurred at the apartment of the victim, McCoy. A neighbor testified that she observed a man struggling with McCoy in McCoy’s darkened apartment. Leaving her apartment door, she returned to the peephole to observe the man fire several shots through McCoy’s closed door. Other occupants of the building reported scuffling and shots at approximately the same time of the evening. One occupant, an elderly woman, was awakened with some difficulty by the police and reported that she was hard of hearing and had slept soundly throughout the evening.

Officers responding to a neighbor’s call found McCoy’s apartment door ajar, with three shotgun blasts through it. McCoy’s nude body was within. Other officers followed a car leaving the scene with its lights off. In it was the defendant, in possession of a shotgun and six spent shells. He had a head wound.

Werner Spitz, a pathologist, testified that McCoy died from any one of four shotgun wounds that were discovered on the body. Two of the wounds had within them white plastic beads similar to those that filled the apartment’s insulated door. It was the doctor’s opinion that those beads had been carried by the shotgun charge from inside the door, indicating that at least two of the shots that struck McCoy were fired through the door. Defense counsel challenged the doctor’s qualifications as a ballistics expert and objected to the judge’s questions about the wounds as serving a prosecutorial function.

The defendant testified that he went to McCoy’s apartment to talk to him, but McCoy answered the door with a shotgun in his hand. A fight resulted. The defendant, wrestling the gun from McCoy, found himself locked out of the apartment and so fired two shots into the door to open it and discover why McCoy had attacked him. The fight resumed, the defendant said, but he remembered nothing more until he found himself standing over the wounded McCoy. Retrieving the spent shells, as he had been taught in the army, he left.

Psychiatrist Herbert Raskin testified that at the time of the shooting the defendant was suffering from dissociative hysterical neurosis, arising in part from the defendant’s military combat experience and brought on by the confrontation with McCoy’s apparently loaded shotgun. This mental disorder, the doctor said, was quite consistent with the defendant’s claimed loss of memory, and indicated an inability to recognize what he was doing or to control his actions. This diagnosis was inconsistent, he said, with the defendant’s statement to police that he recalled pointing and firing the weapon at McCoy. A prosecution psychiatrist testified that the defendant was in full control of his faculties at the time of the shooting, evidenced in part by the rather full account of the shooting the defendant had given the witness, including his statement that he shot McCoy "several times”.

The defendant argues on appeal that pathologist Spitz was allowed to give testimony relating to the science of ballistics without qualification as an expert in that field. In reviewing this assertion, we must decide only whether the trial court abused the discretion vested in it to decide the matter in the first instance. People v Pepper, 36 Mich App 437; 194 NW2d 67 (1971). The thrust of the witness’s testimony was not that a shotgun charge could penetrate an insulated steel door (that was established by other testimony) but that material from such a door could be carried by the charge into wounds. In this he was both trained and experienced and was thus fully qualified to express his opinion. Cf., People v Carter, 78 Mich App 394; 259 NW2d 883 (1977).

The second claim of error brought by the defendant asserts that the trial judge improperly refused to designate McCoy’s elderly and infirm neighbor a res gestae witness. We note at the outset that the prosecutor offered to accompany the court and counsel to the witness’s home to afford the defendant the opportunity to question her and that the defendant declined. Neither did the defendant ever request a hearing regarding what the witness might have had to offer had she been called. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), requires such a request as a condition of raising this issue on appeal. In any event, the trial court was justified in ruling that the neighbor, infirm, hard of hearing and sound asleep throughout the altercation, was not a res gestae witness. People v Abrego, 72 Mich App 176; 249 NW2d 345 (1976), People v Kaigler, 81 Mich App 340; 265 NW2d 324 (1978).

The defendant’s third claim is that the trial court erred in its questioning of some witnesses. In all, the bench engaged five witnesses (including the defendant) in questioning. The defendant objected to the examination of only three. While this trial shows unusually extensive questioning by the court, we note that a judge’s discretion to do this is greater in bench trials than in trials before juries. People v Wilder, 383 Mich 122; 174 NW2d 562 (1970). See also Tait v Ross, 37 Mich App 205; 194 NW2d 554 (1971), lv den 386 Mich 787 (1972). This questioning showed no bias and, in one important instance, favored the defendant by establishing to the satisfaction of the court that the shotgun involved belonged to McCoy, thus leading the court to convict the defendant of manslaughter rather than the charged offense of murder.

Prior to trial the defendant brought a "motion for bifurcated trial with two juries”, asserting that he had elected to present defenses based on insanity and self-defense and that no single jury could fairly try a case in which such an "inconsistency of major proportions” was present. He rejected the trial court’s offer to try the defenses sequentially to the same jury. This ruling is the basis of the defendant’s last claim of error in this appeal.

Only one Michigan case has addressed the problem presented by a defendant who wishes to defend both on the merits and on the basis of insanity. In People v Donaldson, 65 Mich App 588; 237 NW2d 570 (1975), this Court noted that some other jurisdictions have recognized that where an insanity defense is alleged together with a defense on the merits, the trial should be bifurcated:

"We hold this determination to be within the trial court’s sound discretion. In other states it has been said that the trial court should consider two factors in such a decision: (1) whether defendant has a meritorious defense, and (2) whether there is a substantial claim of insanity related to the incident. Considering the probable expenditure of great additional time and resources, defendant has not shown that such an unusual step is necessary or warranted in this case.” 65 Mich App 588, 590.

We agree that the decision to bifurcate a trial or to try a case to more than one jury rests in the discretion of the trial judge. Cf., GCR 1963, 505.2. The right of a defendant to raise alternative defenses does not imply a concomitant right to sketch each defense on the clean slate of a naive jury. See People v Yukl, 83 Misc 2d 364; 372 NY2d 313 (1975). The prejudice that arises in the presentation of truly inconsistent defenses before a single jury stems not from the single jury procedure but from the presentation of a defense that is rendered less credible by the defendant’s choice to present a second version of the facts, i.e., alibi together with insanity or coercion. If more than one defense is credible, neither is likely to be hurt by the assertion of the other. In this case, we note, the "dissociation” that allegedly impaired the defendant’s capacity for criminality does not rule out the possibility that he acted with an honest belief that his life was in danger: His psychiatric evidence went more to his inability to recall the shooting than an inability to recognize his danger at the time, if indeed he was in danger from McCoy. Any one of a great variety of mental disorders might, in an appropriate case, support an insanity defense. It is therefore not clear that a claim of insanity necessarily negates a defendant’s claim that he took the life of another in an honest belief that his own life was in danger. The trial court did not abuse its discretion in refusing the defendant’s request to try each defense to a separate jury.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    VOVAK v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 43303.
    Submitted February 15, 1980, at Detroit.
    Decided June 4, 1980.
    Leave to appeal applied for.
    Joseph and Stella Vovak, hereinafter plaintiffs, brought suit against Detroit Automobile Inter-Insurance Exchange, hereinafter defendant, for survivor’s loss benefits under the no-fault insurance policy issued by defendant to plaintiffs’ son who was killed in an automobile accident. At the time of his death, plaintiffs’ son was 24 years old and living with plaintiffs and contributing approximately $40 per week for household expenses. The plaintiffs’ only regular source of income was $233 per month received from social security benefits. The Wayne Circuit Court, Theresa Doss, J., found that plaintiffs were dependent on their son in the amount of $40 per week, and awarded survivor’s loss benefits under the insurance policy. The defendant appeals alleging that age and lack of work experience are improper considerations in determining whether plaintiffs are "physically or mentally incapacitated from earning”. Held:

    1. Age and work experience are relevant factors in determining whether the claimants are physically or mentally incapacitated from earning under the Michigan no-fault insurance statute.
    2. The Michigan no-fault insurance statute need not be construed similarly to the Federal Social Security Act. Although the underlying purposes of the survivor’s benefits provisions of the acts are similar, the specific means adopted toward this purpose is different.
    Affirmed.
    References for Points in Headnotes

       7 Am Jur 2d (Rev), Automobile Insurance § 361.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.

       7 Am Jur 2d (Rev), Automobile Insurance § 363.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.

      1. Insurance — No-Fault — Eligibility — Statutes.
    Age and work experience are relevant factors in determining whether the claimants are physically or mentally incapacitated from earning under the Michigan no-fault insurance statute (MCL 500.3110[3]; MSA 24.13110[3]).
    2. Insurance — No-Fault — Federal Social Security — Statutes — Construction.
    The Michigan no-fault insurance statute need not be construed similarly to the Federal Social Security Act; although the underlying purposes of the survivor’s benefits provisions of the acts are similar, the specific means adopted toward this purpose are different (MCL 500.3108; MSA 24.13108, 42 USC 401 et seq.).

      Joseph Crystal, for plaintiff.

      Selby, Dickinson, Pike, Mourad & Brandt (by Michael B. Haber), for defendant.
    Before: Bronson, P.J., and Beasley and D. C. Riley, JJ.
   Per Curiam.

Defendant appeals by right the judgment of the trial court in favor of plaintiffs and against defendant in the amount of $7,216.80.

Plaintiffs, Joseph Vovak and Stella Vovak, are the parents of the decedent, Mark Vovak. After their son’s death in a 1974 automobile accident, plaintiffs sought survivor’s loss benefits as dependents under the no-fault insurance policy issued to their son by the defendant. MCL 500.3108; MSA 24.13108. At the time of his déath, Mark Vovak was 24 years old and living at home with his parents. He was employed by General Motors, and although he paid no room and board as such, he helped around the home and contributed about $40 to $50 per week for household expenses. Joseph Vovak was 62 years old at the time of his son’s death and, although he earned some money on occasion as a part-time sales agent, his only regular source of income was the $233 per month he received from social security. Decedent’s mother was in her late fifties, was unemployed at the time of her son’s death, and had apparently been gainfully employed outside the home for only one or two years of her adult life. The income from social security was insufficient to cover household expenses. The trial court found that the Vovaks were dependent on their son in the amount of $40 per week and awarded survivor’s loss benefits under the policy.

The issue on appeal is whether the trial court erred in determining that plaintiffs were eligible for benefits and, more specifically, whether the trial court erred in considering age and lack of work experience in holding that plaintiffs were "physically or mentally incapacitated from earning”.

The statute in question provides in part:

"(1) The following persons are conclusively presumed to be dependents of a deceased person:
"(a) A wife is dependent on a husband with whom she lives at the time of his death.
"(b) A husband is dependent on a wife with whom he lives at the time of her death.
"(c) A child while under the age of 18 years, or over that age but physically or mentally incapacitated from earning, is dependent on the parent with whom he lives or from whom he receives support regularly at the time of the death of the parent.
"(2) In all other cases, questions of dependency and the extent of dependency shall be determined in accordance with the facts as they exist at the time of death.
"(3) The dependency of a surviving spouse terminates upon death or remarriage. The dependency of any other person terminates upon the death of the person and continues only so long as the person is under the age of 18 years, physically or mentally incapacitated from earning, or engaged full time in a formal program of academic or vocational education or training.” MCL 500.3110(1X3); MSA 24.13110(1X3).

Because plaintiffs do not fit within the categories of those conclusively presumed to be dependents set out in section (1), their status as dependents is determined under section (2), as limited by section (3). Defendant seemingly does not take issue with the finding of dependency under section (2), but as to section (3) argues that the trial court erred in basing its finding of incapacity on the Vovaks’ ages and lack of work experience. The trial court held:

"In deciding whether a person is physically or mentally incapacitated from earning a living, one must necessarily include the person’s age and his or her work experience.
"In this case the father was over sixty-two years of age and retired. The mother was in her late fifties and did not work outside of the home. Under these circumstances the Court finds that the plaintiffs were physically or mentally incapacitated from earning a livelihood within the meaning of the statute.”

Because this issue is of first impression in this state, the parties refer to other statutory schemes in support of their positions. The defendant cites the survivors’ benefits provisions of the Federal Social Security Act, 42 USC 401 et seq., and argues that, since the existence of a physical or mental impairment under the Federal scheme requires a showing of an identifiable medical condition, the Michigan no-fault act should be similarly construed. We disagree. While the underlying purposes of the survivors’ benefits provisions of the Federal Social Security Act and the Michigan no-fault act are similar, see O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 545; 273 NW2d 829 (1979), app dis 444 US 803; 100 S Ct 22; 62 L Ed 2d 16 (1979), the specific means adopted towards this purpose are different. For example, the Federal statute specifically requires that "a 'physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques”. 42 USC 423(d)(3). In addition this question only arises with regard to a surviving spouse; under the Federal scheme, a dependent parent’s physical or mental impairment is not an issue. 42 USC 402(h). Similarly, both parties refer to cases arising under the Michigan Worker’s Disability Compensation Act. These decisions are inapplicable on the point in issue, however, either on their facts or on the lack of a requirement that the potential recipient be physically or mentally incapacitated from earning.

We agree with the trial court that under the terms of section 3110(3) of the Michigan no-fault statute, age and work experience are relevant in determining whether the claimants are physically or mentally incapacitated from earning. Such considerations undoubtedly can affect a person’s ability to earn a living, and accordingly, have a bearing on the ultimate issue of dependency. The Legislature could have chosen to restrict those factors relevant to a determination of incapacity to identifiable medical conditions, as Congress has done in the Federal Social Security Act, but chose, wisely we think, not to do so. It is all too obvious that a person who is in generally acceptable physical condition may, nevertheless, be incapacitated from earning as a result of advanced age or employment inexperience due to long years spent working in the home. While this sort of incapacity, as with a more recognizable physical or mental incapacity, may be overcome, during its existence it produces the same result and should therefore entitle one to the same benefits.

Affirmed.

       The statute provides:
      "(1) Except as provided in subsection (2), personal protection insurance benefits are payable for a survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency from the deceased if the deceased had not suffered the accidentad bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if the deceased had not suffered the injury causing death. Except as provided in section (2) the benefits payable for a survivor’s loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 for accidents occurring before October 1, 1978, and shall not exceed $1,475.00 for accidents occurring on or after October 1, 1978, and is not payable beyond the first three years after the date of the accident.
      "(2) The maximum payable shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner. A change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum. The maximum shall apply to the aggregate benefits for all survivors payable under this section on account of the death of any one person.”

       We reject as without merit plaintiffs’ contention that section (3) applies only to those persons identified in section (1), and not those determined to be dependents under section (2).


text:
    PEOPLE v PARKS
    Docket No. 43405.
    Submitted April 9, 1980, at Lansing.
    Decided June 4, 1980.
    Anton Parks was convicted of conspiracy to deliver a controlled substance. At his jury trial in Saginaw Circuit Court, Eugene Snow Huff, J., defendant took the stand. On direct examination defendant denied knowledge or complicity in the illegal sale. On cross-examination, the prosecutor, in an attempt to discredit defendant’s denials, questioned defendant regarding his failure to advise the police of such exculpatory information immediately after his arrest. The prosecutor further asked defendant whether he had made any notes documenting the events that led to his arrest and, receiving an affirmative answer from defendant, inquired whether defendant had reviewed those notes prior to testifying. Despite defendant’s indication that he had not reviewed the notes prior to testifying, the prosecutor continued to pursue the matter of the notes. Defense counsel, in the presence of the jury, objected on the basis of the attorney-client privilege. The objection was overruled and the prosecutor was permitted to continue his pursuit of the matter. On redirect, defense counsel attempted to dispel any adverse inferences by establishing that the notes were the product of the attorney-client relationship and were consistent with defendant’s trial testimony. The prosecutor insisted that he had a right to inspect the notes, and the trial court suggested that the prosecutor should be permitted to see the notes. Outside the presence of the jury, it was ultimately determined that the notes were privileged and the prosecutor had no right to inspect them. Defendant appeals. Held:

    1. Reversal is mandated by reason of the prosecutor’s inquiry as to defendant’s failure to advise the police, at the time of his arrest, of the exculpatory information. Evidence regarding a defendant’s silence at the time of his arrest may not be presented in the absence of testimony by the defendant that he did make such a statement, since such inquiry would place an impermissible penalty upon a defendant’s exercise of his constitutional right to remain silent.

      References for Points in Headnotes

       16A Am Jur 2d, Constitutional Law § 524. 81 Am Jur 2d, Witnesses §§ 468, 524 et seq.

       28 Am Jur 2d, Estoppel and Waiver § 27.

      2. The prosecutor’s pursuit of the question of the notes prepared by the defendant, after the defendant indicated that he had not reviewed those notes, was improper, since such further inquiry forced the defendant to assert a claim of attorney-client privilege in the presence of the jury. On retrial the prosecutor shall refrain from further inquiry in this area.
    Reversed and remanded.
    1. Criminal Law — Constitutional Law — Right to Remain Silent — Silence — Impeachment.
    Reversal is mandated where the prosecution during cross-examination of a defendant inquires, for the purpose of impeachment, about the defendant’s failure to advise the police at the time of his arrest of exculpatory information, since such inquiry would place an impermissible penalty upon the defendant’s constitutional right to remain silent.
    2. Criminal Law — Testimony by Dependant — Writings — Attorney-Client Privilege.
    It is improper for the prosecution to pursue the matter of certain notes prepared by the defendant, after the defendant had denied reviewing such notes, where such inquiry forces the defendant to assert his claim of attorney-client privilege in the presence of the jury.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Appellate Prosecuting Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Defendant was convicted of conspiracy to commit the crime of delivery of a controlled substance — heroin, contrary to MCL 750.157a(a); MSA 28.354(l)(a), and MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). He was sentenced to imprisonment for 8 to 20 years, with credit given for 211 days served. From this conviction and sentence, defendant appeals as of right under GCR 1963, 806.1.

Defendant raises four allegations of error in this appeal, only two of which warrant our consideration. First, defendant contends that the prosecutor violated the proscription of People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), by impeaching defendant with respect to his post-arrest silence. We agree.

On direct examination, defendant denied knowledge or complicity in the illegal sale and delivery of drugs with which he was charged. The prosecutor discredited defendant’s denials during cross-examination by questioning him regarding his failure to advise the police of any such exculpatory information immediately after his arrest.

In People v Bobo, supra, the Court invalidated prosecutorial questioning which directly or indirectly restricted the exercise of the constitutional right to remain silent. The Court stated:

"We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.” Bobo, supra, 359.

In People v Norris, 74 Mich App 361; 253 NW2d 767 (1977), this Court applied the Bobo doctrine in a situation much like the instant one. In that case, the defendant testified that he had an alibi for the night of the robbery. On cross-examination, the prosecutor queried whether defendant had told the police of this alibi at the time of his arrest. This Court reversed, holding that an accused may not be impeached by evidence of his silence at the time of arrest or during custody and that to allow the prosecution to use the silence of an accused against him would place an impermissible penalty upon the exercise of his privilege against self-incrimination. Again, in People v Hoye, 80 Mich App 258; 263 NW2d 343 (1977), this Court reversed the conviction of a defendant after the prosecutor had attempted to impeach the defendant during cross-examination by inquiring why the defendant did not claim innocent bystander status at the time of his arrest as he did during his direct examination.

In, the instant case, defendant, at the time of his arrest, did not voice to the police any denial of complicity in the crime, nor did defendant claim to have done so during his direct examination. The prosecutor’s cross-examination into these questions, then, clearly violated the proscription announced in Bobo and interpreted in Norris and Hoye. We find this violation offensive to the maintenance of a sound judicial process. People v Sain, 407 Mich 412; 285 NW2d 772 (1979), People y Robinson, 386 Mich 551; 194 NW2d 709 (1972), People v Hoye, supra, 262. Accordingly, we reverse and remand for a new trial upon this ground.

The second claim of error we find warranting address is defendant’s allegation that the prosecutor questioned him improperly with respect to notes defendant made documenting the events that led to his arrest. This improper inquiry necessitated defense counsel’s assertion of the attorney-client privilege in front of the jury, to defendant’s ultimate prejudice.

The prosecutor asked the defendant on cross-examination whether he had made any notes documenting the events that led to his arrest. Defendant replied affirmatively. The prosecutor then inquired whether defendant reviewed these notes prior to testifying. Defendant indicated that he had not. The prosecutor continued his inquiry regarding defendant’s notes, whereupon, defense counsel objected on the basis of the attorney-client privilege. This objection was overruled and the prosecutor was allowed to continue. Later, on redirect, defense counsel attempted to dispel any adverse inferences by establishing that the notes were the product of the attorney-client relationship and that they were consistent with defendant’s trial testimony. However, the prosecutor insisted upon his right to inspect the notes. At this juncture, the court suggested that the prosecutor should be allowed to see the notes if defendant was using them. This matter did not reach resolution, however, until the jury was excused for the day. After the jury was excused, the parties agreed that the notes were privileged, that defendant did not review them prior to trial, and that therefore the prosecutor was not entitled to inspect them.

We find that the prosecutor’s pursuit of the issue concerning defendant’s notes before the jury was improper once defendant had denied reviewing them prior to trial. See People v Rodgers, 388 Mich 513; 201 NW2d 621 (1972), People v Turner, 59 Mich App 589, 595; 229 NW2d 861 (1975). This improper pursuit forced the defendant to claim an attorney-client privilege before the jury. And, as stated in People v Brocato, 17 Mich App 277, 303; 169 NW2d 483 (1969):

"The attorney-client privilege is fundamental to our system of jurisprudence. The privilege is destroyed if improper inference can be drawn from its exercise.”

In reversing and remanding for a new trial due to the aforementioned Bobo violation, we find it necessary to include a caveat to the prosecutor to refrain from further inquiry in this area.

Reversed and remanded for a new trial in conformity with this opinion.


text:
    WYNN v FARMERS INSURANCE GROUP
    Docket No. 43742.
    Submitted April 15, 1980, at Detroit.
    Decided June 4, 1980.
    Donnie Wynn owned an automobile which was insured by Farmers Insurance Group. The policy expired in April, 1977, and Wynn did not renew it by payment of the premium within 60 days pursuant to instructions contained in a notice sent to him by Farmers. Approximately 70 days after expiration, Wynn forwarded a check in the amount of the premium. Farmers cashed the check, but thereafter sent Wynn a refund for the entire amount, stating that a new application was required to renew the policy. A month later Wynn was involved in an accident. Farmers refused to pay benefits, contending there was no policy in force. Wynn brought an action against Farmers, seeking a declaratory judgment that there was a policy in existence. The Wayne Circuit Court, Neal Fitzgerald, J., granted summary judgment to Farmers. Wynn appeals, alleging that the notice sent to him in April, 1977, failed to comply with the statute governing notice of cancellation of insurance contracts and that by cashing his check Farmers reinstated his policy, thereby requiring Farmers to comply with the cancellation notice requirements. Held:

    1. The statutory requirements for a cancellation notice did not apply to the policy which had expired upon reaching the end of its term.
    2. Wynn’s premium had been refunded a full four weeks prior to the accident. He could not have justifiably relied upon Farmers providing insurance coverage. Therefore, Farmers was not estopped to deny coverage.
    Affirmed.
    References for Points in Headnotes

       7 Am Jur 2d (Rev), Automobile Insurance § 38. 43 Am Jur 2d, Insurance § 404.
    Cancellation of compulsory or "financial responsibility” automobile insurance. 34 ALR2d 1297.

       28 Am Jur 2d, Estoppel and Waiver § 27.

      1. Insurance — Cancellation op Policies — Notice op Cancellation — Statutes.
    The terms of a statute which controls the manner in which an insurer is allowed to give notice to an insured of the cancellation of the insurance policy do not apply to an automobile policy which has expired by virtue of the fact that it has reached the end of its term; a cancellation notice complying with the statute is required only where the insurer elects to terminate coverage at any time during the normal term of the policy (MCL 500.3020; MSA 24.13020).
    2. Estoppel — Inducement — Reliance — Prejudice.
    Estoppel arises where: (1) a party, by representation, admissions or silence, intentionally induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts.

      Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Steven G. Silverman), for plaintiff.

      Harvey, Kruse & Westen, P.C. (by Richard A. Harvey and Gary A. Maximiuk), for defendant.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. F. Walsh, JJ.
   Per Curiam.

The plaintiff appeals as of right from an order issued February 1, 1979, by the Wayne County Circuit Court granting summary judgment to the defendant in the plaintiff’s suit to determine whether there was an insurance policy in effect on the date of the automobile accident in question.

The plaintiff owned an automobile which was covered by an insurance policy issued by the defendant. On or about April 9, 1977, the plaintiff received a notice that his policy would expire at 12 p.m. on April 9, 1977. In addition to the language, printed in large letters at the top of the form saying, "Your policy is out of force”, this notice contained the following provision:

"May we suggest that you send your premium now? If received in one of our Company offices or directly by an authorized Sales Representative of the Company within 60 days from the expiration date shown, your protection will again be in force from and after the date payment is received. You may pay one half now plus a small service charge and the balance within 60 days.”

No payment was sent within the 60-day period after the April 9 expiration date. However, on June 20, 1977, or approximately 70 days after his policy had expired, the plaintiff did mail to the defendant a check in the amount of $163.50, which represented the full amount of the premium. The defendant cashed and deposited the plaintiff’s check. On July 6, 1977, the defendant sent a refund check for $163.50 to the plaintiff together with a document entitled "Notice of Cancellation”. This document indicated that "a new application is required to place your policy back in force”.

On August 5, 1977, the plaintiff was involved in an automobile accident. The defendant refused to pay no-fault benefits, contending that there was no policy in effect. The plaintiff filed a complaint seeking declaratory judgment on the existence of a policy. Both parties filed motions for summary judgment, the defendant claiming that there was no genuine issue of material fact. At the oral arguments on these motions, the trial judge ruled in favor of the defendant, finding that the insurance policy had not been reinstated when the defendant cashed the plaintiff’s check.

On appeal, we are asked to decide whether the notice of April 9, 1977, entitled "Your policy is out of force” which was sent by the defendant to the plaintiff was required to comply with the requirements of MCL 500.3020; MSA 24.13020.

At the time the notice in question was sent, MCL 500.3020; MSA 24.13020 provided as follows:

"No policy of casualty insurance, excepting workmen’s compensation, but including all classes of motor vehicle coverage, shall be issued or delivered in this state by any insurer authorized to do business in this state for which a premium or advance assessment is charged, unless there shall be contained within such policy a provision whereby the policy may be canceled at any time at the request of the insured, in which case the insurer shall, upon demand and surrender of the policy, refund the excess of paid premium or assessment above the customary short rates for the expired time; and whereby the policy may be canceled at any time by the insurer by mailing to the insured at his address last known to the insurer or its authorized agent, with postage fully prepaid, a 10 days’ written notice of cancellation with or without tender of the excess of paid premium or assessment above the pro rata premium for the expired time, which excess, if not tendered, shall be refunded on demand and the notice of cancellation shall state that the excess premium, if not tendered, will be refunded on demand. The cancellation shall be without prejudice to any claim originating prior thereto. The mailing of notice shall be prima facie proof of notice. Delivery of such written notice shall be equivalent to mailing. A notice of cancellation including a cancellation notice under section 3224, shall be accompanied by a statement that the insured must not operate or permit the operation of the vehicle to which notice of cancellation is applicable, or operate any other vehicle, unless the fees required by the motor vehicle accident claims act have been paid with respect to such vehicle. ” (Emphasis added.)

In Bek v Zimmerman, 285 Mich 224; 280 NW 741 (1938), the Michigan Supreme Court declared that a statute requiring a written 5-day notice of cancellation was inapplicable to an insurance policy . whose term had expired, for the following reason:

"The quoted statute applies where either the insurer or the insured seeks to terminate the insurance by cancellation; it cannot be stretched to cover a situation where, as here, liability under the contract has become automatically suspended by reason of the precise terms of the insurance agreement.
"The statute covers those situations where termination of the policy is not automatic but is optional with the insurer and, therefore, cannot be anticipated and provided against the insured unless he is given ample notice of the intended exercise of that option.” Id., 227-228.

See also, Eghotz v Creech, 365 Mich 527, 531; 113 NW2d 815 (1962), Farmers Ins Exchange v Allstate Ins Co, 143 F Supp 213 (ED Mich, 1956).

Finding no authority to the contrary, we conclude that the terms of MCL 500.3020 were not applicable to an automobile insurance policy which had expired by virtue of the fact that it had reached the end of its term. A cancellation notice under the above statute is required only where the insurer elects to terminate coverage at any time during the normal term of the policy.

Even if we had found the cancellation notice statute applicable, we could not accept plaintiffs argument that the purported cancellation notice was invalid because it failed to inform him that he could not drive the vehicle in question until the fees required by the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq., had been paid. At the time the notice in question was sent, there were no longer any fees required to be paid by the Motor Vehicle Accident Claims Act. See Schigur v Secretary of State, 73 Mich App 239, 241-244; 251 NW2d 567 (1977).

The second issue we address in this appeal is whether the defendant put the plaintiffs insurance policy back in force when it cashed the overdue premium check, thus requiring defendant to comply with the cancellation notice provisions of MCL 500.3020, as was previously discussed.

The notice of April 9, 1977, offered the plaintiff an opportunity to renew his coverage if the premium were mailed within the specified 60-day period. The plaintiffs check was not mailed until 10 days after the specified extension period. The defendant cashed the check, but mailed plaintiff a refund and a notice that he would have to reapply for an insurance policy a full four weeks before the accident in question took place. Under these facts, we do not find that the defendant was es-topped to deny coverage.

Estoppel arises where: (1) a party, by representation, admissions or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts. Dimmitt & Owens Financial, Inc v Realtek Industries, Inc, 90 Mich App 429, 433; 280 NW2d 827 (1979), Johnson v Harper-Grace Hospital, 92 Mich App 202, 205; 284 NW2d 520 (1979), Conel Development, Inc v River Rouge Savings Bank, 84 Mich App 415, 422-423; 269 NW2d 621 (1978).

In the instant case, the plaintiff could not have justifiably relied on insurance coverage by the defendant at the time of the accident, where his entire premium had been refunded four weeks earlier with a notice telling him that he must reapply for an insurance policy.

Affirmed.

       MCL 500.3020; MSA 24.13020 was amended in 1978. The obsolete language regarding the Motor Vehicle Accident Claims Act was replaced with the following:
      "A notice of cancellation, including a cancellation notice under section 3224, shall be accompanied by a statement that the insured shall not operate or permit the operation of the vehicle to which notice of cancellation is applicable, or operate any other vehicle, unless the vehicle is insured as required by law.”


author: Per Curiam. M. F. Cavanagh, P.J.

text:
    CASSIDY v. McGOVERN
    Docket No. 44507.
    Submitted March 6, 1980, at Grand Rapids.
    Decided June 4, 1980.
    Leave to appeal applied for.
    Leo T. Cassidy was injured in a collision between his car and an automobile owned by Seaton Industries, Inc., and driven by Terrance McGovern. Leo and his wife, Ardith M. Cassidy, brought an action for damages under the automobile no-fault act against McGovern and Seaton. Prior to trial, the defendants admitted liability, reserving for trial only the issues of any damages and whether plaintiffs met the threshold requirement of serious impairment of body function or permanent serious disfigurement under the no-fault act. The plaintiffs moved for a directed verdict and the trial judge deferred his ruling. The jury returned a verdict of no cause of action. The judge then denied plaintiff’s motion for a directed verdict and entered judgment for defendants, Emmet Circuit Court, Martin B. Breighner, J. Upon appeal, this Court in Cassidy v McGovern, 86 Mich App 321 (1978), remanded the case to the trial court with instructions that the trial judge is not forced in all circumstances to send the issue of serious impairment to the jury and that he may grant a directed verdict for plaintiffs if the nature of Leo Cassidy’s injury was such as to meet the threshold of serious impairment as a matter of law. Upon remand the trial judge found that there was ample medical testimony and circumstantial evidence to warrant reasonable men to differ as to whether Leo Cassidy truly suffered a serious impairment of body function. He again denied plaintiffs’ motion for a directed verdict. Plaintiffs appeal from the order denying their motion for a directed verdict.
    1. The proper test for determining whether a motion for a directed verdict in favor of plaintiffs should be granted is whether reasonable men could reach different conclusions from facts taken in the light most favorable to the defendants.
    2. The trial court did not err in denying plaintiffs’ motion for a directed verdict since reasonable men could reach different conclusions as to whether plaintiff Leo Cassidy suffered a serious impairment of body function.

      References for Points in Headnotes

       75 Am Jur 2d, Trial § 482.

       57 Am Jur 2d, Negligence §§ 6, 7.

      Affirmed.
    M. F. Cavanagh, J., concurred. The phrase "serious impairment of body function” presents a question of fact that is within the exclusive province of the triers of fact and warrants its determination as a matter .of law only where the injury falls squarely on either end of the spectrum. Although it is hard to conceive how reasonable minds could differ that Leo Cassidy’s injuries constituted a serious impairment of body function, they did differ in that the jury determined that a serious impairment did not exist. He would also affirm.
    Opinion of the Court
    1. Motions and Orders — Directed Verdict — Standard.
    The proper test for determining whether a motion for a directed verdict in favor of plaintiffs should be granted is whether reasonable men could reach different conclusions from the facts taken in the light most favorable to the defendants.
    Concurrence by M. F. Cavanagh, J.
    2. Negligence — Fact Question — Question of Law.

      The phrase "serious impairment of body function’’ presents a question of fact that is within the exclusive province of the trier of fact and warrants its determination as a matter of law only where the injury falls squarely on either end of the spectrum.

      John D. Hayes, for plaintiff.

      Carpenter, Fenner, Barney & Hofmann, for defendant.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, JJ.

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

   Per Curiam.

Plaintiffs appeal as of right from a March 20, 1979, order denying their motion for a directed verdict on the basis that plaintiff Leo Cassidy’s injuries incurred in an automobile accident constituted a serious impairment of body function as a matter of law.

This decision was made after trial pursuant to a remand ordered by this Court in Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978). This Court held that the trial court used an erroneous standard when ruling on plaintiffs’ motion for directed verdict because the court believed that he was forced to send the threshold question of tort liability under MCL 500.3135(1); MSA 24.13135(1) to the jury.

On remand, the trial court found that there was ample medical testimony and circumstantial evidence to warrant reasonable men to differ as to whether Leo Cassidy truly suffered a serious impairment of body function. The lower court ruled that as a matter of law the injuries did not qualify as a serious impairment of body function.

On appeal, plaintiffs argue that a directed verdict in their favor is compelled as a matter of law.

The proper test for determining whether a motion for a directed verdict in favor of the plaintiffs should be granted is whether reasonable men could reach different conclusions from the facts taken in the light most favorable to the defendants. Armstrong v LeBlanc, 395 Mich 526, 532; 236 NW2d 419 (1975).

In the present case, liability was admitted; the sole issue submitted to the jury being whether serious impairment of body function had occurred. The jury rejected plaintiffs’ position and found no serious impairment of body function, showing that reasonable men can differ.

We hold that the trial court did not err in denying plaintiffs’ motion for directed verdict. From our review of the testimony offered by plaintiffs, we find that reasonable men can reach different conclusions. Thus, the trial court was correct in submitting this issue to the jury.

Affirmed. Costs to defendants.

M. F. Cavanagh, P.J.

(concurring). I concur in the result reached by my brothers but write separately only to note that this case presents us with the opposite side of the coin on the threshold question. I have concurred in Watkins v City Cab Corp, 97 Mich App 723; 296 NW2d 162 (1980), with the proposition that the vagueness of the phrase "serious impairment of body function” warrants its determination as a matter of law only where the injury squarely falls on either end of the spectrum. Anything in between should be left to the determination of the trier of the fact. This case epitomizes the reason for my persuasion. The injuries here consisted of complete breaks of both bones in the lower right leg to a man whose occupation was that of a farmer. The plaintiff was required to wear four different casts on his leg between the months of August 1975 to March of 1976. Plaintiff was required to utilize crutches and thereafter a walker. Plaintiff was unable to work due to the condition of his leg, and even up to the time of trial testified that his leg had returned to fifty percent of normal use and that he was still experiencing pain and limping. In my opinion, I cannot see how reasonable minds could differ that these injuries constituted a serious impairment of body function. However, differ they did. Both the trial judge and the jury in this instance determined that a serious impairment did not exist. Accordingly, for the reasons stated in Watkins v City Cab Corp, supra, I am constrained to affirm.


text:
    JONES v EAST LANSING-MERIDIAN WATER AND SEWER AUTHORITY
    Docket No. 45171.
    Submitted April 10, 1980, at Lansing.
    Decided June 4, 1980.
    Leave to appeal applied for.
    J. Loren Jones and several others brought an action against the East Lansing-Meridian Water and Sewer Authority, Meridian Township, and the City of East Lansing, for damages for interference with the plaintiffs’ water supply. The Authority owns 25 water wells in East Lansing and Meridian Township, and the plaintiffs allege that these wells interfere with their private wells and that the defendants continued to operate the Authority’s wells even after some interference was established. Plaintiffs allege that the continued operation of the wells is a nuisance and a taking without just compensation. The Ingham Circuit Court, Michael G. Harrison, J., ruled that the defendants were not liable to the plaintiffs, finding that the construction and operation of the Authority’s wells was a reasonable use under the statute allowing municipalities to incorporate authorities for water and sewer system construction and operation, and that any interference was slight and was not a taking. Plaintiffs appeal. Held:

    1. There was undisputed testimony that some interference was caused by the Authority’s wells and that the Authority was on notice that there would be a problem. There was also testimony that there were available alternatives to drilling the interfering wells and that the Authority did not investigate those alternatives. Therefore, it was unreasonable for the Authority to initiate the well-drilling program in disregard of the effects upon neighboring landowners.
    2. Defendants impressed the plaintiffs’ private property into serving a public use by unreasonably interfering with the plaintiffs’ subterranean water rights. Such action constituted a taking.

      References for Points in Headnotes

       27 Am Jur 2d, Eminent Domain § 402.

       26 Am Jur 2d, Eminent Domain §§ 154, 170. 27 Am Jur 2d, Eminent Domain §§ 266, 279.
    Compensation for, or extent of rights acquired by, taking of land, as affected by condemnor’s promissory statements as to character or use or undertakings to be performed by it. 7 ALR2d 364.

      Reversed and remanded.
    1. Property — Real Property — Taking.
    The governmental use of private property may be unreasonable, even though the purposes for the use are reasonable, if the manner in which those reasonable purposes are accomplished is unreasonable.
    2. Constitutional Law — Property — Real Property — Taking.
    Both the United States and Michigan Constitutions provide that a victim of a taking is entitled to just compensation for the value of the property taken; moreover, it is not necessary that there be a direct physical invasion of the property to invoke the constitutional protection, rather, it is sufficient that the private property has been impressed into serving a public use (US Const, Ams V, XIV; Const 1963, art 10, § 2).

      Starr & Cornell, for plaintiffs.
    Robert H. Scott, plaintiff, in propria persona.

      Foster, Swift, Collins & Coey, P.C. (by James A. White and Michael J. Schmedlen), for defendants.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiffs, 107 residents of Meridian Township, brought this action alleging that defendants have interfered with, and will continue to interfere with, their water supply. Both sides agreed to bifurcate the trial, separating the question of liability from that of damages. The trial court ruled in defendants’ favor on the liability question, prompting plaintiffs to pursue this appeal.

The East Lansing-Meridian Water and Sewer Authority (hereinafter referred to as the Authority) was established jointly in 1969 by East Lansing and Meridian Township pursuant to 1955 PA 233; MCL 124.281 et seq.; MSA 5.2769(51) et seq. The Authority owns 25 wells, eight in East Lansing and 17 in Meridian Township. These wells are drilled into an aquifer known as the Saginaw Formation. This aquifer provides the single largest source of potable water for the Authority as well as for the region encompassing Clinton, Eaton and Ingham counties. It is pumped by several major population centers including the City of Lansing, Michigan State University, East Lansing, Delhi Township and Meridian Township.

At the time of formation of the Authority, the respective communities were in the planning stages of water systems improvements. Following its formation, engineering firms were commissioned to conduct studies evaluating future water supplies and sources of water treatment. An engineering report was completed in 1969. It discussed the feasibility and economics of placing Authority wells in North and South Meridian. Economics dictated specific site selections. No inquiry was conducted into the extent these Authority wells would interfere with private wells in the area because of the apparent belief that some interference would be caused no matter where the Authority wells were located.

Well construction was completed pursuant to the report, and wells were placed in operation in July, 1973. Shortly thereafter, certain of the plaintiffs in this action began to experience loss of water, lower water pressure, excessive pumping, and other well problems. Some area residents contacted private concerns to alleviate the conditions, others were assisted by the Authority. The Authority then contracted to have the situation studied. The study was completed in June, 1974. It indicated that certain of the Authority’s wells created an excessive drawdown (depletion) when operated together and that the problems with the private wells in the area were directly caused by the Authority’s well operation. The study took into account the indirect effects of regional pumping in determining that pumping in Lansing and at Michigan State University did not cause the interference. Subsequent to receipt of this study, the Authority continued to pump the wells identified as creating the greatest interference.

Plaintiffs’ suit arose as a result of the Authority’s continued operation of these wells, which plaintiffs challenged as a nuisance, a "taking”, and, generally, an unreasonable interference with their subterranean water rights. The trial court found the construction and operation of the Authority’s wells a "reasonable use” under the provisions of 1955 PA 233; MCL 124.281 et seq.; MSA 5.2769(51) et seq. This act permits municipalities to incorporate authorities for the purpose of acquiring, owning, extending, improving and operating sewage disposal systems and water supply systems. In reaching its conclusion, the court relied upon what it found to be the legislative intent in enacting the statute, viz., to provide municipalities with better tools for water and sewer management, and expert testimony to the effect that without proper area-wide water management, serious water problems will occur. The court found that any interference by defendants upon plaintiffs’ interests were slight and did not constitute a "taking” or a "nuisance”. From these determinations, plaintiffs appeal as of right under GCR 1963, 806.1.

Our review role requires us to consider whether or not the trial court erred in ruling that defendants’ activity did not constitute a nuisance or a taking but, instead, represented a reasonable use of the Authority’s property. As indicated, the trial court premised its ruling upon 1955 PA 233; MCL 124.281 et seq.; MSA 5.2769(51) et seq. See footnote 1. The court indicated:

"This Court is persuaded that the Act was designed to confront the increasingly complex nature of population growth centers and to give municipalities, particularly those in close proximity, better tools with which to embark upon water and sewage management. The Court is also persuaded that when a group of citizens, through their governmental representatives, combine to have a service provided in a manner they determine to be more desirable than acting singly, the product is not transportation elsewhere for consumption.”

We agree with the trial court’s opinion of the salutary purposes served by the statute. However, we are not prepared to hold that any means are justified if they would achieve these purposes. Even though the purposes may be reasonable, if the manner in which these reasonable purposes are accomplished is unreasonable, the overall use may become unreasonable. Thus, we cannot agree with the trial court’s assessment that defendants’ project could not have been placed in operation without some interference with private wells, and that such interference would be better capable of measurement after the wells became operational and adjustments were made for proper pumping scheduling.

Testimony was undisputed that some interference was caused by the construction and operation of the Authority wells. Also undisputed was that the Authority expected some interference to occur with private wells prior to construction and therefore had notice of the problem before the wells were put into operation. Additionally, substantial evidence was presented that alternatives to drilling the interfering wells were available and that the Authority undertook no analysis of these alternatives and their possible effects on the surrounding lands. The only study the Authority did authorize to consider the effects of their operation on adjoining landowners was conducted after all the wells had been constructed and placed in operation. Yet, experts for plaintiffs and defendants agreed that a hydrologic investigation prior to construction would have revealed the extent of interference.

We find that it was unreasonable for the Authority to initiate a program in complete disregard of the effects its actions had on neighboring landowners, especially where viable alternatives for achieving the same ends were available and might have been discovered and implemented had a proper study been conducted prior to initiation of the program. Plaintiffs’ claim is viable under MCL 600.2941(2); MSA 27A.2941(2), which provides in pertinent part:

"Where any well is supplied by a head, reservoir, stratum, or vein or by percolating waters common to other springs or wells, and the owner thereof or his lessee or licensee puts its waters to a use unreasonable or unnecessary, in view of the condition and situation of the land on which it is situated, and through such unreasonable or unnecessary use, lowers or depletes the head, pressure, or supply of water of any spring or well dependent upon the same head, vein, or stratum, to the detriment or injury of the owner or any person entitled to the use thereof, the well so unreasonably and unnecessarily used, is a nuisance, and its owner and the owner of the land on which it is situated are subject to all the actions for abatement and damages in favor of the person or persons injured, as provided by law for other nuisances or tortious acts.”

Plaintiffs also sued on the theory that the actions of the Authority constituted a taking in violation of the Fifth and Fourteenth Amendments of the Federal Constitution and Article 10, Section 2 of Michigan’s Constitution. We find this theory equally plausible on the facts of this case. A victim of a taking is entitled to just compensation for the value of the property taken under both the Michigan and United States Constitutions. Tamulion v State Waterways Commission, 50 Mich App 60, 66; 212 NW2d 828 (1973). Moreover, it is not necessary that there be a direct physical invasion of the property to invoke the constitutional protection against taking without compensation; it is sufficient that the private property has been impressed into serving a public use, Tamulion, supra, 67.

The trial court found neither a taking nor a nuisance, noting that the slight interference defendants caused over a period of five years created neither of those situations. Since we have already determined defendants’ interference to be unreasonable, we disagree. Defendants did impress plaintiffs’ private property into serving a public use by unreasonably interfering with plaintiffs’ subterranean water rights. The trial court erred in ruling to the contrary.

In light of the aforestated conclusions, plaintiffs’ remaining allegations do not warrant decisional discussion. This cause is reversed on the issue of defendants’ liability for interfering with plaintiffs’ property and remanded for a determination of damages, if any.

Reversed and remanded for proceedings in conformity with this opinion.

       MCL 124.282; MSA 5.2769(52) provides in pertinent part:
      "Any 2 or more municipalities may incorporate an authority for the purpose of acquiring, owning, improving, enlarging, extending and operating a sewage disposal system and/or a water supply system, by the adoption of articles of incorporation by the legislative body of each of the municipalities.


author: Per Curiam. Bashara, P.J.

text:
    PEOPLE v GRAVES
    Docket No. 78-1865.
    Submitted June 20, 1979, at Detroit.
    Decided December 7, 1979.
    Gabriel L. Graves was convicted of breaking and entering a place of business with intent to commit larceny therein in Detroit Recorder’s Court, John P. O’Brien, J. Defendant appeals alleging that the trial court abused its discretion by denying his motion to suppress evidence of his criminal record and allowing testimony concerning a statement made by the defendant on the night he was arrested. Held:

    1. The trial court in a criminal action has discretion in deciding whether or not to allow impeachment of a defendant by evidence of prior convictions; but any ruling the court makes is not automatically correct simply because it has been stated on the record that discretion is being exercised.
    2. Evidence used for impeachment of a criminal defendant accomplished through reference to convictions of crimes similar to the one being tried should be admitted with caution; the more similar the prior conviction to the offense charged, the greater the amount of caution required.
    3. Proof of an unspecified felony conviction for impeachment purposes prevents rational evaluation of the impact of the defendant’s past conduct on his credibility and therefore cannot serve the sole purpose for which it was to be presented. At most it informs the jury that a felon is on trial for yet another felony.
    4. Rebuttal testimony by the prosecuting attorney directed toward the collateral matter of whether the police officer who took a statement from the defendant was white or black is improper since it does not relate to the refutation of relevant and material evidence.
    5. The trial court abused is discretion, rather than truly exercising discretion.
    Reversed.
    References for Points in Headnotes
    [1, 2, 5-7] 29 Am Jur 2d, Evidence §§ 320, 321, 327. 81 Am Jur 2d, Witnesses §§ 569, 581, 594.

       81 Am Jur 2d, Witnesses §§ 569-571.

       29 Am Jur 2d, Evidence §§ 250-252, 269.

      Bashaka, P.J., dissented. He would affirm the defendant’s conviction. The failure of a trial judge to state on the record the balancing of factors in determining whether to allow evidence of a prior felony conviction to be used for purposes of impeachment of a criminal defendant does not necessarily constitute an abuse of discretion. There is no per se rule that evidence of similar convictions can never be used for impeachment. A criminal defendant is not prejudiced when impeached by evidence of prior unspecified felony convictions when defense counsel elicits testimony on direct examination of the unspecified felonies and has further opportunity to bring out the nature of the crimes on redirect examination. He would affirm the conviction.
    Opinion of the Court
    1. Criminal Law — Courts — Impeachment — Prior Convictions.
    The trial court, in a criminal action, has discretion in deciding whether or not to allow impeachment of a defendant by evidence of prior convictions, but any ruling the court makes is not automatically correct simply because it has been stated on the record that discretion is being exercised.
    2. Criminal Law — Impeachment — Prior Convictions — Similarity.
    Evidence used for impeachment of a criminal defendant accomplished through reference to convictions of crimes similar to the one being tried should be admitted with caution; the more similar the prior conviction to the offense charged, the greater the amount of caution required.
    3. Criminal Law — Impeachment — Unspecified Felonies.
    Proof of an unspecified felony conviction for impeachment purposes prevents rational evaluation of the impact of the defendant’s past conduct on his credibility and therefore cannot serve the sole purpose for which it was to be presented; at most it informs the jury that a felon is on trial for yet another felony.
    4. Criminal Law — Rebuttal Testimony — Collateral Matters.
    Rebuttal testimony by the prosecuting attorney directed toward the collateral matter of whether the police officer who took a statement from the defendant was white or black is improper since it does not relate to the refutation of relevant and material evidence.

      Dissent by Bashara, P. J.
    5. Judges — Criminal Law — Impeachment — Prior Convictions.

      The failure of a trial judge to state the balance of factors on the record in determining whether to allow evidence of a prior felony conviction to be used for purposes of impeachment of a criminal defendant does not necessarily constitute an abuse of discretion.

    6. Criminal Law — Impeachment — Prior Convictions — Similarity.

      The similarity of a past conviction to a present charge should not be used as a factor in favor of admissibility of evidence for impeachment of a criminal defendant, but there is no per se rule that evidence of similar convictions can never be used for impeachment.

    7. Criminal Law — Impeachment — Prior Convictions — Unspecified Convictions.

      A criminal defendant is not prejudiced when impeached by evidence of prior unspecified felony convictions when defense counsel elicits testimony on direct examination of the unspeciSed felonies and has further opportunity to bring out the nature of the crimes on redirect examination.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Jerome S. O’Connor, Assistant Prosecuting Attorney, for the people.

      Sallen, Sallen, Seymour & Sallen, for defendant on appeal.
    Before: Bashara, P.J., and M. F. Cavanagh and J. C. Daner, JJ.

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

   Per Curiam.

Defendant appeals by right from his jury conviction of breaking and entering a place of business with intent to commit larceny therein. MCL 750.110; MSA 28.305.

We find that one of defendant’s six issues raised on appeal requires reversal and one other deserves mention.

Defendant argues that the trial court abused its discretion by denying his motion to suppress his criminal record. This motion was first made after the prosecution had rested its case in chief. The trial court asked defense counsel what defendant’s record was and the following brief exchange ensued:

"MR. HALL: He’s on probation to you for uttering and publishing which is an unrelated offense and a B and E on his record several years ago. The Prosecution has introduced nothing regarding that offense as a modus operandi and I would say that’s unrelated.
"THE COURT: I think it’s a matter within my discretion. Motion denied.”

At least a reference to the motion was repeated prior to defendant’s taking the stand, but this reference was made by the prosecutor with defense counsel contributing as follows:

"MR. KING [Prosecutor]: Yes, your Honor, and formally, I made a motion to suppress his client’s criminal record, it’s within my discretion under the appropriate case law.
"MR. HALL [Defense Counsel]: I believe that’s People versus Jackson.
"THE COURT: Right, there are a line of cases ending with People versus Jackson and that motion is denied.
"Bring them out.”

It is by now well established that the trial court has discretion in deciding whether or not to allow impeachment of a defendant by evidence of prior convictions. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), MCL 600.2159; MSA 27A.2159. It has also been recognized that any ruling that the trial court makes is not automatically correct simply because it has been stated on the record that discretion is being exercised. People v Bennett, 85 Mich App 68, 71-72; 270 NW2d 709 (1978), lv den 405 Mich 835 (1979). Where impeachment of a defendant is to be accomplished through reference to convictions of crimes similar to the one being tried, that evidence should be admitted with caution. The more similar the prior conviction to the offense charged, the greater is the amount of caution required. People v Green, 86 Mich App 142, 147; 272 NW2d 216 (1978). In People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), we stated that a true exercise of discretion in deciding questions of this type entails a balancing of the factors prescribed by this Court. Crawford, supra, 39. When one considers the trial court’s responses reprinted above, especially in light of the fact that one of defendant’s prior convictions was for the same crime charged at defendant’s trial, it becomes apparent that the trial court did not exercise its discretion in this matter. (The fact that the prosecutor saw fit to move for suppression of evidence of the prior convictions emphasizes that lack of deliberation on the part of the trial court.)

Given the trial court’s ruling, defense counsel elicited from defendant on direct examination an affirmative response as to whether defendant had ever been convicted of a crime. Upon cross-examination the prosecutor raised the matter in the following manner:

"Q Have you ever been convicted of a felony before?
"A Yes.
"Q Have you been convicted of more than one felony?
"A Yes.
"Q How many?
"A Two, three.”

Two very recent cases in this Court addressed the novel issue of the effect of admitting evidence of a criminal defendant’s unspecified "felonies” for impeachment purposes. These cases differ from the present one inasmuch as it was the trial court that decided to refrain from designating what types of felonies the defendants had previously committed. In this case, it was apparently the prosecutor’s decision to limit impeachment to mention of "felonies”, perhaps because of the identity of the crime charged and one prior conviction. (This inference would be supported by the prosecution’s attempt to suppress defendant’s prior record.) As the two recent decisions point out, "At the very least, proof of an unspecified 'felony’ conviction prevents rational evaluation of the impact of the defendant’s past conduct on his credibility and therefore cannot serve the sole purpose for which it was to be presented; at the most, it informs the jury that a 'felon’ is on trial for yet another felony”. People v Jones, 92 Mich App 100, 112; 284 NW2d 501 (1979). People v Garth, 93 Mich App 308; 287 NW2d 216 (1979). See also MRE 609. We find, therefore, that the trial court abused its discretion, rather than truly exercising discretion, and that this failure prejudiced defendant so that reversible error was committed.

Our other concern relates to a statement made by defendant after being taken into custody on the night of the offense. The prosecutor explicitly stated that that statement was inadmissible, and accordingly asked defense counsel to waive production of the officer witness who took the statement. Defense counsel complied. Nevertheless, the prosecutor opened a barrage of questions on this subject beginning with whether defendant remembered making the statement, which he admitted, and proceeding with the specific questions and answers contained therein. No objection was raised by defense counsel. On redirect examination defendant volunteered that the officer for whom defendant had signed a constitutional rights form was white, not a black officer. In rebuttal, the prosecutor had the officer who procured the statement testify to witnessing defendant sign the statement in order to demonstrate that he was a black officer. Then, in closing, the prosecutor made these remarks:

"Now, the Defendant got up and testified, he testified that he had been convicted of three felonies. I showed him a statement and he denied making that statement and that wasn’t his signature and didn’t know what officer was involved. That’s the reason I called Sergeant Green. Sergeant Green isn’t white, he’s black, he told you he took that statement and the Defendant signed that statement. You’ll have an opportunity to look at that statement.”

We have no record established as to the reasons for which defendant’s statement could be held to be inadmissible, as defendant alleges it should be. This failure must be ascribed to defense counsel for failing to request a Walker hearing before trial, at the time when the prosecutor apparently changed his mind and referred to the statement, or even after judgment was rendered. Moreover, defense counsel was curiously silent when the prosecutor did raise the subject after he had made representations to the contrary. People v Stephens, 71 Mich App 33, 37-38; 246 NW2d 429 (1976), refutes defendant’s allegation, however, in that it holds that absent defense counsel’s request, the trial court is not obliged to determine the voluntariness of an accused’s extrajudicial statement.

We do feel that the rebuttal testimony directed towards the collateral matter of whether the officer who took the statement was white or black was improper because it did not relate to "the refutation of relevant and material evidence”. People v Bennett, 393 Mich 445, 449; 224 NW2d 840 (1975). The race of the officer who took defendant’s statement is hardly a relevant and material issue in this case, and defendant never denied making a statement as the prosecution contends. The prosecution’s attachment of an affidavit to their brief on appeal attesting to the "Afro-American heritage” of the officer in question underlines the purpose of the rule of restricting impeachment to relevant and material issues. But, given defense counsel’s failure to preserve this issue, and the likelihood that the rebuttal testimony did not affect the verdict, this error must be considered harmless. People v Meadows, 80 Mich App 680, 686-689; 263 NW2d 903 (1977).

Reversed.

Bashara, P.J.

(dissenting). I respectfully dissent. The issue presented for determination by this Court is whether an abuse of discretion is shown when a trial judge, in determining whether to allow evidence of a prior felony conviction to be used for purposes of impeachment, fails to state on the record the factors which were enumerated in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).

The Crawford decision never expressly required that the balance of factors must be stated on the record. This view is supported by People v Roberson, 90 Mich App 196, 202; 282 NW2d 280 (1979), wherein this Court said:

"Although the trial judge did not discuss the three criteria on the record, we do not read the prior case law as requiring a finding regarding these factors. * * * In the absence of an affirmative misapplication of the three criteria, we are unwilling to presume that the trial judge failed to consider the relevant criteria in admitting the evidence.”

Defendant’s former felony convictions should be reviewed in light of Crawford to determine if the trial judge affirmatively misapplied any of the criteria.

One felony conviction was for uttering and publishing a forged instrument, MCL 750.249; MSA 28.446, a crime relating to truth and veracity. The crime was not similar to the one of which the defendant was accused. I am hard put to say that the trial judge abused his discretion in allowing evidence of that crime.

Defendant’s second felony conviction was for breaking and entering. This conviction must be weighed as a factor against admissibility because of the similarity with the crime for which the defendant stood accused. People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979). Baldwin did not adopt a per se rule that evidence of similar convictions could never be used for impeachment. Rather, the Supreme Court held that the similarity of the conviction could not be used as a factor in favor of admissibility. The record discloses no indication that the trial judge used the similarity as a factor in favor of admissibility. Further, the prior theft is an offense which directly relates to truth and veracity.

As the Supreme Court said in Baldwin, quoting from Gordon v United States, 127 US App DC 343, 347; 383 F2d 936 (1967):

"[O]ne solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” 405 Mich 550, 553.

Finally, the majority holds that the defendant was prejudiced by the trial judge’s ruling because he was impeached by evidence of unspecified felony convictions. People v Garth, 93 Mich App 308; 287 NW2d 216 (1979). The majority notes the crucial distinction between Garth and the present case. In Garth, the trial judge decided the felonies should be unspecified. Here it was defendant’s counsel on direct examination who brought out evidence of the unspecified felonies. Although the prosecutor on cross-examination never asked the nature of the felonies, defendant’s counsel was still free to bring out the nature of the crimes on redirect examination. Apparently defense counsel felt that his client was not prejudiced, since he did not seek to recall his witness.

I would affirm the conviction.

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

       In Crawford, the Court set out the criteria as follows:
      "The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?); (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a 'bad man’ or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?); and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?).”

       Since the judge’s ruling did not affect defendant’s decision to take the stand, this factor will not be discussed.

       Both the Federal and Michigan rules of evidence, in rule 609, allow even misdemeanor convictions to be used for impeachment purposes where theft is involved.


text:
    DAVEY v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 44477.
    Submitted March 11, 1980, at Lansing.
    Decided April 30, 1980.
    Donald G. Davey was killed in a motor vehicle accident on August 7, 1975. Joy A. Davey, wife of the deceased, sought benefits under a no-fault insurance policy issued by the Detroit Automobile Inter-Insurance Exchange. A dispute arose as to the amount of benefits to which Mrs. Davey was entitled as her husband’s survivor.
    She subsequently sued DAIIE in Jackson Circuit Court alleging entitlement to benefits under the policy with no need to set off social security and veterans benefits. The court, James G. Fleming, J., held the no-fault setoff provisions of the policy unconstitutional and awarded full benefits to Mrs. Davey, including cost-of-living increases. The court further held that the difference between benefits paid injured parties, which included cost-of-living increases, and those paid surviving dependents, which did not, denied Mrs. Davey equal protection.
    Following the court’s decision, the Supreme Court upheld the setoff provisions of the no-fault act. On October 16, 1978, the Legislature amended the no-fault act to include cost-of-living increases to a survivor.
    Mrs. Davey moved to enforce the earlier judgment claiming that DAIIE had not paid the amount ordered nor interest nor attorneys’ fees. The Exchange responded that in light of the Supreme Court’s holding, Mrs. Davey was no longer the prevailing party and, thus, not entitled to attorneys’ fees. The court granted Mrs. Davey’s motion, indicating the parties had resolved the question of setoff.
    _DAIIE appeals, alleging that the trial court erred in finding that Davey’s equal protection rights had been violated but did not question the court’s ruling on the setoff provision. Held:

      References for Points in Headnotes

       7 Am Jur 2d (Rev), Automobile Insurance § 27.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.

       7 Am Jur 2d (Rev), Automobile Insurance §§ 25, 27. 16A Am Jur 2d, Constitutional Law §§ 756, 757.

       5 Am Jur 2d, Appeal and Error § 698.

       22 Am Jur 2d, Damages §§ 165, 168.

      1. Provisions in the no-fault act which permit payment of cost-of-living increases to individuals classified as injured parties, while denying similar benefits to those classified as surviving dependents, unconstitutionally deprive such dependents of the equal protection of law. The equal protection test for socioeconomic legislation such as the no-fault act is whether the statute is reasonably related to a legitimate legislative objective.
    2. Issues not raised and briefed on appeal will be deemed abandoned. Since Detroit Automobile Inter-Insurance Exchange failed to appeal the setoff issue, and Mrs. Davey prevailed on the issue of equal protection, she is still the prevailing party and remains entitled to attorneys’ fees.
    Affirmed.
    1. Constitutional Law — Insurance — Equal Protection — Classifications — No-Fault Benefits — Statutes.
    Provisions in the no-fault act which permit payment of cost-of-living increases to individuals classified as injured parties, while denying similar benefits to those classified as surviving dependents, unconstitutionally deprive such dependents of the equal protection of law (MCL 500.3107, 500.3108; MSA 24.13107, 24.13108).
    2. Constitutional Law — Equal Protection — Socioeconomic Legislation — Insurance — No-Fault Act.
    The equal protection test for socioeconomic legislation such as the no-fault act is whether the statute is reasonably related to a legitimate legislative objective.
    3. Constitutional Law —■ Legislative Purpose — Socioeconomic Legislation — Insurance — Statutes.
    Compensation of motor vehicle accident victims and their surviving dependents for lost wages and medical expenses is a legitimate legislative objective (MCL 500.3105; MSA 24.13105).
    4. Appeal — Issues — Failure to Raise.
    Issues not raised or briefed on appeal will be deemed abandoned.
    5. Parties — Appeal — Attorney Fees — Statutes.
    A prevailing party in an action who survives a challenge on appeal is still the prevailing party and remains entitled to an original award of attorneys’ fees pursuant to statute (MCL 500.3148; MSA 24.13148).

      Rosenburg, Stanton, Bullen & Nelson (by Terry J. Klaasen), for plaintiff.

      Susskind, Hedstrom & Falahee, for defendant on appeal.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   Per Curiam.

Plaintiff’s husband was killed in a motor vehicle accident in the state of Michigan on August 7, 1975. Following his death, plaintiff sought benefits under a no-fault insurance policy issued by the defendant. A dispute arose between plaintiff and defendant over the amount of benefits plaintiff was entitled to as her husband’s survivor pursuant to MCL 500.3108; MSA 24.13108. Plaintiff subsequently filed suit in Jackson County Circuit Court, alleging that she was entitled to benefits totaling $1,111 per month and that she need not set off social security and veterans benefits against her no-fault survivor’s benefits.

Based upon the Court of Appeals opinion in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976), which declared the no-fault setoff provisions unconstitutional, the court found plaintiff to be entitled to benefits without any setoffs. The court awarded plaintiff $1,111 per each 30-day period, the amount her husband would have been entitled to under MCL 500.3107; MSA 24.13107, had he survived the accident.

Section 3107 of the no-fault act provides work-loss benefits for individuals surviving motor vehicle accidents. The maximum statutory benefit for those injured parties is $1,000 per each 30-day period plus any cost-of-living increases. Section 3108 which provides benefits for surviving dependents also has a ceiling of $1,000 per each 30-day period. However, prior to an amendment in 1978 (which would not affect the instant plaintiff), this section made no provision for cost-of-living increases for those surviving the death of family members.

The lower court agreed with plaintiff that the distinction between the two classifications deprived her of equal protection rights under the law. Therefore, the award of $1,000 plus cost-of-living benefits, or $1,111 per month, was held to be proper.

The Supreme Court subsequently overruled O’Donnell (404 Mich 524; 273 NW2d 829 [1979]), thus upholding the setoff provisions of the no-fault act. The Legislature amended § 3108 to include cost-of-living increases effective October 16, 1978.

On February 2, 1979, plaintiff filed a motion to enforce the earlier judgment, claiming defendant had not paid $1,111 for each 30-day period due, or interest or attorney fees as ordered by the court. Defendant responded that since O’Donnell, had been reversed by the Supreme Court, plaintiff was no longer the prevailing party and, therefore, was not entitled to attorney fees pursuant to MCL 500.3148; MSA 24.13148. The court granted plaintiff’s motion to enforce in an opinion dated March 14, 1979, in which the court indicated that the parties had agreed between themselves as to how to deal with the setoff issue subsequent to the Supreme Court’s holding in O’Donnell, supra.

"Plaintiff, according to the pleadings and file, has acquiesced in the off-set of Social Security benefits she receives against the defendant’s survivor benefits payment, dispite [sic] this Court’s May 4, 1978, Judgment pursuant to the agreement of counsel.”

With regard to the cost-of-living question, the court stated:

"This Court found no rationale [sic] basis for the classification made in benefits where injured parties receive cost of living adjustments against survivor benefits where cost of living adjustments were not so provided, and the deceased first incurred injuries that caused his death and his survivors are entitled to the benefits of such costs of living.
"The issue of denial of equal protection of law and unconstitutionality of benefit differentials for injured persons versus survivors was not decided by O’Donnell, and thus, the Judgment of May 4, 1978 is res adjudicata [sic] as to the factual situation here presented.”

Defendant now appeals the court’s ordering of payments of $1,111 per month plus attorney fees and interest. It specifically questions the lower court’s finding that § 3108 of the no-fault insurance act was unconstitutionally violative of plaintiffs equal protection rights. The court’s ruling on the setoff provision is not challenged on appeal.

The equal protection test for socioeconomic legislation such as the no-fault act is whether the statute is reasonably related to a legitimate legislative objective. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 540-541; 273 NW2d 829 (1979), Shavers v Attorney General, 402 Mich 554, 612-613; 267 NW2d 72 (1978). The purpose of both § 3107 and § 3108 is presumably to provide motor vehicle accident victims and their dependents with compensation for lost wages and medical expenses, a perfectly legitimate legislative objective. See MCL 500.3105; MSA 24.13105. However, defendant has set forth no possible relation, nor can we postulate one, between that objective and the cost-of-living distinctions. We believe that this deficiency was implicitly recognized by the Legislature when it added cost-of-living benefits to § 3108 in 1978. Therefore, it was proper for the trial court to declare the original § 3108 unconstitutional, based on equal protection grounds, and to remedy the matter by awarding plaintiff the full benefits that her deceased husband would have received under § 3107 had he survived. See People v Neumayer, 405 Mich 341; 275 NW2d 230 (1979).

Defendant’s brief on appeal does not challenge the validity of the circuit court’s judgment holding defendant liable for benefits without any necessity for setoffs. It is well settled that issues not raised and briefed on appeal will be deemed abandoned. Meshriy v Sun Oil Co, 67 Mich App 709, 711; 242 NW2d 497 (1976), Taylor v Klahm, 40 Mich App 255, 269; 198 NW2d 715 (1972). Since plaintiff has won on the equal protection issue and the defendant has failed to appeal the setoff issue, plaintiff is still the prevailing party. It is clear then that plaintiff remains entitled to attorney fees. MCL 500.3148; MSA 24.13148.

Affirmed.