author: N. J. Kaufman, J. Danhof, C.J.

text:
    PEOPLE v THOMPSON
    Docket No. 78-3073.
    Submitted October 19, 1979, at Detroit.
    Decided December 18, 1979.
    Leave to appeal applied for.
    James E. Thompson, III, was charged with armed robbery and possession of a firearm in the commission of a felony. During the course of the trial there was testimony that the automobile in which the defendant fled the scene of the crime had been stolen previously. The defendant in his own testimony freely admitted receiving the stolen vehicle, and made no objection when a prosecution motion was made to add a count of receiving or concealing stolen property and the trial court allowed joinder of the additional charge. The defendant was found guilty on all three charges, Recorder’s Court of Detroit, Patricia J. Boyle, J. Defendant appeals, alleging that the felony-firearm statute is unconstitutional, that the prosecutor improperly enlisted the sympathy of the jury in regard to the complaining witness, and that the conviction of receiving or concealing stolen property is infirm because the prosecution failed to establish the corpus delicti of the offense by evidence other than the defendant’s in-court admission. Held:

    1. The felony-firearm statute is constitutional.
    2. The prosecutor’s argument regarding the reliability of the complaining witness was related to the evidence and relevant to the witness’s credibility, which was an issue at trial. The argument was not improper.
    3. The charge of receiving or concealing stolen property was improperly joined. That felony occurred on another day and was unrelated to the armed robbery and felony firearm charges.
    The armed robbery and felony-firearm convictions are affirmed; the receiving or concealing stolen property conviction is reversed.

      References for Points in Headnotes

       41 Am Jur 2d, Indictments and Informations § 224.

       75 Am Jur 2d, Trial § 306.
    81 Am Jur 2d, Witnesses § 518.

       29 Am Jur 2d, Evidence § 615.
    30 Am Jur 2d, Evidence §§ 1134, 1142.

       5 Am Jur 2d, Appeal and Error § 599.

      Danhof, C.J., dissented from the reversal of the conviction of receiving or concealing stolen property. The defendant’s only assertion of error regarding that conviction was that the prosecution failed to establish the corpus delicti by evidence independent of the defendant’s statements. However, the corpus delicti rule does not apply to confessions freely made from the witness stand. As to the improper joinder, the defendant does not appeal on that ground, no objection to the joinder was made at trial, and the defendant utilized the added charge in his defense strategy, hoping the jury would convict him of the lesser offense and acquit him of the armed robbery. Under these circumstances the Court of Appeals should not reverse the conviction of receiving or concealing stolen property on the basis of improper joinder. Judge Danhof would affirm all three convictions.
    Opinion of the Court
    1. Criminal Law — Joinder — Separate Felonies.
    Joinder of an additional felony charge against a defendant who is on trial for another felony is improper, despite the defendant’s failure to object, where the two offenses occurred on different days and had no connection with each other.
    Dissent in Part, Concurrence in Part by Danhof, C.J.
    2. Criminal Law — Prosecutors — Inferences.
    A prosecutor may properly argue that the evidence that has been presented in a trial justifies an inference regarding the reliability of a witness.
    3. Criminal Law — Corpus Delicti — Confessions.
    The rule that the prosecution must establish the corpus delicti of a charged offense with evidence other than the defendant’s admission does not apply to confessions freely made from the witness stand; such a statement is in the nature of a plea of guilty.
    4. Criminal Law — Joinder — Appeal and Error — Unrelated Felonies.

      Joinder of an additional unrelated felony charge during the trial of a defendant on another felony charge, based upon the defendant’s admission at trial of the additional felony, was not improper where the defendant did not object to the joinder and based his defense strategy on the existence of the additional

      charge; the Court of Appeals should not reverse a defendant’s conviction on an added charge on the basis of improper joinder where the defendant has not raised the issue on appeal.

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

      Michael S. Surnow, for defendant on appeal.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   N. J. Kaufman, J.

We agree with and adopt the facts presented in the dissenting opinion, but do not agree with the conviction of receiving or concealing stolen property over the value of $100, MCL 750.535; MSA 28.803, for the reasons stated in People v Ritchie, 85 Mich App 463; 271 NW2d 276 (1978).

The two cases are almost identical with the exception that, in the case at hand, defendant’s reference to the stolen automobile was a strategic move to explain why he fled the scene of the alleged robbery. Thus, he entered no objection to the addition of the receiving or concealing count, as he undoubtedly was hoping that the jury would find him guilty of receiving or concealing, and not guilty of robbery armed. Despite defendant’s failure to object,, it must be noted that the two offenses occurred on different days and had no connection with each other. They should not have been joined, especially after the trial was in progress. See People v Ormsby, 310 Mich 291, 303; 17 NW2d 187 (1945), where it is stated:

" '* * * But when the object and purpose is appar ent[ly] to prosecute the respondent * * * for separate felonies by means of one information or indictment, the court will not permit it to be done. * * *”’ (Emphasis in original.)

Although this issue was not raised on appeal, since the function of this Court is to dispense justice it has limited power to raise questions on its own. People v Noel, 88 Mich App 752, 754; 279 NW2d 305 (1979).

In Ormsby, supra, a general verdict of guilty was entered upon an indictment charging distinct and separate offenses in separate counts. The Supreme Court reversed the conviction, finding the verdict invalid. That problem does not exist in this case, however, as the jury came in with separate verdicts of guilty of (1) robbery armed, (2) felony-firearm, and (3) receiving or concealing. Nevertheless, the instant verdicts are still infirm due to the improper joinder.

Although we agree with the general legal propositions the dissent raises, we must note that it was the prosecution who created the error by making the motion to add the receiving or concealing count. Thus, even though the defendant utilized the addition of this count as part of his defense strategy, it cannot be said that he created the error.

Accordingly, we affirm defendant’s robbery armed and felony-firearm convictions, but reverse his receiving or concealing conviction. In view of this decision, the question of corpus delicti in the receiving count need not be decided.

Affirmed in part; reversed in part.

D. C. Riley, J., concurred.

Danhof, C.J.

(dissenting in part, concurring in part). The defendant was charged with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Upon the defendant’s direct examination testimony that he had knowingly received the stolen vehicle he allegedly used in the robbery, a count of receiving or concealing stolen property of a value greater than $100 was added without defense objection. The jury found the defendant guilty of all three offenses.

The defendant’s claim that the "felony firearm” statute is unconstitutional has been rejected in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

The complaining witness testified that he had lost his legs in the Viet Nam war and that after leaving military service he had pursued his education and taken up a career as a social worker or youth counsellor. In closing argument the prosecutor referred to the witness’s "agony and suffering” while recuperating from his wounds and argued that the witness’s subsequent career achievements showed him to be trustworthy. The defendant claims that this argument improperly enlisted the sympathy of the jury in the prosecutor’s cause.

We cannot agree with the defendant’s contention. This argument, while more dramatic than it needed to be, was related to the evidence and relevant to the witness’s credibility, a very important issue at trial. A prosecutor may properly argue that the evidence that has been presented in the trial justifies an inference about the reliability of a witness. See People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979). In any event, the evidence of the defendant’s guilt was overwhelming and therefore renders any impropriety in this argument harmless. See People v Christensen, 64 Mich App 23; 235 NW2d 50 (1975).

The evidence showed that the robber fled in an automobile and the complainant gave chase, enlisting along the way the assistance of the police officers who eventually stopped the defendant and made the arrest. A handgun and the complainant’s property were found in the automobile the defendant was driving. One of the arresting officers testified, perhaps unresponsively, that the automobile in which the defendant was captured had been stolen at some earlier date. Sua sponte, the trial judge immediately instructed the jury to disregard this remark. However, in his own testimony the defendant freely admitted knowingly receiving the stolen vehicle, denying the robbery and asserting that this lesser crime was the reason he had led the police on the high speed chase. That this was to be the defendant’s major defense strategy was made clear when hé did not object to the prosecutor’s motion to add a count charging the defendant with receiving the stolen car.

The only objection that the defendant brings to this Court regarding his conviction of receiving or concealing stolen property is an assertion that the conviction is infirm because "the prosecution failed to establish the corpus delicti [of the offense by evidence] aliunde the appellant’s in-court admission”. In this assertion the defendant seriously misapprehends the purposes and scope of the corpus delicti rule. The rule has evolved as a guard against impulsive or intemperate confessions and unreliable reports by confessors of questionable intention. The rule has never been thought to apply to confessions freely made from the witness stand; such a statement is in the nature of a plea of guilty. See People v Kirby, 223 Mich 440; 194 NW 142 (1923), and 7 Wigmore, Evidence (Chadbourn ed), § 2071, p 524.

It is clear that the receiving or concealing offense to which the defendant confessed in court was sufficiently removed in time and nature from the robbery and firearm charges to warrant a separate trial. The question is whether the conviction of that crime should be reversed under the circumstances of this case, in which the three offenses were tried together.

In People v Tobey, 401 Mich 141, 153; 257 NW2d 537 (1977), the Court wrote:

"[A] judge must sever two or more offenses when the offenses have been joined for trial solely on the ground that they are of the 'same or similar character’ and the defendant dies a timely motion for severance objecting to the joinder. ” (Emphasis added.)

In People v Ormsby, 310 Mich 291; 17 NW2d 187 (1945), cited by the majority, the defendant had sought relief from a general verdict of guilty of an improperly-joined assortment of charges before coming to the appellate court. The passage quoted by the majority is from a discussion in People v Aiken, 66 Mich 460; 33 NW 821 (1887), which relied upon People v McKinney, 10 Mich 54, 94, 95 (1862), wherein the Court concluded:

"But I think it very questionable, at least, whether the prosecutor ought to have been compelled to elect as between any of the sums received from the railway company, had the [trial] court been called upon for that purpose. But the court was not called upon to order an election, and no such question arises [in this appeal].” (Emphasis added.) 10 Mich at 96.

Unexplained failures to object to misjoinder of offenses for trial have been said to preclude appellate review in People v Dexter, 6 Mich App 247, 252; 148 NW2d 915 (1967), People v Carey, 36 Mich App 640; 194 NW2d 93 (1971), and People v Smith, 90 Mich App 20; 282 NW2d 227 (1979).

In the case at bar, the defendant’s failure to object to the joinder of the receiving or concealing charge was not unexplained. It was, as the majority acknowledges, a "strategic move” designed to induce the jury to convict him of receiving or concealing stolen property and acquit him of the robbery and firearm offenses. It was, as the majority must agree, a deliberate and informed choice. Despite the fact that the defendant has shown no dissatisfaction with the joinder in his brief in this Court, the majority has elected to relieve him of the "error” he sought to create. In circumstances such as these, I cannot hold that the defendant may seek the benefit of his tactic in the trial court and be relieved of its liabilities on appeal. "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.” People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).

I would affirm all three convictions.


source: Caselaw Access Project

author: H. R. Carroll, J.

license: Public Domain

text:
    THE WILLIAM C REICHENBACH COMPANY v STATE OF MICHIGAN
    Docket No. 78-3225.
    Submitted June 5, 1979, at Lansing.
    Decided December 18, 1979.
    On July 20, 1969, Michigan State University signed a contract with Ackerman Construction Company for the renovation of a dormitory. Ackerman, in turn, subcontracted a portion of the work to The William C. Reichenbach Company in the amount of $40,504.80. On December 2, 1969, MSU made its final payment to Ackerman in the sum of $50,200. Ackerman then deposited this check in its account at the Bank of Lansing and simultaneously made a check out to Reichenbach for $20,504.80, the amount due and owing under the subcontract. However, the bank refused to honor the check to Reichenbach since the bank had attached Ackerman’s account and applied the entire amount to Ackerman’s indebtedness to the bank. Subsequently, Reichenbach brought an action in the Court of Claims against the State of Michigan and the Michigan State University Board of Trustees seeking recovery of the amount owed to plaintiff by Ackerman, alleging that MSU’s failure to compel Ackerman to supply a performance and payment bond was negligence which was the proximate cause of the plaintiffs financial injury. MSU raised a series of defenses in response, including governmental immunity. Initially, the lower court rejected all of MSU’s arguments. However, the Court of Claims, Julian E. Hughes, J., subsequently reversed its decision with respect to governmental immunity and granted judgment for defendants. Plaintiff appeals, alleging that 1) plaintiffs claim was not barred by the statute of limitations, 2) plaintiff was not estopped from recovering from the Michigan State University Board of Trustees under the facts of this case, 3) the statute which requires a contractor to furnish a performance or payment bond before a public educational institution may award a contract for repair of a public building was applicable to MSU, and 4) the plaintiff’s claim was not barred by governmental immunity. Held:

      References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions § 399.
    72 Am Jur 2d, States, Territories, and Dependencies §§ 9, 87.

       51 Am Jur 2d, Limitation of Actions §§ 135, 136.

       5 Am Jur 2d, Appeal and Error §§ 399, 820.

       28 Am Jur 2d, Estoppel and Waiver §§ 1, 27.

       17 Am Jur 2d, Contractors’ Bonds §§ 1, 2, 47, 114, 118.

       15A Am Jur 2d, Colleges and Universities § 35.

       15A Am Jur 2d, § 5.

       17 Am Jur 2d, Contractors’ Bonds § 5.

       15A Am Jur 2d, Colleges and Universities § 39.
    57 Am Jur 2d, Municipal, School, and State Tort Liability,
    57 Am Jur 2d, §§ 24 et seq., 69 et seq.

    72 Am Jur 2d, States, Territories, and Dependencies §§ 118, 119.
    Waiver or estoppel of public school or institution of higher learning to assert immunity from tort liability. 86 ALR2d 524.

      1. State supported colleges and universities are within the jurisdiction of the Court of Claims. Claims against the state, if they are to be heard in the Court of Claims, must be filed within three years after the claim accrues. The plaintiffs claim was subject to a three-year limitations period, not a one-year period as claimed by defendants. The plaintiffs claim accrued on the date that the bank refused to honor the check. Since plaintiff filed suit within three years of that date, the action was timely filed.
    2. The trial court’s conclusion that the plaintiff was not estopped from asserting its claim was not clearly erroneous. There was nothing in the facts of the case, as stipulated to by the parties, that tended to show that there was any contact between the plaintiff and the defendants regarding the manner in which the prime contractor was to be paid by the defendants. Thus there is no indication that the defendants relied upon any statements or actions of the plaintiffs when tendering final payment to the prime contractor.
    3. At the time that the plaintiffs cause of action arose, there was a statute in effect which required a principal contractor to furnish a performance or payment bond before a public educational institution, among others, could award a contract exceeding $5,000 for the repair of any public building or public work. However, Michigan State University is a corporation established by the Michigan Constitution. As such, management over university affairs, including the management of property and expenditure of funds, is the sole province of the MSU trustees. The Legislature may not interfere with the trustees’ management of the University. Thus, the term "public educational institution”, as that term is used in the performance bonding statute, applies only to those colleges and universities whose governing boards are not created in the constitution. The statute was inapplicable to Michigan State University and there was no duty imposed upon the board of trustees to secure a bond from the principal contractor. Plaintiff cannot maintain an action in negligence for failure to do so.
    4. The performance bond statute contains no express waiver of the defense of governmental immunity to tort claims, nor is a waiver of such defense a necessary inference from the statute. The defense of governmental immunity was not waived. The recent Supreme Court precedent doing away with the doctrine of common-law governmental immunity was stated to be prospective only with the exception of the case in which the concept was struck down and any cases then pending in which an express challenge to the defense of common-law governmental immunity had been made and preserved. In the present case, defendants timely raised the defense and, since plaintiff did not challenge the validity of this defense and since this case would otherwise require retroactive application of the case striking down the doctrine, plaintiff has waived his right to challenge this defense on appeal.
    Affirmed in part and reversed in part.
    1. Limitation of Actions — Court of Claims — Claims Against State — Statutes.
    Claims against the state, if they are to be heard in the Court of Claims, must be filed within three years after the claim first accrues (MCL 600.6452[1]; MSA 27A.6452[1]).
    2. Torts — Cause of Action — Breach of Duty — Damages.
    A cause of action arising out of tortious injury to a person accrues when all of the elements of the cause have occurred and can be alleged in a proper complaint; these elements are four in number: (1) the existence of a legal duty by defendant toward plaintiff, (2) the breach of such duty, (3) a proximate causal relationship between the breach of such duty and the injury to the plaintiff, and (4) the plaintiff must have suffered damages.
    3. Appeal and Error — Findings of Fact — Trial Courts — Court Rules.
    A trial court’s findings of fact may not be set aside unless they are found to be clearly erroneous; a finding is clearly erroneous where the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed (GCR 1963, 517.1).

      4. Estoppel — Definitions — Words and Phrases.
    Estoppel arises where a party by representations, admissions or silence intentionally or negligently induces another party to believe facts and the other party justifiably relies and acts on this belief and will be prejudiced if the first party is permitted to deny the existence of the facts.
    5. Bonds — Contractors — Subcontractors — Performance Bonds — Public Works — State Highway Commission — Statutes.
    The statute which requires bonds for payment by a contractor to all subcontractors and for the payment for all labor performed and materials and certain supplies used in the erection, repairing or ornamenting of public buildings or works has been limited in scope to construction and maintenance contracts of the state highway commission and it no longer applies to contracts for public buildings or other public works (MCL 129.211, 570.101; MSA 5.2321[11], 26.321).
    6. Colleges and Universities — Constitutional Law — Controlling Boards — University Affairs — Court of Appeals.
    The Michigan constitution gives to the controlling boards of the University of Michigan, Michigan State University and Wayne State University, Michigan’s constitutionally created university corporations, entire control and management over university affairs, including the management and expenditure of funds to the exclusion of all other departments of the state; although the Legislature may put certain conditions on money that it appropriates for a university, and such conditions are binding if the university’s controlling board accepts the money, the conditions may not interfere with the controlling board’s management of the university and may be applied only to state appropriated funds (Const 1963, art 8, § 5; Const 1850, art 13, §§ 6-8).
    7. Colleges and Universities •— Constitutional Law — Public Policy.
    The independence of Michigan’s constitutionally created university corporations will not be permitted to thwart clearly established public policy in this state.
    8. Colleges and Universities — Public Educational Institution — Words and Phrases — Constitutional Law.
    The term "public educational institution”, as that term is used in a performance bonding statute, applies to only those colleges and universities whose governing boards are not created in the constitution.
    9. Torts — Governmental Immunity — Waiver.
    Generally speaking, the defense of governmental immunity may be waived only where it is allowed by express statutory enactment or by necessary inference from a statute.

      Doyle, Carruthers, Hess & Ralls, P.C., for plaintiff.

      Anderson, Carr & Street, for defendants.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   H. R. Carroll, J.

This case arises out of a contract signed by Michigan State University on July 20, 1969, with Ackerman Construction Company for the renovation of one of its dormitories. Ackerman, in turn, subcontracted a portion of the work to the plaintiff in the amount of $40,504.80. On December 2, 1969, the University made its final payment to Ackerman in the sum of $50,200. Ackerman then deposited the check in its account at the Bank of Lansing and simultaneously made a check out to Reichenbach for $20,504.80, the amount due and owing under the subcontract. However, the bank refused to honor the check since it had attached the total amount of Ackerman’s account and applied the proceeds to Ackerman’s indebtedness to the bank. On October 10, 1972, Reichenbach filed suit in the Court of Claims alleging that the University’s failure to compel Ackerman to supply a performance and payment bond was negligence which was the proximate cause of plaintiff’s financial injury. The University raised a series of collateral defenses in response, including governmental immunity. Initially, the lower court rejected all of the University’s arguments. However, on May 9, 1978, the Court of Claims reversed its decision with respect to governmental immunity. Plaintiff appeals as of right.

At trial, the University raised the following defenses: (1) plaintiffs claim was barred by the statute of limitations; (2) plaintiff was estopped from recovering from the Michigan State University Board of Trustees under the facts of this case; (3) the provisions of 1963 PA 213 were inapplicable to the University; and (4) plaintiffs claim was barred by governmental immunity. All of these matters are raised as issues on appeal. We will consider them seriatim.

I. Statute of limitations.

The Michigan State University Board of Trustees is a corporate entity that derives its authority from the Michigan Constitution. Const 1963, art 8, § 5. State-supported colleges and universities are within the jurisdiction of the Court of Claims. Fox v Board of Regents of the University of Michigan, 375 Mich 238; 134 NW2d 146 (1965), Doan v Kellogg Community College, 80 Mich App 316; 263 NW2d 357 (1977), Kiluma v Wayne State University, 72 Mich App 446; 250 NW2d 81 (1976). State law provides that claims against the state, if they are to be heard in the Court of Claims, must be filed "within 3 years after the claim first accrues”. MCL 600.6452(1); MSA 27A.6452(1). Because the instant suit was properly brought in the Court of Claims, the three year statute of limitations is applicable.

The defendant argues that a one-year statute of limitations is more appropriate relying upon the language found in the payment-bond statute. In pertinent part that statute reads:

"An action instituted on the payment bond shall be brought only in the appropriate court in the political subdivision in which the contract was to be performed. No action shall be commenced after the expiration of 1 year from the date on which final payment was made to the principal contractor.” MCL 129.209; MSA 5.2321(9).

The statute is clearly not applicable since, by its very terms, it concerns actions instituted on a payment bond. In the instant case, no payment bond was ever filed. Moreover, plaintiff’s suit is grounded in negligence, not in any rights arising from a payment bond.

There remains to be determined on what date the statute of limitations began to run. Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), reaffirmed the following as a guideline in making that determination:

" 'In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.
" 'Those elements are four in number:
" '(1) The existence of a legal duty by defendant toward plaintiff.
" '(2) The breach of such duty.
" '(3) A proximate causal relation between the breach of such duty and an injury to the plaintiff.
" '(4) The plaintiff must have suffered damages.’ ” Id., at 25, quoting from Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972).

We find that the statute of limitations began to run on December 2, 1969, the date on which plaintiff’s check was dishonored by the bank. In particular, on that date, defendants arguably owed a legal duty to plaintiff to protect plaintiff by requiring the filing of a performance bond (but see issue III, infra); there was a proximate causal relationship between the breach and an injury to plaintiff; and on that date, plaintiff suffered injury. Hence, plaintiff’s suit, which was initiated on October 10, 1972, was filed timely.

II. Estoppel.

Defendants contended before the lower court that plaintiff was estopped from asserting its claim. The Court of Claims rejected that argument:

"So far as the claim of estoppel is concerned, this court fails to find any basis for estoppel within the set of stipulated facts. The arugument [sic] is made in the defendant’s brief that in some way MSU participated in the pay arrangement between Ackerman and the plaintiff and, relying on such arrangement, issued its check to Ackerman with the knowledge, approval and agreement of the plaintiff. Based on the stipulated facts, this would be sheer speculation. The court agrees with the law cited by the defendant, but fails to find the facts to justify the application of such law.”

A trial court’s findings of fact may not be set aside unless they are found to be clearly erroneous. GCR 1963, 517.1; Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976). Our Supreme Court has stated that a finding is clearly erroneous where the reviewing court "on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id., at 46.

Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts. Conel Development, Inc v River Rouge Savings Bank, 84 Mich App 415; 269 NW2d 621 (1978).

Our review of the stipulated facts in this case does not lead us to conclude that the lower court’s finding was clearly erroneous. There is nothing in the stipulated facts that tends to show that there was any contact between plaintiff and defendants regarding the manner in which the prime contractor was to be paid by defendants. Thus, there is no indication that defendants relied upon any statements or actions of the plaintiff when tendering final payment to the prime contractor.

III. Inapplicability of 1963 PA 213.

Plaintiff argues that state law imposed a duty upon the defendants to require the prime contractor to furnish a payment bond. At the time the events in question occurred, the statute relied upon by the plaintiff read as follows:

"Before any contract, exceeding $5,000.00 for the construction, alteration or repair of any public building or public work or improvement of the state or a county, city, village, township, school district, public educational institution, other political subdivision, public authority or public agency, except the state highway department, hereinafter referred to as the 'governmental unit’, is awarded, the proposed contractor, hereinafter referred to as the 'principal contractor’, shall furnish at his own cost to the governmental unit a performance bond and a payment bond which shall become binding upon the award of the contract to the contractor. Neither the invitation for bids, nor any person acting, or purporting to act, on behalf of the governmental unit shall require that the bonds be furnished by a particular surety company, or through a particular agent or broker, or through a company, agent or broker in any particular locality.” 1963 PA 213, § 1.

Defendants argue that the University is not included within the sweep of the statute’s coverage and point to Weinberg v The Regents of the University of Michigan, 97 Mich 246; 56 NW 605 (1893), as support for their contention. In that case, defendant had entered into a contract with a William Biggs for the construction of a hospital. Id., at 247-248. Biggs in turn sublet a portion of the contract to John Cusac who then purchased material from the plaintiff. Id., at 248. Although plaintiff furnished the material in question, he did not receive payment. Id. As a result, he filed suit alleging negligence on the part of defendant in failing to require a payment bond from Biggs as required by state law. Id., at 249.

The statute before the Supreme Court in Weinberg is not the same statute that is before us in the present case. The statutory provisions before the Court in Weinberg, 1885 PA 45, provided:

"That when public buildings or other public works or improvements are about to be built, repaired, or ornamented under contract, at the expense of this State, or of any county, city, village, township, or school-district thereof, it shall be the duty of the board of officers, or agents, contracting on behalf of the State, county, city, village, township, or school district, to require sufficient security by bond, for the payment by the contractor, and all sub-contractors, for all labor performed, or materials furnished in the erection, repairing, or ornamenting of such building, works, or improvements.”

This statute has been retained by Michigan in a substantially similar form. MCL 570.101; MSA 26.321. However, subsequent to the decision in Weinberg, this statute has been limited in scope to construction and maintenance contracts of the state highway commission. It no longer applies to contracts for public buildings or other public works. See MCL 129.211; MSA 5.2321(11).

In Weinberg, the Court held that this statute did not cover the University because it was not under the control and management of the Legislature. Weinberg v The Regents of the University of Michigan, supra, 253. Instead, the Court noted that the general supervision of the University was vested in the regents. See Const 1850, art 12, §§ 7, 8. The Court then concluded as follows:

"The University and the school-district are both provided for in the same article of the Constitution. Why should the Legislature mention the school-district in this statute, and leave out the University, if it was its intention to include the latter? The University is the property of the people of the State, and in this sense is State property so as to be exempt from taxation. Auditor General v Regents, 84 Mich 467 [47 NW 440(1890)]. But the people, who are the corporators of this institution of learning, have, by their Constitution, conferred the entire control and management of its affairs and property upon the corporation designated as 'the Regents of the University of Michigan,’ and have thereby excluded all departments of the State government from any interference therewith. The fact that it is State property does not bring the Regents within the purview of the statute. The people may, by their Constitution, place any of its institutions or property beyond the control of the Legislature.
"These considerations lead me to the conclusion that the Regents are not included in this act, and that the judgment should be reversed, and judgment entered in this Court for the defendants.” Weinberg, supra, 254-255.

The Court of Claims, adopting its previous opinion in the matter, found the statute in the instant case distinguishable from that reviewed in Wein berg in that the former specifically included "public educational institution” while the latter did not. The court found Michigan State University to be such an institution under Const 1963, art 8, § 4.

The Court of Claims further held that the fact that defendants were a constitutional entity did not exempt them from complying with the performance bonding statute because that statute served a valid public purpose:

"Defendant further claims that M.S.U. is a Constitutional entity and therefore the legislature has no power to impose such a bonding requirement on contracts let by that educational institution. Defendant conceeds [sic] that the legislature has legislative power regarding the university provided the legislation falls within 'police power’ — however, he claims that this particular Act does, not fall within valid exercise of 'police power’. 'Police power’, of course, includes and is limited to legislation concerning 'health, safety, welfare and morals of the people’. This court does not agree with the defendant. Regardless of which point of view one takes, the conclusion seems inescapable that the 'welfare of the people’ is directly involved. From the standpoint of the sub-contractors, sub-sub contractors, materialmen, laborers, etc., it is in the best interest of the public at large that they be paid for services performed and material delivered. It is obviously not in the best interest of the public to either encourage the lengthing [sic] of welfare rolls nor invite an increase in the size of the dockets of the bankruptcy courts. From the standpoint of the people (as represented by the State) it is certainly to their best interests that sub-contractors materialmen, laborers, etc., be encouraged to provide materials and services as cheaply as possible — both the availability and price of goods and services are directly affected by the certainty (or lack of certainty) of payment. In short, it is this court’s opinion that the legislature is well within the policy established by Peters v Michigan State College, 320 Mich 243 [30 NW2d 854 (1948)], and Branum v Board of Regents, 5 Mich Appeals 134 [145 NW2d 860 (1966)].”

With this conclusion we disagree. Michigan State University is a corporation established by the constitution of this state. Const 1963, art 8, § 5. Its board of trustees, defendant in the instant case, have general supervisory power over the University and control and direction over expenditures from the University’s funds. Id. It should be noted that these constitutional provisions are similar to those in the 1850 constitution that concerned the University of Michigan and were before the Court in Weinberg, supra. See Const 1850, art 13, §§ 6-8.

These constitutional provisions have been interpreted by Michigan appellate courts to give to the trustees entire control and management over University affairs; including the management of property and expenditure of funds to the exclusion of all other departments of the state. Board of Regents of the University of Michigan v Auditor General, 167 Mich 444; 132 NW 1037 (1911), Sterling v Regents of University of Michigan, 110 Mich 369; 68 NW 253 (1896). Although the Legislature may put certain conditions on money that it appropriates for the University, and such conditions are binding if the trustees accept the money, the conditions may not interfere with the trustees’ management of the University and may be applied only to state appropriated funds. State Board of Agriculture v Auditor General, 226 Mich 417; 197 NW 160 (1924), State Board of Agriculture v Auditor General, 180 Mich 349; 147 NW 529 (1914). We will interfere with University control only if the proposed expenditure violates our constitution or public policy. Sprik v Regents of the University of Michigan, 43 Mich App 178; 204 NW2d 62 (1972), aff'd on other grounds 390 Mich 84; 210 NW2d 332 (1973).

On occasion, the appellate courts of this state have limited the power of constitutionally created university corporations. See e.g., Regents of the University of Michigan v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973) (University of Michigan held to be a public employer subject to the provisions of the public employment relations act, MCL 423.201 et seq.; MSA 17.455[1] et seq.), Branum v Board of Regents of the University of Michigan, 5 Mich App 134; 145 NW2d 860 (1966) (Legislature could validly waive the university’s governmental immunity). The independence of such universities will not be permitted to "thwart the clearly established public policy” in this state. Id., at 139. We conclude that the payment bonding statute does not represent "a clearly established public policy” in this state. Moreover our conclusion is buttressed by the Court’s decision in Weinberg v The Regents of the University of Michigan, supra, which we find directly on point. Thus we hold that the term "public educational institution”, as that term is used in the performance bonding statute, applies to only those colleges and universities whose governing boards are not created in the constitution. Hence, the lower court erred in holding the performance bonding statute applicable to defendants. The defendant board of trustees had no obligation to secure a performance bond from the principal contractor and, thus, plaintiff cannot maintain this action in negligence for their failure to do so.

IV. Governmental immunity.

Plaintiff’s sole argument in the lower court proceeding was that in passing the payment bond statute the Legislature implicitly allowed waiver of the doctrine of governmental immunity. The Court of Claims rejected that argument. Generally speaking, governmental immunity may be waived only where it is allowed by express statutory enactment or by. necessary inference from a statute. Benson v State Hospital Comm, 316 Mich 66; 25 NW2d 112 (1946), McNair v State Highway Dep’t, 305 Mich 181; 9 NW2d 52 (1943). Our reading of the statute discloses neither.

Defendants also argue on appeal that they should be immune from liability under the doctrine of common-law governmental immunity. In Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), it was held that the defense of common-law governmental immunity would no longer be effective in Michigan. However, the Supreme Court stated that its ruling in Pittman would be prospective only, "with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of governmental immunity had been made and preserved”. Id., at 50. Although defendants asserted the defense of common-law governmental immunity below, plaintiff did not challenge the validity of this defense. Therefore, under the holding in Pittman, plaintiff has waived on appeal any challenge to this defense. Accordingly, the Court of Claims decision on this issue is affirmed.

Affirmed in part and reversed in part.


author: L. B. Bebeau, J.

text:
    PEOPLE v LONG
    Docket No. 78-3810.
    Submitted October 2, 1979, at Grand Rapids.—
    Decided December 18, 1979.
    Leave to appeal applied for.
    David K. Long was convicted of possession of marijuana, Barry Circuit Court, Hudson E. Deming, J. Defendant had filed a pretrial motion to suppress the marijuana confiscated by law enforcement officers from the interior and trunk of his automobile. Judge Deming had denied that motion. Defendant appeals. On appeal defendant contends that the marijuana should not have been admitted into evidence because it was obtained as the result of an unconstitutional search and seizure. Held:

    1. The discovery and seizure of a small plastic bag of marijuana under the front seat armrest of defendant’s automobile did not violate the Fourth Amendment protection against unreasonable searches and seizures. A precautionary lifting of the armrest and seizure of the small plastic bag was constitutionally valid as a reasonable protective search without a warrant under the totality of the facts and circumstances existing at the time of the seizure.
    2. An inventory search of a lawfully impounded automobile without a search warrant does not violate the Fourth Amendment which provides protection from unreasonable searches and seizures where standard police procedures are followed, the procedure was not a pretext concealing an investigatory police motive and the inventory was not unreasonable in scope. Defendant, the sole occupant of the automobile, had been arrested for possession of marijuana and was to be transported to jail. The car he was driving was in a ditch with the rear portion partially blocking the public roadway and the lock had been punched out of the vehicle’s trunk and the trunk’s contents were accessible to anyone who might happen along in the early hours of the morning with the inclination to trip the latch on the trunk. A police officer used his pocket knife to unlatch the trunk. He observed two large paper bags, each of which was split open and contained marijuana. Impoundment of the automobile and an on-the-scene inventory search was clearly reasonable under these circumstances. Inspection of the vehicle’s trunk was motivated by a belief that discovery of the plastic bag of marijuana inside the car suggested the possibility of additional marijuana in the trunk. Furthermore, the car and its contents needed protection. These two concurrent theories of justification for inspection of the trunk do not indicate that the inventory basis for the search was a mere pretext. The trial judge’s determination that the policeman’s inspection of the trunk was made pursuant to a proper inventory is not clearly erroneous.

      References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 2, 5.

       68 Am Jur 2d, Searches and Seizures §§ 57, 58.

       68 Am Jur 2d, Searches and Seizures § 57.
    Lawfulness of "inventory search” of motor vehicle impounded by search. 48 ALR3d 537.
    Validity, under Federal Constitution, of warrantless search of automobile — Supreme Court cases. 26 L Ed 2d 893.

       68 Am Jur 2d, Searches and Seizures §§ 57, 106.

       4 Am Jur 2d, Appeal and Error § 166.

      Affirmed.
    1. Searches and Seizures — Invasion of Privacy — Reasonableness of Invasion — Constitutional Law.
    A Fourth Amendment analysis of whether a search and seizure is valid always depends upon the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security (US Const, Am IV).
    2. Searches and Seizures — Automobiles — Drugs and Narcotics — Motion to Suppress — Reasonable Protective Searches.
    A defendant’s pretrial motion to suppress marijuana that was discovered and seized from his automobile by the police without a warrant was properly denied where under the totality of circumstances the seizure was the result of a reasonable protective search.
    3. Searches and Seizures — Automobiles — Impounded Automobiles — Inventory Search — Search Procedures — Reasonableness — Constitutional Law.
    An inventory search of a lawfully impounded automobile without a search warrant does not violate the Fourth Amendment where standard police procedures are followed, the procedure is not a pretext concealing an investigatory police motive and the search is not unreasonable in scope (US Const, Am IV).

      4. Searches and Seizures — Automobiles — Lawful Police Custody — On-The-Scene Search — Inventory Search — Constitutional Law.
    An on-the-scene inventory search of an automobile is valid under the Fourth Amendment where the automobile is in lawful police custody and the process is aimed at securing or protecting the vehicle and its contents (US Const, Am IV).
    5. Appeal and Error — Criminal Law — Suppression of Evidence — Clearly Erroneous Rulings.
    The Court of Appeals will not overturn a ruling of a trial court at a hearing on a motion to suppress evidence unless that ruling is found to be clearly erroneous.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James H. Fisher, Prosecuting Attorney, (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Jerkins, Plaszczak, Hurley & Bauhof, for defendant.
    Before: Cynar, P.J., and D. F. Walsh and L. B. Bebeau, JJ.

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

   L. B. Bebeau, J.

Defendant, on August 29, 1978, was convicted by jury of possession of marijuana, contrary to MCL 335.341(4)(d); MSA 18.1070(41)(4)(d). He appeals of right from his conviction and September 15, 1978, sentence of two years probation, a fine of $750, and court costs of $300.

Defendant first contends that marijuana confiscated by law enforcement officers from the interior and the trunk of the automobile he was driving was obtained by an unconstitutional search. The trial court, relying upon the testimony contained in the preliminary examination transcript, denied defendant’s pretrial motion to suppress the marijuana evidence, and again denied defendant’s motion when it was renewed at trial. Because of the close question presented by the case at bar, and because search and seizure questions such as this one are invariably factually oriented, it is necessary to review in some detail the events which culminated in police seizure of marijuana from defendant’s vehicle, as these events are depicted in the preliminary examination transcript upon which the trial judge relied in denying defendant’s motion to suppress.

At approximately 12:05 a.m. on August 25, 1977, deputies Howell and Lewis of the Barry County Sheriffs Department, while on routine patrol, observed a car pass them traveling in the opposite direction, and measured the speed of this vehicle at 71 miles per hour in a 55-mile-per-hour zone. By the time the deputies had turned their vehicle around and driven a short distance they came upon the sought-for automobile with its front end in the ditch and its rear end protruding onto the road. As deputies Howell and Lewis left their vehicle and walked forward, defendant — the driver and sole occupant of the other car — left from the driver’s seat side, leaving the driver’s door open and the dome light on, and met the deputies at the trunk area of his automobile.

Defendant, after failing to respond to the deputies’ initial request for his driver’s license, produced it following their second request. When asked for his proof of insurance and vehicle registration defendant again made no response and, subsequent to the deputies’ second request, began walking toward his open car door. At this juncture Deputy Howell observed a "large folding knife” lying on the front floor of the vehicle and ordered defendant to halt. While Lewis retrieved the knife, Howell conducted a pat-down search of defendant which revealed no weapons on defendant’s person. Deputy Howell then shined his flashlight into the front seat of defendant’s car "looking for another weapon”. After noticing some object which appeared to be leather protruding from under the center frontseat armrest closest to the driver’s side of the automobile, Howell reached in, lifted the armrest, and observed an open leather pouch containing a small plastic bag which appeared to the deputy to contain marijuana.

After removing the pouch from the vehicle and showing it to Deputy Lewis, Howell placed defendant under arrest for possession of marijuana, searched the vehicle for additional contraband, searched the glove compartment in vain for the automobile’s registration certificate, decided the car would have to be impounded, and thereupon asked defendant if he had a trunk key, to which defendant responded negatively. At the preliminary examination, Deputy Howell testified as follows regarding what then transpired:

"A * * * My intention at the time when I got out of the vehicle and I asked him for the keys I knew we would have to have the keys to remove the vehicle. The steering column locks and locked ignition, steering and transmission. After receiving the key from him I walked to the rear of the vehicle and noticed that the trunk lock had been punched out. At this time I took my pocket knife and reached in and unlatched the latch.
"Q Why did you do that?
"A It was unusual circumstances to me. Also we check the vehicle to make sure there’s nothing, you know, that’s valuable.
"Q And you do that in limited circumstances where there is no other person to drive the vehicle away?
"A Yes sir,
"Q Is that standard policy?
"A It’s my policy, yes.
"THE COURT: What’s your policy? * * *.
"MR. HOWELL: Yes sir, we don’t — I think what the Prosecutor is getting at is an inventory search. We do not have an inventory search.
"THE COURT: Alright so you opened the trunk?
"MR. HOWELL: Personally, well I can’t speak for the other officers, myself I check the vehicle to make sure there’s nothing of value in there that can be later claimed—
"THE COURT: Alright, fine, but why did you open the trunk?
"MR. HOWELL: Number one, because I already found marijuana, suspected marijuana in the interior of the car, there may have been more in the trunk. Secondly I check them for valuables. I do.”

Upon opening the trunk Deputy Howell observed two large paper bags, each of which was split open to reveal its contents to Howell as marijuana. It was testified at trial that the total weight of both bags was between 70 and 75 pounds. Defense counsel at trial introduced ihto evidence a certificate of title and a copy of an application for certificate of title, as well as an application for 1977 license plates, all relating to the automobile which defendant was driving at the time in question, and all of which showed title to the car in a person other than defendant.

Because evidence of both the small plastic bag of marijuana found inside the car and the large volume of marijuana confiscated from the vehicle’s trunk was introduced at defendant’s trial, and because evidence of marijuana from both these sources is inextricably intertwined as a basis for the jury’s undifferentiated verdict finding defendant guilty of possession of marijuana, we deem it necessary to analyze seriatim defendant’s properly preserved objections to the admissibility of eacb portion of marijuana.

I.

As is conceded by the parties and verified by a careful examination of the instant record, the constitutionality of Deputy Howell’s discovery and seizure of the small plastic bag of marijuana under the frontseat armrest depends upon the proper analysis of the instant facts in light of the legal principles enunciated by the United States Supreme Court in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The salient question presented for our resolution is whether, under the unique facts and circumstances of the present case, Deputy Howell’s precautionary lifting of the front seat armrest prior to allowing defendant to reenter his automobile was constitutionally valid as a protective search under the Terry doctrine. We answer this question in the affirmative and therefore affirm the trial judge’s denial of defendant’s motion to suppress the small plastic bag of marijuana.

In the case at bar, sheriff’s deputies confronted defendant in the early hours of the morning after he emerged from his ditched vehicle shortly after having passed the deputies at a clocked speed of 71 miles per hour. Defendant had to be asked twice to produce his driver’s license before he did so. Likewise, it was not until the deputies’ second request for his automobile registration and proof of insurance that defendant turned and began walking toward the open door of his vehicle. Defendant’s conduct at the scene created the impression in Deputy Howell’s mind that defendant "appeared to be under the influence of something”.

Rendering the situation more ominous was the deputies’ discovery of a large folded knife on the floor in the driver’s area of the vehicle. Although a pat-down search of defendant revealed him to be free of weapons, that finding does not answer the critical question involved in this case. Implicit in defendant’s turning and walking toward the driver’s seat of his vehicle was the logical inference that it was his intent to reenter the driver’s seat to obtain the papers requested by deputies Howell and Lewis. A large folded knife had just been recovered from the floor of the driver’s area, and some type of leather-like object was noted partially protruding from under an armrest in that same vicinity. Under such facts we do not believe that the deputies were constitutionally required to allow defendant access to the driver’s seat of his automobile without first taking the protective precaution of lifting the nearby armrest to ensure that no weapon was readily available there to defendant’s grasp. Deputy Howell testified at the preliminary examination that if he had not found anything he would have asked defendant to get the registration. There is no evidence of a full-scale search of the automobile’s interior conducted by sheriffs deputies at this point in time. Rather, the carefully circumscribed intrusion engaged in by Deputy Howell was within the ambit of the Terry doctrine.

In People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977), the passenger of a stopped automobile, while standing outside the vehicle, indicated to police officers that his identification was in a closed purse inside the car. One officer removed the purse from the automobile, opened it before giving it to the passenger because the officer did not know what was in it, and discovered a pistol. In approving the search of the purse and seizure of the weapon, this Court stated:

"[WJithout reference to the arrest, we would hold that the gun was discovered during a protective frisk as approved by Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). A possible objection to either holding would be that the gun was inside the car and thus not within the defendant’s immediate reach. But the officers still had not seen the defendant’s identification. Whether viewed as incident to an arrest or as part of a continuing on-the-scene investigation of suspicious conduct, someone was going to open the purse and produce the identification. Given the circumstances of this case, we do not believe that the officers were required to allow the defendant access to the purse without first checking the contents. A number of Federal decisions involving similar circumstances support our conclusion. United States v Murrie, 534 F2d 695 (CA 6, 1976), United States v Poms, 484 F2d 919 (CA 4, 1973), United States v Beasley, 479 F2d 1124 (CA 5, 1973), and United States v Vigo, 487 F2d 295 (CA 2, 1973).” 74 Mich App at 314-315.

See also People v White, 84 Mich App 351; 269 NW2d 598 (1978). People v Rosales, 406 Mich 624; 281 NW2d 126 (1979), and Government of the Canal Zone v Bender, 573 F2d 1329 (CA 5, 1978), relied upon by defendant, are factually distinguishable since in neither case was the search sought to be justified under Terry conducted pursuant to a bona fide need to protect police officers from physical danger or fear of violence during their investigation.

We adopt the Ridgeway rationale as applicable to the instant facts. "The touchstone of our analysis under the Fourth Amendment is always the 'reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ Terry v Ohio, 392 US 1, 19; 88 S Ct 1868; 20 L Ed 2d 889 (1968)”. Pennsylvania v Mimms, 434 US 106, 108-109; 98 S Ct 330; 54 L Ed 2d 331 (1977). Under the totality of the facts and circumstances existing in the case at bar, Deputy Howell’s lifting of the armrest constituted a reasonable protective search under Terry. The trial judge therefore correctly denied defendant’s motion to suppress the marijuana discovered under the armrest.

II.

We turn next to a determination of whether Deputy Howell’s inspection of the trunk of the stopped vehicle was constitutionally justifiable as an inventory search. In South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), the United States Supreme Court held that US Const, Am IV is not violated by a warrantless inventory search, following standard procedures, of a lawfully impounded automobile, where the procedure was not a pretext concealing an investigatory police motive, and the inventory was not unreasonable in scope. See also People v Boutell, 80 Mich App 216; 263 NW2d 36 (1977).

There is no question in this case but that the deputies’ decision to impound defendant’s vehicle was proper. Defendant, the sole occupant of the automobile, had been arrested for possession of marijuana and was to be transported to jail. The car he was driving was in the ditch, with the rear portion partially blocking the public roadway. Moreover, since the lock had been punched out of the vehicle’s trunk, the trunk’s contents were accessible to anyone who might happen along in the early hours of the morning with the inclination to trip the latch on the trunk. Impoundment of the vehicle was therefore clearly reasonable. People v Roberson, 80 Mich App 241; 263 NW2d 42 (1977).

Nor do we deem controlling the fact that the trunk search occurred at the scene of the stop instead of at the impoundment lot. The testimony in this case is clear that the decision to impound had been made prior to the trunk search, although a wrecker was not summoned to tow the vehicle away until after the trunk was inspected by Deputy Howell. The Court in Opperman, supra at 373 declared:

"In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents.” (Emphasis supplied.)

See also People v Roberson, supra, which sustained an on-the-scene inventory search.

Deputy Howell testified that his inspection of the vehicle’s trunk was motivated by a belief that discovery of the plastic bag of marijuana inside the car suggested the possibility of additional marijuana in the trunk, and because it was his policy to check for valuables to protect himself against subsequent claims by the vehicle’s owner. It is well known that a given police action may be supportable on more than one legal ground. See People v Roberson, supra at 242-243; People v Ridgeway, supar at 314-315. The fact that Deputy Howell believed that his inspection of the trunk was justifiable on two separate grounds does not compel the conclusion that his second articulated ground was a mere pretext for the accomplishment of a search actually conducted pursuant to some other motive. Since the issue was neither briefed nor argued in the present case, we express no opinion as to the legal validity of Howell’s belief that he could search the entire car, including the trunk, based upon the finding of the small bag of marijuana under the armrest. We note, however, that the legal questions inherent in this theory are sufficiently complex to have recently necessitated the attention of the highest court of a sister state. Wimberly v Superior Court of San Bernardino County, 16 Cal 3d 557; 128 Cal Rptr 641; 547 P2d 417 (1976). Deputy Howell’s expressed entertainment of two concurrent theories of justification for his inspection of the trunk does not indicate that the inventory basis for the search was a mere pretext.

During his preliminary examination testimony, Deputy Howell stated that "[w]e do not have an inventory search”. Howell averred, however, that it was his policy to check a vehicle in an impoundment situation to guard against later claims.

One prerequisite to a valid inventory search recognized by the Opperman court is that the search must be conducted pursuant to a standard police procedure. That the trial judge properly considered any inconsistencies in the deputies’ testimony regarding this element is clearly demonstrated by his ruling denying defendant’s motion to suppress:

"The District Judge held that the intrusion into the trunk constituted an inventory search and such was permissible. From my review of the testimony of the officers, and there was testimony to the effect that the examination of the trunk was made for the purpose of determining what valuables were contained in this automobile, and the officers didn’t use the chosen words of inventory, but I’m satisfied when the officers said that they’re concerned about valuables, that they meant inventory. I’m satisfied that that’s why the trunk was opened,”

The ruling of the trial court denying defendant’s motion to suppress will be reversed on appeal only if it is clearly erroneous. People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). Utilizing that standard, we find no reversible error in the trial judge’s determination that the deputies’ inspection of the trunk was made pursuant to a proper inventory of the type approved by Opperman and its progeny.

Defendant’s remaining allegations of error are without merit.

Affirmed.


author: D. F. Walsh, J.

text:
    BOZARTH v HARPER CREEK BOARD OF EDUCATION
    Docket No. 78-5025.
    Submitted October 3, 1979, at Grand Rapids.—
    Decided December 18, 1979.
    Plaintiff, June Lower Bozarth, appeals the summary judgment of the Calhoun Circuit Court, Stanley Everett, J., dismissing claims brought for herself and on behalf of her minor son, Jessy Lower, against defendant Harper Creek Board of Education for damages as a result of alleged homosexual attacks upon her son by his teacher, defendant Loren Mixson. The trial court determined that governmental immunity barred a claim based on the school board’s negligence in hiring and supervising the teacher and that the tortious acts alleged were not within the scope of the teacher’s employment. Held:

    1. The screening, hiring and supervision of teachers is a governmental function.
    2. A homosexual assault by a teacher on a student is outside the scope of the teacher’s employment. The doctrine of respondeat superior does not apply to such a situation to subject the governing school board to liability. The doctrine that an employer is liable for the tortious acts of his employees where the employee "was aided in accomplishing the tort by the existence of the agency relation” is limited to situations where, from the viewpoint of the person being harmed, the agent appears to have been acting within the scope of his employment. The mere fact that an employee’s employment situation may offer an opportunity for tortious activity does not make the employer liable to the victim.
    Affirmed.
    1. Schools and School Districts — Hiring of Teachers — Governmental Function.
    The screening, hiring and supervision of teachers is a governmental function.
    References for Points in Headnotes

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 104. Modern status of doctrine of sovereign immunity as applied to
    public schools and institutions of higher learning. 33 ALR3d 703.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 96.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 94 et seq.

      2. Schools and School Districts — Teachers — Scope of Employment — Sexual Assault — Torts — Principal and Agent — Respondeat Superior.
    A homosexual assault by a teacher on a student is outside the scope of the teacher’s employment; the doctrine of respondeat superior does not apply to such a situation to subject the governing school board to liability.
    3. Principal and Agent — Torts — Employer’s Liability for Employee’s Tortious Act — Employment as Opportunity for Tortious Conduct.
    The doctrine that an employer is liable for the tortious acts of his employees where the employee “was aided in accomplishing the tort by the existence of the agency relation” is limited to situations where, from the viewpoint of the person being harmed, the agent appears to have been acting within the scope of his employment; the mere fact that an employee’s employment situation may offer an opportunity for tortious activity does not make the employer liable to the victim.

      Starr & Cornell, for plaintiff.

      Dilley, Dewey & Waddell (by Jonathan S. Damon), for defendant Harper Creek Board of Education.
    Before: Cynar, P.J., D. F. Walsh and L. B. Be-beau, JJ.

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

   D. F. Walsh, J.

Plaintiff June Lower Bozarth, acting individually and on behalf of her minor son, appeals entry of summary judgment in favor of defendant Harper Creek Board of Education. We have carefully considered the arguments raised on appeal and find no error in the dismissal of counts I and II of plaintiffs complaint.

Plaintiffs complaint arose out of alleged homosexual assaults by a teacher, defendant Mixson, on plaintiff’s son. Count I alleged defendant school board’s negligence in the hiring and supervision of Mr. Mixson. Count II alleged the board’s vicarious liability for Mixson’s conduct under the doctrine of respondeat superior. The trial court found that the defense of governmental immunity barred count I and that plaintiff had not stated a claim under the respondeat superior doctrine.

The trial court’s determination that the defense of governmental immunity defeats the claim stated in count I of plaintiff’s complaint was correct. The screening, hiring and supervision of teachers is a governmental function. Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976).

A homosexual assault by a teacher on a student is clearly outside the scope of the teacher’s employment. See Galli v Kirkeby, supra, 542-543 (dissenting opinion of Coleman, J.). The respondeat superior doctrine, therefore, does not apply in such a situation to subject the governing school board to liability. 1 Restatement Agency, 2d, § 219, p 481. McCann v State of Michigan, 398 Mich 65, 71; 247 NW2d 521 (1976) (opinion of Kavanagh, C.J.).

By brief and oral argument, plaintiff has focused on the following language, taken from the Restatement on Agency, and found in Justice Kavanagh’s opinion in McCann, supra, 71:

"The employer is also liable for the torts of his employee if 'the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation’. 1 Restatement Agency, 2d, § 219(2)(d), p 481.” (Emphasis added.)

It is plaintiffs argument that a jury must be allowed to determine whether Mixson "was aided in accomplishing the tort by the existence of the agency relation”.

Plaintiff has cited no cases in which this subsection of the Restatement has been applied as now urged by plaintiff. In our view, proper application of the principle of liability enunciated in the subsection is limited to situations where, from the viewpoint of the person being harmed, the agent appears to have been acting within the scope of his employment. Justice Kavanagh so framed the issue in McCann:

"The issue in this case thus becomes whether these employees of the State of Michigan were acting within the apparent scope of their employment.” (Emphasis added.) 398 Mich 65, 71-72.
"The complaint in this case alleges that the tortious conduct of the individual defendants was 'made possible by their positions with the State Hospital, which parties purportedly acted on behalf of said hospital, vested with apparent authority to do so ***’.*** I am satisfied that as a matter of law the complaint in this case contains allegations which, if proven, would properly allow the fact finder to determine that the torts were committed by employees of the State of Michigan who were acting within the apparent scope of their authority. ” (Emphasis added.) 398 Mich 65, 72.

We are not persuaded that any factual development of plaintiffs allegations under count II could justify recovery against defendant school board under the doctrine of respondeat superior. A teacher’s homosexual assaults on his student constitute conduct clearly outside the scope of the teacher’s employment and outside the teacher’s apparent authority. The mere fact that an employee’s employment situation may offer an opportunity for tortious activity does not make the employer liable to the victim of that activity. Summary judgment on count II was, therefore, properly entered in favor of defendant school board.

Affirmed.

       In count Ii, plaintiff alleged, inter alia, as follows:
      "19. That Defendant Mixson was an agent of Defendant Board and while so employed by Defendant Board did commit homosexual assaults on Jessy Lower, forcing him to submit to and commit acts of indignity and human revulsion, all too repulsive to fully set forth in this pleading.
      "20. Prior to, during, and after the homosexual assaults, Defendant Mixson was a sixth grade teacher employed by Defendant Harper Creek Board of Education.
      "21. Defendant Mixson was acting within the scope of the Defendant Board’s employment and in furtherance of its business when the above-mentioned attacks occurred on Jessy Lower.”

       See 1 Restatement Agency, 2d, § 219, Comment on Subsection (2), pp 484-485, with accompanying cross-reference to 1 Restatement Agency, 2d, § 261, pp 570-571.


author: D. E. Holbrook, Jr., J.

text:
    KAMINSKY v THE HERTZ CORPORATION
    Docket No. 43446.
    Submitted October 10, 1979, at Lansing.
    Decided December 18, 1979.
    Leave to appeal applied for.
    Joyce Kaminsky, Paul S. Kaminsky, James Utrup, Judith Utrup, Sarah Utrup and Becky Utrup were injured when the windshield of the automobile in which they were riding was struck by a sheet of ice which detached itself from the roof of a truck which was passing in the opposite direction. It was established that the truck was a yellow color and bore the logo of The Hertz Corporation. The Kaminskys and Utrups brought an action against Hertz, charging negligence, nuisance and product liability. The Saginaw Circuit Court, Joseph R. McDonald, J., granted summary judgment to the defendant, and the plaintiffs appeal. Held:

    1. The truck was identified only by its yellow color and the Hertz logo. The trial court granted summary judgment based on its conclusion that a jury could not find ownership of the truck in Hertz except by speculation because about 10 percent of the trucks with Hertz colors and logo are owned by licensees, franchisees, or others who have purchased the trucks without removing the Hertz identification. The Hertz colors and logo establish a prima facie showing of ownership and control sufficient to preclude summary judgment. The burden of going forward with the evidence to overcome this presumption is on the defendant, and it is for the jury to decide whether the presumption has been overcome by that evidence.
    2. In regards to the product liability claim, if the plaintiffs are able to prove the Hertz truck is defective in design, it is possible to hold a franchisor liable for damages for consenting to distribution of a defective product bearing the franchisor’s name.
    3. The defendant asserted an affirmative defense of "act of God” and the trial court refused the plaintiffs’ motion to strike that defense. Such denial was error in this case.

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment §§ 16, 27.

       8 Am Jur 2d, Automobiles and Highway Traffic §§ 896, 909.
    Presumption and prima facie case as to ownership of vehicle causing highway accident. 27 ALR2d 167.

       1 Am Jur 2d, Act of God §§ 1-3.

      Reversed and remanded.
    1. Evidence — Summary Judgment — Failure to Support Complaint.
    The question of whether or not a plaintiffs evidence fails to support the complaint becomes a question of law, and thus susceptible to summary judgment, only where the evidence is such that all reasonable men would reach the same conclusion or where there is a total failure to prove one or more elements necessary to the cause of action.
    2. Negligence — Evidence — Commercial Vehicles — Presumptions.
    Evidence establishing that a party’s name and colors appear on a commercial vehicle involved in an accident creates a rebuttable presumption that that party had ownership or control of the vehicle; the effect of this presumption is to shift the burden of going forward with the evidence to that party, and whether or not that party’s evidence overcomes the presumption is a question for the jury.
    3. Words and Phrases — Act of God.
    An "act of God” is an event or accident which proceeds from natural causes and cannot be anticipated and provided against; it requires an unusual, extraordinary, and unexpected manifestation of the forces of nature and the entire exclusion of human agency from the cause of injury or loss.

      Yuille, Zeleznik, Plourde & Russell, for plaintiffs.

      Collison, Chasnis & Dogger, for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and Glennie, JJ.

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

   D. E. Holbrook, Jr., J.

Plaintiffs appeal as of right a January 17, 1979, order granting defendant’s motion for summary judgment. The incident which gave rise to this action occurred November 16, 1974, while plaintiffs were driving a Volkswagen south on Highway M-52 in Saginaw County. The windshield was struck by a large sheet of ice which detached from the top of a passing yellow truck bearing the Hertz logo. The windshield shattered injuring plaintiffs, particularly Joyce Kaminsky who lost her right eye and suffered serious facial lacerations. Plaintiffs charge negligence, nuisance, and product liability, requesting damages in amounts ranging from $15,000 to $1,250,000.

The motion for summary judgment was granted on facts stipulated to by the parties. Of primary importance was the admitted fact that the truck was identified only by virtue of its yellow color and the Hertz logo. Hertz owns only approximately 90 percent of such vehicles while the other 10 percent are owned by licensees or franchisees, or are vehicles sold without removal of the Hertz logo and colors. The trial court concluded that a jury could not find ownership in Hertz Corporation and that any verdict for plaintiffs would be based on guess and conjecture. We disagree.

Whether plaintiffs’ evidence fails to support the complaint becomes a question of law only where the evidence is such that all reasonable men would reach the same conclusion or where there is total failure to prove one or more elements necessary to the cause of action. Brill v Davajon, 51 Ill App 2d 445; 201 NE2d 253 (1964). In a civil case, the quantum of proof required is a "preponderance of the evidence”. It cannot be said that the preponderance of the evidence showed non-ownership of the truck by Hertz, when the facts stipulated showed 90 percent of the vehicles bearing the Hertz logo are owned by Hertz.

Our decision does not rest on an estoppel theory as there was no reliance on the part of plaintiffs. We find instead that the Hertz color scheme and logo establish a prima facie showing of ownership or control sufficient to prevent a summary judgment. In the interest of justice, we feel that any business organization which permits a commercial conveyance to operate on the public highways prominently proclaiming its name owes a duty to the public to stand by that voluntary, self-advertising proclamation. That responsibility, of course, is not absolute. The named firm may introduce evidence indicating lack of control or ownership. But such explanations are for the jury to evaluate and appraise in light of all the surrounding circumstances.

We cite with approval the reasoning of Fullerton v Motor Express, Inc, 375 Pa 173, 175-176; 100 A2d 73, 74 (1953), where it was stated:

"The law is clear that an identifying sign on a commercial vehicle declares its reputed ownership as much as a flag proclaims the nationality of the ship which flies it. If the ship is sailing under false colors it will have to answer for the deception. If a name on the vehicle misstates ownership, opportunity is afforded the named person or firm to disprove the asserted proprietorship. " '* * *It is well settled by our previous decisions that the presence of a defendant’s name on a commercial vehicle raises a rebuttable presumption that the vehicle is owned by defendant and that the driver of the vehicle is a servant of defendant acting within the scope of his employment. * * * THIS presumption is sufficient to take the case to the jury even though defendant produces uncontradicted evidence that the driver was not its employee * * * or produces evidence that it did not own the vehicle in question.’.
"The most elementary rules of logic, woven into the fabric of correlative social responsibility, as well as the requirements of simple justice, demand that the law be as above indicated. The person who is struck down by a strange vehicle cannot automatically know the business of the owner of the vehicle; and, even with the most diligent inquiry, he may not be able to ascertain the nature of the mission to which the driver was committed at the time. Hence the imperative necessity of the presumption, in a situation of this kind, that the first person or firm to be called to answer for the mishap should be the person or firm whose name decorates the offending vehicle.”

Fullerton, supra, found that the question of ownership and mission of the corporation’s truck-tractor at the time of the accident was to be determined by the jury.

An illustrative case is Webb v Dixie-Ohio Express Co, Inc, 291 Ky 692; 165 SW2d 539 (1942), which held that proof of uniformity of all trucks painted with identical colors and with defendant’s name inscribed thereon was sufficient to create a presumption that the truck was owned by defendant. Such evidence may be rebutted, in which event the ultimate facts must be determined by a jury under proper instruction by the court. In explaining its ruling, the court stated:

"Because it is often impossible for the plaintiff to prove the agency of the operator, it is deemed desirable socially that the burden of introducing evidence on non-agency should be placed upon the defendant in whose peculiar knowledge rests the material evidence essential to a determination of this face.” 291 Ky at 694.

A similar holding is found in Nash v Wright, 82 Cal App 2d 467; 186 P2d 686 (1947), where the truck involved in an accident was registered in the name of another. Nevertheless, in determining negligence liability, evidence that a defendant’s name was painted thereon and that a driver was in the defendant’s employ was found sufficient to allow jury determination on issues of ownership ánd authorization of the driver to use the truck.

In Thomas v Checker Cab Co, Inc, 66 Mich App 152; 238 NW2d 558 (1975), this Court adopted the rule followed in the above jurisdictions stating:

"[E]vidence establishing that defendant company’s name and colors are upon the taxicab creates a prima facie case that defendant had custody and control of that cab, whether the company owned it or not. That presumption of custody and control is sufficient to carry the case to the jury * * *. This rule affects only the burden of going forward with the evidence, and not the ultimate burden of proof, which is still upon plaintiffs
"The rule which we now adopt was created in recognition of the difficulties injured individuals encounter in unraveling the complex organization structures set up between taxicab companies and their drivers.” 66 Mich App at 158.

In Thomas, supra, Checker Cab obtained a directed verdict of no cause of action on grounds that there had been no showing of control over the various operations of the drivers. The trial judge held that Checker was actually an agent of the cab owners. Trial testimony indicated that Checker cabs were identifiable through an insignia and common color scheme. The company maintained a switchboard call system to relay requests for cab service and it was estimated that 40 percent of company business came from radio calls. In light of that evidence, the court could not say that the defendant’s proofs of lack of control were undisputed. Whether the effect of the presumption of control was overcome by defendant’s evidence was found to be a question for the jury.

In the instant case it has been shown that 90 percent of trucks bearing the Hertz logo are owned by defendant. Licensees and franchisees are not required to use the same yellow and black color scheme of Hertz and may use their own individual company colors.

Deposition testimony by witnesses to the incident provided a description of the truck and its two occupants. Mr. and Mrs. Hawley followed directly behind the truck at a distance of about five car lengths for approximatley two miles. They described it as yellow with the Hertz logo written on the side and back in letters 2 to 2-1/2 feet high or higher. They did not see any other identification on the truck and were unable to see the license tag.

MCL 257.723; MSA 9.2423 requires all vehicles of more than 3,500 pounds operating on public highways to have painted upon them information relative to the name and address of the registered owner and lessee of the vehicle, if it is being operated under lease, in conspicuous letters at least three inches in height. The witnesses’ failure to see other painted identification on the truck tends to strengthen plaintiffs’ argument that Hertz Corporation was the owner of the truck.

The burden of introducing evidence as to non-ownership or control should be placed upon defendant, in whose particular knowledge rests the material evidence essential to a determination of the facts. Webb v Dixie-Ohio Express Co, Inc, supra Plaintiff, even with the most diligent inquiry, may be unable to ascertain the ownership or identity of the vehicle. Such information is more readily available to defendant through business records or daily log sheets in the possession of Hertz or its licensees.

To summarize, in a situation such as this, a rebuttable presumption of ownership and/or control arises which affects the burden of going forth with evidence. Whether defendant’s evidence overcomes the presumption is a question for the jury. The ultimate burden of proof is not shifted, but remains with plaintiffs.

We also note that plaintiffs’ complaint alleges not only negligence but also nuisance and products liability. As to the products liability claim, under Michigan law, a jury might find a supplier of a defective product liable, depending on the level of awareness of the risk of harm, for negligence and/ or breach of implied warranty of fitness. If plaintiffs are able to prove the Hertz truck is defective because of an unsafe design, which allows ice to accumulate and later detach when the truck is in motion, there is authority under Kosters v Seven-Up Co, 595 F2d 347 (CA 6, 1979), for holding a company franchisor liable for consenting to distribution of a defective product bearing its name.

The last issue raised by plaintiffs is whether the trial court erred in denying their pretrial motion to strike defendant’s affirmative defense of "act of God”. In the context of a negligence action, the Michigan Supreme Court has adopted a definition of "act of God” to mean:

" '[T]hose events and accidents which proceed from natural causes and cannot be anticipated and provided against, such as unprecedented storms, or freshets, lightning, earthquakes, etc.’ ” Golden & Boter Transfer Co v Brown & Sehler Co, 209 Mich 503, 510; 177 NW 202 (1920).

Golden was recently cited in Potter v Battle Creek Gas Co, 29 Mich App 71; 185 NW2d 37 (1970). This Court in Potter added the following comments about the "act of God” defense:

"The definition of an 'act of God’ requires an unusual, extraordinary, and unexpected manifestation of the forces of nature, and require[s] the entire exclusion of human agency from the cause of the injury or loss.” 29 Mich App at 75.

Alaska Freight Lines v Harry, 220 F2d 272 (CA 9, 1955), involved a similar type incident. The court held that the falling of a piece of ice from the top of a tractor-trailer onto a passing vehicle in Alaska during winter was foreseeable and it was actionable negligence to permit ice to accumulate on top of said tractor-trailer.

We find that the trial court erred in refusing to grant plaintiffs’ motion to strike the defense of "act of God”.

Reversed and remanded. Costs to abide the final result.


author: Per Curiam.

text:
    PEOPLE v BAKER PEOPLE v RICHARDSON
    Docket Nos. 78-1677, 44531.
    Submitted October 19, 1979, at Detroit.—
    Decided December 18, 1979.
    Leave to appeal denied, 408 Mich 925.
    Norma Baker and Norman Richardson were tried jointly in Recorder’s Court of Detroit, Geraldine B. Ford, J. Defendant Baker was convicted of first-degree murder, second-degree murder and conspiracy to commit murder in the first-degree. Defendant Richardson was convicted by the same jury of first-degree murder, conspiracy to commit first-degree murder and violation of the felony-firearm statute. Defendants appeal. The Court of Appeals consolidated the appeals, on its own motion, for the purpose of hearing on the merits. Defendants allege that (1) the trial court erred in excluding the testimony of an eyewitness’s optometrist on the basis of an optometrist-patient privilege, and (2) the trial court erred in allowing the prosecution to read an extrajudicial statement of a dead witness into the record. Held:

    1. An optometrist’s information is not privileged under administrative rules which provide ethical standards for optometrists, including a requirement that all information concerning a patient shall be held in confidence. The fact that disclosing information concerning a patient is unethical does not mean that such testimony is privileged. There is no such privilege either at common law or by statute. A physician-patient privilege does apply to persons duly authorized to practice medicine or surgery but an optometrist is not duly authorized to practice medicine or surgery. The trial court should not have excluded this testimony on the basis of the rule.
    2. Extrajudicial statements of deceased witnesses should not be admitted into evidence where they place a defendant’s rights in jeopardy without serving any legitimate purpose. The statement which strongly implicated both defendants in the killings was controversial, unnecessary and highly prejudicial. Defendants were denied the right of confrontation in cross-examination of witnesses in the presence of the jury, which is a fundamental requirement of a fair trial. Although the trial judge instructed the jury that the extrajudicial statement was not to be considered to prove that defendants had committed the murders, there is a substantial risk that the jury, despite instructions to the contrary, looked to the incriminating statement in determining defendants’ guilt. The trial court should not have admitted the statement.

      References for Points in Headnotes

       61 Am Jur 2d, Physicians, Surgeons, and other Healers §§ 25, 101.
    81 Am Jur 2d, Witnesses § 237.

       21 Am Jur 2d, Criminal Law § 333 et seq.

    29 Am Jur 2d, Evidence § 610.
    81 Am Jur 2d, Witnesses § 464 et seq.

      Reversed and remanded.
    1. Evidence — Optometrists — Privilege — Physician-Patient Privilege.
    Optometrists cannot refuse to testify concerning a patient on the basis of an optometrist-patient privilege; there is no statutory or common-law basis for such a privilege and although such testimony may be unethical it is not privileged.
    2. Evidence — Extrajudicial Statements — Admissibility — Prejudice — Cross-Examination — Fair Trial.
    An extrajudicial statement of a deceased witness should not be read into the trial record because it places a defendant’s right of confrontation in cross-examination in jeopardy without serving any legitimate purpose; there is a substantial risk that the jury, despite instructions to the contrary, will look to the incriminating extrajudicial statement in determining the defendant’s guilt; the rights of confrontation in cross-examination of the witness in the presence of the trier of fact, a fundamental requirement of a fair trial, cannot be fulfilled.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy Scallen and Michael D. Lehto, Assistant Prosecuting Attorneys, for the people.

      Bruce T Leitman, P.C., for defendant Baker.

      Robert E. Slameka, for defendant Richardson.

      Before: Danhof, C.J., and J. H. Gillis and D. C, Riley, JJ.
   Per Curiam.

Defendant Baker was convicted by a jury of first-degree murder in the death of Jay Baker, contrary to MCL 750.316; MSA 28.548, second-degree murder in the death of John Moore, contrary to MCL 750.317; MSA 28.549, and conspiracy to commit murder in the first degree, contrary to MCL 750.157a; MSA 28.354(1) and MCL 750.316; MSA 28.548. She was sentenced to serve two natural life sentences and 40 to 60 years on the second-degree murder count. Defendant Richardson was convicted by the same jury of two counts of first-degree murder in connection with the deaths of Jay Baker and John Moore, conspiracy to commit first-degree murder, and felony-firearm, contrary to MCL 750.227b; MSA 28.424(2). He was sentenced to three life sentences and the mandatory two years on the felony-firearm count. They appeal as of right.

Defendants raise numerous issues on this appeal, two of which we find meritorious.

Defendants argue that the trial court erred in excluding the testimony of an eye witness’s optometrist on the basis of an optometrist-patient privilege. Robert Baughman was the only eye witness who identified Norman Richardson as the gunman at the May 12, 1977, shootings. Defendants planned on calling the optometrist to testify as to Baughman’s inability to see based on an eye examination two months after the shootings.

In holding that the optometrist’s information was privileged the trial court relied on 1956 AACS, R 338.291 which provides ethical standards for optometrists, including a requirement that all information concerning a patient shall be held in confidence.

We hold that the trial court erred in applying this ethical standard as an evidentiary privilege. The fact that disclosing information concerning a patient is unethical does not mean that such testimony is privileged. There is no common law optometrist-patient privilege. Nor does the statutorily created physician-patient privilege apply; that privilege applies to persons duly authorized to practice medicine or surgery. MCL 600.2157; MSA 27A.2157. An optometrist is not duly authorized to practice medicine or surgery. The trial court should not have excluded this testimony.

Defendants also argue that the trial court erred in allowing the prosecution to read the extrajudicial statement of a dead witness into the record. Late in the people’s case in chief, Ronald Schigur, the assistant Wayne County prosecuting attorney who originally handled the case, was called to testify as to why one Pete Simpson was promised he would not be prosecuted if he would agree to testify at trial. After cross-examination, Schigur was permitted, over objection, to read a written statement taken from William Suggs by the police on August 9, 1977. This statement strongly implicated both defendants in the killings. The trial judge admitted this statement because she felt defense counsel had "opened the door” by implying that the people had relied solely on the testimony of Pete Simpson in electing to prosecute defendants.

We hold that the trial court erred in admitting this highly prejudicial evidence. A careful reading of the cross-examination reveals no questioning of the prosecutor’s justifications for bringing the case to trial. Defendants sought to show that Simpson was granted "immunity” because he had friends in authority, not because his story was necessarily true. It was also suggested that Simpson, being involved in the killings, had a motive to lie. While the trial judge instructed the jury that Suggs’ statement was not to be considered to prove that defendants had committed the murders, there is a substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statement in determining defendants’ guilt. See Bruton v United States, 391 US 123, 126; 88 S Ct 1260; 20 L Ed 2d 476 (1968).

The rights of confrontation in cross-examination are fundamental requirements of a fair trial. See People v Hollingsworth, 22 Mich App 545, 547; 177 NW2d 687 (1970), Const 1963, art 1, § 20.

The primary goal of the confrontation clause is to prevent the use of ex parte affidavits or depositions against the accused in lieu of personal examination and cross-examination of witnesses in the presence of the trier of fact. People v Triplett, 68 Mich App 531, 539; 243 NW2d 665 (1976). These rights were placed in jeopardy by the admission of Suggs’ statement, without serving any legitimate purpose.

Defendants’ convictions must be reversed and defendants remanded for a new trial.

Reversed and remanded.