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

text:
    PEOPLE v MAJOR
    Docket No. 77-2253.
    Submitted June 15, 1978, at Grand Rapids.
    Decided September 19, 1978.
    Thornton Major was charged with assault with intent to commit murder. He was convicted in Kent Circuit Court, Roman J. Snow, J., of the lesser included offense of assault with intent to do great bodily harm less than murder. The defendant appeals, claiming that a particular jury instruction was unduly coercive and mandates reversal because it required a unanimous jury agreement to acquit on a greater charge before consideration of lesser offenses. Held:

    The instruction claimed to be erroneous was not prejudicial. It is clear and apparent from the total instruction that the trial judge was simply giving the jury an example of the circumstances under which the jury was required to find the defendant not guilty of the principal charge.
    Affirmed.
    Criminal Law — Instructions to Jury — Greater and Lesser Charges — Jury Agreement — Coercion.
    The requirement of unanimous jury agreement to acquit a defendant of a greater charge before consideration of any lesser included offenses is unduly coercive and mandates reversal; but, where a claimed erroneous instruction is read together with the total instructions and it is clear and apparent that the trial judge was simply giving the jury an example of the circumstances under which the jury was required to find the defendant not guilty of the principal charge, the instruction was not prejudicial and may even have been beneficial to the defendant.
    Reference for Points in Headnote
    75 Am Jur 2d, Trial §§ 876-882, 905, 919, 921.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Donald A. Johnston, III, Chief Appellate Attorney, for the people.

      Buth & Riley, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   D. E. Holbrook, Jr., P. J.

Defendant was charged with assault with intent to commit murder, MCL 750.83; MSA 28.278, and convicted by a jury of the lesser included offense of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. Thereafter sentenced to a prison term of not less than 3 nor more than 10 years defendant appeals as of right.

Defendant’s sole claim on appeal is that a particular jury instruction was unduly coercive and mandates reversal under People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974), People v Hurst, 396 Mich 1; 238 NW2d 6 (1976), People v Ray, 43 Mich App 45; 204 NW2d 38 (1972), and People v Summers, 73 Mich App 411; 251 NW2d 311 (1977). We disagree. The instruction of which defendant complains is as follows:

"If you find that the crime would have been manslaughter had death resulted, then you must find the Defendant not guilty of assault with intent to murder and consider whether or not he is guilty of any lesser included offense”. (Emphasis supplied.)

In Harmon, Hurst, Ray and Summers the court instructed the jury differently than in the case at bar. In Ray the court instructed: "Well you have to either keep voting on the first charge until you either all find him not guilty, or all find him guilty.” In Harmon the court in effect instructed the jury that before they could consider lesser included offenses they must first determine that defendant did not commit the principal charge. In Hurst the court instructed: "If you find either of the defendants not guilty of the charge of manslaughter then you should proceed to determine whether that defendant not guilty of manslaughter is guilty of the crime of assault and battery.” In Summers the court delineated to the jury their method of deliberation. The instructing judge told the jury that if they found defendant not guilty of the main charge they should then consider the lesser included offense of attempted armed robbery and if they found defendant not guilty of that they then must consider felonious assault.

In all of the foregoing cases the jury was in effect instructed that a unanimous agreement of all 12 jurors to acquit was required before the jury could consider any lesser included offenses. Such is not the case here. In the instant case when the claimed erroneous instruction is read together with the total instructions it is clear and apparent that the trial judge was simply giving the jury an example of under what situation the jury was required to find the defendant not guilty of the principal charge.

Unlike the instructions given in Hurst, Harmon, Summers and Ray which were held to be prejudicial, the instruction given in the instant case was beneficial to the defendant. As previously noted defendant was not convicted of the principal charge and a reason therefore could well be the instruction to which defendant now objects. We find no reversible error.

Affirmed.


source: Caselaw Access Project

author: Bashara, P. J. Bronson, J.

license: Public Domain

text:
    PEOPLE v RENO
    Docket No. 77-2285.
    Submitted June 7, 1978, at Detroit.
    Decided September 19, 1978.
    Leave to appeal applied for.
    Defendant, Gordon A. Reno, was charged with aggravated assault and was convicted of assault and battery in Recorder’s Court of Detroit, Frank Miltner, J. Defendant appeals alleging error in failing to grant him a preliminary hearing and in the lack of specificity of the warrant and complaint. Held:

    1. Due to an amendment in the statute governing preliminary examinations a defendant charged with a high misdemeanor in Detroit Recorder’s Court is no longer entitled to a preliminary examination, and the Recorder’s Court rules do not require one.
    2. An information is sufficient if stated in the language of the statute.
    3. The proper time for a defendant to object to the insufficiency of a warrant and complaint is prior to trial, not at the close of the people’s case.
    Affirmed.
    Bronson, J., dissented. He would hold that Recorder’s Court Rule 8 affords a preliminary examination to the defendants charged with high misdemeanors.
    Opinion op the Court
    1. Criminal Law — Statutes—Misdemeanors—Preliminary Examinations — Recorder’s Court Rules.
    The statute providing for a preliminary examination prior tc the filing of an information was amended to eliminate the necessity for preliminary hearings in misdemeanor cases and, since the Recorder’s Court rules do not require a preliminary hearing in misdemeanor cases, there is no right to a preliminary examination in misdemeanor cases in that court (MCL 767.42; MSA 28.982; Recorder’s Court Rules 7, 8).

      References for Points in Headnotes
    [1, 4] 41 Am Jur 2d, Indictments and Informations § 20.
    [2] 41 Am Jur 2d, Indictments and Informations §§ 86, 89.
    [3] 4 Am Jur 2d, Appeal and Error § 18.
    5 Am Jur 2d, Appeal and Error §§ 553, 557.

      2. Indictment and Information — Sufficiency of Information.
    An information is sufficient if stated in the language of the statute.
    3. Appeal and Error — Criminal Law — Preserving Question.
    The Court of Appeals will not reverse a criminal conviction because of a claim that the trial court disregarded a defendant’s objection in the absence of a showing that the trial court abused its discretion.
    Dissent by Bronson, J.
    4. Criminal Law — Misdemeanors—Preliminary Examinations— Statutes — Recorder’s Court Rules.

      Defendants charged with high misdemeanors in Detroit Recorder’s Court are entitled to a preliminary examination by virtue of the Recorder’s Court rules and the amendment to the statute eliminating the statutory right to a preliminary examination in misdemeanor cases does not affect a defendant’s rights under the court rule (MCL 767.42; MSA 28.982; Recorder’s Court Rule 8).

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

      Lawrence R. Greene, for defendant.
    Before: Bashara, P. J., and Bronson and C. W. Simon, Jr., JJ.

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

   Bashara, P. J.

Defendant was originally charged in the Recorder’s Court with aggravated assault, MCL 750.81(a); MSA 28.276(1). He was found guilty of the included offense of assault and battery, MCL 750.81; MSA 28.276, and appeals as of right.

Defendant first contends that under the Rules for the Recorder’s Court of Detroit, Rules 7 and 8, and under the authority of People v Barbara, 390 Mich 377; 214 NW2d 833 (1973), a defendant charged with a high misdemeanor in Recorder’s Court has a right to preliminary examination. While this right is usually only recognized in the case of a felony, defendant is correct that by law a different rule is to be applied in the Recorder’s Court.

While we recognize defendant’s contention under Barbara, the statute on which that case relied has since been amended. MCL 767.42; MSA 28.982, at the time of the Barbara decision provided that:

"No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination.” (Emphasis supplied.)

The amendment, enacted in 1974 states:

"Sec. 42. (1) An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination.”

The clear implication of the statutory change was to eliminate the necessity for preliminary examinations in misdemeanor cases.

In our opinion, Recorder’s Court Rules 7 and 8 do not clearly require preliminary examinations in misdemeanor cases so as to abrogate the statute. Rule 7 does not speak to the requirement at all. Rule 8 states that:

"The Examining Magistrate shall conduct all Preliminary Examinations and all arraignments on felony and high misdemeanor warrants * * * .” (Emphasis supplied.)

In the absence of any specific court rule or opinion abrogating the clear import of the amended statute, we conclude that there is no right to a preliminary examination in misdemeanor offenses.

Defendant’s second contention that he was prejudiced by the failure of the warrant and complaint to be more specific as to the nature of the charge against him is without merit. An information is sufficient if stated in the language of the statute, People v Lightstone, 330 Mich 672; 48 NW2d 146 (1951).

In any event, the time for a defendant to object to the form of an information is prior to trial. The defendant did not object until the close of the people’s case. In the absence of a showing that the trial court abused its discretion in disregarding defendant’s objection, this Court will not reverse. People v Reed, 17 Mich App 696; 170 NW2d 303 (1969), lv den 383 Mich 769 (1970).

Affirmed.

C. W. Simon, Jr., J., concurred.

Bronson, J.

(dissenting). I respectfully dissent. In People v Barbara, 390 Mich 377; 214 NW2d 833 (1973), our Supreme Court unanimously held that Detroit Recorder’s Court Rule 8, the rule in question here, gave defendants in high misdemeanor cases the right to a preliminary examination. I do not believe the option of interpreting the rule differently is open to us.

It is, of course, true that after the decision in Barbara the Legislature amended the preliminary examination statute. Review of Barbara, however, demonstrates quite clearly that our Supreme Court relied on the court rule, not the statute, in determining that high misdemeanor defendants in Detroit Recorder’s Court are entitled to preliminary examinations. Barbara at 382b-382d. Therefore, the amendment of the statute cannot affect a defendant’s separate rights under the court rule unless it can be said that the statute overrules the court rule. This is not the case here. As amended, the statute does not preclude preliminary examinations in high misdemeanor cases. Compare MCL 600.8311; MSA 27A.8311 with MCL 767.42; MSA 28.982. Instead, the statute merely states there shall be a statutory right to a preliminary examination in all felony cases. Since it does not preclude preliminary examination in high misdemeanor cases, it neither conflicts with nor overrules Detroit Recorder’s Court Rule 8, and there is no need to decide which is controlling. See, e.g., People v Mordell, 55 Mich App 462; 223 NW2d 10 (1974), People v Williams #2, 45 Mich App 630; 207 NW2d 180 (1973). Rule 8 merely affords defendants additional rights to those granted by the statute.

Since the statute did not contradict nor overrule the court rule, and our Supreme Court has held that the court rule grants defendants in high misdemeanor cases the right to preliminary examinations, defendant was entitled to a preliminary examination. The refusal to grant his timely request for one constitutes reversible error.


author: J. H. Gillis, J. R. M. Maher, P. J.

text:
    PEOPLE v KIMBROUGH
    Docket No. 77-2862.
    Submitted June 21, 1978, at Detroit.
    Decided September 19, 1978.
    Jerry Kimbrough was convicted of attempted unlawfully driving away an automobile and was placed on probation. Because of a failure to report to the probation department as required by the terms of his probation and his subsequent involvement in criminal activity, the defendant was charged with probation violation. The defendant entered a plea of guilty to the probation violation charge and was then sentenced to 28 to 30 months in prison, Recorder’s Court of Detroit, Geraldine B. Ford, J. Defendant appeals claiming that the rule which requires a minimum sentence not to exceed two-thirds of the maximum applies to his sentence. Held:

    The rule which requires that a minimum sentence not exceed two-thirds of the maximum sentence applies only to sentences under the indeterminate sentencing act and to persons convicted for the first time; a trial court is not bound by the two-thirds rule where a defendant has a prior felony record.
    Affirmed.
    R. M. Maher, P. J. dissented. He would hold that the rule which requires that a minimum sentence not exceed two-thirds of the maximum sentence does apply where a defendant is only a repeat and not an habitual oifender; therefore, defendant’s sentence should be modified to a term of 20 to 30 months.
    Opinion of the Court
    1. Criminal Law — Sentences—Indeterminate Sentence Act — Application of Act — First Offenders — Statutes.
    The rule which requires a minimum sentence not to exceed two-thirds of the maximum sentence applies only to sentences under the indeterminate sentencing act and by the terms of the act to persons convicted for the first time; a trial court is not bound by the two-thirds rule where a defendant has a prior felony conviction (MCL 769.8; MSA 28.1080).

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 540, 614.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 2, 5.
    Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment. 33 ALR3d 335.

      Dissent by R. M. Maher, P. J.
    2. Criminal Law — Sentences—Two-Thirds Rule — Application of Rule.

      A court is bound by the rule which requires that a minimum sentence not exceed two-thirds of the maximum sentence where a defendant is only a repeat and not an habitual offender.

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

      Nelson & Kierpiec, for defendant on appeal.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

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

   J. H. Gillis, J.

Defendant pled guilty to a charge of violation of probation and was sentenced to a minimum of 28 months and a maximum of 30 months imprisonment. On appeal, he claims this sentence transgressed the limitations set out by the Supreme Court in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).

The Tanner "two-thirds” rule applies only to sentences under the indeterminate sentencing act. MCL 769.8; MSA 28.1080. By its terms this statute applies to persons "convicted for the first time”. Defendant has a prior felony conviction. Therefore, the trial court was not bound by the Tanner rule. People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978), People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978), People v Banks, 73 Mich App 492; 252 NW2d 501 (1977).

Affirmed.

McGregor, J., concurred.

R. M. Maher, P. J.

(dissenting). I do not agree that the court was not bound by the limitations of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). Defendant is only a repeat and not an habitual offender. Accordingly, on the authority of People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich App 228; 263 NW2d 40 (1977), and People v Reese, 83 Mich App 186; 268 NW2d 340 (1978), the sentence should be modified to a term of 20 months to 30 months, to reflect the mandate of People v Tanner, supra.


author: D. R. Freeman, J.

text:
    PEOPLE v BAILEY
    Docket No. 77-3214.
    Submitted June 7, 1978, at Lansing.
    Decided September 19, 1978.
    Eugene Bailey was convicted of delivery of a controlled substance, Jackson Circuit Court, James G. Fleming, J. The defendant appeals, claiming, among other things, that lack of authorization to de’iver a controlled substance is an element of the crime and that the burden of proof on this issue is unconstitutionally shifted from the people to the defendant. Held:

    1. Lack of authorization to deliver is not an element of the crime of delivery of a controlled substance under the present statute.
    2. The Controlled Substances Act does not impermissibly shift the burden of proof on the issue of lack of authorization to deliver.
    Affirmed.
    1. Drugs and Narcotics — Delivery of Controlled Substance— Lack of Authorization — Elements—Statutes.
    Lack of authorization to deliver is not an element of the crime of delivery of a controlled substance under the Controlled Substances Act (MCL 335.301 ef seq.; MSA 18.1070[1] et seq.).

    2. Drugs and Narcotics — Delivery of Controlled Substance— Lack of Authorization — Burden of Proof — Statutes.
    The Controlled Substances Act does not impermissibly shift the burden of proof from the people to a defendant on the issue of lack of authorization to deliver; once the people have presented a prima facie case of delivery of a controlled substance, the defendant has the burden of injecting the issue of authorization to deliver by offering some proof that the delivery was authorized and the people thereupon are obliged to establish the contrary beyond a reasonable doubt; this statutory scheme does not offend any principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental (MCL 335.356[2]; MSA 18.1070[56] [2]).

      References for Points in Headnotes
    [1, 2] 25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 7-17.
    [2] 25 Am Jur 2d, Drugs, Narcotics, and Poisons § 45.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Barbara R. Levine, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P. J., and Cynar and D. R. Freeman, JJ.

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

   D. R. Freeman, J.

Defendant, Eugene Bailey, was convicted by a jury on January 23, 1976, of delivery of a controlled substance, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). He was sentenced to 10-20 years in prison and appeals as of right. We affirm.

Defendant raises several issues, only one of which merits discussion. He asserts that the Controlled Substances Act, MCL 335.301 et seq.; MSA 18.1070(1) et seq., shifts to defendant the burden of proof as to an element of the crime, thereby denying him due process of law.

Section 41(l)(a) of the Controlled Substances Act, the provision under which defendant was convicted, provides:

"Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:
A controlled substance classified in schedules 1 or 2 which is a narcotic drug, is guilty of a felony and upon conviction may be imprisoned for not more than 20 years or fined not more than $25,000.00, or both.”

Section 56(2) of the Controlled Substances Act, MCL 335.356(2); MSA 18.1070(56X2), provides:

"In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this act, he is presumed not to be the holder of the registration or form. The burden of proof is upon him to rebut the presumption.”

Specifically, defendant argues that, pursuant to § 41(l)(a), lack of authorization to deliver a controlled substance is an element of the crime; and that, pursuant to § 56(2), the burden of proof on this issue is unconstitutionally shifted from the people to the defendant.

Lack of authorization is not an element of the crime of delivery of a controlled substance under the present statute. Defendant’s reliance on People v Rios, 386 Mich 172; 191 NW2d 297 (1971), and People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), is misplaced. Although Rios held that lack of a license was an element of the crime of sale of narcotics and that the people, therefore, had to prove beyond a reasonable doubt that the defendant did not have a license, that case involved a conviction under MCL 335.151 et seq.; MSA 18.1121 et seq. The same is true of Stewart. That statute was repealed by the Controlled Substances Act. The former statute did not contain a provision such as § 56(2) of the Controlled Substances Act. Section 56(2) makes it clear that, under the present statute, the people need not prove lack of authorization, People v Lyons, 70 Mich App 615, 618-619; 247 NW2d 314 (1976), and we conclude that lack of authorization is not an element of the crime of delivery under the Controlled Substances Act.

Further, § 56(2) does not impermissibly shift the burden of proof on the issue of lack of authorization. In People v Henderson, 391 Mich 612; 218 NW2d 2 (1974), the Supreme Court construed MCL 750.227; MSA 28.424 which prohibits the carrying of a concealed weapon in a vehicle, without a license; and MCL 776.20; MSA 28.1274(1) which places the burden on the defendant of establishing any exemption contained in the act. The Court held at 616-617:

"[W]e are persuaded that the crime defined by MCLA 750.227; MSA 28.424 as it concerns this case, has but one element. We are satisfied that the operative words of the statute as they pertain to this defendant are:
" ' * * * any person who shall carry a pistol * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony.’
"The language in the statute 'without a license so to carry said pistol as provided in law’ does not add an element to the crime, but simply acknowledges that a person may be authorized so to carry a pistol. This is of the essence of a license.
"A license is the permission by competent authority to do an act which, without such permission, would be illegal.
"Accordingly we hold that upon a showing that a defendant has carried a pistol in a vehicle operated or occupied by him, prima facie case of violation of the statute has been made out. Upon the establishment of such a prima facie case, the defendant has the burden of injecting the issue of license by offering some proof— not necessarily by official record — that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.
"We read MCLA 776.20; MSA 28.1274(1), supra not as absolving the state from proving one element of a crime, for to do so would vitiate the presumption of innocence. Rather, we read this statute as an appropriate legislative expression that lack of a license is not an element of the offense.”

See, also, People v Dempster, 396 Mich 700; 242 NW2d 381 (1976), People v Beatty, 78 Mich App 510; 259 NW2d 892 (1977), People v Dean, 74 Mich App 19; 253 NW2d 344 (1977), lv den in part 401 Mich 841 (1977). We believe that the same reasoning is applicable to the provisions under consideration here, and so hold.

In conclusion, we note that the Supreme Court has stated:

"[I]t is 'normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,’ and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (Citations omitted.) Patterson v New York, 432 US 197, 201-202; 97 S Ct 2319; 53 L Ed 2d 281 (1977).

The statutory provisions construed in the case at bar do not vitiate the presumption of innocence— it is presumed that the defendant did not deliver a controlled substance. They do not shift the burden of proof as to any element of the crime — the people must prove beyond a reasonable doubt that the defendant did deliver a controlled substance. And, if the defendant adduces any evidence of authorization, the people must also prove beyond a reasonable doubt that he had no such authorization. Concrete evidence on this latter point is readily available to either party through official documents. Realistically, it is all but inconceivable that even one defendant charged with delivery of a controlled substance, who in fact had authorization to do so, will ever be wrongfully convicted under the Controlled Substances Act. Clearly, this statutory scheme does not offend any "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”. Id.

Affirmed.

       US Const, Am V; Const 1963, art 1, § 17.

       It should be noted that a similar provision, MCL 335.68; MSA 18.1088, was part of the uniform narcotic drug act (also repealed by the Controlled Substances Act), but that it did not apply to prosecutions under the statute involved in Eios and Stewart. See People v Anderson, 13 Mich App 247, 252; 163 NW2d 793 (1968).

       Unquestionably, as a matter of constitutional law, the people must prove beyond a reasonable doubt every element of the crime charged. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Because § 56(2) provides that the people need not prove lack of authorization, and because it is axiomatic that a statute must be construed so as to render it constitutional whenever possible, we believe that the conclusion that, under the present statute, lack of authorization is not an element of the crime of delivery is inescapable.


text:
    MOORE v B & C FAMILY CENTER, INC.
    Docket No. 77-3218.
    Submitted June 13, 1978, at Grand Rapids.
    Decided September 19, 1978.
    Donna Moore went to the B & C Family Center, Inc., to purchase castor oil. The product she purchased was camphorated oil, which was subsequently ingested by her husband, Norval Moore, in the belief that it was castor oil. A severe reaction ensued. The Moores brought suit against B & C Family Center for damages for negligence. Pursuant to a jury verdict of no cause of action, the Cheboygan Circuit Court, Nicholas J. Lambros, J., entered a judgment in favor of defendant. Plaintiffs appeal, alleging among other things that the trial court erred reversibly by failing to accurately present their theory of the case and by failing to instruct on the applicability of a penal statute regarding retail sale of poisons. Held:

    1. The trial court’s instructions to the jury failed to indicate that the plaintiffs claimed three separate factual bases for finding negligence, which thereby removed those claims from the jury’s consideration. The instruction denied the plaintiffs substantial justice.
    2. The court’s refusal to instruct the jury that prima facie negligence existed because of violation of a statute regulating retail sales of poisons was proper because a Federal statute has preempted the regulation of labeling of hazardous substances and the Federal statute therefore establishes the applicable standard.
    Reversed and remanded.
    1. Trial — Instructions to Jury — Theory of Case — Requests of Parties.
    A trial court must present to the jury the material substance of the issues and the theories of each party, including both the legal principles governing the validity of the claims and the factual propositions advanced by a party; however, it is not necessary for the court to give statements to the jury in the form submitted by a party.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial §§ 576-599, 645-655.
    [2] 75 Am Jur 2d, Trial §§ 645-655.
    [3] 57 Am Jur 2d, Negligence §§ 245, 246, 270.
    [4] 25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 9, 59, 61, 62, 65, 67.

      2. Negligence — Trial—Instructions to Jury — Bases of Plaintiffs’ Claims — Court Rules.
    A trial court’s instructions to a jury which failed to indicate that the plaintiffs claimed three separate factual bases upon which to find negligence on the part of the defendant removed those claims from the jury’s deliberations; such failure denied the plaintiffs substantial justice and mandates reversal of a judgment of no cause of action (GCR 1963, 529.1).
    3. Negligence — Violation of Penal Statute — Prima Facie Case.
    Violation of any applicable penal statute establishes a prima facie case of negligence.
    4. Poisons — Labeling—Statutes—Preemption—Negligence.
    The statute governing the labeling requirements for the retail sale of poisons has been preempted by the Federal Hazardous Substances Act and therefore does not apply as a standard against which a prima facie case of negligence can be established in an action in which a retailer sold a customer a product different than that which the customer requested (15 USC 1261 etseq., MCL 750.431; MSA 28.686).

      Jerry L. Sumpter, for plaintiffs.

      John D. Hayes, for defendant.
    Before: D. E. Holbrook, Jr., P. J., and T. M. Burns and W. Van Valkenburg, 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., P. J.

This is a negligence suit arising out of the ingestion of camphorated oil by plaintiff Norval Moore. On September 10, 1975, plaintiff Donna Moore, Norval Moore’s wife, went to the B & C Family Center in Cheboygan to purchase castor oil. While there is a conflict in testimony regarding the precise events which transpired within the store there is no question that Mrs. Moore left the store with camphorated oil rather than castor oil sealed within her sack. Subsequently Mr. Moore ingested the camphorated oil in the belief that it was castor oil. As a result he suffered a severe reaction. The jury returned a verdict of no cause of action. Plaintiffs appeal as of right.

On appeal plaintiffs claim several errors. One is dispositive, one merits discussion and the balance we find to be without merit.

Plaintiffs claim that the trial court failed to accurately present their theory of the case as required by GCR 1963, 516.7. Plaintiffs timely submitted a statement of issues and their theory of the case to the trial court. Plaintiffs’ theory was that defendant had been negligent in three separate particulars in that: (1) defendant’s sales clerk was negligent in retrieving from the shelf, packaging and selling a bottle of camphorated oil when Mrs. Moore had requested castor oil; (2) defendant was negligent in stocking the shelves so that the highly toxic camphorated oil was located next to the non-toxic castor oil when both came in substantially identical bottles; and (3) defendant failed to give cautionary instructions to their employees regarding the handling of toxic drugs. The trial court declined to use plaintiffs’ statement but instructed the jury as follows:

"[T]his case arises out of an incident that occurred on September 10, 1975, involving the purchase of a non-prescriptive preparation by the plaintiff Donna Moore, from the defendant B & C Family Center, Inc., which preparation was subsequently ingested by the plaintiff Norval Moore. The plaintiff claims that the defendant B & C Family Center, by and through their employee Charlene Abrahamson, was employed by the defendant B & C Family Center, was within the scope of her employment on September 10, 1975, was negligent in the sales transaction wherein plaintiff Donna Moore obtained a non-prescriptive preparation, camphorated oil, which was subsequently ingested by the plaintiff Norval Moore. Further, plaintiff claims that the negligence of the defendant B & C Family Center, Inc., was the proximate cause of the damage and resulting injury to plaintiff Norval Moore as a result of ingesting the camphorated oil, and was also the proximate cause of damage done to the plaintiff Donna Moore.”

While the court need not give any statements to the jury in the form submitted it must present to the jury the material substance of the issues and the theories of each party. A party’s theory of the case includes both the legal principles governing the validity of the claim and the factual propositions advanced by a party. People v Robinson, 79 Mich App 145; 261 NW2d 544 (1977). The instruction given by the trial court failed to indicate that plaintiffs claimed three separate factual bases upon which negligence could be found. The result was to remove from the jury’s deliberations plaintiffs’ claims that negligence could be founded upon the improper location of the two oils, the sales clerk giving Mrs. Moore camphorated oil when she had requested castor oil, and the defendant’s failure to give cautionary instructions to employees regarding the handling of toxic substances. Clearly the trial court failed to present the jury the material substance of the plaintiffs’ theory. Such constitutes error which denied the plaintiffs substantial justice and mandates reversal. GCR 1963, 529.1, Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977), People v Gayton, 81 Mich App 390; 265 NW2d 344 (1978).

Plaintiffs’ remaining contention which we will address concerns the labeling of the camphorated oil. Plaintiffs contend that camphorated oil is a lethal poison and that the bottle of camphorated oil defendants sold did not carry the warnings required by the retail poison statute. MCL 750.431; MSA 28.686. Violation of an applicable penal statute establishes a prima facie case of negligence. Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976). Plaintiffs argue that the retail poison statute was applicable and that the jury should have been instructed that prima facie negligence existed. The trial court, however, correctly refused to instruct on the retail poison statute. The Federal Hazardous Substances Act, 15 USC 1261 et seq., has preempted the labeling of hazardous substances and is the applicable standard. Chemical Specialties Manufacturers Ass’n, Inc v Clark, 482 F2d 325 (CA 5, 1973); 16 CFR § 1500.7 (1978).

Reversed and remanded. Costs to abide final result.


author: Cynar, J.

text:
    WOODBECK v CURLEY
    Docket No. 77-3361.
    Submitted June 6, 1978, at Lansing. —
    Decided September 19, 1978.
    James Woodbeck, his wife and children, brought an action against Thomas Curley and Marguerita Moore, doing business as Postage Stamp Lounge. Count I of the complaint alleged that Thomas Curley was intoxicated and shot James Woodbeck with a revolver in the Postage Stamp Lounge. Count II was against Marguerita Moore for violation of the dramshop act. Defendant Moore filed a motion for summary judgment contending that plaintiffs had failed to serve Curley and, since both the statute of limitations and summons had expired, the action against Curley should be dismissed. This dismissal, according to Moore, constituted a failure to "name and retain” the alleged intoxicated person in the action, as required by statute, and consequently, the action against her had to be dismissed also. Motion granted, Wayne Circuit Court, Michael L. Stacey, J. Plaintiffs appeal. Held:

    The dramshop act provides that an alleged intoxicated person who is a named defendant in a dramshop action must be retained in the action until the litigation is concluded by trial or settlement. The dramshop act, however, is remedial and should be liberally construed. The "name and retain” provision need not be complied with if a plaintiff can show due diligence in attempting to obtain service of process upon the alleged intoxicated person. Where the issue of due diligence was not ruled on by the trial court, the action should be remanded to the trial court for further findings.
    Reversed and remanded.
    1. Intoxicating Liquors — Dramshop Act — "Name and Retain”— Statutes.
    No action against a retailer or wholesaler or anyone covered by the dramshop act shall be commenced unless the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement (MCL 436.22; MSA 18.993).

      References for Points in Headnotes
    [1, 2, 4] 45 Am Jur 2d, Intoxicating Liquors §§ 561-614.
    [3] 45 Am Jur 2d, Intoxicating Liquors § 562.

      2. Intoxicating Liquors — Dramshop Act — "Name and Retain”— Statutes.
    The "name and retain” provision of the dramshop act is not literally applied in situations where a plaintiff had no cause of action against the intoxicated person causing injury or damage and it is inapplicable where the identity of the intoxicated person is unknown (MCL 436.22; MSA 18.993).
    3. Intoxicating Liquors — Dramshop Act — Liberal Construction.
    The dramshop act, being remedial in nature, is to be liberally construed.
    4. Intoxicating Liquors — Dramshop Act — "Name and Retain”— Service of Process — Due Diligence.
    The "name and retain” provision of the dramshop act need not be complied with if the injured plaintiff can show that he exercised due diligence in attempting to obtain service of process upon the alleged intoxicated person whose actions caused the injury or damage.

      MaceroniMaceroni, Alger & Trickey, P. C., for plaintiffs.

      Seth H. Barsky, P. C., for defendants.
    Before: Allen, P. J., and Cynar and D. R. Freeman, JJ.

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

   Cynar, J.

Plaintiffs appeal as of right from an order of accelerated judgment dismissing Count II of their complaint against Marguerita Moore, d/b/ a Postage Stamp Lounge.

On September 19, 1975, the plaintiffs commenced this suit in Wayne County Circuit Court. Count I alleged that Thomas Curley, the alleged intoxicated person, assaulted and caused injury to plaintiff James Woodbeck, by shooting him with a revolver on September 19, 1973, in the Postage Stamp Lounge. Count II was brought against defendant Marguerita Moore, d/b/a Postage Stamp Lounge (hereinafter "Moore”) for violation of the dramshop act, MCL 436.22; MSA 18.993.

On September 24, 1976, a motion for summary-judgment was filed by defendant Moore, contending that plaintiffs had failed to serve defendant Curley. She argued that since both the statute of limitations and summons had expired, the action against Curley had to be dismissed. This dismissal, according to Moore, constituted a failure to "name and retain” the alleged intoxicated person, as required by MCL 436.22; MSA 18.993. Consequently, contended Moore, the action against her had to be dismissed as well.

In response, plaintiffs stated that the whereabouts of the "alleged intoxicated person”, Curley, were unknown at the time of filing the complaint. In an effort to locate Curley, plaintiffs had hired a private firm, which later informed plaintiffs’ counsel that Curley could be found at a residence at 8558 Paterson Road in Caledonia, Kent County, Michigan. On October 10, 1975, the summons and complaint were sent to the Kent County Sheriff with instructions to serve defendant Curley at said location. In March 1976 the Kent County Sheriff advised plaintiffs’ counsel that service had been attempted without success. According to an affidavit by a Kent County Deputy Sheriff filed in support of plaintiffs’ answer, the deputy was told by a resident that Curley was present on weekends. However, attempts at weekend service were unproductive.

This motion was argued on October 8, 1976, and granted on December 14, 1976. On August 12, 1977, it was expressly declared to be a final judgment for purposes of appellate review.

The Michigan dramshop act, MCL 436.22; MSA 18.993, provides in pertinent part:

"No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor or alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”

There is no question that plaintiff has failed to comply with this provision. However, the "name and retain” rule is not without its exceptions. In order to avoid an unjust result, the rule was not literally applied in situations where the plaintiff had no cause of action against the intoxicated person. Scholten v Rhoades, 67 Mich App 736; 242 NW2d 509 (1976), Dickerson v Heide, 69 Mich App 303; 244 NW2d 459 (1976).

More recently, the Supreme Court in Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976), held the "name and retain” provision inapplicable when the intoxicated person’s identity was unknown. The Court noted:

"If a plaintiff does not know the identity of the intoxicated person, there is no basis for concern that such a person, in collusion with plaintiff, could 'energetically [assist] the plaintiff with the prosecution of a suit against the tavern owner’. Furthermore, the requirement that an injured person 'name and retain’ as defendant an intoxicated person whose identity he does not know in order to maintain a cause of action under the dramshop act frustrates the essential purpose of the act. Such a requirement would encourage collusion, tempting the liquor licensee and a tortfeasor to hide the identity of the tortfeasor from the injured plaintiff. A liquor licensee who in fact created or continued in the creation of the state of the intoxicant would thus be able to escape liability from suit under the dramshop act. We do not believe the Legislature intended these kinds of results.” Salas, supra, at 110.

The Court added, however, that the injured plaintiff in such a situation

"must show that he did not, in fact, know the identity of the alleged intoxicated person and that he exercised due diligence in attempting to ascertain the identity of the alleged intoxicated person.” Salas, supra, at 110.

We believe that the rationale in Salas can and should be extended to fit the circumstances of the present case. It should be remembered that the dramshop act, being remedial in nature, is to be liberally construed. Podbielski v Argyle Bowl, Inc, 392 Mich 380, 384-385; 220 NW2d 397 (1974), Eddy v Courtwright, 91 Mich 264, 267; 51 NW 887 (1892). If plaintiffs have exercised due diligence in attempting to serve Curley, it would seem unjust to prevent the suit against Moore. In such a situation, plaintiffs would have done everything within their power to "name and retain” the intoxicated person. The fact that they know his name has proven to be no advantage in obtaining service of process. Nor is there any greater likelihood of collusion in this instance than the situation in Salas.

Therefore, we hold that when an individual has been injured by a third party in circumstances giving rise to a dramshop action, the "name and retain” provision need not be complied with if the plaintiff can show that he exercised due diligence in attempting to obtain service of process upon the alleged intoxicated person. Since the issue of due diligence was not ruled on below, this action must be remanded for further findings regarding that issue.

Reversed and remanded for proceedings consistent with this opinion. Costs to the prevailing party._

       We are aware that another panel of this Court has come to a contrary result under similar circumstances. Spaccarotelli v Ferdibar, 67 Mich App 29; 239 NW2d 750 (1976). However, that case was decided prior to the Supreme Court’s opinion in Salas, supra. We are of the opinion that the same panel would have reached the result reached here, had they had the benefit of the Supreme Court’s pronouncements in Salas. Therefore, we decline to follow Spaccarotelli.


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

text:
    HAUSLOHNER v REGENTS OF THE UNIVERSITY OF MICHIGAN
    Docket No. 77-3544.
    Submitted June 14, 1978, at Lansing.
    Decided September 19, 1978.
    Peter Hauslohner brought an action against the Regents of the University of Michigan seeking to be declared a bona fide resident of Michigan for tuition purposes and for a refund of the difference between the tuition the plaintiff has paid as a nonresident student and what he would have paid if he had properly been classified as a resident by the defendants. Washtenaw Circuit Court, Patrick J. Conlin, J., entered judgment for defendants. Plaintiff appeals. The only issue is whether plaintiff sustained his burden of proving resident status in the state so that he could take advantage of preferential tuition rates. Held:

    Residency for purposes of preferential university student tuition rates must be established by clear and convincing proof. A student has failed to meet this required burden where the evidence shows that he came into the state solely to pursue his graduate education, his primary source of income remained out-of-state and he has shown no intention of establishing a permanent home in the state.
    Affirmed.
    1. Colleges and Universities — Tuition—Residents and Nonresidents — Residency Regulations — Preferential Tuition Rates.
    A state has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis; the state can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the state, but who have come here solely for educational purposes, cannot take advantage of the in-state rates.

      References for Points in Headnotes
    [1-4, 6] 15A Am Jur 2d, Colleges and Universities §§ 19, 21.
    Validity and application of provisions governing determination of residency for purpose of fixing fee differential for out-of-state students in public college. 56 ALR3d 641.
    [5] 5 Am Jur 2d, Appeal and Error §§ 839-845.

      2. Colleges and Universities — Tuition—Residency Requirements.
    A state university may validly impose a one year residence requirement upon students seeking resident status for tuition purposes.
    3. Colleges and Universities — Tuition—Residents and Nonresidents — Presumptions.
    A state university may rely upon a rebuttable presumption that out-of-state students remain nonresidents in determining resident status for tuition purposes.
    4. Colleges and Universities — Students—Resident Status. The domicile of a university student is a question of fact.
    5. Appeal and Error — Findings of Fact — Clearly Erroneous Rule.
    A Trial court’s determination of fact will not be set aside unless the Court of Appeals is left with a definite and firm conviction that error has been committed.
    6. Colleges and Universities — Tuition—Residents and Nonresidents — Preferential Tuition Rates.
    Residency for purposes of preferential university student tuition rates must be established by clear and convincing proof.

      Arthur E. Carpenter, for plaintiff.

      Roderick K. Daane, General Counsel for the University of Michigan, for defendant.
    Before: D. E. Holbrook, P. J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   D. E. Holbrook, P. J.

In this case, the plaintiff challenges the University of Michigan’s refusal to grant him resident status for tuition purposes. The trial court, sitting without a jury, upheld the university’s decision.

Plaintiff moved to Ann Arbor, Michigan, on September 1, 1974, intending to enroll as a graduate student at the University of Michigan. He worked part time for a faculty member of the university until the winter term, 1975, and then enrolled in classes.

Plaintiffs family home was in Pennsylvania, however, he had not resided there for several years. He attended college for four years in California, from 1969 to 1973, paying nonresident tuition. In the following months he lived, successively, in New Jersey, Ohio, Canada, California again, and Idaho.

In 1955, while plaintiff was a minor, his grandfather established a trust fund for his benefit in Pennsylvania. Upon reaching the age of 21 years in 1973, plaintiff used the rest of this trust to create a new trust, also in Pennsylvania. During the period when plaintiff was attending school in Michigan, the trust fund contributed approximately $10,000 per year to his support. He earned, through part time employment intended as a form of financial aid to students, approximately $600 to $800 in 1974, $150 to $200 in 1975, and $1100 to $1200 in 1976.

Plaintiff apparently brought all of his personal effects to his rented apartment in Michigan. He registered to vote in Michigan and transferred the registration of his automobile. Plaintiff, in correspondence with his banker, expressed his desire to "establish legal residency” in Michigan. He owns no real property in Michigan, has not been admitted to practice any profession, and has no military commitments in this state. He has no permanent employment in Michigan, and has not served on jury duty or become a member of any church. He filed a Michigan income tax return in 1975, receiving a refund of $7, with no tax liability.

Plaintiff applied for resident tuition status at the University of Michigan in September of 1975. Due to a six-week stay in California during July and August of 1975, he failed to satisfy the university’s one-year residency requirement and his application was denied. His appeal to the university residency appeals committee was also denied. He brought the instant action in Washtenaw County Circuit Court to challenge this denial of resident status. On August 26, 1977, the trial court, sitting without a jury, entered judgment for the defendant university and plaintiff appeals.

In Vlandis v Kline, 412 US 441; 93 S Ct 2230; 37 L Ed 2d 63 (1973), the United States Supreme Court struck down the University of Connecticut’s conclusive presumption that all students who apply for admission from an out-of-state address are, and remain, nonresidents for tuition purposes. At the same time, the majority, noting its summary decision in Starns v Malkerson, 401 US 985; 91 S Ct 1231; 28 L Ed 2d 527 (1971), upheld a state university’s right to utilize a one-year durational residency requirement in determining resident status. Stated the Court at 412 US 452-453, 453-454:

"We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.
"The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates.”

See Hooban v Boling; 503 F2d 648 (CA 6, 1974), Hayes v Board of Regents of Kentucky State University, 495 F2d 1326 (CA 6, 1974), Kelm v Carlson, 473 F2d 1267 (CA 6, 1973), Hayes v Regents of the University of Michigan, 53 Mich App 605; 220 NW2d 91 (1974), rev’d, 393 Mich 756 (1974), reh den 394 Mich 903 (1974).

Hooban, Hayes, and Kelm, supra, the cases which have followed Vlandis, supra, make it clear that a state university may validly impose a one-year residence requirement upon students seeking resident status, and may rely upon a rebuttable presumption that out-of-state students remain nonresidents. The only issue in the case at bar is whether the plaintiff sustained the burden of proving his claimed newly-acquired resident status. The plaintiffs domicile is a question of fact under these circumstances. Hartzler v Radeka, 265 Mich 451, 452; 251 NW 554 (1933). Under GCR 1963, 517.1, the trial court’s determinations of fact will not be set aside unless this Court is left with a "definite and firm conviction” of error. Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976), Barnett v International Tennis Corp, 80 Mich App 396; 263 NW2d 908 (1978).

The provisions of the defendant university’s rules for determining resident tuition classification are as follows:

"1. Since normally a student comes to The University of Michigan for the primary or sole purpose of attending the University rather than to establish a domicile in Michigan, one who enrolls in the University as a non-resident shall continue to be so classified throughout his attendance as a student, unless and until he demonstrates that his previous domicile has been abandoned and a Michigan domicile established.
"2. No student shall be eligible for classification as a resident unless he shall be domiciled in Michigan and has resided in Michigan continuously for not less than one year immediately preceding the first day of classes of the term for which classification is sought.
"3. For purposes of these regulations, a resident student is defined as a student domiciled in the State of Michigan. A non-resident is defined as one whose domicile is elsewhere. A student shall not be considered domiciled in Michigan unless he is in continuous physical residence in this state and intends to make Michigan his permanent home, not only while in attendance at the University, but indefinitely thereafter as well, and has no domicile or intent to be domiciled elsewhere.
"4. The following facts and circumstances, although not necessarily conclusive, have probative value in support of a claim for residence classification:
"a. Continuous residence in Michigan during periods when not enrolled as a student.
"b. Reliance upon Michigan sources for financial support.
"c. Domicile in Michigan of family, guardian or other relatives or persons legally responsible for the student.
"d. Former domicile in the state and maintenance of significant connections therein while absent.
"e. Ownership of a home in Michigan.
"f. Admission to a licensed practicing profession in Michigan.
"g. Long term military commitments in Michigan.
"h. Commitments to further education in Michigan indicating an intent to stay here permanently.
"i. Acceptance of an offer of permanent employment in Michigan.
"Other factors indicating an intent to make Michigan the student’s domicile will be considered by the University in classifying a student.
"5. The following circumstances, standing alone, shall not constitute sufficient evidence of domicile to effect classification of a student as a resident under these regulations:
"a. Voting or registration for voting.
"b. Employment in any position normally filled by a student.
"c. The lease of living quarters.
"d. A statement of intention to acquire a domicile in Michigan.
"e. Domicile in Michigan of student’s spouse.
"f. Automobile registration.
"g. Other public records, e.g., birth and marriage records.”

The trial court, in applying these rules to the circumstances of the instant case, determined that plaintiff came to Michigan solely to pursue his graduate education. The court found especially relevant to this determination the following factors: the plaintiff’s primary source of income remained out-of-state; the plaintiff did not intend to establish a "permanent home” in Michigan; the facts relied upon by the plaintiff to establish residency did not meet the "clear and convincing proof” standard which the state may require under the line of Federal cases cited above.

We do not find the trial court’s determination of lack of domiciliary intent to have been clearly erroneous, and therefore we need not consider whether or not the plaintiff complied with the additional one-year residency requirement.

Affirmed. No costs a public question being involved.

       Lower court decision: 326 F Supp 234 (D Minn, 1970).

        See also, Montgomery v Douglas, 388 F Supp 1139 (D Colo, 1974), aff'd 422 US 1030; 95 S Ct 2645; 45 L Ed 2d 687 (1975), Sturgis v State of Washington, 368 F Supp 38 (WD Wash, 1973), aff'd 414 US 1057; 94 S Ct 563; 38 L Ed 2d 464 (1973), Weaver v Kelton, 357 F Supp 1106 (ED Tex, 1973).

       Plaintiff expected to remain "highly mobile”. At the time of trial he was residing in Washington, D.C., participating in a summer internship. At that time he stated:
      "I think he’s asking me about my intentions to return to Ann Arbor in the fall, and I think, to be completely honest, I think I should say that the probability is that I will not return to Ann Arbor in the fall.”


text:
    PEOPLE v THOMAS
    Docket No. 77-3591.
    Submitted June 15, 1978, at Grand Rapids.
    Decided September 19, 1978.
    Daniel L. Thomas, a work coordinator at Oak Haven, a religious practical training school, was charged with second-degree murder in connection with the death of a 19-year-old male resident of Oak Haven who was a "catatonic schizophrenic”. The victim died subsequent to a beating administered as a form of discipline by the defendant with a rubber hose. The autopsy revealed that the actual cause of death was acute pulmonary edema resulting from the aspiration of stomach contents. The aspiration caused a laryngeal spasm causing the decedent to suffocate in his own vomit. There was testimony at trial that the underlying cause of death was the trauma to the decedent’s legs as a result of the beating.
    The defendant was convicted of involuntary manslaughter in Allegan Circuit Court, George R. Corsiglia, J. The defendant appeals, claiming (1) that the prosecution failed to establish the malice element of second-degree murder, (2) that the prosecution failed to establish the elements of involuntary manslaughter, (3) that the defendant was interrogated in violation of Miranda, (4) that the trial court erred by failing to give a requested instruction on causation, (5) that the trial court erred by allowing the admission of evidence of an earlier beating and (6) that the prosection failed to present sufficient evidence of a causal connection between the defendant’s acts and the victim’s death. Held:-

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide § 264.
    Homicide: presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.
    [2] 40 Am Jur 2d, Homicide §§ 54, 70.
    [3] 40 Am Jur 2d, Homicide § 338.
    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.
    [4] 40 Am Jur 2d, Homicide § 506.
    [5] 40 Am Jur 2d, Homicide §§ 311, 313.
    [6] 40 Am Jur 2d, Homicide § 20.

      1. The defendant’s savage and brutal beating of the decedent was amply sufficient to establish malice.
    2. The defendant stood in a position of authority over the decedent and by obtaining permission from the victim’s parents to discipline the decedent, the defendant directly and voluntarily assumed a parental function and stood in a position of loco parentis to the decedent and the defendant’s failure to provide medical attention for the decedent, when decedent was unable to obtain it for himself, was a violation of the defendant’s legal duty to care for the victim. The elements of involuntary manslaughter were adequately established.
    3. There was no violation of defendant’s rights under Miranda because the questioning of which the defendant complains was at a time before the investigation had focused on the defendant.
    4. The refusal to give the requested jury instruction on causation was not error, because the trial court gave an instruction on causation which was a clear, concise and correct statement of the law.
    5. Evidence of the prior beating was properly admitted as a like act tending to show the defendant’s motive, intent, or the absence of mistake or accident on the defendant’s part.
    6. Sufficient evidence of a causal relationship between the acts of the defendant and the decedent’s death was established by the prosecution. There was evidence introduced that death was medically likely to have been caused by the beating through a chain of natural events and causes unchanged by human action.
    Affirmed.
    1. Homicide — Malice—Intent to Kill — Inferences.
    Malice or intent to kill may be inferred from the acts of a defendant charged with homicide; intent to kill may be implied where an actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.
    2. Homicide — Involuntary Manslaughter — Failure to Perform a Legal Duty.
    Involuntary manslaughter may be based on a failure to perform a legal duty.

      3. Constitutional Law — Criminal Law — Miranda Warnings — Focus op Investigation.
    Investigation of a homicide had not focused on a defendant for the purpose of determining whether Miranda warnings were required where the questioning of the defendant took place at a time when the preliminary indications were that the decedent died of natural causes.
    4. Homicide — Instructions to Jury — Causation—Standard Criminal Jury Instructions.
    Refusal to give a requested instruction to the jury on causation in a homicide case was not error where the trial court instead gave an instruction on causation taken from the Standard Criminal Jury Instructions which was a clear, concise and correct statement of the law; use of the Standard Criminal Jury Instructions is favored (CJI 16:1:01).
    5. Homicide — Evidence—Similar Acts — Statutes.
    Evidence of a first beating of a decedent by a defendant was properly admitted as a like act tending to show the defendant’s motive, intent, or the absence of mistake or accident on the defendant’s part where the defendant was being tried for a homicide because of the decedent’s death which followed a second beating by the defendant (MCL 768.27; MSA 28.1050).
    6. Homicide — Causation.
    Wounds inflicted by a defendant on a decedent need not necessarily be fatal and the direct cause of death to support a conviction of homicide; it is sufficient that they cause death indirectly through a chain of natural effects and causes unchanged by human action.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Fred R. Hunter, III (Prosecuting Attorneys Appellate Service, Thomas C. Nelson, Assistant Attorney General, of counsel), for the people.

      Lee Boothby, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and T. M. Burns and W. Van Valkenburg, 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., P. J.

Charged with second-degree murder, MCL 750.317; MSA 28.549, defendant was convicted by a jury of involuntary manslaughter, MCL 750.321; MSA 28.553. Thereafter, sentenced to a prison term of 5 to 15 years, defendant appeals as of right.

The facts pertinent to this appeal are as follows:

The victim, a 19-year-old male "catatonic schizophrenic”, was at the time of his death a resident of Oak Haven, a religious practical training school. When it appeared he was not properly responding to ordinary treatment, defendant, the work coordinator at Oak Haven, obtained permission from the victim’s parents to discipline him if such seemed necessary. Thereafter defendant, together with another supervisor at Oak Haven, took decedent to the edge of the campus, whereupon decedent’s pants were taken down, following which he was spanked with a rubber hose. Such disciplinary session lasted approximately 15 to 30 minutes. During a portion thereof decedent’s hands were tied behind his back for failure to cooperate.

Following the disciplinary session aforesaid, defendant testified that the young man improved for awhile but then commenced to backslide. Defendant again received permission from decedent’s parents to subject him to further discipline. On September 30, 1976, defendant again took decedent to the approximate same location, removed his pants, bound his hands behind him with a rope looped over a tree limb and proceeded to beat him with a doubled-over rubber hose. This beating lasted approximately 45 minutes to an hour. While the evidence conflicted, it appears that the victim was struck between 30 to 100 times. The beating resulted in severe bruises ranging from the victim’s waist to his feet. Decedent’s roommate testified that decedent had open bleeding sores on his thighs. On the date of death, which was nine days after the beating, decedent’s legs were immobile. At no time did defendant obtain medical attention for the victim.

Defendant admitted he had exercised poor judgment, after seeing the bruises, in continuing the discipline. He further testified that in the two days following the discipline, decedent seemed to be suffering from the flu, but by Sunday was up and walking and was in apparent good health until one week following the beating, when decedent became sick with nausea and an upset stomach. These symptoms continued for two days, when decedent died.

As a result of the autopsy, one Dr. Clark testified that the bruises were the result of a trauma and that decedent was in a state of continuous traumatization because he was trying to walk on his injured legs. Dr. Clark testified that decedent’s legs were swollen to possibly twice their normal size. He further testified that the actual cause of death was acute pulmonary edema, resulting from the aspiration of stomach contents. Said aspiration caused a laryngeal spasm, causing decedent to suffocate on his own vomit. Although pulmonary edema was the direct cause of death, Dr. Clark testified that said condition usually had some underlying cause and that, while there were literally hundreds of potential underlying causes, it was his opinion that in the instant case the underlying cause was the trauma to decedent’s legs. In explaining how the trauma ultimately led to the pulmonary edema, Dr. Clark testified that the trauma to the legs produced "crush syndrome” or "blast trauma”, also known as "tubular necrosis”.

"Crush syndrome” is a condition caused when a part of the body has been compressed for a long period of time and then released. In such cases, there is a tremendous amount of tissue damage to the body part that has been crushed. When the compression is relieved, the tissues begin to return to their normal position, but due to the compression, gaps appear between the layers of tissues, and these areas fill up with blood and other body fluids, causing swelling. In the present case, Dr. Clark estimated that about 10-15% of decedent’s entire body fluids were contained in the legs, adding an additional ten pounds in weight to the normal weight of the legs and swelling them to twice their normal size. This extra blood and bodjfluid decreased the amount of blood available for circulation in the rest of the body and would cause the person to become weak, faint and pass out if he attempted to sit up or do other activities. Decedent was sitting up when he died. It was Dr. Clark’s opinion that the causal connection between the trauma and death was more than medically probable and that it was "medically likely”. He further testified he could say with a reasonable degree of medical certainty that the trauma to the legs was the cause of death.

. One Agatha Thrash, a pathologist called by the defense, offered testimony to refute that of Dr. Clark, although she did admit that pulmonary edema could have been the final cause of death and that Dr. Clark was correct in finding acute tubular necrosis. She concluded that death was probably caused by "encephalo myocarditas” which is an acute swelling of the brain and heart.

On appeal defendant raises eleven issues, which for our purposes we condense into six. Choosing to reserve the most difficult for the last, we proceed to discuss the remaining five.

Appellant claims that the prosecution failed to establish the malice element of second-degree murder. We disagree. Malice or intent to kill may be inferred from the acts of the defendant. In People v Morrin, 31 Mich App 301, 310-311, 323; 187 NW2d 434 (1971), then Judge, now Justice Levin, stated that the intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. In the instant case defendant’s savage and brutal beating of the decedent is amply sufficient to establish malice. He clearly intended to beat the victim and the natural tendency of defendant’s behavior was to cause great bodily harm.

Appellant also claims that the prosecution failed to establish the elements of involuntary manslaughter. Again we disagree. Involuntary manslaughter may be based on the failure to perform a legal duty. People v Beardsley, 150 Mich 206; 113 NW 1128 (1907). Defendant was a supervisor of Oak Haven, stood in a position of authority over the victim and, by talking with the victim’s parents and obtaining their permission to discipline the decedent, he directly and voluntarily assumed a parental function, and stood in a position of loco parentis to the decedent. Under such circumstances, defendant’s beating of the victim coupled with his failure to provide medical attention, when decedent was unable to obtain same himself, violated defendant’s legal duty to care for the victim. The elements of involuntary manslaughter were adequately established.

Additionally, defendant argues that the first police questioning of the defendant, in defendant’s office, was conducted at a time when the defendant was the focus of the investigation rendering any statements made by defendant inadmissible for failure to give Miranda warnings. Here the questioning of defendant, in defendant’s office, took place at a time when the preliminary indications were that decedent died of natural causes. Hence we conclude that the investigation had not focused on defendant for the purpose of determining whether Miranda warnings were required.

Defendant further claims that the trial court erred by failing to give the following defense requested instruction on causation:

"The criminal standard which you must apply in this case requiring proof beyond a reasonable doubt, precludes convictions where the causal connection is based upon probabilities or only a reasonable degree of medical certainty.”

The court instead gave an instruction on causation taken from CJI 16:1:01. This instruction stated that causation must be proven beyond a reasonable doubt. Such instruction was a clear, concise and correct statement of the law. Moreover, the use of Standard Criminal Jury Instructions is favored. People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978). The Court did not err in refusing to give defendant’s requested instruction.

Next defendant claims that the trial court erred by allowing evidence of the first beating to be admitted. We hold such to have been properly admitted as a like act tending to show defendant’s motive, intent, the absence of mistake or accident on defendant’s part. MCL 768.27; MSA 28.1050. Even should we assume, arguendo, the admission of such evidence to have been error, we would hold same to be harmless beyond a reasonable doubt.

Lastly, defendant claims that the prosecution failed to present sufficient evidence of the causal connection between defendant’s acts and the victim’s death. Again we disagree.

In People v Geiger, 10 Mich App 339; 159 NW2d 383 (1968), defendant had struck his wife two or three times with his open hand and pushed her to the ground in such a manner that she bumped her head against the car. Defendant picked her up and put her in his car. While a need for immediate medical attention existed, defendant obtained none until after waiting 6 to 8 hours, during which time he drove over 180 miles. In Geiger the medical cause of death was " 'aspiration of the gastric contents into the air passages with resultant shock, asphyxia, collapse and pulmonary edema’ ”, 10 Mich App at 342-343. In short, sometime after the beating decedent choked to death on her own vomit. The pathologist who performed the autopsy testified he thought that the blows to the head or side of the face caused the minor brain damage which contributed to diminution of laryngeal reflexes, allowing the asphyiation, and had it not been for the blows, the victim would have been able to vomit and remove her stomach contents in a normal fashion.

In People v McFee, 35 Mich App 227; 192 NW2d 355 (1971), where defendant, over a period of several hours, inflicted a severe beating upon a 12-year-old boy resulting in particles of partially digested food to become stuck in the vocal cord causing a cardiac arrest from the coughing reflex, the pathologist testified that in his best medical judgment there was a definite relationship between the bruising and the boy’s death.

In both Geiger and McFee the Court found the prosecution to have established a sufficient causal relationship.

The case at bar is closely analogous to the Geiger and McFee cases. Here the pathologist tesitifed that the trauma to the victim’s legs caused the chain of events that led to the victim’s death and that causation was not only medically probable but medically likely. In People v Geiger, supra, the Court quoted with approval from 26 Am Jur, Homicide, § 52, p 195, wherein it states:

"It is not indispensable. to a conviction that the wounds be necessarily fatal and the direct cause of death. It is sufficient that they cause death indirectly through a chain of natural effects and causes unchanged by human action.”

A similar analogy was made by the Court in McFee. Such is the case here. Death was medically likely to have been caused by the beating through a chain of natural effects and causes unchanged by human action. Pulmonary edema resulted and the victim choked to death on his own vomit. Sufficient evidence of causal relationship was established by the prosecution. No reversible error occurred.

Affirmed.


author: P. J. Marutiak, J.

text:
    MANVILLE v BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY
    Docket No. 77-3744.
    Submitted June 14, 1978, at Lansing.
    Decided September 19, 1978.
    Daniel E. Manville brought an action against the Board of Governors of Wayne State University seeking a higher rate of compensation under the Michigan Minimum Wage Law. Plaintiff, a prison inmate, was employed as a clerk for the university’s educational program at Jackson prison. While thus employed he received the standard hourly wage set forth in the prison regulations. Plaintiff claims that he is entitled to be paid a higher rate under the Minimum Wage Law because he was an employee of an institution other than the prison. The Court of Claims, Thomas C. Megargle, J., granted summary judgment to defendant after determining that plaintiff had failed to state a claim upon which relief could be granted. Plaintiff appeals. Held:

    Plaintiff was an employee of the prison, not the university. His services, as a prison inmate, were performed entirely within the prison walls for the benefit of the prison and its rehabilitation program; therefore, they were within the scope of the Correctional Industries Act, and it is this act and not the Minimum Wage Law which governs plaintiff’s rate of compensation.
    Affirmed.
    1. Judgment — Summary Judgment — Failure to State Claim — Test— Court Rules.
    The test of a motion for summary judgment on the grounds that a complaint fails to state a claim upon which relief can be granted is whether a plaintiffs claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).

      References for Points in Headnotes
    [1-3] 73 Am Jur 2d, Summary Judgment § 26.
    [4] 60 Am Jur 2d, Penal and Correctional Institutions § 38.
    [5, 7, 11] 37 Am Jur 2d, Penal and Correctional Institutions § 37,
    [6] 37 Am Jur 2d, Penal and Correctional Institutions § 36.
    [8, 10] 73 Am Jur 2d, Statutes § 254.
    [9] 73 Am Jur 2d, Statutes § 258.

      2. Judgment — Summary Judgment — Pleadings.
    All well pleaded allegations in a plaintiff’s complaint must be taken as true when considering a motion by plaintiff for summary judgment and if those allegations state a cause of action, a defendant’s motion for summary judgment must be denied.
    3. Judgment — Summary Judgment — Pleadings.
    A trial court, when considering the merits of a motion for summary judgment for failure to state a cause of action, must accept as true the well pleaded facts contained in the pleadings.
    4. Convicts — Prison Inmates — Prison Employment — Minimum Wage.
    A prison inmate is not entitled to a minimum wage under the Minimum Wage Law if he is employed by a prison.
    5. Convicts — Prison Inmates — Employment—Economic Reality Test.
    Determination of whether a prison inmate is employed by the prison or by some institution outside of the prison depends upon economic reality; the economic reality test considers such indicia of control over an inmate’s labor as who has the ability to hire and fire the inmate, who sets his work hours and pays his wages, and who supervises the inmate’s work performance.
    6. Convicts — Prison Inmates — Corrections Commission- — Correctional Industries Act — Employment—Rehabilitation—Public Policy— Statutes.
    The Corrections Commission, under the Correctional Industries Act, is authorized to provide as fully as practicable for the employment of prison inmates in tasks consistent with the penal rehabilitative purposes of their imprisonment and with public policy (MCL 800.327; MSA 28.1540[7]).
    7. Convicts — Prison Inmates — Employment—Correctional Industries Act — Minimum Wage Law.
    The services of a prison inmate, performed entirely within the prison walls for the benefit of the prison and its rehabilitation program, are within the scope of the Correctional Industries Act; therefore, it is the Correctional Industries Act and not the Minimum Wage Law which controls the inmate’s rate of compensation.

      8. Statutes — Same Subject Matter — Reasonable Construction — Enforcement.
    It is the duty of the courts, where two statutes arguably cover the same subject matter, to reconcile and enforce both statutes, if by reasonable construction the purpose of each can be served.
    9. Courts — Statutes—Legislature—Interpretation—Useful Purpose.
    Courts will not assume that the Legislature passed an act that serves no useful purpose if the act can be interpreted in a manner that avoids such a consequence.
    10. Statutes — Statutory Construction — Conflicting Statutes — Specific Statute — General Statute.
    It is a rule of statutory construction that where two statutes are or appear to be in conflict, a specific statute, enacted subsequent to a more general statute, prevails.
    11. Convicts — Prison Inmates — Employment—Prison Authorities. The regulation of inmate employment is a matter over which prison authorities retain constant control.
    Daniel E. Manville, in propria persona, for plaintiff.

      Elmer L. Roller and Sharon R. Stack, for defendant.
    Before: D. E. Holbrook, P. J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   P. J. Marutiak, J.

Plaintiff appeals of right an order of the Court of Claims granting defendant’s motion for summary judgment based upon plaintiff’s failure to state a cause of action upon which relief could be granted. GCR 1963, 117.2(1).

From November 1, 1974, to April 15, 1975, plaintiff was employed by defendant as a clerk for defendant’s educational program at Jackson Prison. At all times during the period of this employment, plaintiff was an inmate at the prison. While employed by defendant, plaintiff received the standard hourly wage that is set forth in prison regulations. Plaintiff contends, however, that he was entitled under the Michigan Minimum Wage Law to a somewhat higher rate of compensation. MCL 408.381 et seq.; MSA 17.255(1) et seq. Hence the present action.

The Court of Claims granted summary judgment after determining that plaintiff had failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). The test to be applied in deciding a summary judgment motion based upon this ground is whether the claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Paige v Bing Construction Co, 61 Mich App 480; 233 NW2d 46 (1975). All well pleaded allegations in a plaintiff’s complaint must be taken as true and, if those allegations state a cause of action, a defendant’s motion for summary judgment must be denied. Blurton v Bloomfield Hills Board of Education, 60 Mich App 741; 231 NW2d 535 (1975). A lower court, when considering the merits of a summary judgment motion for failure to state a cause of action, must accept as true the well pleaded facts contained within the pleadings. Lincoln Park Detention Officers v Lincoln Park, 76 Mich App 358; 256 NW2d 593 (1977), Stewart v Troutt, 73 Mich App 378; 251 NW2d 594 (1977).

The question of whether prison inmates must be given the minimum wage when working for institutions other than the prison, is one of first impression in the courts of this state. It is undisputed that an inmate is not entitled to the minimum wage if employed by the prison. This stems from the fact that inmates have no right to the fruit of their labor when working for a prison, because the labor of inmates belongs to the state. Sims v Parke Davis & Co, 334 F Supp 774, 791 (ED Mich, 1971), aff'd 453 F2d 1259 (CA 6, 1972). Accord, Huntley v Gunn Furniture Co, 79 F Supp 110, 113 (WD Mich 1948).

The thrust of plaintiffs argument on appeal is that he was an employee of an institution other than the prison and that he, therefore, and not the state, was entitled to the value of his labor. This argument is premised upon application of the "economic reality test” to this case. Under the economic reality test, which was adopted in Sims, supra, an inmate’s employment situation is examined to determine whether the prison or the outside institution is the inmate’s employer. The economic reality test considers such indicia of control over an inmate’s labor as who has the ability to hire and fire the inmate, who sets his work hours and pays his wages, and who supervises the inmate’s work performance.

The pleadings of plaintiff are sufficient to state a cause of action under the economic reality test. Plaintiff alleged that he was an employee of defendant and that he was hired, supervised, paid and fired by an agent acting on behalf of defendant. He further asserted in his complaint that no prison official participated in his selection for the job, that defendant and not the prison set his work hours, and that his pay did not go through the prison payroll system but, rather, came directly from defendant. However, for reasons that shall be discussed seriatim, we affirm the grant of summary judgment and hold that plaintiff was not entitled to receive the minimum wage.

The Michigan Minimum Wage Law defines the terms "employee”, "employer” and "employ” in a manner that would seem to make the act applicable to the case at bar. Further, the act does not list state prisons or prisoners in that section which specifically enumerates the employers and employees that are excluded from coverage under it. MCL 408.394; MSA 17.255(14). However, to hold that plaintiff is hereby entitled to the minimum wage, we would be required to contravene the clear intent of the Legislature in the Correctional Industries Act.

Under the Correctional Industries Act, which was promulgated to provide for the employment of inmate labor in correctional institutions of this state, the Corrections Commission is authorized to "provide as fully as practicable for the employment of inmates in tasks consistent with the penal and rehabilitative purposes of their imprisonment and with the public economy”. MCL 800.327; MSA 28.1540(7). The act lists, in order of their preferred priority, several types of employment that should be accorded inmates. Id. The most preferred categories of employment consist of, in the language of the act:

"(a) Routine, maintenance and constructive activities contributing to the conduct of the several institutions in a manner most favorable to their correctional and rehabilitative purposes and to the minimum costs to the state.
"(b) Educational and rehabilitation activities, whether formal or through productive or socialized activities, determined on the basis of individual needs and educability. ” Id. (Emphasis added.)

With respect to the amount of compensation to be paid to inmates employed under it, the Correctional Industries Act provides:

"The corrections commission may adopt a schedule of payments or allowances to inmates or their dependents from such funds as may be provided therefor, but such payments shall be made on the basis of need or of motivation or of reward for industry or behavior and shall not be related to profits to the state from the activities to which the prisoners may be assigned.” MCL 800.332; MSA 28.1540(12).

Looking at the case at bar, we hold that the services provided by plaintiff to defendant were within the scope of the Correctional Industries Act. They were performed entirely within the prison walls and for the benefit of the prison and its rehabilitation program. Exhibits that accompanied plaintiff’s pleadings in this case show that defendant’s educational program was conducted at the prison under the direction of the Corrections Commission. Under the authority of the commission, the Department of Corrections discussed the implementation of the work-educational program with defendant, but it was the department that unilaterally set the wage scale and work hours for the inmate employees and designated those inmates who would be permitted to participate in the program. Thus, defendant was employed under the terms of the Correctional Industries Act and it is this act, and not the Minimum Wage Law, that must control the rate of his compensation. This result follows from the application of general rules of statutory construction to this case.

Where, by reasonable construction, two statutes can be reconciled and the purpose of each can be served, it is the duty of the courts to reconcile and enforce them. People v Buckley, 302 Mich 12; 4 NW2d 448 (1942). Courts will not assume that the Legislature passed an act that serves no useful purpose, if the act can be interpreted in a manner that avoids such a consequence. Brown v Dep’t of State, 45 Mich App 322; 206 NW2d 481 (1973), lv den 389 Mich 802 (1973). Were we to follow the logic of plaintiff, and apply it in this case, we would be forced to either ignore or nullify the provisions of the Correctional Industries Act that empower the Corrections Commission to provide for a payment schedule for inmate labor.

It appears that when the Legislature passed the Minimum Wage Law, it did not expressly consider the problem of inmate wages. However, when it explicitly examined this area in the Correctional Industries Act, it decided to leave the determination of wages to the Corrections Commission. It is a rule of statutory interpretation that where two statutes are or appear to be in conflict, the more specific statute, enacted subsequent to the more general one, will prevail. People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977).

The facts of this case fit neatly into these rules of statutory construction. The Minimum Wage Law is general in scope and deals with the wages of many groups of employees. The Correctional Industries Act, however, is particular in scope with provisions that specifically bear upon the payment of inmate wages. Further, the Correctional Industries Act is the more recently enacted of these two statutes.

Thus, we hold that the legislative intent is that plaintiff be paid wages in accordance with regulations promulgated under the Correctional Industries Act and not the Minimum Wage Law. We believe this result to more accurately reflect the reality of prison employment. The regulation of inmate employment is a matter over which prison authorities retain constant control. Because of the unique situation of prison employment, it is likely that inmate employees were never intended to be given the protection afforded the general population under the Minimum Wage Law. Sims, supra, stopped short of holding this, but it did indicate that this proposition was probably correct. Moreover, with respect to the Federal minimum wage law, the Federal wage and hour administrator has adopted this approach.

In conclusion, we note that plaintiff was in no manner employed by a private industry and, therefore, application of the economic reality test would serve no purpose here. Plaintiff’s employment related to the operation of a university behind prison walls for the benefit of the prison and a prison rehabilitation program. As was previously stated, the state has the right to the fruits of an inmate’s labor for the state and need not pay the minimum wage for it. Like the Department of Corrections, defendant is an agency of the state. Thus, even were we to grant plaintiff’s argument that defendant was his employer under the economic reality test, plaintiff, nevertheless, would not have stated a cause of action for payment of wages in accordance with the Minimum Wage Law.

Accordingly, we hold that plaintiff failed to state a cause of action and that it was not error for the Court of Claims to grant defendant’s motion for summary judgment.

Affirmed. No costs, a public question involved.

       These allegations of plaintiff were denied in the pleadings of defendant and in two affidavits submitted by defendant in support of its motion for summary judgment. The first of these affidavits was by Mr. Bray. Mr. Bray assumed the position of program coordinator for defendant and the prison two months after plaintiff’s employment had been terminated. He states that due to his position, he was familiar with the rules and regulations of the prison and that plaintiff’s employment situation was controlled by the prison and not defendant. However, because he was not involved with the prison at the time that plaintiff allegedly worked for the university he cannot state from personal knowledge what transpired between plaintiff, defendant and the prison. Therefore, his affidavit would be invalid. GCR 1963, 116.4. The second affidavit accompanying defendant’s motion for summary judgment was by Mr. Smythe, the Executive Director of employee relations for defendant. In this affidavit, the affiant states that plaintiff was under the direct and exclusive control of the prison during the term of his employment. Plaintiff argues on appeal that the assertions of fact in these affidavits were contradicted by his own affidavit and, therefore, it was improper for the Court of Claims to grant an order of summary judgment because a genuine issue of material fact did exist in this case. GCR 1963, 117.2(3). However, because the order of summary judgment was not based upon this subsection of the court rule, but, rather on GCR 1963, 117.2(1), plaintiffs argument on appeal is spurious. A motion for summary judgment based upon the failure to state a cause of action tests the legal sufficiency of pleadings. The existence of a genuine issue of material fact is irrelevant. Grasser v Fleming, 74 Mich App 338; 253 NW2d 757 (1977). Accord, Trombetta v Detroit, Toledo & Ironton R Co, 81 Mich App 489; 265 NW2d 385 (1978).

       These terms are defined in the following manner in the subsections of MCL 408.382; MSA 17.255(2):
      "(b) 'Employee’ means an individual between the ages of 18 and 65 years employed by an employer on the premises of the employer or at a fixed site designated by the employer * * * .
      "(c) 'Employer’ means any person, firm, or corporation, including the state and its political subdivisions, agencies and instrumentalities, and any person acting in the interest of such employer, who employs 4 or more employees at one time within any calendar year. Such employer shall be subject to this act during the remainder of such calendar year.
      "(d) 'Employ’ means to engage, suffer, or permit to work.”

       MCL 800.321 et seq.; MSA 28.1540(1) et seq.

         MCL 800.322; MSA 28.1540(2).

         Id. MCL 800.326; MSA 28.1540(6), MCL 800.327(a)(b); MSA 28.1540(7)(a)(b).

        See MCL 800.326; MSA 28.1540(6).

       Our opinion concerns only those inmate employees who are employed within the prison walls and whose employment is covered under the Correctional Industries Act. Certain prisoner employees, such as those who are employed in a work-pass program in local communities, are entitled to the minimum or prevailing wage for similar employment in that locality. MCL 791.265a; MSA 28.2325(1); Michigan Department of Corrections policy directive DWA-41.01 (April 20, 1974).

       "Moreover, we do not think that Congress intended the Fair Labor Standards Act to cover the present situation. The setting of wages for incarcerated prisoners working on assignment by prison officials requires the consideration of many variables which are unique to that situation and which directly affect government policy on rehabilitation of criminals. It is unlikely that Congress considered any of those variables at the time it adopted general legislation designed to give employees the right to a subsistence wage.” Sims, supra, at 787.

       "In order for the Act [Fair Labor Standards Act, 29 USC § 201 et seq.; as amended] to apply, there must be an employer-employee relationship. Generally, an inmate in a State prison who, while serving a sentence, is required to work by or does work for the prison or another element of the State government (such as a State university) is not an employee within the meaning of the Act.” Opinion WH 346, signed by Acting Wage-Hour Administrator Warren D. Landis, July 10, 1975; 6 BNA Labor Relations Reporter, Wages and Hours Manual, 91:457.

       Const 1963, art 8, § 4.