text:
    JACK’S FACTORY OUTLET v PONTIAC STATE BANK
    Docket No. 78-448.
    Submitted November 20, 1979, at Detroit.
    Decided January 23, 1980.
    Jack’s Factory Outlet and Jack Ginsburg commenced an action against Pontiac State Bank for damages for the defendant’s alleged bad faith in accelerating the date for payment of a $35,000 secured loan made by the bank to corporate plaintiff (Jack’s Factory Outlet) and personally guaranteed by the corporation’s president (Ginsburg). The bank sought to depose Ginsburg. Three dates for the deposition were scheduled but not kept. Finally, the deposition was scheduled for September 8, 1978. After this date was set, plaintiffs’ counsel stated that he had a criminal matter in Detroit Recorder’s Court on that day and could not attend the deposition. When defendant’s counsel refused an adjournment, plaintiffs’ counsel appeared before the court and stated that the deposition could be taken on September 18. On September 15, 1978, the Oakland Circuit Court, Robert B. Webster, J., entered an order for the deposition to be held on September 18, and, on September 16, defendant’s counsel confirmed the date with plaintiffs’ counsel. Ginsburg failed to appear for the deposition as scheduled. Defendant then filed a motion to dismiss the plaintiffs’ action and for sanctions under the applicable court rule. The circuit court denied the motion to dismiss, but ordered the plaintiffs to pay $1,000 to the defendant on or before October 4, 1978, at 5 p.m., to recompense the defendant for its costs and attorney fees incurred as a result of Ginsburg’s failure to attend the deposition. Plaintiffs failed to pay within the one-week period and the court entered an order dismissing the plaintiffs’ complaint with prejudice. The plaintiffs appeal. Held:

    1. A trial judge is empowered, under the court rules, to impose "just” sanctions for a party’s failure to comply with a discovery order. The assessment of $1,000 was not unreasonable given the hours necessarily spent by the bank’s attorneys in preparing for the deposition scheduled for September 18, the additional hours required to prepare and file the motion to dismiss and the time spent .at the hearing on the motion. The $1,000 costs assessment was not an abuse of discretion.

      References for Points in Headnotes
    [1, 3] 23 Am Jur 2d, Depositions and Discovery § 256.
    [2] 23 Am Jur 2d, Depositions and Discovery § 258.
    Dismissal of action for failure or refusal of plaintiff to obey court order. 4 ALR2d 348.

      2. A trial court may dismiss a case with prejudice for noncompliance with a court order and failure to appear at a deposition. However, the disobedience must be willful. Due to the short time period in which the payment was to be made, it is entirely conceivable that plaintiffs’ counsel was unable to reach Ginsburg until too late to raise $1,000, as contended by plaintiffs’ counsel. Because of the shortness of the time period in which payment was to be made, the date due for payment was invalid. Accordingly, the trial court’s order dismissing plaintiffs’ case is vacated. The matter is remanded to the trial court. Payment of $1,000 is to be made within 30 days from the date of release of this opinion. If the sum is paid within the 30-day period, Mr. Ginsburg’s deposition shall be taken within 14 days thereafter. If payment is not made, plaintiffs’ complaint shall be dismissed with prejudice.
    Affirmed in part, reversed in part and remanded.
    1. Discovery — Order for Discovery •— Fialure to Comply — Sanctions — Court Rules.
    A trial judge has the power to impose just sanctions for a party’s failure to comply with an order for discovery; in imposing the sánctions, the trial judge can appropriately take into account 1) the inconvenience to the other party, 2) the other party’s reasonable attorney’s fees in preparation for and appearing at the deposition, together with filing and arguing the motion for sanctions, 3) the nature of the noncomplying party’s willful disobedience, and 4) the general deterrent effect of the penalty (GCR 1963, 313.2[2]).
    2. Discovery — Failure to Comply — Court Rules.
    The court rules allow a trial court to dismiss a case with prejudice for a plaintiffs noncompliance with a court order for discovery and failure to appear at a deposition; however such disobedience must be willful (GCR 1963, 313.2[2], 313.4).
    3. Discovery — Failure to Comply — Willful Failure — Intent — Court Rules.
    A party’s failure to comply with a court order for discovery is willful if it is conscious or intentional, not accidental or involuntary; such failure need not be accompanied by wrongful intent (GCR 1963, 313.4).

      David M. Jutkowitz, for plaintiffs.

      Dickinson, Wright, McKean, Cudlip & Moon (by Robert P. Hurlbert), for defendant.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   Per Curiam.

The issue in this case is whether the trial court exceeded the powers granted under GCR 1963, 313.4, by dismissing plaintiffs’ suit for failure to appear at a deposition.

On February 23, 1977, plaintiffs commenced action for $1,000,000 in damages predicated on defendant’s alleged bad faith acceleration of a $35,000 secured loan to the corporate plaintiff (Factory Outlet) and personally guaranteed by the corporation’s president (Ginsburg). The bank answered, asserting that the acceleration was made after the bank discovered that Factory Outlet’s checking account was being used as a conduit for successive transfers of large sums without any apparent business purpose. According to the bank, the transfers created large balances of uncollected funds in the account. When both Ginsburg, Factory Outlet’s sole shareholder, and Ernest Citron, the corporation’s attorney, refused to explain the purpose for the unusual activity in the checking account, the bank called the loan.

Discovery proceedings were commenced against Citron who refused to answer questions under the claim of the attorney-client privilege. The bank then sought to depose Ginsburg. Three dates were scheduled but were not kept. Finally, deposition was scheduled for September 8, 1978. After this date was set, plaintiffs’ counsel stated he had a criminal matter in Recorder’s Court of Detroit, September 6-8, ánd could not attend. When counsel for defendant refused an adjournment, plaintiffs’ counsel appeared before the court stating that the deposition could be taken September 18. An order was so entered on September 15, and, on September 16, defendant’s counsel confirmed the date with plaintiffs’ counsel.

Fifteen minutes before the deposition was to begin on September 18, plaintiffs’ counsel informed the defendant that his client would not appear. Defendant then filed a motion to dismiss and for sanctions under GCR 1963, 313.4. Hearing on the motion was set for September 27, 1978. At the hearing, counsel stated Ginsburg was in New York City on September 18, but could appear for discovery-taking any time within the next two weeks. The motion to dismiss was denied but plaintiffs were ordered to pay $1,000 on or before October 4, 1978, at 5 p.m., said payment to recompense defendant for its costs and attorney fees incurred as a result of Ginsburg’s failure to attend the deposition. The order further provided that if payment were not made within the time indicated, plaintiffs’ complaint would be dismissed. Plaintiffs failed to pay within the one-week period set, and an order dismissing plaintiffs’ complaint with prejudice was entered October 5, 1978. It is from this order that plaintiffs appeal of right.

Michigan GCR 1963, 313.2(2) empowers a trial judge to impose "just” sanctions for a party’s failure to comply with a court discovery order. Plaintiffs contend on appeal that the action of the trial judge in assessing costs of $1,000 was an abuse of discretion. We disagree. The trial judge can appropriately take into account the following considerations: (1) the inconvenience to the defendant; (2) reasonable attorney’s fees in preparation for and appearing at the deposition, together with filing and arguing the motion for sanctions; (3) the nature of the plaintiffs’ willful disobedience; and (4) the general deterrent effect of the penalty. See, National Hockey League v Metropolitan Hockey Club, Inc, 427 US 639; 96 S Ct 2778; 49 L Ed 2d 747 (1976). Given the hours necessarily spent by the bank’s attorneys preparing for the deposition scheduled for September 18, and the additional hours required to prepare and file the motion to dismiss, and the time spent at the hearing on said motion, we do not find that the sum of $1,000 is an unreasonable assessment. See David v Hooker, Ltd, 560 F2d 412 (CA 9, 1977), Trans World Airlines, Inc v Hughes, 515 F2d 173 (CA 2, 1975). The broad power of a trial judge to impose a variety of sanctions to enforce discovery proceedings is reflected in the following commentary:

"Michigan General Court Rule 313.2 allows a court to impose a variety of sanctions against a party who refuses to make discovery, including an order dismissing the action or rendering judgment by default against the disobedient party. The sanctions are necessary elements of Michigan’s 'far-reaching, open and effective discovery practice’ and are designed to ensure successful operation of liberal discovery by punishing litigants who refuse to proceed in good faith.

"Unfortunately, however, trial judges are reluctant to use these sanctions in all but the most flagrant cases, thereby significantly contributing to court congestion and litigation expense caused by abuses of the discovery process.

"Where a trial judge does choose to impose sanctions, Michigan appellate courts will not reverse unless the record demonstrates an abuse of discretion.” Wasinger, Civil Procedure, 1978 Annual Survey of Michigan Law, 25 Wayne L Rev 241, 250-251 (1979).

Plaintiffs further contend that even if the trial court’s order of September 27, 1978, assessing $1,000 costs was not an abuse of discretion, the court’s subsequent order entered October 5, 1978, dismissing plaintiffs’ action with prejudice was error because it cannot be said that the nonpayment was flagrant, wanton and repeated. Although Michigan is reluctant to impose so drastic a penalty as dismissal with prejudice, it is clear that GCR 1963, 313.2(2) and 313.4 allow a trial court to dismiss a case with prejudice for noncompliance with a court order and failure to appear at a deposition. Humphrey v Adams, 69 Mich App 577, 581; 245 NW2d 167 (1976), Krim v Osborne, 20 Mich App 237; 173 NW2d 737 (1969), lv den 383 Mich 765 (1970). However, the disobedience must be willful. But to be "willful” does not require proof of wrongful intent.

" 'To be "willful” the failure need not be accompanied by wrongful intent. It is sufficient if it is conscious or intentional, not accidental or involuntary.’ 20 Mich App at 241.” 69 Mich App at 580.

"The authority of the circuit judge to take the most drastic step of dismissal of plaintiffs complaint with prejudice is clear. However, we believe that such measures should be exercised cautiously. This is not a case where the failure to respond to discovery requests extends over substantial periods. E.g., Krim v Osborne, 20 Mich App 237; 173 NW2d 737 (1969). Nor is it a case in which the failure to provide discovery is in violation of a direct order of the trial court. E.g., Humphrey v Adams; 69 Mich App 577; 245 NW2d 167 (1976). In this case, in view of the relatively short time that elapsed between the failure to appear and the motion to dismiss, and the ambiguous showing of willfulness on the part of the plaintiffs agent, we conclude that the trial judge should have chosen less drastic measures to compel discovery.” (Emphasis added.) MacArthur Patton Christian Ass’n v Farm Bureau Ins Group, 403 Mich 474, 477; 270 NW2d 101 (1978).

During oral argument, counsel for plaintiffs explained that between Saturday, September 16, and Monday, September 18, 1978, he tried to contact his client but found his client was out of town on a buying trip. This ignores the fact that counsel chose the September 18th date in the first instance. Counsel also claims that within the seven-day period between the order to pay $1,000 and the order of dismissal with prejudice, counsel was unable to contact his client. If this latter fact is true, as counsel contends, his client’s failure to obey the court’s order was not willful as that term is used in Humphrey, supra. Though the question is close and though we share the respected trial court’s frustration in trying to keep its docket current, we are disposed to hold that the instant case is more like the MacArthur Patton "relatively short time that elapsed between the failure to appear and the motion to dismiss” than the. situation in Humphrey. In Humphrey, the trial court entered an order November 21, 1974, that plaintiff’s answer to interrogatories should be filed by December 20, 1974. In the instant case, only seven days was given within which the $1,000 was to be paid and "in the event payment is made, Defendant’s Motion is dismissed and the parties shall thereupon set a date for Mr. Ginsburg’s deposition”. It is entirely conceivable that during the short interval, counsel was unable to contact his client or not able to locate his client until too late to raise the $1,000.

However, we have already held that that part of the trial court’s order of September 28, 1978, ordering plaintiffs to pay $1,000 valid. Only the date within which payment was due (October 4, 1978) is invalid. Additionally, given the short period within which payment was to be made, nothing appears in the record upon which we can conclude the failure to pay was willful. Accordingly, the trial court’s order of October 5, 1978, dismissing plaintiffs’ first amended complaint with prejudice, is vacated. The trial court’s order of September 28, 1978, ordering payment of $1,000 is affirmed except as to the date of payment. This cause is remanded to the trial court. Payment of said $1,000 is to be made within 30 days from the date of release of this opinion. If said sum is paid within said 30-day period, Mr. Ginsburg’s deposition shall be taken within 14 days thereafter. If said payment is not made, plaintiffs’ first amended complaint shall be dismissed with prejudice.

Remanded in accordance with this opinion. No costs, neither party having prevailed in full.

       The $1,000 assessment was not a fine payable to the court but was payable to defendant as defendant’s costs and attorney fees for plaintiffs’ willful refusal to make discovery as of September 27, 1978.

       The order further provided that "in the event plaintiffs fail to pay-such costs on or before Wednesday, October 4, 1978 at 5:00 p.m., upon the filing of an Affidavit to that effect, Defendant’s counsel may present to the Court for entry, forthwith and without notice to Plaintiffs, the attached Order dismissing Plaintiffs’ First Amended Complaint with prejudice and costs”.


source: Caselaw Access Project

author: Per Curiam. R. M. Maher, J.

license: Public Domain

text:
    SINGLETON v DAVIS
    Docket No. 78-4830.
    Submitted October 4, 1979, at Detroit.
    Decided January 23, 1980.
    Leave to appeal applied for.
    Penny Singleton was injured in a collision with an automobile which was owned by Everett B. Davis and which was operated by Ricky E. Davis. On October 31, 1974, Singleton filed a complaint seeking damages for injuries she received in that collision. On October 4, 1978, defendants’ insurer made an offer of judgment in the amount of $11,'500. The offer of judgment contained no provisions with respect to the award of costs or interest. Plaintiff accepted the offer of judgment. After a hearing concerning the judgment order, the Wayne Circuit Court, Neal E. Fitzgerald, J., entered a judgment in the amount of $11,500 plus costs and prejudgment interest allowable by law. Defendants, through their insurer, payed the $11,500 judgment and the $168.30 court costs, however, defendants appeal from the award of prejudgment interest. Held:

    Prejudgment interest as provided by statute is properly awarded on a judgment entered pursuant to an offer of judgment made and accepted in accordance with the provisions of the general court rules. The fact that the addition of such prejudgment interest to the amount of the offer of judgment brings the total recovery to more than the limits of the policy issued by the defendants’ insurer does not affect the operation of the statutory provision providing for prejudgment interest.
    Affirmed.
    R. M. Maher, J., dissented. He would hold that an offer of judgment was intended to encompass prejudgment interest. He would hold that the judgment entered should not include the statutory prejudgment interest. He would reverse.
    Opinion of the Court
    1. Judgment — Offer of Judgment — Interest on Judgment — Statutes —■ Court Rules.
    Prejudgment interest, as provided by statute, is properly awarded on a judgment entered pursuant to an offer of judgment made and accepted in accordance with the applicable court rule, notwithstanding the fact that the addition of the prejudgment interest increases the total recovery to an amount which exceeds the limits of the insurance policy issued by the defendant’s insurer (MCL 600.6013; MSA 27A.6013, GCR 1963, 519.1).

      Reference for Points in Headnotes
    [1, 2] 22 Am Jur 2d, Damages § 179 et seq.

      Dissent by R. M. Maher, J.
    2. Judgment — Offer of Judgment — Interest on Judgment — Statutes — Court Rules.

      An offer of a judgment which is made in accordance with the provisions of the general court rules is by statute and court rule intended to include any statutory prejudgment interest so that settlements are encouraged and protracted litigation is avoided; accordingly, it is error to enter judgment in the amount of the offer of judgment plus the statutory prejudgment interest (MCL 600.6013; MSA 27A.6013, GCR 1963, 519.1).

      Raymond L. Krell, P.C., for plaintiff.

      Selby, Dickinson, Pike, Mourad & Brandt (by David R. TufHey) (Gromek, Bendure & Thomas, of counsel), for defendants.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   Per Curiam.

On October 31, 1974, plaintiff filed a complaint in Wayne County Circuit Court seeking damages for injuries she sustained in an automobile collision with defendants. On October 4, 1978, defendants, through their insurer, Detroit Automobile Inter-Insurance Exchange, made an offer of judgment to plaintiff pursuant to GCR 1963, 519.1. The offer of judgment was in the amount of $11,500. However, it contained no terms relating to an award of interest or costs. Subsequently, on October 12, 1978, plaintiff filed her acceptance of the offer of judgment with the Wayne County Circuit Court.

Following a hearing on October 27, 1978, judgment was entered in favor of pláintiff in the amount of $11,500 "together with costs and interest allowable by law.” In accordance with the provisions of MCL 600.6013; MSA 27A.6013, the lower court awarded plaintiff prejudgment interest from the date that she filed her complaint. Defendants, through DAIIE, paid the $11,500 judgment plus costs, but have appealed the award of interest.

Defendants argue that because the prejudgment interest assessment brought the total amount of plaintiffs recovery above the stated policy limits of $11,500, the lower cqurt erred in making the interest award. A similar argument was considered and rejected by this Court in Denham v Bedford, 82 Mich App 107; 266 NW2d 682 (1978), lv gtd 403 Mich 846 (1978). In Denham this Court held that an insurer may be held liable for the amount of its policy limits plus prejudgment interest on that amount, where a money judgment equal to or exceeding the policy limits is awarded. The fact that plaintiffs award arose out of an offer of judgment and not a jury verdict does not alter this result. McGrath v Clark, 89 Mich App 194; 280 NW2d 480 (1979).

Affirmed. Plaintiff may assess costs.

R. M. Maher, J.

(dissenting). I must respectfully dissent from the majority opinion.

MCL 600.6013; MSA 27A.6013 allows for the recovery of prejudgment interest on "any money judgment recovered in a civil action”.

GCR 1963, 519.1, which regulates offers of judgment, provides in pertinent part:

".1 Offer of Judgment, A party defending against a claim may serve upon the adverse party an offer, in writing, to allow judgment to be taken against him for all or a part of the claim for relief in accordance with the term of the offer together with costs then accrued. * * * If the judgment finally obtained by the offeree is not more favorable than the rejected offer, the offeree must pay the taxable costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.”

In Bertilacci v Avery, 42 Mich App 483; 202 NW2d 331 (1972), the defendant served on the plaintiffs an offer of judgment pursuant to GCR 1963, 519.1 for the sum of $3,000 plus $500 in accrued costs and fees. Plaintiffs did not accept within the time allotted by the rule, and the case went to trial before a jury. On February 4, 1971, the jury returned a verdict of $3,000, together with costs and interest as provided by law. This Court was then required to decide whether the jury verdict was more or less favorable than the rejected offer of judgment in order to determine who would pay the costs. In reaching the decision, the Court used a three-part formula which took into account the amount of the jury verdict ($3,-000), the interest obtainable under MCL 600.6013; MSA 27A.6013 (at that time 5% per year), and the costs incurred by plaintiffs prior to the date of the offer of judgment (approximately $500). The Court then concluded that under the formula, the judgment obtained by the plaintiffs was "substantially more favorable” than the defendant’s rejected offer, 42 Mich App at 486. Implicit to this determination is the conclusion that the offer of judgment was not subject to the interest statute, the other two figures being equal. See also, Beltz v Kimberley, 63 Mich App 700, 702-703, fn 1; 235 NW2d 25 (1975).

McGrath v Clark, 89 Mich App 194; 280 NW2d 480 (1979), held that where the parties have made no provision for interest in the offer of judgment, interest is allowed under MCL 600.6013 as on any other judgment. McGrath concedes that under proposed MCR 2.405A(2), an offer is defined as being inclusive of all costs and interest then accrued, but says that this is a change from the present rule. I would disagree. The proposed version is merely a clarification of the present rule. The committee comments do not indicate that this definition represents a departure from the rule now in effect. Furthermore, McGrath states that Bertilacci, supra, did not deal with the interest question. Any reasonable interpretation of Bertilacci would indicate that the resolution of this issue was implicit in the result.

GCR 1963, 519 was designed to encourage settlements and avoid protracted litigation. Bertilacci v Avery, supra, McGrath v Clark, supra. The rule merely formalizes the settlement process which is normally carried on by the parties in personal discussions or over the telephone. If the rule is to be effective in promoting settlements, it should not be used to alter or frustrate the terms of an agreement. It is true that the offer of judgment at issue herein could have been drafted more precisely. However, I would find that the figure of $11,500 was contemplated by the offeror to be inclusive of prejudgment interest, because it represented the full amount of the policy limits. Certainly, a lesser amount would have been offered if it was contemplated that an additional interest liability would be tacked on to the named figure.

       The offer of judgment, in its entirety, provided:
      "NOW COME the defendants, EVERETT B. DAVIS and RICKY EVERETT DAVIS, by and through their attorneys, SELBY, DICKINSON, PIKE, MOURAD & BRANDT, and offer to allow a judgment to be taken against them in the amount of Eleven Thousand, Five Hundred ($11,500.00) Dollars for pain and suffering. This offer is made pursuant to General Court Rule 519.”
      It should be noted that defendant agreed to pay an additional $168.30 in costs, but costs are included specifically in GCR 1963, 519.1, unlike prejudgment interest.


author: Per Curiam.

text:
    PEOPLE v MAYES
    Docket No. 78-5432.
    Submitted June 20, 1979, at Detroit.
    Decided January 23, 1980.
    Derwin Mayes was convicted, on his plea of guilty, of breaking and entering an occupied dwelling, Recorder’s Court of Detroit, Joseph A. Gillis, J. The offense was committed while the defendant was on authorized leave from a halfway house. The sentence for the offense was ordered to be served consecutively with the term he was serving at the halfway house. Defendant appeals, alleging that he was neither incarcerated in a penal institution nor escaped from such an institution when he committed the offense and that, therefore, the statute requiring consecutive sentencing should not apply. Held:

    A crime committed by a defendant on leave from a halfway house is committed during the defendant’s incarceration in a penal institution. The consecutive sentencing statute is applicable.
    Affirmed.
    Criminal Law — Sentencing — Halfway Houses — Statutes.
    A crime committed by a defendant who is on leave from a halfway house is committed during the defendant’s incarceration in a penal institution, and the defendant is subject to a consecutive sentence (MCL 768.7a; MSA 28.1030[1]).
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law § 547.

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

      Charles Burke, for defendant on appeal.

      Before: Bashara, P.J., and D. E. Holbrook, Jr. and J. C. Daner, JJ.

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

   Per Curiam.

The defendant pled guilty to breaking and entering an occupied dwelling while he was on authorized leave from a halfway house and was sentenced to from 3-1/2 to 5 years in prison. The sentence was ordered to run consecutively with the prison term he was serving at the time the crime was committed. The defendant appeals as of right the consecutive nature of his sentence.

The defendant contends that although MCL 768.7a; MSA 28.1030(1) requires consecutive sentencing for crimes committed while incarcerated in a penal institution or while escaped from such an institution, his status while on authorized leave from a halfway house was not within either of those classifications. The statute at issue provides:

"A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from that institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof, be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall commence at the expiration of the term or terms of sentence which the person is serving or has become liable to serve in a penal or reformatory institution in this state.”

In People v Smith (On Rehearing), 89 Mich App 478, 489; 280 NW2d 862 (1979), this Court held that for purposes of the escape statute, MCL 750.193; MSA 28.390, any grounds under the control of persons authorized by the corrections department to have inmates under their care, custody or supervision is a prison. Thus, a halfway house is a prison for purposes of the escape statute.

Without deciding whether or not the commission of a crime while on leave from a halfway house is an escape, absent an intent not to return, we hold that a crime committed while on leave from a haflway house is committed during one’s incarceration in a penal institution. The alternative interpretation of the consecutive sentencing statute, which is advanced by the defendant, is clearly outside of the legislative intent, which was to create a disincentive for committing criminal acts by those serving prison sentences.

The consecutive sentence in the present case is, therefore, affirmed.


text:
    SCOTT v STACEY’S MOVING LTD
    Docket No. 43327.
    Submitted December 12, 1979, at Lansing.
    Decided January 23, 1980.
    Leave to appeal applied for.
    Plaintiff, Wayne Scott, filed an action against defendant Stacey’s Moving, Ltd., and others in the Washtenaw Circuit Court for damages for injuries sustained in a highway traffic accident. The court, Ross W. Campbell, J., ordered the trial bifurcated and the issues of liability and damages tried separately. Plaintiff appeals by leave granted. Held:

    The discretionary authority of a trial judge to separate the issues of negligence and liability for trial is strictly limited where the issues constitute a single claim. The issues must be clearly separate, and, even if theoretically separable, they might become practically interdependent when the same witnesses must be relied upon for proof of both issues. The possible prejudice of damages on the issue of liability may properly be remedied by the exclusion of certain evidence or a limiting instruction pursuant to the Michigan Rules of Evidence.
    Reversed and remanded.
    Trial — Separation op Issues — Negligence — Liability.
    The discretionary authority of a trial judge to separate the issues of negligence and liability for trial is strictly limited where the issues constitute a single claim; the issues must be clearly separable, and, even if theoretically separable, they might become practically interdependent when the same witnesses must be relied upon for proof of both issues.
    References for Points in Headnote
    75 Am Jur 2d, Trial § 12.
    Separate trial of issues of liability and damages in tort. 85 ALR2d 9.

      Brimacombe & Schlecte, P.C. (by Kurt R. Thornbladh), for plaintiff.

      Ellis, Talcott & Ohlgren, P.C. (by Ralph C. Keyes), for defendants.

      Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   Per Curiam.

Plaintiff appeals by leave granted from an interlocutory order to separate the trial of the issues of liability and damages.

In this automobile negligence action the trial judge ordered that the issues of liability and damages were to be tried separately. Plaintiff claims that this order was an abuse of the trial court’s discretionary authority under GCR 1963, 505.2. We agree.

In Peasley v Lapeer Circuit Judge, 373 Mich 222; 128 NW2d 515 (1964), the Michigan Supreme Court held that discretion to separate issues that constituted a single claim was to be strictly limited. The issues must be clearly separable, and, even if theoretically separable, they might become practically interdependent when the same witnesses must be relied upon for proof of both issues.

In the instant case, the trial judge stated that the reasons for separation centered on the prejudicial effect of the extent of damages and the recovery of a workmen’s compensation award, which would cause the jury to question why the plaintiff was not suing his employer or the driver of the plaintiff’s vehicle. We find that these reasons do not meet the very strong showing of prejudice as required by Peasley, particularly when the plaintiff stated that a number of the same witnesses would testify on liability and damages.

In every negligence trial the injured party is required to prove damages as an element óf a prima facie case. At the hearing on the motion the defendants failed to distinguish this case from any other negligence action. If the defendants fear the possible prejudicial effect of damages on the issue Of liability, the proper remedy would involve an Objection undet MRE 403, or the request for d limiting instruction under MRE 105.

Likewise, plaintiffs recovery of a workmen’s compensation award does not amount to a showing of substantial prejudice. The fact that the jury may question why the plaintiff was not suing his employer or the driver of the plaintiffs vehicle could result in prejudice to the plaintiff as well as the defendant. The jury may very well decide that the missing defendants were liable and find no liability oh the part of the named defendants.

Despite defendants’ argument to the contrary, the complete change in judicial personnel on the Supreme Court since the 1964 Peasléy decision does not diminish its authority as the proper interpretation of the current iaw in Michigan. The promulgation of the hew MRE 403 does not alter the trial court’s authority to order separation of issues under GCR 1963, 505.2.

The decision of the lower court is vacated and the case is remanded to the circuit court.


author: Per Curíam.

text:
    PEOPLE v HARDMAN
    Docket No. 44053.
    Submitted January 2, 1980, at Grand Rapids.
    Decided January 23, 1980.
    Fonzo J. Hardman pled no contest to two counts of second-degree murder, Calhoun Circuit Court, Paul Nicolich, J. Pursuant to a plea agreement defendant was sentenced to a term of imprisonment of from 15 to 25 years. Defendant appeals, alleging that he offered his pleas on the basis of erroneous advice regarding the effective date of a referendum banning "good time” for certain offenses, including second-degree murder. Held:

    The record indicates that at the time of the pleas the defendant knew that the effective date of the referendum was uncertain, that he took a calculated risk in offering his pleas when he did, and that his choice was knowingly, intelligently and voluntarily made.
    Affirmed.
    Criminal Law — Plea of No Contest.
    A defendant who knowingly, intelligently and voluntarily pled no contest to charges against him and who did so at the time he did to be sure that he would be eligible for early release from prison took a calculated risk and may not now claim that his pleas were based upon erroneous advice regarding the effective date of a referendum affecting his minimum time.
    References for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 497-502.
    Construction and application of Rule 11(c) of Federal Rules of Criminal Procedure, as amended in 1975, requiring court to give certain advice to defendant before accepting plea of guilty or nolo contendere. 41 ALR Fed 874.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Franklin K. Line, Assistant Prosecuting Attorney, for the people.

      Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P.J., and R. B. Burns and J. H. Gillis, JJ.
   Per Curíam.

Defendant pled no contest to two charges of second-degree murder, MCL 750.317; MSA 28.549. The reason for the no contest pleas was two-fold. One, there was a civil case pending in Calhoun County Probate Court that a guilty plea would affect, and two, the defendant did not remember the incident of the actual shootings. The record of the preliminary examination which was offered at the plea taking established sufficient facts to find the defendant guilty of the charges. The record also indicates that defendant was found competent to stand trial and that he was not insane at the time of the shootings.

There was a plea agreement in this case and it was agreed that the prosecutor would recommend that defendant’s sentence not exceed 15 to 25 years. The trial judge sentenced defendant to the agreed-upon term of years in the state prison.

Defendant, by affidavit, now claims that he offered his pleas of no contest because of erroneous advice. Two weeks before the taking of defendant’s pleas a referendum known as "Proposal B” was approved. Proposal B, enacted into law as MCL 791.233b; MSA 28.2303(3), was designed to ban "good time” and to restrict parole for persons serving sentences for specified crimes, including second-degree murder. Defendant seeks a remand to enable him to develop a record showing that his pleas were based solely on erroneous advice related to the effective date of Proposal B.

The record, affidavits and newspaper article presented to us by defendant on appeal do not show that defendant was given erroneous advice. To the contrary, all of the materials filed by defendant show that defendant knew that the effective date of Proposal B Was Uncertain. The record before us indicates that the defendant knew exactly what he was doing. He took a calculated risk. If the act applied to defendant he would have to serve the full 15 years. If he pled before the act affected him he could be released in eight years and nine months. And, if he went to trial and Was acquitted he would be free at that time. Defendant deliberately chose to plead no contest at the time he did to be sure that he would be eligible for early release. His choice was knowingly, intelligently and voluntarily made.

Affirmed.


text:
    PEOPLE v SEEFELD
    Docket No. 46229.
    Submitted December 6, 1979, at Lansing.
    Decided January 23, 1980.
    William L. Seefeld was charged with first-degree criminal sexual conduct but, pursuant to a plea agreement, entered a plea of guilty to second-degree criminal sexual conduct, but mentally ill, Oakland Circuit Court, William J. Beer, J. The defendant appeals, alleging that the judge failed to comply with certain statutory requirements when accepting the defendant’s pida of guilty biit mentally ill and that the failure mandates setting aside the plea. Held:

    The statute which provides for pleas of guilty but mentally ill also provides that a judge may not accept such á plea until; with the defendant’s consent, the judge has examined the required psychiatric report or reports, has held a hearing on the issue of the defendant’s mental illness and is satisfied that the defendant was mentally ill at the time of the offense, in the' present case, the judge denied the defendant’s motion for an adjournment of sentencing for the purpose of obtaining a psychiatric examination. The defendant’s plea of guilty but mentally ill was not in compliance with the statutory requirements and, as such, is defective and cannot be accepted.
    Reversed and remanded.
    Criminal Law — Plea of Guilty But Mentally III — Statutes.
    Pleas of guilty but mentally ill may only be made and accepted after the plea-taking judge has complied with a statutory provision which requires the judge to examine psychiatric reports on a defendant, to' hold a hearing on the issue of the defendant’s mental illness and to be satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered (MCL 768.36[2]; MSA 28.1059[2]).

      References for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 45, 46, 48, 492, 494.1.
    Necessity and sufficiency of competency hearings, as judged by federal constitutional standards, in federal cases involving validity df guilty pleas entered by allegedly mentally incompetent state convicts. 37 ALR Fed 356.
    Compliance with federal constitutional requirement that guilty pleas be made voluntarily and with understanding, in federal cases involving allegedly mentally incompetent state convicts. 38 ALR Fed 238.

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

      James W. McGinnis, for defendant on appeal.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Per Curiam.

Defendant, William L. Seefeld, was charged with criminal sexual conduct, first degree, in violation of MCL 750.520b; MSA 28.788(2), arising out of the rape of his younger sister.

Pursuant to a plea agreement, defendant pled guilty but mentally ill to criminal sexual conduct, second degree, in violation of MCL 750.520c; MSA 28.788(3). After being sentenced to not less than 5 nor more than 15 years in the custody of the Department of Corrections as a mentally ill person, defendant appeals as of right.

At the time of, but prior to, sentencing, defendant moved for an adjournment of sentencing for the purpose of obtaining a psychiatric examination. The trial court denied defendant’s motion and imposed sentence.

On appeal, defendant claims the following statutory provision is mandatory and that failure to comply when requested to do so mandates setting aside the guilty plea.

MCL 768.36(2); MSA 28.1059(2) provides:

"The judge may not accept a plea of guilty but mentally ill until, with the defendant’s consent, he has examined the report or reports prepared pursuant to section 20a, has held a hearing on the issue of the defendant’s mental illness at which either party may present evidence, and is satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered. The reports shall be made a part of the record of the case.”

The guilty but mentally ill verdict was newly created as part of the package of bills enacted by the Legislature in 1975 in an effort to protect the public from violence inflicted by persons with mental ailments who slipped through the cracks in the criminal justice system. Pleas of guilty but mentally ill may only be made and accepted after compliance with the statute.

In this case, defendant did not assert a defense of insanity. Neither was defendant referred to the Center for Forensic Psychiatry in accordance with the statute, nor is there any indication the trial judge received any psychiatric or other reports relating to defendant’s mental condition. Part of the purpose of the statute is to protect defendants from deprivation of liberty for mental illnesses, except after appropriate psychiatric evaluation. At the same time, the Legislature sought to protect the public from harm and violence by creation of the new verdict of guilty but mentally ill. Failure to comply with the statute defeats its purpose.

The plea of guilty but mentally ill in this case falls far short of compliance with the statutory requirements and, as such, is defective and cannot be accepted. The plea and sentence are set aside and the cause remanded to the trial court for trial on the merits, or for other appropriate proceedings according to law.

Reversed and remanded.

       1975 PA 179 and 1975 PA 180. See discussion in People v Mangiapane, 85 Mich App 379, 381-391; 271 NW2d 240 (1978).

       MCL 768.36(2); MSA 28.1059(2).

       In his brief, the prosecutor concedes no reports were examined by the trial judge.


author: Per Curiam. Mackenzie, J.

text:
    PEOPLE v LAVINE
    Docket No. 78-4293.
    Submitted November 8, 1979, at Lansing.
    Decided January 25, 1980.
    Stephen C. Lavine Was charged with possession of marijuana with intent to deliver and was acquitted. He then petitioned the Jackson Circuit Court for the return of property seized from his room by police pursuant to a search warrant, which seizure led tb the marijuana prosecution. His petition was denied, Gordon W. Britten, J. Defendant appeals by leave granted. Held:

    The defendant’s claim that the property was taken from his room and that no one else had permission to place the property there was insufficient to allege a possessory right to the property.
    Affirmed.
    Mackenzie, J., dissented. She would hold that the allegations of the defendant were sufficient to constitute a possessory interest in the property. She would reverse.
    Opinion of the Court
    1. Searches and Seizures — Return of Property — Right to Possession.
    A person who petitions for thé return of property seized by police must 'claim that the prdpferty Was seized from his possession and that he exercised dominion and control over the property; a mere claim that the property was found in his room and that he had given no one else permission to put it there is insufficient to establish a right to possession.
    Dissent by Mackenzie, J.
    2. Searches and Seizures — Return of Property — Right to Possession.

      A defendant’s claim that property was seized from his room by police and that no one else had permission to place the property there is sufficient to allege a possessory interest in the property where no other party is alleging a possessory interest

      and where a charge incidental to which the property was seized from the room resulted in the defendant’s acquittal.

      Reference for Points in Headnotes
    [1, 2] 68 Am Jur 2d, Sfearches and Seizures § 118.

      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.

      Best, Arnold, Gleeson & Best, P.C. (by Chad C. Schmucker), for defendant.
    Before: R. M. Maher, P.J.¿ and Mackenzie ánd J. H. Piercey,  JJ.

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

   Per Curiam.

Defendant áppéals from the circdit court’s denial of his petition for the return of an assortment of chattels and approximately $2,000 in cash removed from his bedroom by police officers executing a valid search warrant. Defendant previously won an acquittal by directed verdict ori a charge of possession of marijuana with intent to deliver, which arose out of the same search.

The question to be decided in a case of this type is "the superior right of possession as between the seizing authority a.nd the one from whoin the property was seizéd”. People v Rosa, 11 Mich App 157, 161; 160 NW2d 747 (1968), aff'd 382 Mich 163; 169 NW2d 297 (1969). See also, Oakland County v Bice, 386 Mich 143; 191 NW2d 338 (1971);

However, defendant has not claimed that the property in question waS seized from his possession: Nor does he allege that he exercised over the property that dominion and control which is the hallmark of possession. Seé 73 CJS, Property, § 14(a), pp 196-197. He merely claims that the property was found in his room and that he gave no one else permission to put it there. Those allegations are insufficient to establish even a prima facie right to possession. The trial court correctly denied defendant’s petition.

Affirmed.

Mackenzie, J.

(dissenting). I dissent. As stated by the majority, the property seized belongs to the party with the superior right of possession. See People v Rosa, 11 Mich App 157; 160 NW2d 747 (1968). I believe that defendant has the superior right in this case.

According to 63 Am Jur 2d, Property, § 39, p 323:

"One may have possession of a chattel, even in the absence of actual personal custody, if the chattel is under his control and in a place where it must have been put by his act or in his behalf, or where the chattel is within his power in such a sense that he can and does command its use.”

In his petition for return of personal property, defendant stated that on November 24, 1976, $2,-046 was seized from his room in Apartment A-59 in the Centaur Apartment building complex. He further stated that no other person had his permission to store any currency in his room or in the premises. It is my opinion that such allegations allege a possessory interest.

It is important to keep in mind that no other party is alleging a possessory interest in the money. Since the prosecution against defendant resulted in his acquittal, I do not believe the state can be considered to have a possessor right superior to that of defendant. In order to be lawful, a search warrant need only be based upon probable cause. If the state can retain the money although there is insufficient evidence to convict the defendant, the result, I believe, effectively amounts to a confiscatory fine based upon mere probable cause.

I would reverse.


author: R. M. Maher, J.

text:
    PEOPLE v ROWE
    Docket No. 78-1022.
    Submitted December 4, 1979, at Grand Rapids.
    Decided February 5, 1980.
    Todd Rowe was convicted of resisting arrest, Ottawa Circuit Court, Calvin L. Bosman, J. Two City of Holland police officers armed with a warrant issued by the 58th District Court for defendant’s arrest on a charge of receiving and concealing stolen property went to defendant’s residence in Holland Township, outside of the City of Holland, to execute the warrant. Defendant’s resistance to that arrest led to his conviction of resisting arrest. Defendant appeals. Oti appeal defendant contends that the officer's had no authority to arrest him outside of the city and that he was entitled to a jury instruction to that effect. Defendant further contends that he is entitled to be discharged because the officers, acting without authority, had only the arrest power of a private citizen and no statutory grounds for a citizen’s arrest. Held:

    Statutes provide that h law enforcement officer may execute an arrest warrant anywhere in the county issuing the warrant. The Holland police officers, to whom the arrest warrant was directed, had statutory authority to execute a warrant for defendant’s arrest in Holland Township outside of the City of Holland. Defendant’s allegations of error in jury instructions áre without merit.
    Affirmed.
    1. Arrest — Arrest Warrants — Jurisdiction — Magistrates — Statutes.
    Arrest warrants may be executed in any part of the state; in issuing an arrest warrant for a felony a magistrate acts as a judicial officer for the one court of justice (Const 1963, art 6, § 1, MCL 767.31; MSA.28.971).
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Arrest §§ 7, 18 et seq.

    [2] 5 Am Jur 2d, Arrest § 10.
    [3] 5 Am Jur 2d, Arrest § 18 et séq.

    [4] 5 Am Jur 2d, Arrest § 4 et seq.

    [5, 6] 5 Am Jur 2d, Arrest § 7,

      2. Arrest — Arrest Warrants — Jurisdiction — Magistrates — Statutes.
    A magistrate’s authority to issue warrants is equivalent to the authority of a circuit judge and extends county-wide; therefore, a magistrate is authorized to direct a warrant to all law enforcement officers in the county including the sheriff, chief of police, constable or any peace officer (MCL 600.8317, 764.1, 766.3, 767.31; MSA 27A.8317, 28.860, 28.921, 28.971).
    3. Arrest — Arrest Warrants — Jurisdiction — Statutes.
    An officer to whom a warrant has been directed is enabled to execute it anywhere in the state with the same authority as in his own county becaus.e there are no territorial limits in the state on arrest warrants (MCL 764.2, 767.3Í; MSA 28.8.61, 28.971).
    4. Arrest — Arrest Warrants — Requirements.
    A warrant provides the authority needed to execute it; to justify an arrest on a warrant, the warrant has to be good on its face and there must be an authority in the person who undertakes to act under it.
    5. Arrest — Arrest Warrants — Execution of Warrants — Penal Sanctions — Statutes.
    An arrest warrant is a command to an officer to execute the warrant promptly under pain of fine or criminal prosecution (MCL 600.587, 750.123, 750.191; MSA 27A.587, 28.318, 28.388).
    6. Arrest — Arrest Warrants — Magistrates — Probable Cause to Arrest.
    An officer is not required to make a determination of probable cause in executing an arrest warrant because that determination has already been made for him by a magistrate.

      Scheuerle, Legatz & Zitta, for defendant on appeal.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   R. M. Maher, J.

The defendant appeals as of right from a jury conviction for the crime of resisting arrest, contrary to MCL 750.479; MSA 28.747. The defendant was sentenced to a term of 90 days in the Ottawa County Jail, ordered to pay $300 in court costs, and given 18 months probation.

On April 12, 1977, the 58th District Court, a district of the first class consisting of the County of Ottawa (MCL 600.8128; MSA 27A.8128) issued a warrant for defendant’s arrest on a charge of receiving and concealing stolen property, contrary to MCL 750.535; MSA 28.803.

Two Holland police officers went to defendant’s residence in Holland Township, outside of the City of Holland, to execute the warrant. Defendant’s resistance to that arrest led to this conviction.

Defendant contends on appeal that the officers had no authority to arrest him outside of the city and that he was entitled to a jury instruction to that effect. In addition, defendant contends that he is entitled to be discharged because the officers, acting without authority, had only the arrest power of a private citizen and no statutory grounds for a citizen’s arrest existed. MCL 764.16; MSA 28.875.

In arguing that the officers had no authority to arrest him outside of the territorial limits of the city, defendant relies on the common-law rule. See 5 Am Jur 2d, Arrest, § 18, p 709; 6A CJS, Arrest, § 53b, p 125; 1 Wharton’s Criminal Evidence, § 59, p 92. However, the common-law rule has been abrogated by statute in Michigan.

Arrest warrants may be executed in any part of the state. MCL 767.31; MSA 28.971. In issuing an arrest warrant for a felony the magistrate acts as a judicial officer for the one court of justice (Const 1963, art 6, § 1).

"The office of justice of the peace is a part of the judicial system of this State, and in the exercise of the important functions of this office the persons filling it cannot be said to be performing duties local in character, but must rather be said to be performing duties in behalf of the entire State.” People v DeMeaux, 194 Mich 18, 23; 160 NW 634 (1916).

The magistrate’s authority to issue warrants is equivalent to the authority of a circuit judge and extends county-wide. MCL 600.8317; MSA 27A.8317, MCL 764.1; MSA 28.860. Accordingly, the magistrate is authorized to direct the warrant to all law enforcement officers in the county.

MCL 766.3; MSA 28.921 provides:

"If it appears from such examination that any criminal offense not cognizable by a justice of the peace has been committed, the magistrate shall issue a warrant directed to the sheriff, chief of police, constable or any peace officer of the county, reciting the substance of the accusation and commanding him forthwith to take the person accused of having committed the offense and bring him before the appropriate court to be dealt with according to law, and in the same warrant may require the officer to summon such witnesses as are named therein.” (Emphasis added.)

Similarly, MCL 767.31; MSA 28.971 directs that "every [arrest] warrant shall be directed to the sheriff, constable, police officer or peace officer of the county in which the indictment shall be found * *"

In the present case the warrant was directed in accordance with those statutes to "any sheriff, deputy sheriff, court officer, state police officer, or police officer”. As a consequence the Holland police officers, to whom the arrest warrant was directed, had statutory authority to execute the warrant anywhere in the county. In addition, those officers, and any other peace officer to whom the warrant was directed, would have been authorized to execute the warrant outside of Ottawa County. In accordance with the legislative scheme that there are no territorial limits in the state on arrest warrants (MCL 767.31; MSA 28.971), MCL 764.2; MSA 28.861 contemplates that an officer to whom a warrant is directed will be able to execute it anywhere in the state with the same authority as in his own county:

"If any person against whom a warrant shall be issued for an alleged offense committed within any county, shall, either before or after the issuing of such warrant, escape from or be out of the county, the sheriff or other officer to whom such warrant may be directed', may pursue and apprehend the party charged, in any county of this state, and for that purpose may command aid and may exercise the same authority as in his county.” (Emphasis added.)

Specific provision has been made for state-wide execution of arrest warrants by police officers of the City of Detroit (MCL 726.21; MSA 27.3571), by police officers of fourth class cities (MCL 87.16; MSA 5.1673), and by sheriffs and deputies (MCL 600.582; MSA 27A.582).

In addition, pursuant to the statutory scheme, both the arresting officer and the prisoner are guaranteed safe passage across the state and both are privileged from arrest on civil process while they return to the jurisdiction of the court issuing the warrant. MCL 801.119, 801.120; MSA 28.1768, 28.1769.

Pursuant to the statutes cited, when a warrant is directed to a law enforcement officer, the warrant itself provides the authority needed to execute it. In Drennan v People, 10 Mich 169, 182 (1862), Justice Campbell wrote:

"Two things are necessary to justify an arrest on a warrant; fírst, a warrant good on its face, and, second an authority in the person who undertakes to act under it.

"If a warrant is upon its face void, then no officer can justify under it; although, as a general rule, no officer is bound to look behind a regular warrant, coming from a proper jurisdiction. It is laid down without dissent, that no person is bound to submit * * * to an arrest made by an unauthorized person under a good warrant * * *. In Rex v Weir, 1 B. & C., 288, Bayley, J. says, 'It is of great consequence that magistrates should be careful to direct their warrants in such a manner that the parties to be affected by them may know that the persons bearing the warrants are authorized to execute them.’ ” (Partial emphasis added.)

Accord, Wheaton v Beecher, 49 Mich 348, 351; 13 NW 769 (1882); Ortman v Greenman, 4 Mich 290, 292 (1856). Even more than authority to execute it, a warrant is a command to the officer to execute the warrant promptly under pain of fine or criminal prosecution. People v Durfee, 62 Mich 487, 491; 29 NW 109 (1886), Dunn v Gilman, 34 Mich 256, 257 (1876), MCL 750.191; MSA 28.388, MCL 750.123; MSA 28.318, MCL 600.587; MSA 27A.587.

In this case, the circuit court justified the arrest outside of the city on the basis of MCL 117.34; MSA 5.2114, which provides:

"When any person has committed or is suspected of having committed any crime or misdemeanor within a city, or has escaped from any city prison, the police officers of the city shall have the same right to pursue, arrest and detain such person without the city limits as the sheriff of the county.”

In our opinion, that statute is not addressed to the question involved in this case, namely, a peace officer’s authority to execute an arrest warrant outside the territorial limits of his jurisdiction. Rather, it is addressed to the different but related question of a peace officer’s authority to act in the traditional role of law enforcement officer outside the territorial limits of his jurisdiction. We perceive a difference in the two functions.

In executing an arrest warrant directed to him, the officer functions, in a sense, as a court officer for service of process and acts in a ministerial capacity. Dunn v Gilman, 34 Mich 256 (1876), Ortman v Greenman, 4 Mich 290 (1856). See also, 70 Am Jur 2d, Sheriffs, Police, and Constables, § 21, p 146. In executing the warrant, the officer acts ministerially in the sense that he is not required to make a determination of probable cause; that determination has already been made for him by the magistrate, performing a judicial function. Birmingham v 48th District Judge, 76 Mich App 33; 255 NW2d 760 (1977). By contrast, a peace officer acting in the traditional role of law enforcement officer acts in a discretionary capacity in numerous matters, including the decision to arrest without a warrant. Under the common law, a peace officer’s authority to act in that traditional role was generally limited to the territorial limits of the officer’s jurisdiction. One exception to that rule even at common law was the exception for what is commonly known as "hot pursuit”. Although the officer could not exercise law enforcement functions outside of his jurisdiction, the officer was privileged to cross territorial lines when in immediate pursuit of an offender. 4 Wharton’s Criminal Law and Procedure, § 1614, p 277. The common-law limitation on an officer’s authority to function in the traditional capacity outside of his jurisdiction and the common-law exception to that rule for hot pursuit are still followed in Michigan. See, for example, Delude v Raasakka, 391 Mich 296; 215 NW2d 685 (1974), People v Bashans, 80 Mich App 702; 265 NW2d 170 (1978). We believe that MCL 117.34; MSA 5.2114, the statute relied on by the circuit court, is a codification of the common-law hot pursuit exception. That exception is codified in other places to allow hot pursuit not only by police officers of home rule cities (MCL 117.34; MSA 5.2114), but also by police officers of fourth class cities (MCL 92.4; MSA 5.1752), and by police officers of villages (MCL 78.22; MSA 5.1532).

In summary, we hold that a law enforcement officer to whom a warrant is addressed may execute the warrant anywhere in the county where it is issued and, if the accused is out of the county, the law enforcement officer may execute it in any part of the state. In executing the warrant, the officer acts, as it were, as an officer of the court in the state’s single court of justice and the officer is not bound to the territorial limits of the governmental entity where he serves in the traditional role of law enforcement officer.

We therefore conclude that the defendant’s allegations of error in the jury instructions are without merit.

Affirmed.

       Made applicable to all criminal proceedings by MCL 767.2; MSA 28.942.

       See footnote 1.

       Of course, the arresting officer does exercise some discretion as, for example, in deciding how much force to use in executing the warrant; but, the decision to arrest and the existence of probable cause have been determined by a judicial officer and are not questions within the officer’s discretion. In contrast, when an officer, acting in the traditional role, decides to arrest without a warrant, the officer exercises discretion in determining whether probable cause exists for an arrest and whether to arrest then or defer arrest until a more appropriate time.

       There are statutory exceptions to the common-law rule that a peace officer cannot exercise traditional law enforcement powers outside of the officer’s territorial jurisdiction. Under MCL 764.2a; MSA 28.861(1), a peace officer may exercise authority and powers outside of the limits of the governmental entity when enforcing state laws in conjunction with the state police or peace officers of another governmental entity. In addition, any peace officer can exercise authority and powers outside a governmental entity when enforcing the Michigan Vehicle Code on a street or highway which is on a boundary between governmental units. MCL 257.726a; MSA 9.2426(1).

       Assuming, arguendo, that an officer serving an arrest warrant outside his jurisdiction is limited to the arresting authority of a private person, we would still uphold the validity of the arrest. Under MCL 764.16; MSA 28.875, a private person may arrest another whom he suspects on reasonable grounds to have committed a felony if one has actually been committed. People v Panknin, 4 Mich App 19, 27; 143 NW2d 806 (1966). See also, Maliniemi v Gronlund, 92 Mich 222, 227-228; 52 NW 627 (1892). We conclude that a valid arrest warrant issued by a magistrate imports the requisite "reasonable grounds” to validate such an arrest.


author: J. H. Gillis, J.

text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v HIGGINBOTHAM
    Docket No. 78-1130.
    Submitted November 7, 1979, at Detroit.
    Decided February 5, 1980.
    Leave to appeal applied for.
    Defendant Rudy Higginbotham was injured while driving her automobile which was insured by plaintiff, Detroit Automobile Inter-Insurance Exchange (DAIIE), when her estranged husband, defendant Boyd N. Higginbotham, driving his own car which was separately insured by DAIIE, forced her to the curb, trapped her in her car and shot her several times with a revolver. Ruby Higginbotham informed DAIIE that she had a claim against her husband arising out of the incident and filed suit against Boyd for damages. Boyd failed to respond and Ruby notified DAIIE of the lawsuit and Boyd’s failure to answer. DAIIE informed Boyd that no coverage would be afforded him under his policy. DAIIE asked Boyd to sign a reservation of rights intended to permit it to defend Boyd without waiving any rights or defenses under the insurance contract, but Boyd refused to sign. DAIIE also informed Ruby of its intention to defend the suit subject to a reservation of rights and asked her to separate the damages caused by the collision from those caused by the assault. She refused. A default judgment was entered against Boyd. DAIIE later appeared and moved to set aside the default and sought an order requiring it to appear and answer. The court denied the motion. Prior to the entry of the default judgment plaintiff filed a separate action against defendants in Wayne Circuit Court to declare that it was not liable under its policy with. Boyd for damage arising out of his assault upon Ruby. Ruby counterclaimed for benefits under her insurance contract and moved for summary judgments on the complaint and counterclaim. Plaintiff also filed motions for summary judgment. The court, Joseph B. Sullivan, J., granted plaintiff’s motions and denied Ruby’s. Ruby Higginbotham appeals. Held:

      References for Points in Headnotes
    [1] 7 Am Jur 2d, Autopiobile Insurance §§ 160-163.
    Allegations in third person’s action agaihst insured as determining liability insurer’s duty to defend. 50 ALR2d 458.
    [2] 47 Am Jur 2d, Judgments § 1198.
    Doctrine of res judicata as applied to default judgments. 77 ALR2d 1410.
    [3] 7 Am Jur 2d, Automobile Insurance §§ 83, 84.
    44 Am Jur 2d, Insurance § 1247 et seq.

    [4] 7 Am Jur 2d, Automobile Insurance §§ 41, 42, 80 et seq.

    [5] 7 Am Jur 2d, Automobile Insurance § 82.

      1. Absent a request, an insurer has no duty to defend an insured, and where no request is made it is not bound in any way by a lawsuit between the insured and a third party on the ground that it failed to defend. Plaintiff is not estopped to deny liability for failure to defend.
    2. Collateral estoppel applies to default judgments; however, a default judgment is conclusive only as to matters essential to support the judgment. Plaintiff is not estopped to deny liability by the operation of the doctrine of collateral estoppel even if the doctrine were applicable to this case.
    3. An injury is no less an accident where it is intentionally inflicted by an insured upon another, except where the injured party is an aggressor in a fight or blameable for the injuries received therein. The injuries were accidentally sustained. Further, the policy’s exclusion of intentionally inflicted injuries from coverage does not bar recovery. An exclusionary clause in an automobile insurance policy excluding from liability any coverage required by statute to be included is invalid and unenforceable. An automobile insurance policy may not exclude from coverage liability for intentionally caused harm. However, there must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile to sustain a claim under the terms of an automobile insurance policy which provides coverage for injuries arising out of the ownership, maintenance or use of an automobile. The causal connection must be more than incidental, fortuitous or "but for”, and the injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle. Assault by an armed assailant upon the driver of a vehicle is not the type of conduct “reasonably identifiable” with the use of the vehicle, and Ruby’s injuries occurring as a result of Boyd’s assault upon her were not foreseeably identifiable with the normal use of a motor vehicle and are not covered by the policies.
    Affirmed.
    1. Insurance — Lawsuits — Injuries — Duty to Defend — Requests — Judgments — Binding Effect.
    Absent a request, an insurer has no duty to defend an insured, and where no request is made it is not bound in any way by a lawsuit between the insured and a third party on the ground that it failed to defend.
    2. Estoppel — Default Judgment — Collateral Estoppel.
    Collateral estoppel applies to default judgments; however, a default judgment is conclusive only as to matters essential to support the judgment.
    3. Insurance — Accidents — Intentionally Inflicted Injuries.
    ■ An injury, intentionally inflicted upon another, is no less accidental where it is neither suffered nor caused by the insured.
    4. Insurance — Exclusionary Clauses — Statutes.
    An exclusionary clause in an automobile insurance policy excluding from liability any coverage required by statute to be included is invalid and unenforceable; an automobile insurance policy may not exclude from coverage liability for intentionally caused harm (MCL 500.3131, 500.3135; MSA 24.13131, 24.13135).
    5. Insurance — Automobiles — Ownership, Maintenance, Use.
    There must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile to sustain a claim under the terms of an automobile insurance policy which provides coverage for injuries arising out of the ownership, maintenance or use of an automobile; the causal connection must be more than incidental, fortuitous or "but for”, and the injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle; assault by an armed assailant upon the driver of a vehicle is not the type of conduct "reasonably identifiable” with the use of a vehicle.

      Selby, Dickinson, Pike, Mourad & Brandt (by Charles A. Pfeffer) and Gromek, Bendure & Thomas (by James G. Gross), for plaintiff.

      Freddie G. Burton, for Ruby Higginbotham.
    Before: Bashara, P.J., and J. H. Gillis 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.

   J. H. Gillis, J.

This is an automobile no-fault insurance action. On March 4, 1975, defendant, Boyd Higginbotham, estranged husband of defendant-appellant, Ruby Higginbotham, was driving his automobile in pursuit of his wife. She was driving her own automobile. Mr. Higginbotham drove his car into the side of his wife’s car, forcing it to the curb. While Mrs. Higginbotham remained trapped in her car, her husband walked over and shot her several times with a revolver, severely wounding her. The parties had separate insurance policies on their respective automobiles issued by plaintiff, Detroit Automobile Inter-Insurance Exchange (DAIIE).

On August 4, 1975, appellant’s counsel sent a letter informing plaintiff that appellant had a claim against her husband arising out of the above-mentioned incident.

On August 14, 1975, appellant instituted a lawsuit against her husband for damages caused by the collision and assault.

On September 29, 1975, appellant’s attorney notified plaintiff of the lawsuit and of Mr. Higginbotham’s failure to respond. On December 1, 1975, plaintiff notified Mr. Higginbotham that no coverage would be afforded him under his insurance policy. Plaintiff stated that its representative would contact him in order to have him sign a reservation of rights agreement. The intended effect of the agreement was to permit plaintiff to defend the action against Mr. Higginbotham without waiving any of its rights or defenses under the insurance contract. When later contacted, Mr. Higginbotham refused to sign the agreement.

Also, on December 1, 1975, plaintiff apprised appellant’s attorney of its intention to defend the lawsuit subject to the reservation of rights. Plaintiff requested appellant’s attorney to separate the damages caused by the collision from those caused by the assault. Appellant’s attorney refused to do so, claiming "one injury from one assault”.

On December 29, 1975, a default was entered against Mr. Higginbotham. On April 1, 1976, plaintiff appeared and moved to set aside the default and sought an order requiring plaintiff to file an appearance and answer. The order was apparently sought as an equivalent to the waiver of rights which Mr. Higginbotham had refused to execute. The motion was denied and a default judgment was entered. The lower court declined to enter the requested order.

While the above events were transpiring, plaintiff, on December 12, 1975, filed the present declaratory action. In order to protect its rights, under its contract of insurance with Mr. Higginbotham, plaintiff sought a declaratory judgment that it was not liable under its policy with Mr. Higginbotham for any damage arising out of the latter’s assault on the appellant.

Appellant answered and filed a counterclaim alleging that plaintiff was required to pay her benefits under her insurance contract with the plaintiff. Plaintiff denied any such liability.

On July 1, 1977, appellant filed a motion for summary judgment on the complaint for declaratory judgment pursuant to GCR 1963, 117.2(3), and a second motion for summary judgment on her counterclaim, also pursuant to GCR 1963, 117.2(3). Plaintiff also filed motions for summary judgment on the complaint and counterclaim.

On January 19, 1978, the lower court held that plaintiff was not liable under either policy because appellant’s injuries were intentionally inflicted by Mr. Higginbotham and because the claimed injuries did not arise out of the use of an automobile. Plaintiffs motions for summary judgment were granted and appellant’s motions were denied. Orders reflecting that disposition were entered on February 24, 1978. Appellant appeals from those orders as a matter of right.

We begin by addressing appellant’s contention that plaintiff was estopped from raising the issue of noncoverage in the action for declaratory judgment.

Appellant maintains that plaintiff had a duty to defend Mr. Higginbotham and, because plaintiff elected not to enter and defend the action, plaintiff is bound by the default judgment as to all matters at issue in such action, even though not a formal party, so that plaintiff could not subsequently deny liability pursuant to its claim of non-coverage. This argument is supported by reference to two theories of estoppel.

Initially, we note that appellant’s argument is founded upon a factually inaccurate premise. The declaratory action was not instituted subsequent to the default judgment. On the contrary, the declaratory action was filed two weeks before Mr. Higginbotham’s default was entered and approximately 3-1/2 months before judgment was entered on the default.

Even were we to assume that the declaratory action was subsequent in time to the default judgment, we, nevertheless, conclude that appellant’s contention is without merit.

Appellant’s next argument is that plaintiff is bound by the default judgment solely as a result of its failure to defend. We disagree. Absent a request, an insurer has no duty to defend an insured. American Mutual Liability Ins Co v Michigan Mutual Liability Co, 64 Mich App 315, 323; 235 NW2d 769 (1975), Eastman v United States, 257 F Supp 315, 319 (SD Ind, 1966). In the present case, Mr. Higginbotham failed to send the pleadings to the plaintiff to defend Mr. Higginbotham. Plaintiffs duty to defend not having arisen, its failure to defend cannot give rise to the penalty suggested by appellant.

Appellant alternatively relies on the law of collateral estoppel to support her argument that plaintiff was precluded from raising the issue of noncoverage in the declaratory action. Such reliance is misplaced. Collateral estoppel prohibits parties from relitigating those issues which have previously been decided. See Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 42; 191 NW2d 313 (1971). The doctrine of collateral estoppel applies to a default judgment. Perry & Derrick Co, Inc v King, 24 Mich App 616; 180 NW2d 483 (1970). The default judgment, however, is conclusive only as to those matters essential to support the judgment. Perry & Derrick Co, Inc v King, supra, 620. Here, the original action determined only Mr. Higginbotham’s liability to his wife. The issue of noncoverage under Mr. Higginbotham’s policy was not raised in that action. Accordingly, it was not a matter essential to support the default judgment. Even assuming for the purpose of argument that plaintiff, by moving to set aside this default, sufficiently participated in the action to become bound by the default decree, the collateral estoppel effect thereof did not extend to the issue of noncoverage under Mr. Higginbotham’s policy.

We note that appellant does not claim that plaintiff was or is precluded from raising the issue of noncoverage under her policy.

The question presented is whether the lower court erred in granting summary judgment to plaintiff on the issues of liability under the respective policies.

The first reason cited by the lower court in support of its grants of summary judgment was that the injuries were intentionally inflicted by Mr. Higginbotham. This proffered reason will not support the lower court’s decision.

The fact that the defendant intended to assault the appellant will not preclude her from recovering personal protection insurance benefits under her policy. MCL 500.3105; MSA 24.13105 provides:

"(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury

"(4) bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant.”

The parties do not dispute that appellant neither intentionally suffered nor caused her injuries. Accordingly, we conclude that with respect to appellant’s claim for personal protection insurance benefits, her injuries were accidental. See State Farm Mutual Automobile Ins Co v Coon, 46 Mich App 503, 506; 208 NW2d 532 (1973), O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979). The grant of summary judgment against appellant on the counterclaim cannot be supported on this basis.

Furthermore, the fact that the defendant intended to assault the appellant will not preclude her from recovering residual insurance benefits under the defendant’s policy. The "intentional injury” exclusion clause contained in defendant’s policy will not effect such preclusion.

MCL 500.3131; MSA 24.13131 requires residual liability insurance coverage for "automobile liability retained by section 3135”. MCL 500.3135; MSA 24.13135 states that such automobile liability includes "[i]ntentionally caused harm to persons or property”. Where an insurance policy contains an exclusionary clause that was not contemplated by the Legislature, that clause is invalid and unenforceable. Community Service Ins Co v Shears, 89 Mich App 372; 280 NW2d 532 (1979), Detroit Automobile Inter-Ins Exchange v Irvine, 92 Mich App 371; 284 NW2d 535 (1979). Accordingly, the grant of summary judgment on plaintiffs complaint cannot be supported on this basis.

We next turn to the dispositive issue in the case: did appellant’s injuries which resulted from the shooting arise out of the use of a motor vehicle? In order for appellant to recover under either her own or her husband’s insurance policy, it is necessary that her injuries arose out of the use of a motor vehicle. MCL 500.3105, MCL 500.3135.

Plaintiff argues that the injuries in question were entirely unrelated to the use of any motor vehicle. Appellant argues, first, that the mere fact that she was an occupant of her automobile at the time she sustained the injuries leads to the conclusion that her injuries arose out of the use of her automobile. MCL 500.3105. Alternatively, she argues that her injuries were the result of one continuous act which had its origin in her husband’s use of his motor vehicle. MCL 500.3135.

We find that both of appellant’s arguments are without merit. Accordingly, we find that the lower court properly concluded that appellant’s injuries did not arise out of the use of a motor vehicle.

The fact that appellant was an occupant of her automobile at the time she sustained her injuries will not support a finding that her injuries arose out of the use of her motor vehicle so as to entitle her to personal protection insurance benefits. O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526, 530; 280 NW2d 583 (1979), Hamka v Automobile Club of Michigan, 89 Mich App 644; 280 NW2d 512 (1979). See also Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 314; 282 NW2d 301 (1979). Accordingly, the lower court’s grant of summary judgment in plaintiff’s favor on the counterclaim was without error.

Cases construing the phrase "arising out of the * * * use of a motor vehicle” uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury. See Anno: Automobile liability insurance: what are accidents or injuries "arising out of the ownership, maintenance, or use” of insured vehicle, 89 ALR2d 150. Such causal connection must be more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use of the vehicle. Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975).

Applying this requirement to the present case leads to the conclusion that appellant’s injuries did not arise out of Mr. Higginbotham’s use of his motor vehicle. An assault by an armed assailant upon the driver of a car is not the type of conduct that is foreseeably identifiable with the normal use of a motor vehicle. See O’Key v State Farm Mutual Automobile Ins Co, supra, 530. The connection here was simply incidental to Mr. Higginbotham’s use of his motor vehicle. Since appellant’s injuries did not arise out of Mr. Higginbotham’s use of his motor vehicle, the lower court properly granted plaintiff summary judgment on its complaint for declaratory relief. •

We again emphasize that the present case deals only with the issue of plaintiff’s liability with respect to appellant’s assault-related injuries. As such, it cannot be said that the lower court improperly decided a material issue of fact, i.e., whether appellant’s injuries resulted from the collision or from the assault, in granting the motions for summary judgment.

Affirmed. Costs to appellee.

       Plaintiff does not contest its liability for injuries arising out of the collision.

       We reach this conclusion notwithstanding appellant’s allegation that her husband used his vehicle to trap her so as to enable him to effect the assault.