author: R. M. Maher, J.

text:
    TIMMERMAN v UNIVERSAL CORRUGATED BOX MACHINERY CORPORATION
    Docket No. 78-2068.
    Submitted October 5, 1979, at Detroit.
    Decided November 19, 1979.
    James L. Timmerman was injured while working on a machine in the course of his employment. He and his wife, Geraldine Timmerman, filed an action against the manufacturer of the machine, Universal Corrugated Box Machinery Corporation, alleging improper design and construction for failure to provide safety devices and breach of implied warranty of fitness. Universal joined Hartford Insurance Company, the worker’s compensation insurer for Timmerman’s employer, as a third-party defendant, alleging that if the machine was in fact dangerous Hartford should have discovered and reported the hazard in a , safety inspection. Judgment was entered on a jury verdict of no cause of action, Wayne Circuit Court, William Leo Cahalan, J. Plaintiffs appeal, alleging errors in the trial court’s instructions to the jury. Held:

    1. The trial court erred in denying a request by plaintiffs’ counsel to instruct the jury that contributory negligence cannot be considered in respect to the breach of warranty claim. The court had instructed the jury on contributory negligence when instructing on the negligence claim. Because the two claims were so closely related and dependent on the same facts, the jury may well have been confused and the verdict may have been affected by that confusion.
    2. Contributory negligence is no defense where evidence has been presented of a defendant’s causal negligence in the design and manufacture of a safety device. Therefore, the trial court erred in instructing the jury on contributory negligence as a defense to the negligence claim. In addition, the plaintiffs negligence should not be raised as a defense whether the issue is considered under the doctrine of contributory negligence or of comparative negligence.

      References for Points in Headnotes
    [1] 63 Am Jur 2d, Products Liability § 99.
    Contributory negligence or assumption of risk as defense to action for personal injury, death, or property damage resulting from alleged breach of implied warranty. 4 ALR3d 501.
    [2] 75 Am Jur 2d, Trial §§ 588, 589.
    [3] 63 Am Jur 2d, Products Liability § 70.
    Manufacturer’s or seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.

      Reversed and remanded.
    1. Products Liability — Breach of Warranty — Contributory Negligence.
    Contributory negligence is not a defense to a breach of warranty action.
    2. Appeal and Error — Instructions to Jury — Request for Instructions.
    Refusal of a trial court to give requested jury instructions which correctly state the applicable law is error unless such requests are covered by the court’s general instructions in a fair and adequate manner; such error requires reversal if it might have altered the result in the case or if the Court of Appeals can say that the result might well have been different had the error not occurred.
    3. Products Liability — Contributory Negligence •— Safety Devices — Comparative Negligence.
    Contributory negligence is not a defense to a plaintiffs recovery in a products liability case where evidence has been presented of a defendant’s causal negligence in the design or manufacture of a safety device.

      Rosenbaum, Bloom, Appel & Moses, for plaintiffs.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. Gay James A. Sullivan), for Universal Corrugated Box Machinery Corporation.

      Dice, Sweeney, Sullivan & Feikens, P.C. Gay L. Graham Ward), for Hartford Insurance Company.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   R. M. Maher, J.

This appeal by the plaintiffs arises from a jury verdict of no cause of action in their products liability suit against the manufacturer of the machine which injured James L. Timmerman (hereinafter "plaintiff’).

On June 16, 1970, plaintiff was operating a machine known as a "printer-slotter” for his employer, Stone Container Corporation. The machine prints labels and other material on heavy cardboard and then fabricates same into boxes. The machine is large and utilizes 250-pound rollers. There is a clearance between rollers of 0.007 inches. The rollers require inking and adjustment along their length, which is done from a catwalk approximately five or six feet above the ground and running parallel to the rollers. The catwalk permits the operator of the machine to walk along the length of the rollers to adjust the ink flow from numerous spigots set above and parallel to the rollers and to paddle the rollers to effect uniformity of ink distribution. Constant tension to the rollers is required to avoid loss of costly stock into scrap.

Part of the catwalk adjacent to the rollers is of a web steel construction and is divided into four sections. The rollers and certain other portions of the machine are exposed by opening hinged sections of the aforesaid catwalk in order to facilitate certain adjustments which might be required from time to time. The machine was manufactured by defendant and sold to plaintiffs employer in February, 1969.

At the time of the accident, plaintiff was adjusting the ink flow and moving in a backward direction from one spigot to the next, which was an undisputed appropriate manner of adjusting the ink spigots. At the time in question, a section of the catwalk behind him was open, and as plaintiff continued to move backward, his right foot went through the opening and into the rollers where it was crushed. Eventually, it had to be amputated.

The grate had either been left open by an operator from the previous shift, or by the plaintiff himself, although it is undisputed that at the time of the accident plaintiff was unaware that the grate was open. The machine could only be turned off at ground level. The plaintiffs screams caused another employee to shut off the machine.

Until immediately after the accident, the catwalk sections were not equipped with micro-switches, interlocks, or safety switches which would prevent the machine from being operated while a section of the catwalk was open. There was testimony that such safety switches were feasible and were in use in other applications long before the machine in question was manufactured. Indeed, the plaintiffs employer equipped the catwalk with such devices at a comparatively modest cost immediately after the plaintiffs accident.

The Timmermans sued the manufacturer of the machine, alleging improper design and construction for failure to provide safety devices. They also alleged breach of implied warranty of fitness, contending that the machine was unreasonably hazardous and, therefore, unfit for the purposes intended. The defendant, over the Timmerman’s objections, was permitted to join Hartford Insurance Company, the worker’s compensation insurance carrier for plaintiff’s employer, as a third-party defendant, on the theory of negligent inspection.

On appeal, the Timmermans allege various instructional errors as bases for reversal.

In his jury instructions on the negligence count, the trial judge included an instruction on the plaintiffs contributory negligence. Later, when instructing on the breach of warranty claim, he did not mention contributory negligence. When the instructions were concluded, but before the jury retired to deliberate, plaintiffs counsel requested that the trial judge clarify the jury instructions on breach of warranty to say that the plaintiffs contributory negligence cannot be considered with respect to that count. The trial judge denied this request.

Contributory negligence is not a defense to a breach of warranty action. Kujawski v Cohen, 56 Mich App 533, 542; 224 NW2d 908 (1974), Dooms v Stewart Bolling & Co, 68 Mich App 5, 16-17; 241 NW2d 738 (1976).

It is erroneous to refuse to give requested jury instructions which correctly state the law applicable to the facts, unless such requests are covered by the general charge in a fair and adequate manner. Holbert v Staniak, 359 Mich 283, 291; 102 NW2d 186 (1960), Richman v City of Berkley, 84 Mich App 258, 264; 269 NW2d 555 (1978). The error requires reversal if it might have altered the result, or if this Court can say that the result might well have been different. Richman v City of Berkley, supra.

Since the plaintiff’s claims of negligence and breach of warranty were so closely related and depended on an identical factual development, the jury may have been confused and considered the contributory negligence defense with respect to the breach of warranty count as well as the negligence count. The trial court should have given the clarifying instruction as requested by plaintiff’s counsel. This is the type of error which may well have affected the result, and therefore requires reversal.

Our analysis of this issue cannot stop here, however, since there exists a more fundamental error requiring reversal. In the recent decision of Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979), the Michigan Supreme Court extended the rule of Funk v General Motors Corp, and concluded that contributory negligence is no defense to a plaintiffs recovery where evidence has been presented of a defendant’s causal negligence in the design or manufacture of a safety device.

In the case at bar, the plaintiffs’ assertion of negligence was based on Universal’s failure to equip the "printer-slotter” with a shut-off device, buzzers, or other safety devices. There was evidence of the ready availability and comparatively low price of such safety devices, as well as their subsequent installation by the plaintiffs employer. Therefore, under Tulkku, supra, it was reversible error for the trial court to instruct the jury on contributory negligence with respect to the negligence count. The plaintiffs are entitled to a new trial.

In Tulkku, the Supreme Court declined to consider the effect of comparative negligence which was adopted in Michigan by the enactment of MCL 600.2945; MSA 27A.2945 and by the decision in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). Since this issue will necessarily arise at the new trial, we must address it here. In view of the policy reasons underlying the Funk and Tulkku decisions, being the fostering of worker protection and encouragement of employers and manufacturers to provide proper and adequate safety equipment, it seems to us that the employee’s negligence cannot be raised as a defense, whether it be under a doctrine of contributory negligence or comparative negligence.

We find that the other issues raised by the plaintiffs are without merit.

Reversed and remanded for a new trial.

       392 Mich 91; 220 NW2d 641 (1974), holding that contributory negligence is not a defense where the plaintiffs injuries resulted from the defendant employer’s failure to provide any safety device. The Court in Funk, based its decision on policy considerations, saying that workers are not in a position to protect themselves and have no choice but to work with the equipment at hand. Employers are therefore required to safeguard workers from injury caused by faulty or inadequate equipment and cannot shield themselves from liability by pointing to the worker’s negligence in using such equipment.

       The policy reason upon which this conclusion is based was summarized by the Court, 406 Mich at 623:
      "If we are to continue to foster the protection of the worker and to encourage manufacturers to take all reasonable precautions in designing and manufacturing safety devices, we cannot allow the discredited doctrine of contributory negligence to undermine these goals.”


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    ROSS v CONSUMERS POWER COMPANY
    Docket No. 78-2140.
    Submitted April 9, 1979, at Lansing.
    Decided November 19, 1979.
    Leave to appeal applied for.
    Michael Ross was injured when a construction vehicle near which he was working came in contact with power lines maintained by Consumers Power Company. Ross was an employee of a construction company which was building a drain for the John Saines Project 1 Drainage District. Ross brought a negligence action against Consumers. Consumers brought a third-party action against the Drainage District and Wendell Gee, Jackson County Drain Commissioner. The third-party complaint alleged that the third-party defendants negligently failed: to notify Consumers that work was being undertaken that could interfere with the power lines, to make arrangements with Consumers to safeguard workers from contact with the power lines, to instruct and warn its contractors concerning the power lines, to hire a properly licensed and competent contractor and to adequately supervise and inspect the project in such a manner as to prevent the accident from occurring. Consumers’ third-party complaint further alleged breach of certain contractual obligations arising out of the easement granted to the Drainage District so that the drain could pass across land owned by Consumers. The third-party defendant Drainage District moved for summary and accelerated judgment. Third-party defendant Gee moved for summary judgment. The Jackson Circuit Court, Charles J. Falahee, J., granted third-party defendant Gee’s motion for summary judgment on the basis that statutory liability rested with the drainage district rather than the drain commissioner and granted summary third-party defendant Drainage District’s motion for summary judgment on the basis of governmental immunity. The Drainage District’s motion for accelerated judgment was denied. Consumers settled with Ross in the principal action. Consumers appeals from the order granting summary judgment to third-party defendant Drainage District. Held:

      References for Points in Headnotes
    [1] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 60.
    [2, 5] 73 Am Jur 2d, Summary Judgment § 4.
    [3, 4] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 27.
    [6] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 28.

      1. Governmental immunity in Michigan is now a statutory creature, the Supreme Court having progressively abrogated the common-law doctrine of governmental immunity.
    2. The statute creating immunity for governmental agencies engaged in the exercise or discharge of a governmental function speaks only of immunity from tort liability. It was, therefore, erroneous for the trial court, on the basis of governmental immunity, to grant summary judgment in favor of the Drainage District with respect to the counts in the third-party complaint which sounded in contract.
    3. The use of the term "governmental function” by the Legislature in the statute granting immunity from tort liability to governmental agencies engaged in the exercise or discharge of a governmental function is not a mere codification of the common-law meaning of that term. The meaning of the term "governmental function” as used in the governmental immunity statute is subject to continuing judicial refinement.
    4. Governmental immunity from tort liability applies only to activities of the government that are of the essence of governing. It was, therefore, error for the trial court to grant summary judgment in favor of the Drainage District with respect to the tort counts, since the construction of a drain is not of the essence of governing and is neither of such a unique character nor governmentally mandated in such a manner that it can be effectively accomplished only by the government.
    5. In today’s social climate, it can no longer be said that the need to protect the government from tort liability outweighs the need to protect the interests of individuals injured by torts caused by governmental agencies. It is only where the action of the government is of the essence of governing, or of such a unique character that only the government can effectively accomplish the act, that the government should be protected from liability for its torts.
    Reversed and remanded.
    1. Torts — Governmental Immunity — Statutes — Common Law.
    Governmental immunity in Michigan is now a statutory creature, the Supreme Court having progressively abrogated the common-law doctrine of governmental immunity.
    2. Judgment — Summary Judgment — Governmental Immunity — Contracts — Statutes.
    The granting of summary judgment in favor of a drainage district on the ground of governmental immunity as to counts sounding in contract is error, since the statute creating immunity for governmental agencies engaged in the exercise or discharge of a governmental function speaks only of immunity from tort liability (MCL 691.1407; MSA 3.996[107]).
    3. Torts — Governmental Immunity — Words and Phrases — "Governmental Function” — Common Law — Statutes.
    The Legislature’s use of the term "governmental function” in the statute granting immunity from tort liability to governmental agencies engaged in the exercise or discharge of a governmental function does not merely codify the common-law meaning of that term, but rather, that term is subject to judicial refinement (MCL 691.1407; MSA 3.996[107]).
    4. Torts — Governmental Immunity — Essence op Governing.
    Governmental immunity from tort liability applies only to activities of the government that are of the essence of governing.
    5. Torts — Governmental Immunity — Drainage Districts — Summary Judgment.
    It is error to grant summary judgment in favor of a drainage district on the basis of governmental immunity as to a third-party claim alleging negligent failure by the drainage district to notify an electric power company of work being undertaken near power lines and/or failure to take the actions necessary to insure the safety of persons working on the project, since the construction of a drain is not of the essence of governing and is neither of a unique character nor governmentally mandated in such a manner that it can be effectively accomplished only by the government.
    6. Torts — Governmental Immunity — Public Policy.
    The need to protect the government from tort liability is outweighed by the need to protect the interest of individuals where the tort arises out of a function which is not necessary to the act of governing and which can be effectively accomplished by others.

      W. E. Wisner and James E. Brunner, for third-party plaintiff.

      Parker & Adams, P.C., for third-party defendant.

      Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   Bronson, J.

Third-party plaintiff, Consumers Power Company (Consumers), appeals as of right the trial court’s grant of summary judgment in favor of third-party defendant John Saines Project 1 Drainage District (District) on the grounds of governmental immunity.

On August 24, 1971, Michael Ross was electroshocked and severely injured when a construction vehicle near which he was working came in contact with electric power lines maintained by Consumers. At the time, Ross was an employee of Dunigan Brothers, Inc., the construction firm that was building the drain. Ross sued Consumers, and the case was eventually settled. On October 18, 1977, Consumers filed an amended third-party complaint against the District and Wendell Gee, the Jackson County Drainage Commissioner at the time of the incident, alleging essentially a three-count cause of action. Two of the counts were in contract, and the third was in tort. The District’s motion for summary judgment was granted, the trial court holding that the District was immune from tort liability based on the doctrine of governmental immunity. The issue on appeal is whether the trial court was correct in according the District the shield of governmental immunity.

I

Governmental immunity in Michigan is now a statutory creature, the Supreme Court having progressively abrogated the common-law doctrine. The statute provides that "[e]xcept as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function”. MCL 691.1407; MSA 3.996(107). The statute speaks only to immunity from tort liability; it does not grant immunity from contract claims. Accordingly, the trial court’s grant of summary judgment as to the two contract counts is reversed and the cause is remanded to the trial court.

The crucial issue we must decide in determining whether the District is protected from liability on the tort count is whether the alleged acts and omissions of the District were part of the "exercise or discharge of a governmental function”. The Legislature’s use of the common-law term "governmental function” was originally thought to signal a legislative intent to have the statute codify the common-law meaning of that term as of the date of the statute’s enactment. Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976). In two recent Supreme Court cases, however, this approach was rejected, and the term was held to be subject to judicial refinement. Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). See Cronin v Hazel Park, 88 Mich App 488; 276 NW2d 922 (1979). Parker and Perry have been accorded present, rather than prospective effect. Berkowski v Hall, 91 Mich App 1; 282 NW2d 813 (1979).

In Parker, the analysis of Justices Fitzgerald, Kavanagh and Levin advanced from its prior status as dissent to become the lead opinion of the Coprt. According to this analysis, the term "governmental function” is limited "to those activities sui generis governmental—of essence to governing”. Parker, supra, 193. These three justices have previously taken this analysis at least one step further, resulting in a distinction between the "planning” aspects of governmental activity, which would be protected from liability, and the "operational” aspects, which would not.

The Court in Parker was split, however, and as a result the critical analysis was supplied by Justice Moody. He accepted the proposition that the Court was free to begin anew in its interpretation of "governmental function”, and that immunity should apply only to those activities of government that are of the essence of governing. His analysis amounts to a refinement of that idea, however, and results in a somewhat broader definition of "governmental function”:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” Parker, supra, 200.

More specifically, it seems apparent that Justice Moody differs from the Fitzgerald-Kavanagh-Levin analysis in his reluctance to accept a planning/ operations distinction as a means of applying the "essence of governing” test.

"Furthermore, it was observed that the perimeter of governmental function will most often 'run along the line of distinction between decisional and planning aspects of governmental duties on the one hand, and operational aspects on the other’. 398 Mich 21, 22.
"Although these concepts may have some significance in givén cases when applying the 'governmental essence’ test, in other instances they could be misleading or inapplicable. For instance, it would be incongruous to find that the operational activities of some public agencies are other than governmental. Likewise, conceivably there could be essential governmental activity which would have some common analogy in the private sector.” Parker, supra, 200.

Justice Moody’s analysis becomes critical at this particular stage in the development of the immunity doctrine because he has emerged as the "swing vote” on questions of the application of governmental immunity. If a given fact situation would satisfy his definition of "governmental function”, then it would most likely satisfy Justices Fitzgerald, Kavanagh, and Levin as well. In Parker, application of his analysis led him to agree with Justices Fitzgerald, Kavanagh, and Levin that the day-to-day operations of a municipal general hospital were not unique to government nor pursuant to a governmental mandate, and, as a result, were not shielded from liability. In Perry, on the other hand, Justice Moody’s approach led him to reach the same result as Justices Coleman, Ryan, and Williams, upholding the immunity of a state mental hospital. The different result for public mental hospitals and public general hospitals was based on the state’s substantial appropriations for mental health, the legislatively declared policy that services for the seriously mentally handicapped be fostered and provided, and the necessity of public mental facilities for the civil and criminal disposition of the mentally diseased by the courts. Justice Moody noted that private mental health facilities existed, but, since their numbers were inadequate to "deal with the substantial institutional needs of the public”, public mental facilities were held to perform "an essentially unique activity mandated by legislative action”. Perry, supra, 214.

Parker and Perry have been discussed in only a limited number of cases to date. In Cronin v Hazel Park, supra, plaintiff was injured while roller skating during activity conducted by the city’s recreation department at a community center building. Plaintiff claimed that the injury resulted from the city’s negligent supervision of the event. The Court held that the operation of a roller skating program by a municipal corporation is not a governmental function because it is not "of essence to governing” and, as a result, determined there was no need to ascertain whether the specific activity complained of, i.e., negligent supervision, was an exercise or discharge of that function. Likewise, in Daugherty v Michigan, 91 Mich App 658; 283 NW2d 825 (1979), this Court held that the operation of a state recreational area is not of essence to governing, nor, due to its unique character or governmental mandate, can it be effectively accomplished only by government. The plaintiff was allowed to proceed with the action, and governmental immunity was not applied. In Berkowski v Hall, supra, this Court held that the operation of an EMS unit by a municipal fire department was not a governmental function. However, in Central Advertising Co v Novi, 91 Mich App 303; 283 NW2d 730 (1979), and Antkiewicz v Motorists Mutual Ins Co, 91 Mich App 389; 283 NW2d 749 (1979), this Court held respectively that enactment of a regulatory ordinance relating to signs and conducting arson investigations were governmental functions under Parker and Perry and were entitled to immunity.

In Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), the Supreme Court once again split on the question of whether governmental immunity was applicable. In Lockaby, plaintiff brought an action against several governmental defendants for injuries allegedly suffered while he was a prisoner in the custody of the Wayne County Sheriff. Summary judgment was granted in favor of all the defendants. The Court agreed that several of plaintiffs claims had to be remanded for trial. However, the dismissal of plaintiffs negligence claim alleging lack of due care in his supervision and in the selection of jail personnel was upheld. Justices Moody, Coleman, Ryan, and Williams held that the operations of a county jail constituted a governmental function, and that jail personnel, acting within the scope of their duties, were performing public duties and thus were immune.

We are confronted, then, with this lesson from the cases: The operation of a public general hospital, a state recreational area, a municipal roller skating program, and an EMS unit are not governmental functions; the operation of a public mental hospital, a county jail, arson investigations, and the enactment of a regulatory ordinance are. Those cases that have not found a governmental function stress that the activities in question are often carried out by private enterprise as well as government and that the activities are not of such a unique character or governmental mandate that they may be effectively accomplished only by government. Those cases that have found a governmental function involve an activity that can indeed only be carried on by government (e.goperation of a jail) or that is necessary to the policies and continued operation of the functions of the state, because of the lack of sufficient similar activity in the private sector (e.g., public mental hospitals).

II

In its essentials, Consumers’ tort claim against the District alleges negligence arising out of a failure to notify Consumers that work was being undertaken that could interfere with the power lines, a failure to make arrangements with Consumers to safeguard workers from contact with the lines, a failure to instruct and warn its contractors concerning the lines, a failure to hire a properly licensed and competent contractor, and a failure to adequately supervise and inspect the project in such a manner as to prevent the accident from occurring.

This alleged negligence on the part of the District occurred in the furtherance of the District’s undertaking to construct a drain. Applying the rules formulated by our Supreme Court, we hold that the District is not entitled to immunity, and reverse the grant of summary judgment. To begin, the construction of a drain is not of the essence of governing in the way that the operation of a court system, a legislature, or a jail could be said to be. Neither is it an activity that due to its unique character or governmental mandate can be effectively accomplished only by the government. Private persons or organizations could seek to construct drains as well. We are not unmindful of the fact that the Legislature has provided for the establishment and operation of. drainage districts, see MCL 280.51 et seq.; MSA 11.1051 et seq., nor are we unaware of the fact that a drainage district might, in general, be able to more easily accomplish the task. The fact remains, however, that the construction of a drain may be effectively accomplished by others than the government. While it is true that in Perry the Supreme Court recognized that a mental hospital could also be operated by private individuals, there were several factors present in Perry which nevertheless led Justice Moody to accord immunity to state mental hospitals which find no analogy in this case. Specifically, he noted that the number of private mental hospitals was not sufficient to meet the needs of the courts in furtherance of their undeniably governmental function of providing for the proper civil and criminal dispositions of those with serious mental disease. Additionally, he pointed to the substantial state appropriations for mental health in the annual budget and to expressions of legislative policy favoring the care, treatment, and rehabilitation of the seriously mentally handicapped. The construction of a drain is simply not in the same way necessary for the continued functioning of the arms of government as is a mental hospital, nor are we aware of any substantial state appropriations for the construction of drains. The costs of a drain are assessed to those who benefit from it. MCL 280.261 et seq.; MSA 11.1261 et seq. Neither have we discovered any expression of legislative intent relative to the construction of drains analogous to those relating to the support of services for the mentally ill.

Ill

In reaching our decision, we are mindful of the strpng policy considerations which call for the limitation of governmental immunity. Certainly today’s social climate has resulted in a relationship between government and the individual where it can no longer be said with conviction that "it is better that an individual should sustain an injury than the public should suffer an inconvenience”. Russell v Men of Devon, 2 Durnford & East’s Term Rep 667, 673; 100 Eng Rep 359, 362 (1788). Rather, we would agree with Professor Borchard, who already long ago said, "justice and a respect for the rights of the individual demand that Government, national, state and municipal * * * adopt necessary legislation to admit the legal responsibility of the State or city for the torts of its officers”. Borchard, Governmental Liability in Tort, 34 Yale LJ 1, 3 (1924). Professor Cooperrider’s understanding of the manner in which the doctrine of governmental immunity first found its way into the law of this state should lead us to recognize that its legitimate application calls for careful analysis, and that such analysis should result in the doctrine being the exception rather than the rule: that we should speak in terms of governmental liability rather than governmental immunity.

This is perhaps easier said than done. Anyoné who has witnessed our attempts in this state to formulate a rule for easy application can attest to the frustrations and divisions in opinion that result. The doctrine continues in flux, and we cannot be certain that the analysis we apply today will remain applicable tomorrow. Yet it is significant that a majority of our Supreme Court now recognizes that the proper application of the immunity doctrine requires it to be limited to those activities of essence to government. This is the key to the proper delineation of the scope of the doctrine, and it is supported by both history and constitutional concepts. It is not a tort for government to govern. When those we select to lead us make the hard decisions that we ask them to make on our behalf, it is inevitable that some will feel themselves aggrieved by those decisions. This is the nature of politics, and it is proper that we shield our representatives from tort liability in such cases. Likewise, if our government should cause injury while acting within the scope of operations that we expect of them, and their activity is such that it can only be effectively accomplished by government, we should not hold government responsible for the injury. In today’s world, however, government has undertaken many functions that are not necessary to the act of governing and can be effectively accomplished by others. It is in this area that the interests of the individual most clearly outweigh the need to protect government from liability, and accordingly, when its activities fall into this category, we should not hesitate to hold government responsible for its errors.

IV

The grant of summary judgment in favor of the District is reversed on all counts, and the cause remanded for further proceedings on the merits.

Reversed and remanded.

       The trial court also granted summary judgment in favor of Wendell Gee on the ground that he was an improper party defendant. This ruling is not challenged on appeal.

        Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), Keenan v County of Midland, 377 Mich 57; 138 NW2d 759 (1966), McDowell v State Highway Comm’r, 365 Mich 268; 112 NW2d 491 (1961), Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961).
      For a history of the origin and development of governmental immunity in Michigan, see Fox, The King Must Do No Wrong: A Critique of the Current Status of Sovereign and Official Immunity, 25 Wayne L Rev 177 (1979), Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187 (1973).

       There were numerous other issues before the trial court that could conceivably have formed the basis for a grant of summary judgment on the contract claims. The trial court’s opinion, however, addresses only the governmental immunity issue in granting summary judgment in favor of the District. We will not in this circumstance speculate as to other possible grounds for the trial court’s decision. The parties’ arguments concerning these other issues are not properly before this Court.

         Pichette v Manistique Public Schools, 403 Mich 268, 274; 269 NW2d 143 (1978), Thomas v Dep’t of State Highways, 398 Mich 1, 14; 247 NW2d 530 (1976).

       In so doing, the Court rejected the "common good of all” test. Parker, supra, 194. See Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950).

       "The parameter of 'governmental function’ will most often run along the line of distinction between decisional and planning aspects of government duties on the one hand, and operational aspects on the other. See. 3 Davis, Administrative Law Treatise, § 25.10, pp 476-482. In this case, where an operational aspect of the governmental road-building activity is involved, we find no governmental immunity because no exercise or discharge of a governmental function was involved in the act alleged to have been negligently performed, i.e., supervision of a digging operation on a highway construction project.” (Footnote omitted.) Thomas, supra, 22-23.
      This writer has previously expressed general agreement with the planning/operations distinction. Berger v City of Berkley, 87 Mich App 361, 373-376; 275 NW2d 2 (1978).

       Four of the plaintiffs five claims were reinstated; two on the basis of applicable exceptions to the governmental immunity statute, one on the basis of Parker, supra, since it involved the operation of a public general hospital, and one on the basis that it alleged an intentional tort conceivably outside the scope of the exercise or discharge of a governmental function.

       See, also, Jacobs v Dep’t of Mental Health, 88 Mich App 503; 276 NW2d 627 (1979), also involving a state mental facility. Jacobs additionally notes that an alleged intentional tort may at times involve the exercise or discharge of a governmental function. See note 7, supra.

       “[I]t was imported into the law of Michigan in the first two decades of the twentieth century by a generation of judges and lawyers who found it easier to read about the law in Judge Dillon’s treatise on municipal corporations than to track down their own legal heritage.” Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, supra, 187.
      Commentators in general have long suspected that something was wrong with the way in which the immunity doctrine came to be applied. "Just how this feudal and monarchistic doctrine ever got itself into the law of the new and belligerently democratic republic of America is today a bit hard to understand.” Prosser, Torts (4th ed), § 131, p 971. "How it came to be applied in the United States of America * * * is one of the mysteries of legal evolution.” Borchard, Governmental Liability in Tort, 34 Yale LJ 1, 4 (1924).

       Judge Fox has noted that the abrogation of the broad scope of traditional governmental immunity is consistent with the tenets of common law jurisprudence, where the King was advised that he must do no wrong, rather than that he can do no wrong. Fox, The King Must Do No Wrong: A Critique of the Current Status of Sovereign and Official Immunity, supra, 192-193. Professor Cooperrider has pointed out that in the nineteenth century Michigan Supreme Court the approach was to deny recovery when it was a governmental decision which was complained of, as opposed to the implementation of the decision, which, if wrongful, could form the basis of an action. Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, supra, 199-202. See Henkel v Detroit, 49 Mich 249; 13 NW 611 (1882).
      This distinction between governmental decisions and governmental actions has been thought by some to be of a constitutional dimension, resting on the notion of separation of powers. “What a spectacle it would be if a court in a damage suit were to receive evidence designed to prove that congressmen were at fault in determining which way to vote on a bill!” 3 Davis, Administrative Law Treatise, § 25.11, p 484. See Callahan, Pittman v City of Taylor: Recent Developments in Governmental Immunity from Tort Liability in Michigan, 1977 Det Col L Rev 703, 714-716. As discussed more fully in note 12, infra, while these ideas may form the basis of an absolute limit to the abrogation of governmental tort immunity, there is good reason to extend the line somewhat ahead of a pure planning/operations distinction.

        Dalehite v United States, 346 US 15, 57; 73 S Ct 956, 979; 97 L Ed 1427, 1452 (1953) (Jackson, J., dissenting).

       The most obvious example that comes to mind to illustrate this point is the reasonable restraint of a prisoner in a jail.
      "[T]he governmental-function defense negates liability for harms caused by law enforcement and by protective actions of employees such as policemen, firemen, inspectors, and custodial employees, who are by law compelled to act directly upon persons and property, overcoming resistance if necessary. Mistakes are an inevitable consequence of such activity, and it may be that resultant losses should, to some extent, be absorbed by the community, but the problems of separating instances where compensation would be appropriate from those in which it would not is complex, and it is difficult to see how, with any fidelity to language, it could be held that these employments are anything but governmental.” Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, supra, 283. See Jacobs v Dep’t of Mental Health, supra, 506. But see Antkiewicz v Motorists Mutual Ins Co, supra, 395-396.
      Recognition of this point leads to the conclusion that while the proper scope of governmental tort immunity may often follow a line of distinction between planning and operations, this is not always the case. Parker v Highland Park, supra, 200 (Moody, J., concurring). See Fox, The King Must Do No Wrong: A Critique of the Current Status of Sovereign and Official Immunity, supra, 196-197.


author: Allen, P.J.

text:
    PEOPLE v FIELDS
    Docket No. 78-2159.
    Submitted October 12, 1979, at Detroit.
    Decided November 19, 1979.
    Leave to appeal applied for.
    Dennis G. Fields was convicted on three counts of assault with intent to commit murder and one count of possession of a firearm during the commission of a felony, Recorder’s Court of Detroit, Michael J. Connor, J. At trial defendant’s mother testified that the defendant possessed a reputation as a peaceful, nonviolent person. On cross-examination the prosecutor asked, "Mrs. McClain, are you aware of the felonious assault charge against your son in 1975?” to which defendant’s mother answered, "I heard about it”. Defense counsel moved for a mistrial. The trial court denied the motion on the basis that even if the prosecutor’s cross-examination was improper, its prejudicial effect was curable by an appropriate instruction. Thereafter, the court instructed the jury not to consider the question and response in any way and that both would be stricken from the record. Defendant appeals. On appeal, defendant alleges three reasons why the trial court abused its discretion in denying his motion for a mistrial: (1) recent case law overrules the prior rule allowing cross-examination of character witnesses by using a defendant’s record of prior arrests which do not result in convictions, (2) even if it was proper to cross-examine his character witness by reference to defendant’s prior arrest, the form used by the prosecutor to ask the question was improper, and (3) the prosecutor should not have conducted the cross-examination regarding prior arrests without first determining, in the absence of the jury, the fact, time, place, and relevancy of the proposed prior misconduct. Defendant also claims that certain comments made by the prosecutor during rebuttal argument were improper as appealing to the jury to perforin its civic duty to convict him and that his conviction for possession of a firearm during the commission of a felony constitutes double jeopardy in violation of the United States and Michigan constitutions. Held:

      References for Points in Headnotes
    [1, 2] 81 Am Jur 2d, Witnesses §§ 500-504.
    [3] 81 Am Jur 2d, Witnesses § 504.
    [4] 81 Am Jur 2d, Witnesses §§ 503, 515-517.
    [5] 75 Am Jur 2d, Trial §§ 192-194.
    [6] 21 Am Jur 2d, Criminal Law §§ 183, 186.

      1. A character witness may be questioned as to his awareness of a defendant’s prior arrests on matters related to the charge for which the accused is on trial. Where a witness has testified to the good reputation of an accused, the defendant’s prior arrests can be used to cross-examine the witness for the purpose of showing either that the witness is unfamiliar with the reputation concerning which he has testified or that his standards of what constitutes good repute are unsound.
    2. The proper form of inquiry of a character witness is "Have you heard” and not "Do you know?”. However, framing the inquiry in terms of "Do you know?” does not require automatic reversal absent a showing of actual prejudice. The requisite showing of prejudice is not made on the record. Therefore, while the form of the question posed by the prosecutor was erroneous, it did not prejudice the defendant’s cause and reversal is not warranted.
    3. The trial court did not abuse its discretion in denying defendant’s motion for a mistrial. Prior clearance should have been obtained from the trial judge before cross-examining Mrs. McClain in the presence of the jury regarding defendant’s misconduct. However such a procedure does not constitute reversible error per se and where the court cut short the questioning and specifically instructed the jury to disregard the matter, there was no abuse of discretion and no error in the absence of some proof or finding that the prosecutor acted in bad faith.
    4. A prosecutor should not appeal to a jury to perform its civic duty to convict. However, defendant’s claim of error on this ground is unpersuasive and insufficient to require reversal of his conviction. The prosecutor’s remarks in no way suggest that the jury relinquish its fact-finding function, were proper argument based on matters raised by the defense and, although some remarks if standing alone could be seen as improper, they do not constitute reversible error because of their responsive nature.
    5. Conviction of assault with intent to murder and of possession of a firearm during commission of the assault does not violate the Federal or Michigan rules against double punishment.
    Affirmed.

      1. Witnesses — Criminal Law — Character Witnesses — Cross-Examination Credibility — Misconduct of Defendant — Prior Arrests.
    A witness who has testified to a defendant’s good character in a criminal prosecution by proof of general reputation may be questioned as to the grounds of knowledge upon which that witness’s assertion is based; the witness may be interrogated on cross-examination with respect to rumors or reports of particular acts imputed to defendant and as to what the witness has heard of specific charges of misconduct made against the defendant, not to establish such acts but to test the credibility of the character witness by ascertaining his good faith, information and accuracy; this rule is equally applicable in situations where the character witness is questioned as to his awareness of a defendant’s prior arrests on matters related to the charge for which the accused is on trial.
    2. Witnesses — Criminal Law — Character Witnesses — Prior Arrests — Cross-Examination.
    A defendant’s prior arrests can be used in the cross-examination of a witness who has testified to the good reputation of an accused for a particular trait for the purpose of showing either that the witness is unfamiliar with the reputation concerning which he has testified, or that his standards of what constitutes good repute are unsound.
    3. Witnesses — Criminal Law — Character Witnesses — Cross-Examination — Prior Arrests — Phrasing of Questions — Prejudice.
    Cross-examination of a character witness by reference to a defendant’s prior arrests should be framed in terms of "Have you heard” and not "Do you know”; the latter form of the question is improper because it assumes that the defendant was, in fact, arrested when the only purpose of the question is to explore the reliability of the witness’s claim to know defendant’s reputation as a peaceful person, but framing the inquiry in terms of "Do you know” does not require automatic reversal absent a showing of actual prejudice to the defendant’s cause.
    4. Witnesses — Criminal Law — Character Witnesses — Cross-Examination — Misconduct of Defendant — Instructions to Jury — Mistrial — Discretion.
    Prior clearance should be obtained from the trial judge as to the questioning on cross-examination of any character witness regarding any alleged misconduct of a defendant before such questions are put to the witness in the presence of a jury; however, where the trial court cut short the questioning and specifically instructed the jury to disregard the matter, there was no abuse of discretion in denying a defendant’s motion for a mistrial absent some proof or finding that the prosecutor acted in bad faith.
    5. Criminal Law — Prosecutor’s Remarks — Civic Duty Argument — Jury — Fact Finding Function — Appeal and Error.
    Comments by a prosecutor during rebuttal argument alleged to be improper as appealing to the jury to perform its civic duty to convict do not require reversal where the prosecutor’s argument in its entire context in no way suggests that the jury relinquish its fact-finding function and where the prosecutor’s remarks were proper argument based on matters raised in closing argument and, although some remarks if standing alone could be seen as improper, they do not constitute reversible error because of their responsive nature.
    6. Criminal Law — Double Jeopardy — Assault and Battery — Intent to Murder — Firearms — Possession of Firearm.
    Convicting a defendant of assault with intent to commit murder and of possession of a firearm during the commission of the assault does not violate the Federal or Michigan rules against double punishment.

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

      Daniel R. Siefer, for defendant on appeal.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Allen, P.J.

Defendant was convicted by a jury on three counts of assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278, and one count of possession of a firearm during the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). Defendant was sentenced to 5 to 20 years imprisonment on each of the assault counts and to a two-year consecutive term on the felony-firearm count. He appeals as of right.

During the defendant’s case in chief his mother, Betty McClain, testified that the defendant possessed a reputation as a peaceful, nonviolent person. On cross-examination of this witness, the following exchange took place:

"Mr. Baker (Prosecutor): Mrs. McClain, are you aware of the felonious assault charge against your son in 1975?
"Mrs. McClain: I heard about it.”

Defense counsel immediately objected and the jury was excused. After some discussion by counsel and the trial judge, defense counsel moved for a mistrial. In the course of the ensuing discussion it was asserted that the defendant’s arrest for felonious assault stemmed from his wife’s filing of a criminal complaint in order to gain custody of the couple’s child. The case against the defendant on that charge was ultimately dismissed. Following this discussion, the trial court sustained defendant’s objection to the impeachment of Mrs. McClain but denied the motion for mistrial on the basis that even if the prosecutor’s cross-examination was improper, its prejudicial effect was curable by an appropriate instruction. When the jury returned to the courtroom they were immediately instructed by the trial judge in the following manner:

"Members of the Jury, I do instruct you at this time that the fact that the prosecution has brought out or inquired of the witness, if she was aware that a charge had been made against the defendant by some person, should not be considered by you. I have stricken that question from the record and the response. I’m not sure if any response was even given, but both the question and the response will be stricken from the record and you are not to consider that in any way.”

On appeal, defendant claims that the trial court abused its discretion in denying his motion for a mistrial following the prosecutor’s cross-examination of defendant’s character witness, his mother, Mrs. McClain. Three grounds are offered as support for this contention.

First, defendant asserts that recent case law overrules the prior rule allowing cross-examination of character witnesses by using the defendant’s record of prior arrests which do not result in convictions. We disagree. It is a well settled rule of law in this and other jurisdictions that a witness who has testified to the defendant’s good character by proof of general reputation may be questioned as to the grounds of knowledge upon which that witness’s assertion is based. People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958), People v Rosa, 268 Mich 462; 256 NW 483 (1934), People v Stedman, 41 Mich App 393; 200 NW2d 370 (1972), MRE 405(a), 3A and 4 Wigmore, Evidence (Chadbourn Rev, 1970), §§988, 1111, McCormick, Evidence (2d ed), § 191, p 454. The rule has been accurately stated thus:

"According to the overwhelming weight of authority, a witness testifying to the good reputation or character of a defendant in a criminal prosecution may be interrogated on cross-examination with respect to rumors or reports of particular acts imputed to the defendant, and as to what the witness has heard of specific charges of misconduct made against the defendant.
"The purpose of the cross-examination of the defendant’s character witness with reference to particular acts of the defendant is not to establish such acts as facts, or to prove the truth of the rumors of such acts, and to test the credibility of the character witness, by ascertaining his good faith, information and accuracy.” Anno: Cross-examination of character witness for accused with reference to particular acts or crimes, 47 ALR2d 1258, §§ 3, 5.

See also 2 Wharton, Criminal Evidence (13th ed), § 426, p 324. This rule is equally applicable in situations where the character witness is questioned as to his awareness of the defendant’s prior arrests on matters related to the instant charge for which the accused is on trial. People v Stedman, supra, People v Lewis Robinson, 70 Mich App 606; 247 NW2d 308 (1976), Anno: supra, 47 ALR2d 1258, §§ 11, 16; 2 Wharton’s, supra, § 426 at 328, fn 65.

Defendant’s reliance on People v Falkner, 389 Mich 682; 209 NW2d 193 (1973), and People v Rappuhn, 390 Mich 266; 212 NW2d 205; 67 ALR3d 766 (1973), as modifying the above stated rule is misplaced. These cases stand for the proposition that an arrest record cannot be used to directly impeach the defendant or a defense witness. In contrast, a defendant’s prior arrests can be used in the cross-examination of a witness who has testified to the good reputation of the accused for a particular trait for the purpose of showing either that the witness is unfamiliar with the reputation concerning which he has testified, or that his standards of what constitutes good repute are unsound. Id. People v McClow, 40 Mich App 185, 194-195; 198 NW2d 707 (1972).

Second, defendant contends that even if it was proper to cross-examine his character witness by reference to defendant’s prior arrest for felonious assault, the form used by the prosecutor to ask the question was improper. It is generally recognized that a cross-examiner may not frame his questions to assume that the former misconduct inquired about was a fact. Consequently, it has been stated that the proper form of inquiry of a character witness is "Have you heard * * *.?” and not "Do you know * * People v Stedman, supra at 396, People v Robinson, supra, at 608, fn 1, 47 ALR2d 1258, §§ 20, 21, McCormick, supra, § 191, pp 456-457, 2 Wharton’s, supra, §426, p 333. Consequently, we agree with the defendant that the prosecutor improperly framed the question to Mrs. McClain when he asked her:

"* * * [A]re you aware of the felonious assault charge against your son in 1975?”

This form of the question was improper because it assumes that defendant was, in fact, arrested when its only purpose can be to explore the reliability of the witness’s claim to know defendant’s reputation as a peaceful person. Nonetheless, absent a showing of actual prejudice to the defendant’s cause, such a defect in the form of the question put forth to a character witness does not require automatic reversal. People v Stedman, supra at 396. In People v Rosa, supra at 465, the Supreme Court upheld a defendant’s conviction despite the prosecutor’s question to a defense character witness on cross-examination regarding whether "she knew of certain other offenses in which the defendant had been implicated”. This may be particularly permissible where the prior misconduct refers to official charges, arrests, or convictions. See McCormick, supra, § 191, p 457. Thus, the fact that the trial court in the case at bar made a specific determination that defendant had actually been arrested for felonious assault in 1975, minimizes the error with the form of the question since the witness’s knowledge or lack of knowledge regarding this fact is relevant to her credibility as a character witness. In addition, we note that in answering the prosecutor’s question, the witness responded that she had "heard about” the defendant’s 1975 arrest. This response is sufficient to refocus the jury’s attention on the basis of her reputation testimony without actually conceding the truth of the defendant’s arrest record. Finally, we note that the trial judge gave an immediate and forceful instruction to the jury to completely disregard the entire matter. Therefore, while the form of the question posed by the prosecutor was erroneous, it did not prejudice the defendant’s cause and reversal is not warranted.

Third, defendant contends that the rule announced in People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958), was violated in the case at bar because the prosecutor conducted a cross-examination of his character witness regarding prior arrests without first determining, in the absence of the jury, the fact, time, place, and relevancy of the proposed prior misconduct. While the better rule requires that the hearing involving the relevancy of the prosecutor’s proposed cross-examination questions of the defendant’s character witness be held before such questions are put to the witness in the presence of the jury, People v Robinson, supra at 608, People v Castaneda, 81 Mich App 453, 461-462; 265 NW2d 367 (1978), nothing in Dorrikas, supra, mandates such a procedure. After extensive review of Federal cases deciding the issue, the Court in Dorrikas stated:

"It is apparent from a reading of these cases that the appellate courts mentioned believe the United States supreme court would not permit the type of cross-examination carried on in the instant case without (1) the trial judge determining, in the absence of the jury, whether or not the criminal acts actually took place, the time of their commission, and a determination as to whether they were relevant to the issue being tried, and (2) the trial judge making a careful instruction to the jury as to the reasons testimony as to the criminal acts is being admitted.” 354 Mich at 326.

The trial court in the case at bar held the requisite hearing and determined that as a matter of fact the defendant had been arrested for felonious assault in 1975. However, although an arrest for felonious assault is certainly relevant to challenge a character witness’s attestation to defendant’s reputation as a peaceful and nonviolent person, the trial court refused to permit the questioning to continue and specifically instructed the jury to disregard the matter, possibly because of the doubtful validity of the factors underlying the arrest. Since the jury was instructed not to consider the matter "in any way” it was not necessary —indeed, under the trial court’s own ruling on the matter it would not have been proper—to carefully instruct the jury "as to the reasons testimony as to the criminal acts is being admitted”.

Therefore, although the trial court ultimately held the prosecutor’s question regarding defendant’s prior misconduct to be inadmissible, absent some proof or finding that the prosecutor acted in bad faith, we will not reverse defendant’s conviction. People v Castaneda, supra, McCormick, supra, § 191 at 458; 2 Wharton’s, supra, § 426 at 332-333. Under the circumstances presented, the trial court did not abuse its discretion in denying defendant’s motion for mistrial.

On appeal, defendant also claims that certain comments made by the prosecutor during rebuttal argument were improper as appealing to the jury to perform its civic duty to convict him. Our examination of the prosecutor’s argument in its entire context persuades us that he in no way suggested the jury relinquish its fact-finding function to defer to any demand of his. The prosecutor’s remarks were proper argument based on matters raised by defendant in his closing argument. Certain of the latter remarks, although if standing alone could be seen as improper, do not constitute reversible error in this case because of their responsive nature. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977).

Finally, defendant contends that his conviction for possession of a firearm during the commission of a felony constitutes double jeopardy in violation of the United States and Michigan constitutions. This issue has been recently considered and rejected by the Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Affirmed.


text:
    PEOPLE v FLYNN
    Docket No. 78-2185.
    Submitted October 12, 1979, at Detroit.
    Decided November 19, 1979.
    Leave to appeal applied for.
    Lawrence R. Flynn was convicted of felonious assault and possession of a firearm in the commission of a felony, Recorder’s Court of Detroit, William J. Sanphilip, J. The assault for which the defendant was convicted arose out of his attempt to shoot a police officer who, along with eight other police officers, had entered the defendant’s premises, pursuant to a search warrant, to search for illegal narcotics and an illegal weapon. The defendant appeals, alleging that 1) the felony-firearm conviction violates the constitutional prohibitions against double jeopardy, 2) the trial court erred in denying the defendant’s motion in limine to prevent the prosecution from mentioning, arguing or offering evidence related to information upon which the search warrant was based or the evidence obtained as a result of the search, and 3) if evidence concerning the defendant’s other bad acts was admissible, the trial court should have given, sua sponte, a limiting instruction to the jury on the purpose for which such evidence could be considered. Held:

    1. The convictions for felonious assault and felony-firearm did not violate the constitutional prohibitions against double jeopardy.
    2. Evidence of the circumstances surrounding the defendant’s arrest and the incident out of which the charges arose, while prejudicial to the defendant, was admissible as evidence relevant to the defendant’s motive. The trial court carefully considered the probative value of the evidence in relation to its prejudicial impact on the defendant’s case each time the matter was presented for the court’s decision. There was no abuse of discretion in those instances where the prosecution was allowed to make mention of the surrounding circumstances.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 188, 189.
    [2] 29 Am Jur 2d, Evidence §§ 253, 260.
    Modern status of rules as to use of motion in limine or similar preliminary motion to secure exclusion of prejudicial evidence or reference to prejudicial matters. 63 ALR3d 311.
    [3] 29 Am Jur 2d, Evidence § 320.
    [4, 5] 29 Am Jur 2d, Evidence §§ 321, 333.
    [6] 29 Am Jur 2d, Evidence §§ 325, 326.
    [7] 29 Am Jur 2d, Evidence § 263.

      3. The trial court was not required to give a limiting instruction on the purpose for which such evidence could be considered, since the defendant neither requested such an instruction nor made a proper objection. Failure to give the limiting instruction was not reversible error.
    Affirmed.
    1. Criminal Law — Double Punishment — Felony Firearm.
    A defendant’s convictions of felonious assault and of possession of a firearm while committing the felonious assault do not violate the constitutional prohibition against double jeopardy.
    2. Criminal Law — Evidence — Relevance — Prejudicial Evidence.
    All relevant evidence is inherently prejudicial, therefore, it is only when the probative value of evidence is substantially outweighed by the danger of unfair prejudice that the evidence is to be excluded.
    3. Criminal Law — Evidence — Other Crimes — Probative Value — Prejudicial Evidence — Issue of Guilt or Innocence.
    Evidence tending to show that a defendant committed crimes other than those charged is generally inadmissible on the issue of the defendant’s guilt or innocence because whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence.
    4. Criminal Law — Evidence — Other Bad Acts — Exclusion of Evidence.
    The rule excluding evidence of criminal or bad acts of an accused other than the crime charged is inapplicable where such evidence is being introduced for some purpose other than to raise an inference of a probability that the accused committed the crime charged.
    5. Criminal Law — Evidence — Admissibility — Other Bad Acts.
    Evidence of crimes other than the one of which the defendant is accused is admissible when so blended or connected with the crime of which the defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime charged.

      6. Criminal Law — Evidence — Motive — Other Bad Acts — Discretion.
    Evidence of motive which suggests the doing of the criminal act for which a defendant is charged, or the purpose for which it was done, is always admissible even though such evidence shows or tends to show the commission of another crime; however, the fact that the prosecution is permitted to offer such evidence and argue from such evidence does not absolve the trial judge from exercising his discretion to determine whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to a defendant’s cause.
    7. Criminal Law — Evidence — Instructions to Jury — Limiting Instructions — Other Bad Acts — Failure to Object.
    There is no absolute requirement that a trial judge give a limiting instruction on the purpose for which evidence of a defendant’s bad acts, other than the crimes charged, admitted for the purpose of showing a defendant’s motive, may be considered in the absence of a request for such an instruction or a proper objection to the instructions as given.

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

      N. C. Deday LaRene, for defendant.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Allen, P.J.

Defendant was convicted by a jury of felonious assault (MCL 750.82; MSA 28.277) and possession of a firearm in the commission of a felony (MCL 750.227b; MSA 28.424[2]). He appeals as of right.

The felonious assault, for which defendant was convicted, arose out of his attempt to shoot a police officer who had entered the premises, pursuant to a search warrant, along with eight other police officers, to search for illegal narcotics and an illegal weapon.

In the first issue raised on appeal, defendant claims that his felony-firearm conviction violates his constitutional right to be free from double jeopardy. This contention has been recently considered and rejected by the Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Defendant’s second contention has more merit. Prior to trial, defendant moved to prevent the prosecution from mentioning, arguing or offering evidence related to information upon which the search warrant was based or evidence obtained as a result of the search. The trial court denied the motion in limine, observing that the people had a right to set forth the whole transaction and to demonstrate the motive of the defendant. During the course of the ensuing trial the prosecutor argued in his opening statement that the purpose for the search of defendant’s residence was to look for and seize illegal narcotics and a possible machine gun. The prosecutor also elicited testimony from the investigating officers that they secured the warrant in the course of a narcotics investigation, that the procedure for entering and searching the premises was established by state and Federal law enforcement agencies for entering a "narcotics pad”, and that various narcotics and narcotics paraphernalia were seized from the premises as a result of the search. The trial court did not give any instructions to the jury limiting the purpose for which they could consider the narcotics-related testimony. However, there were no objections to the court’s instructions, and no additional instructions were proffered by either party. Defendant was subsequently convicted by the jury on both counts charged in the information. He subsequently moved for a new trial on the same grounds presently assigned as error in this appeal. The motion was denied and defendant was sentenced to two years imprisonment on the felony-firearm charge and four years probation on the felonious assault charge.

On appeal, defendant contends that since he was not charged with possession of controlled substances, reference to such substances found during a search of his residence was improper and highly prejudicial to his cause because it indicated that the defendant might be guilty of other unrelated crimes.

As a general rule, evidence of other unrelated crimes or bad acts by the accused is inadmissible to show that he is guilty of the crime charged. People v Doud, 223 Mich 120; 193 NW 884; 32 ALR 1535 (1923), People v Rice, 206 Mich 644; 173 NW 495 (1919), People v Coston, 187 Mich 538; 153 NW 831 (1915).

Evidence of other criminal or bad acts of the accused is often logically relevant to proving a defendant’s guilt for a charged offense. There is little doubt that a person’s guilt or propensities to commit other crimes or bad acts has the tendency to make the existence of his guilt in the instant case more probable than it would be without the evidence. MRE 401. Since all relevant evidence is inherently prejudicial, it is only when the probative value is substantially outweighed by the danger of unfair prejudice that the evidence is to be excluded. United States v McRae, 593 F2d 700 (CA 5, 1979), MRE 403. And, "because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence”, evidence tending to show that the defendant committed crimes other than those charged is generally inadmissible on the issue of. defendant’s guilt or innocence. People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973).

There are, however, instances in which such evidence is admissible to establish other, legally recognized matters, so long as the evidence is not offered as mere circumstantial evidence to prove the bad character of the defendant, and hence, the probability of his guilt for the crime charged. Thus, if evidence of other bad acts of the defendant is being introduced for some purpose other than to raise the inference of a probability that the accused committed the crime charged, the rule excluding the evidence is simply inapplicable. People v Spillman, 399 Mich 313, 319; 249 NW2d 73 (1976). It is for this reason that the law recognizes exceptions to the general exclusionary rule regarding evidence of defendant’s prior bad acts or crimes.

In this regard the prosecution asserts that the challenged evidence in the case at bar was admissible under either or both of the following exceptions.

First, the prosecution claims that evidence of another and distinct crime is admissible where it was committed as part of the same transaction and forms a part of the res gestae. A number of cases confirm the accuracy of this proposition. Thus, where other criminal acts are an inseparable part of the whole deed for which defendant is charged, the prosecution is permitted to complete the story of the crime by proving the immediate context of happenings near in time and place. 1 Wigmore, Evidence (3d ed), § 218, p 719, McCormick, Evidence (2d ed), § 190, p 447, 1 Wharton’s Criminal Evidence (13th ed), § 242, p 540.

Defendant acknowledges the "possible relevance” of offering evidence that the police officers were acting pursuant to a. search warrant in order to explain their presence at defendant’s residence on the night of the alleged assault. However, defendant claims that since he offered to stipulate to the validity of the search warrant it was unnecessary for the prosecutor to reveal the prejudicial information on which the warrant was based.

We note that information on which the warrant was based was indeed prejudicial to the defendant since it tended to make him appear to the jury as an operator of a "narcotics pad”. At the same time, it would seem clear that the prosecution should be able to justify the presence of nine armed police officers breaking into and confronting the defendant in his own home at 2 a.m. Without some background information providing the jury with an explanation for the officers’ appearance at this unusual hour, the jury is left without complete knowledge of the entire story or transaction.

In People v Gosch, 82 Mich 22; 46 NW 101 (1890), the Supreme Court upheld prosecutorial remarks regarding criminal actions (theft of farm crops), of which that defendant was suspected, as support for a warrant subsequently issued for that defendant’s arrest. When officials sought to execute the warrant against that defendant, he shot and killed one of the individuals assisting the arresting officer. On appeal from his conviction for manslaughter, that defendant claimed that the prosecutor’s remarks were inadmissible "as they were a statement that the respondent had been guilty of other crimes than the one for which he was then being tried”. Id., p 29. The Supreme Court rejected this challenge, observing that the remarks pertaining to the alleged thefts were not connected with that defendant other than as support for the arrest warrant. In addition, the Court noted:

"This theft was one of the facts which the prosecuting attorney had a right to discuss. It was inseparably connected with the case, and the procuring of the warrant, and the officer having it in hand for execution, was the justification for his going there that night.” People v Gosch, supra, at 29.

See also People v Durfee, 62 Mich 487, 490-491; 29 NW 109 (1886), People v Mayes, 78 Mich App 618, 623; 261 NW2d 22 (1977).

Since the identity of the officers executing the search warrant was essential to the prosecution’s case in terms of whether the defendant believed them to be police officers or merely burglars, it follows that the prosecutor should have been permitted to introduce and argue evidence relating to the various circumstances and purposes for the officers’ appearance on the night of the assault. Here, the jury was entitled to hear the "complete story”—information inseparable from the alleged assault. People v Delgado, supra, at 83.

However, defendant claims that, assuming argu endo that such evidence was admissible, it was entirely inappropriate to permit into evidence testimony regarding the fact that narcotics and narcotics paraphernalia were seized subsequent to defendant’s assault. We agree that under the above cited "res gestae” or "complete story” exception to the rule against admitting evidence of defendant’s other bad acts or crimes (here, illegal possession of controlled substances), such evidence was inadmissible. The relevance of the possible presence of narcotics at defendant’s residence only relates to the validity and explanation of the officers’ behavior at the time of their entry into the residence. However, it is irrelevant to the validity of that action that such narcotics were, in fact, actually discovered at the household. Thus, just as it would have been inappropriate in People v Gosch, supra, to offer evidence bearing on the truth of whether defendant had, in fact, stolen some farm crops of the complainant, so too in the case at bar was it inappropriate, under the "res gestae” exception, to prove that narcotics were found in defendant’s home.

Nonetheless, the prosecutor contends that this evidence was admissible under another, well recognized exception to the above described exclusionary rule. In essence, the prosecution argues that it should have been permitted to offer proof that narcotics were discovered at defendant’s residence since it established a motive for defendant to "fight it out” because he didn’t want to get caught in an illegal activity. We agree.

Evidence of motive which suggests the doing of the act, or the purpose for which it is done, is always admissible even though such evidence shows or tends to show the commission of another crime. McCormick, supra, § 190, p 450-451, 1 Wig-more, supra, §§ 215-217, pp 710-718, 1 Wharton’s, supra, § 247, p 561. This rule is well recognized in Michigan. People v Allen, 351 Mich 535; 88 Nw2d 433 (1958), People v Klise, 156 Mich 373; 120 NW 989 (1909), People v Fullwood, 51 Mich App 476, 483; 215 NW2d 594 (1974), lv den 393 Mich 785 (1975) , People v Shaw, 9 Mich App 558, 566; 157 NW2d 811 (1968), MCL 768.27; MSA 28.1050, MRE 404(b). Since the accused’s motive in committing an alleged crime is always relevant because it bears on either his identity as the perpetrator of the offense or, as in the instant case, the strength of his defense, it follows that the prosecutor was properly permitted—within the bounds of fair play, i.e., not to unduly emphasize the prejudicial aspects of the evidence—to introduce evidence relating to the actual presence of narcotics and narcotics paraphernalia on the premises of the assault.

Of course, that a prosecutor is permitted to offer such evidence and argue from such evidence does not absolve a trial judge from exercising his discretion to determine whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to a defendant’s cause. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976) , People v Wilkins, supra, at 270, People v Shaw, supra, at 566. However, we have reviewed the lower court record and are persuaded that the trial court carefully considered the matter each time that it was presented for the court’s decision. At various points during the trial the lower court sustained or overruled the admissibility of the challenged evidence indicating a well-reasoned exercise of judgment. We have not been persuaded that the trial court abused its discretion in this regard.

Finally, defendant claims that even if the challenged evidence was admissible under either of the above exceptions to the general rule against admitting evidence of the defendant’s other bad acts, the trial court erred by failing sua sponte to give the jury a limiting instruction on the purpose for which such evidence could be considered. The Supreme Court has clearly and forcefully addressed this issue and has determined that, in the absence of request or proper objection, there is no absolute requirement that a trial judge give limiting instructions. Therefore, failure to instruct in this case, where there was no request for such instructions and no objection to the failure to instruct, was not reversible error. People v Nawrocki, 376 Mich 252, 255; 136 NW2d 922 (1965), People v Chism, 390 Mich 104, 119-121; 211 NW2d 193 (1973), People v Hicks, 70 Mich App 430, 437-438; 245 NW2d 778 (1976).

Affirmed.

       See MCL 768.27; MSA 28.1050; MRE 404 for various statutory exceptions, and People v Nawrocki, 376 Mich 252; 136 NW2d 922 (1965), People v DerMartzex, supra, People v Kelly, 386 Mich 330; 192 NW2d 494 (1971), People v Wilkins, 82 Mich App 260, 269-270; 266 NW2d 781 (1978), lv den 406 Mich 857 (1979), for examples of various judicially-created, common-law exceptions.

        People v Delgado, 404 Mich 76; 273 NW2d 395 (1978), People v Kayne, 268 Mich 186; 255 NW 758 (1934), People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978), People v Bernard Smith, 81 Mich App 561; 266 NW2d 40 (1978), rev’d on other grounds 406 Mich 926 (1979), People v Mayes, 78 Mich App 618; 261 NW2d 22 (1977). See also 8 Michigan Law & Practice, Criminal Law, § 272, p 370 and authorities cited therein.