author: Allen, J.

text:
    SILISKY v MIDLAND-ROSS CORPORATION
    Docket Nos. 78-5235, 44000.
    Submitted April 3, 1980, at Detroit.
    Decided May 19, 1980.
    Leave to appeal applied for.
    Gerald D. Silisky was fatally injured by electrocution while using an electric drill at his place of employment. The drill was borrowed from a fellow employee who had purchased it from K- . Mart. The electrocution occurred when the decedent plugged the drill into an extension cord in an improper manner. Mildred Silisky, the administratrix of Silisky’s estate, brought an action for the wrongful death of her husband against Midland-Ross Corporation and Russell and Stoll Division, Midland-Ross Corporation, as manufacturers of the plug at the end of the extension cord. Several other defendants were added in an amended complaint. During trial, a settlement was reached with all of the defendants except the manufacturers. It was agreed by the parties that the amount of the settlement would be subtracted from any judgment ultimately obtained against the remaining defendants. The jury was not informed of the settlement, and returned a verdict in favor of the plaintiff. The Macomb Circuit Court, Kenneth N. Sanborn, J., awarded interest on the difference between the verdict and the settlement amount from the date of filing the first complaint until date of satisfaction. Plaintiff appeals,- alleging that interest should have been awarded on the entire amount of the verdict. Defendants appeal, alleging that the trial court erred by denying a motion for a directed verdict because the manufacturers could not have foreseen the misuse of their product which was designed to be used only with employer-supplied tools, that the decedent’s misuse was the proximate cause of his death, and that the trial court should have informed the jury of the settlement and the amount of the settlement. The appeals were consolidated. Held:

      References for Points in Headnotes
    [1] 22 Am Jur 2d, Damages §§ 179 et seq., 189 et seq.

    60 Am Jur 2d, Payment § 110.
    [2] 5 Am Jur 2d, Appeal and Error § 886.
    [3] 63 Am Jur 2d, Products Liability §§ 57, 58, 63, 66, 98, 132.
    Manufacturer’s or seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.
    [4] 63 Am Jur 2d, Products Liability §§ 3, 33, 70, 99, 100, 110 et seq.

    Defense to action for personal injury, death, or property damage resulting from alleged breach of implied warranty. 4 ALR3d 501.
    Defense under strict liability in tort. 46 ALR3d 240.
    Manufacturer’s or seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.
    [5] 29 Am Jur 2d, Evidence § 251 et seq.

      1. The plaintiff, by voluntarily settling with the other defendants, waived her right to recover statutory interest on the amount of the settlement because no final judgment was rendered against the other defendants. The plaintiff traded off the loss of interest for the certainty of the settlement.
    2. The testimony regarding the design of the plug, the practice of using employee-owned tools, the interchangeability of the plug with tools other than those supplied by the employer, and the issue of adequate warning was sufficient to raise a question of fact for jury consideration. Therefore, denial of the motion for a directed verdict was proper.
    3. The death was caused by the decedent’s misuse of the plug combined with the plug’s design, which was contrary to industry standards of noninterchangeability. The danger was not obvious and apparent. Under these circumstances the decedent’s misuse of the plug is not a bar to recovery.
    4. The rationale for admitting evidence of settlements is to prevent double recovery. Here, the parties agreed that the settlement would be subtracted from the jury award of damages so there was no danger of a double recovery. The evidence of the settlement was not relevant to any matter in issue before the jury and was, therefore, properly excluded.
    Affirmed.
    1. Interest — Settlements — Joint Tortfeasors.
    A plaintiff who settles a claim against one or more joint tortfeasors, with the amount of that settlement to be subtracted from the amount of a judgment recovered from the remaining tortfeasors, waives the right to statutory interest on the amount of the settlement because no final judgment was rendered against the other defendants.
    2. Motions — Directed Verdicts — Appeal.
    Review of a motion for a directed verdict in favor of a defendant is made by viewing the proofs and reasonable inferences therefrom in the light most favorable to the plaintiff.
    3. Products Liability — Design Defects — Question of Fact — Evidence.
    A plaintiff, in order to establish a question of fact as to a manufacturer’s breach of duty in a design defect products liability action, must present evidence: (1) that the design was not in conformity with industry standards, guidelines established by an authoritative voluntary association or criteria set by legislative or other governmental regulation or (2) that the design choice of the manufacturer carries a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.
    4. Products Liability — Contributory Negligence — Misuse of Product.
    Recovery is barred in a products liability action if the proximate cause of injury results from the injured party’s own conduct; however, if a manufacturer’s failure to provide a product reasonably fit for the use intended or reasonably foreseen is a proximate cause of the injury, the injured party’s misuse of the product will not bar recovery under a theory of implied warranty unless it can be said that the injured party voluntarily and unreasonably proceeded to encounter the known risk.
    5. Evidence — Settlements — Relevance — Rules of Evidence.
    A trial court’s exclusion of evidence of a settlement reached during trial between the plaintiff and some of several joint tortfeasors was proper where the parties stipulated that the amount of the settlement would be subtracted from the amount of any damages determined by the jury and that settlement with one party was not a release of the other parties; evidence of the settlement was not relevant to the factual issues before the jury (MRE 402).

      Zeff & Zeff and Kenneth A. Webb, for plaintiff.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for defendants.
    Before: J. H. Gillis, P.J., and Allen and Beasley, JJ.
   Allen, J.

This is a consolidation of separate appeals by each party from a single judgment entered December 8, 1978, in plaintiff’s favor for $262,500 following a jury verdict in plaintiff’s favor for $475,000. Plaintiff appeals in case #78-5235 on grounds that interest should have been awarded on $475,000 rather than on $262,500. Defendants Midland-Ross Corporation and Russell & Stoll Division, Midland-Ross Corporation (hereinafter defendants) appeal in case #44000 on grounds that the trial court erred in three material respects hereinafter described.

On July 17, 1969, plaintiffs decedent was fatally injured by electrocution during the course of his employment while drilling a hole in the fixture of a LaSalle trunnion machine located in the plant. Deceased had borrowed a drill from a fellow employee who had recently purchased it from K-Mart. The drill was equipped with a standard male plug. Deceased inserted the standard plug into a 50-foot extension cord, at the end of which was a female "Russell and Stoll” plug manufactured by defendants. The plug was made in such a way as to permit insertion of a standard male plug in any of three ways, one of which would cause the, drill to become electrified. Unfortunately, deceased inserted the standard plug into the extension cord plug in the incorrect position. Deceased held the drill under his arm while doing the drilling and the electric charge entered his body causing death by electrocution.

On July 30, 1970, plaintiff filed a bill of complaint against defendants and others for the wrongful death of her husband and in October, 1971, filed an amended complaint adding additional defendants. All in all, seven defendants were named. August 15, 1978, trial by jury commenced against all seven defendants, and on August 29th, settlement was reached with five defendants for $212,500. The settlement was stipulated in open court but without the presence of the jury. After the jury returned to the courtroom, the court gave the following instruction:

"Ladies and gentlemen of the jury, I’m sorry to keep you so long but it’s not that the people haven’t been working in your absence, believe me.
"There has been a rather sudden change of events in this matter whereby five of the six defendants will no longer be with us.”

Counsel for defendants demanded that the terms of the settlement be made known to the jury, but the trial court refused to do so.

Trial resumed against the two remaining defendants alone. At the conclusion of plaintiffs proofs, defendants moved for a directed verdict on the basis that the extension cord was not put to its normal use. The motion was denied. At the conclusion of all proofs, defendants renewed their motion for a directed verdict and, upon its denial, again requested that the jury be advised of the terms of the settlement with the other defendants. The trial judge responded as follows:

"As you know, that particular matter posed quite a bit of problem with us as to which would be the safest way to proceed. I am going to adopt the proposed instructions as submitted by the plaintiffs request in this matter which basically indicates that, and that is instruction one, I believe. It reads:
" T charge you ladies and gentlemen of the jury that when this case started there were five additional defendants. You are not to concern yourselves whatsoever with the fact they are no longer present in this lawsuit.’
"And I think a little later on, there was a charge about the total damages that they are to consider, so I will deny that request.”

September 14, 1978, the jury returned a verdict against defendants in the amount of $475,000. On or about November 1, 1978, $212,500 was paid plaintiff. Though all parties agreed that the award should be reduced by the settlement amount, the parties disagreed as to the base upon which interest should run. Defendants contended that interest at 6% would run on $262,500 ($475,000 minus the settlement of $212,500) from July 30, 1970, when plaintiff filed her first complaint, until date of satisfaction. Plaintiff contends that interest at 6% would run on $475,000 from October 29, 1971, until partial satisfaction was paid November 1, 1978, and thereafter would run on $262,500 until satisfaction. Following a hearing on this question, the trial court decided in defendants’ favor and on December 8, 1978, entered judgment for $262,500 plus interest and costs.

I. Case No. 78-5235: Calculation of Interest

MCL 600.6013; MSA 27A.6013 reads:

"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed.”

In Awedian v Theodore Efron Mfg Co, 66 Mich App 353; 239 NW2d 611 (1976), plaintiffs sued Theodore Efron Manufacturing Co. and several other defendants for injuries sustained in a slip and fall accident. During trial a settlement was reached with all defendants except Efron for $65,-000. The jury was told about the settlement and the amount and instructed that they should determine damages without regard to the settlement and then deduct the settlement from their determination of damages. The jury found damages of $150,000 from which they deducted the $65,000 settlement and judgment was entered for $85,000 with interest from the filing of the bill of complaint. Plaintiffs appealed claiming, as in the case before us, that interest should have been computed on the $150,000. This Court disagreed with plaintiffs, saying:

"We find this argument novel and interesting but without merit. As defendant notes, MCLA 600.6013; MSA 27A.6013, provides for interest on 'any money judgment recovered’. Plaintiffs did not recover $150,000 from Efron. By accepting $65,000 in settlement, plaintiffs waived the right to statutory interest on that amount because no final judgment was rendered against the other defendants. Plaintiffs traded off the loss of this interest for the value of a settlement.” Awedian, supra, 358.

Except for the fact that in Awedian the jury itself, rather than the trial judge, deducted from the damages the amount of the settlement, we find no meaningful difference between it and the instant case. The purpose of awarding interest from the date a complaint is filed until date of satisfaction of judgment is to compensate the prevailing party for the time taken to determine the dollar amount, if any, of the loss. When plaintiff voluntarily settled with the other five defendants, plaintiff traded off the loss of interest for the waiting period in exchange for the certainty of the settlement.

Plaintiff argues that Awedian was decided faultily and is contrary to decisions from at least two other jurisdictions. Hampton v Delaney, 115 NH 675; 349 A2d 602 (1975), Boston Edison Co v Tritsch, 370 Mass 260; 346 NE2d 901 (1976). We disagree. In Hampton, a verdict was entered against two defendants March 7, 1973, for $48,351, and almost one month later stipulations were filed that one defendant had settled for $25,000. The court held that "since the $25,000 settlement took place after the verdict”, plaintiff was entitled to interest on $48,351 from the date of filing until the date the $25,000 was paid. The decision in Boston Edison may be contrary to Awedian but, if so, its precedential value is offset by the holding in Duffy v City of New York, 7 App Div 2d 988; 183 NYS2d 863 (1959), aff'd 7 NY2d 900; 165 NE2d 413 (1960), which is compatible with Awedian.

II. Case No. 44000: Three Alleged Errors

Defendants first claim that the trial court should have granted the motion for a directed verdict because the system at the Ford plant where plaintiff’s decedent worked was designed for use only with Ford-supplied tools and defendant manufacturers could not have foreseen the misuse of the system by an employee using his own or borrowed employee-owned tools in violation of Ford policy. Review of a motion for directed verdict is made with "the proofs and reasonable inferences therefrom * * * viewed in the light most favorable to plaintiff”, Humenik v Sternberg, 371 Mich 667, 669; 124 NW2d 778 (1963), Signs v Detroit Edison Co, 93 Mich App 626, 631; 287 NW2d 292 (1979). Under this standard of review, we find the testimony sufficient to raise a question of fact for jury consideration.

The transcript contains testimony that the plug in question was in conflict with industry design standards and that defendants were aware of its interchangeability with nonconforming plugs. Contrary to defendants’ contention, we find no testimony of a company policy against the use of employee-owned tools. In fact, a Ford engineer testified it was a common practice for employees to bring in outside tools including power tools. Another witness stated he had seen such tools at the Sterling plant. Though one witness believed Ford was fully aware and had been informed of the interchangeability of the plugs, the transcript does not disclose that defendants warned Ford or the workmen in the plant. The question of foreseeability of injury, the adequacy of warning thereof by the manufacturer and the duty of the manufacturer to give such warning is set forth in Owens v Allis-Chalmers Corp, 83 Mich App 74, 81; 268 NW2d 291 (1978), lv gtd 405 Mich 827 (1979), as follows:

"Consequently, we conclude that for a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in design defect products liability litigation, evidence of the following must be presented:
"(1) That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or
"(2) That the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.”

Sufficient evidence concerning the two tests set forth above is contained in the record to take the case to the jury.

Defendants’ second ground for reversal is that "the proximate cause of plaintiffs decedent’s demise was his own misuse of the female receptacle for the plug on the K-Mart drill”. In Dooms v Stewart Bolling & Co, 68 Mich App 5, 16-19; 241 NW2d 738 (1976), this author wrote to the conditions under which contributory negligence is a defense in a products liability suit. The rule spelled out in that case was that if the (as distinguished from a) proximate cause of injury stems from the injured party’s own conduct, such as misuse of the product, then recovery is barred. But,

"* * * jf the failure of a manufacturer to provide a product reasonably fit for the use intended or reasonably foreseen is found to be a proximate cause of the injury to plaintiff, the fact that plaintiff’s misuse concurred with the defect to cause the harm will not bar recovery under a theory of implied warranty unless it can be said that plaintiff voluntarily and unreasonably proceeded to encounter the known risk.” Dooms, 18. (Emphasis supplied.)

Obviously, the instant case is one where death was caused by a combination of plaintiffs decedent’s misuse of the extension plug and a plug designed contrary to the industry standards of noninterchangeability. The danger encountered was not obvious and apparent, Casey v Gilford Wood Co, 61 Mich App 208; 232 NW2d 360 (1975), and there was no testimony that decedent proceeded to encounter a known risk. Accordingly, decedent’s possible misuse of the defectively designed plug is not a bar to recovery.

The third claim of error presents a more difficult question. Should the trial judge, upon request of counsel, have informed the jury of the settlement and its amount? Evidence thereof was offered by the defendants not for the purpose of establishing liability but for the purpose of mitigating damages. At first blush, Michigan cases appear to disagree as to whether evidence of settlements may be offered on the issue of damages. Holding that settlements should be brought to a jury’s attention are Chunko v LeMaitre, 10 Mich App 490; 159 NW2d 876 (1968), Manuel v Weitzman, 386 Mich 157, 167; 191 NW2d 474 (1971), Larabell v Schuknecht, 308 Mich 419; 14 NW2d 50 (1944), and Stitt v Mahaney, 403 Mich 711; 272 NW2d 526 (1978). Coming to a contrary conclusion is Brewer v Payless Stations, Inc, 94 Mich App 281; 288 NW2d 352 (1979).

However, the decisions can largely be reconciled. It is evident that the principal reason in favor of admitting evidence of settlements is to prevent double recovery. Wilson v W A Foote Memorial Hospital, 91 Mich App 90, 96-97; 284 NW2d 126 (1979) . Where, as in the case before us, the parties have stipulated that from the damages ultimately determined by the jury there would be deducted the dollar amount of the settlement and that settlement with one party was not a release of the other parties, double recovery is precluded. This was the conclusion of our Court in Brewer, supra, 284:

"Under the new rules of evidence, evidence that is not relevant, that is, has no bearing on a material issue of fact, is inadmissible at trial. MRE 402. In the instant case, unlike that of Stitt, evidence of plaintiffs settlement with General Motors had no bearing on an issue of fact for the jury.
"As is obvious, the reasons supporting the Supreme Court’s decision .in Stitt have no application here. Because plaintiff has stipulated to permit the trial court to deduct the total amount of the settlement with General Motors from any jury verdict against Payless, plaintiff will not receive a double recovery. As long as the jury can fairly determine the portion of plaintiffs damages caused by the negligence of Payless, assuming that Payless has any liability at all, there is no need for the jury to know the amount of plaintiff’s settlement with General Motors or, in fact, to even know that a settlement occurred.” (Emphasis supplied.)

The facts in the instant case are not distinguishable from Brewer. In both cases plaintiff agreed that the court could subtract from the jury award of damages the amount of the settlement. Accordingly, we find that the trial court’s exclusion of evidence of the settlement was proper for failure of such evidence to meet the MRE 402 threshold requirement of relevancy.

Affirmed. Costs in each case to the party prevailing^_

       In addition to the two defendants in this appeal, the bill of complaint named as defendants: McGraw Edison Company, K-Mart, Albert Kahn Associates, Inc., Darin & Armstrong, Inc. and Brooker Electric Co., Inc. The trial judge referred to the two remaining defendants as one defendant, making six defendants in all.

       At oral argument plaintiff cited McGrath v Clark, 89 Mich App 194; 280 NW2d 480 (1979), as supportive of plaintiff’s appeal. In that case, two weeks before trial defendant made an offer of judgment for $20,000. The offer was silent on the question of interest. The offer was accepted and the proper papers were filed but a dispute arose as to whether the judgment should include prejudgment interest. The Court held that "where the parties agree on the entry of judgment under GCR [1963,] 519.1, but make no provision for prejudgment interest, the party in whose favor the judgment is entered is entitled to interest under RJA § 6013”. However, in the case before us, the parties did not agree on the entry of judgment and in fact agreed that from the determination of damages (verdict) the settlement amount should be deducted.

       It is clear that evidence of a prior settlement is not admissible to establish liability or the absence of liability. Thirlby v Mandeloff, 352 Mich 501, 505; 90 NW2d 476 (1958), McCormick, Evidence (2d ed), § 274, pp 663-664.

       Because the evidence of settlement is inadmissible under MRE 402, it is unnecessary to reach MRE 408. Though there is an absence of Michigan authority interpreting MRE 408, it is identical to Federal Rules of Evidence, 408. See 2 Louisell & Mueller, Federal Evidence, § 170, pp 271-280.


source: Caselaw Access Project

author: M. J. Kelly, P.J.

license: Public Domain

text:
    FORD v MONROE STEEL CASTINGS COMPANY
    Docket No. 78-5369.
    Submitted January 16, 1980, at Detroit.
    Decided May 19, 1980.
    Leave to appeal applied for.
    Lilah E. Ford (plaintiff) petitioned the Bureau of Workmen’s Compensation for benefits entitled her as a result of the death of her husband, Clifford G. Ford. The administrative law judge awarded medical expenses and death benefits. Following oral argument before the Worker’s Compensation Appeal Board and prior to its decision, plaintiff petitioned for permission to take additional evidence based upon the stipulation of the parties contained in depositions to admit the death certificate and hospital records. The petition also requested leave to take a deposition of a physician in Florida who signed the death certificate because "[a]t least one * * * Member of the panel was of the opinion that the introduction into evidence of either the hospital records or a certified copy of the death certificate would not remedy the supposed defect apparently since neither would constitute direct evidence as to the cause of death”. The panel denied plaintiff’s petition to take additional testimony without stating a reason. It then proceeded to hold that the cause of death could not be established by the testimony of physicians who did not attend the deceased at his last illness and reversed. Plaintiff appeals by leave granted. Held:

    The testimony of physicians who did not attend a deceased at his last illness is properly admissible to establish the cause of death. Denial of plaintiff’s petition to take additional evidence constituted a clear abuse of discretion.
    Reversed and remanded.
    Witnesses — Expert Witnesses — Physicians — Evidence — Cause of Death.
    The testimony of physicians who did not attend a deceased at his last illness is properly admissible to establish the cause of death.
    References for Points in Headnote
    [1] 31 Am Jur 2d, Expert and Opinion Evidence §§ 38, 185.
    Admissibility of opinion evidence as to cause of death, disease or injury. 66 ALR2d 1082.

      Robert L. O'Connell, for plaintiff.

      Lacey & Jones (by John L. Salter), for defendant.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   M. J. Kelly, P.J.

Plaintiff appeals by leave granted from a November 30, 1978, opinion and order of the Worker’s Compensation Appeal Board which reversed an administrative law judge’s award of death benefits in the amount of $64 per week for 500 weeks.

At the hearing the plaintiff prevailed. The administrative law judge awarded medical expenses in the amount of $3,361.75 plus death benefits in the amount of $64 per week for 500 weeks. The last sentence of his award was:

"It must be noted that the exhibits marked during the taking of depositions have not been considered since they were not presented at the time of trial.”

It was the lack of those exhibits and only that which impelled the appeal board to reverse the hearing referee. All of the doctors agreed that the deceased had chronic obstructive lung disease. The defendant’s doctor related it to cigarette smoking; the plaintiffs evidence related it to respiratory irritants and atmospheric pollutants over a long period of time and both the administrative law judge (hearing referee) and the unanimous five-member panel of the appeal board found it employment related. The appeal board chose to ignore the evidence in the record that tended to establish decedent’s death was causally related to the occupational disease. For example, Dr. Grassin testified:

"It’s my opinion that, from the data given to me, the cause of death was congestive heart failure related to arteriosclerotic heart disease, related to, or secondary to, chronic pulmonary obstructive disease, and that would be it.”

Dr. Winkler examined decedent’s records and based on a hypothetical testified that:

"Well, I feel that his occupational exposure to the various respiratory irritants and atmospheric pollutants over a prolonged period of time did contribute to his chronic obstructive lung disease. And I do feel that this played a significant role in his demise on November 13, 1973.”

What is peculiar in the light of the appeal board’s disposition of this case is that Dr. Winkler testified that the death certifícate showed chronic obstructive lung disease as being a factor in decedent’s death. But the appeal board for want of a death certificate reversed the referee’s award. It did not reject the referee’s findings, it affirmed them. Its convoluted opinion first found defendant’s hospitalization for final illness work-related and then astonishingly refused benefits. Its opinion provides:

"We also find that the deceased suffered from chronic obstructive lung disease. * * * We further find that the deceased’s employment exposure to atmospheric pollutants aggravated, accelerated and contributed to this condition. * * * Moreover, we find that the deceased’s three West Pasco hospitalizations were reasonable and necessary medical treatments for his pulmonary condition as testified to by Mr. Parker and Dr. Grassin.
"Finally, we find that had it been established that the deceased’s death was work-related, which for reasons hereinbefore given we have not so found, that notice and claim were timely within the meaning of MCLA 418.381. The date of demise was November 13, 1973, and plaintiffs initial petition was filed on July 24, 1974, Hayes v Detroit Steel Casting Co., 328 Mich 609 (1950).
"Accordingly we reverse in part the referee’s decision. We find that the deceased received a work-related injury and disablement on October 1, 1966. We do not order defendant Monroe Steel Castings, as a division of Gulf Western, to pay weekly compensation benefits or medical expenses during the deceased’s lifetime as such benefits were not requested. The parties have proceeded on a theory of death benefits only and not lifetime benefits. Finally, we delete the referee’s narrative findings because plaintiff has not borne her burden of proof that her husband’s death was the result of his employment with defendant and no benefits are payable to the dependents of the deceased.”

It would appear that medical expenses may have been awarded, but the language above quoted is ambiguous and we are uncertain whether part of the hospitalization was paid as expense of last illness or not. In any event reversal is mandated.

Following oral argument before the appeal board and prior to its decision, plaintiff petitioned for permission to take additional evidence based upon the stipulation of the parties contained in depositions to admit the death certificate and hospital records. The petition also requested leave to take a deposition of a physician in Florida who signed the death certificate because "[a]t least one * * * Member of the panel was of the opinion that the introduction into evidence of either the hospital records or a certified copy of the death certificate would not remedy the supposed defect apparently since neither would constitute direct evidence as to the cause of death”. Of course we have no record before us of the oral arguments before the appeal board. In any event the five-member panel denied plaintiff’s petition to take additional testimony by order dated the 13th of October, 1978, without stating a reason. We surmise that the denial was based upon the appeal board’s conclusion that the petition was untimely because it was presented more than two years after the decision of the hearing referee and then only because of prompting by the appeal board at the oral argument before it. In another case thát might be a legitimate exercise of the appeal board’s discretion. In this case we find it a clear abuse.

It may be that the plaintiff’s attorney, having prevailed at the hearing level, slept through the appeal and did not realize his case was in jeopardy for failure to provide the exhibits agreed to by stipulation. Nonetheless, insofar as the appeal board opinion can be read for the proposition that cause of death cannot be established by the testimony of physicians who did not attend the deceased at his last illness, it has enunciated an incorrect rule of law and has committed plain error. People v Miller, 33 Mich App 279; 189 NW2d 789 (1971). The testimony of the physicians was admissible by hypothetical questioning in their depositions. Of course, the weight of the testimony is for the trier of fact.

The cause is reversed and remanded and the board is instructed on rehearing to admit the hospital records and death certificate in accordance with the stipulation of counsel as evidenced by the depositions and to grant the petition of plaintiffs attorney to take the deposition of Dr. Attaviani, who is alleged to have treated the decedent during his final hospitalization and who signed the death certificate.

Reversed and remanded for proceedings consistent with this opinion.

       The death certificate and hospital records were not formally submitted into evidence at trial, but counsel for both parties had previously agreed that these documents were to become part of the record under the business record exception to the hearsay rule, MRE 803(6). Both attorneys propounded hypothetical questions to the medical witnesses, based in part on information contained in the records and death certificate.

       The board obviously considered plaintiffs proofs to be deficient on the issue of the cause of decedent’s death but refused to admit the additional evidence necessary to cure the alleged defect. By this conduct the board impaired its own fact-finding capability which constitutes an abuse of discretion.


author: J. H. Gillis, P.J. Beasley, J.

text:
    PEOPLE v SULLIVAN PEOPLE v DeJARNETTE
    Docket Nos. 43214, 44032.
    Submitted April 1, 1980, at Detroit.
    Decided May 19, 1980.
    Defendants, Earl Lee Sullivan and Dennis DeJarnette, were convicted of first-degree murder and felony-firearm in Recorder’s Court of Detroit, Joseph E. Maher, J. Defendants appeal raising numerous issues. Held:

    1. The trial court permitted the testimony of a witness whose name had not been indorsed on the information filed against Sullivan. However, the name had been indorsed on the information filed against DeJarnette and the cases were consolidated for trial. Sullivan’s counsel was provided with the witness’s statement prior to trial and the testimony of the witness was substantially the same as that of three other witnesses. The late indorsement of a witness is within the trial court’s discretion, which should be exercised with due regard for the defendant’s right to a fair trial. Under these circumstances, the trial court did not abuse its discretion in permitting the witness to testify.
    2. Sullivan contended that the lower court erred in admitting a photograph of the decedent taken approximately seven months before the incident in question and depicting the decedent, his wife and a small child. Appellate counsel neither cited authority nor presented policy arguments in support of this contention. It is well settled that a mere statement of position without argument or citation of authority is insufficient to bring the issue before an appellate court. The admission of photographs of victims of crime is committed to the discretion of the trial court. The photograph was substantially necessary to show the identity of the victim and was in no way inflammatory or gruesome. Under such circumstances, it cannot be said that the lower court abused its discretion in admitting the photograph into evidence.

      References for Points in Headnotes
    [1, 5] 41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    [2] 5 Am Jur 2d, Appeal and Error §§ 697-700.
    [3] 30 Am Jur 2d, Evidence §§ 783-787, 1105.
    [4] 30 Am Jur 2d, Evidence § 1151.
    [5] 5 Am Jur 2d, Appeal and Error § 772 et seq.

    [6] 79 Am Jur 2d, Weapons and Firearms §7 et seq.

    [7] 21 Am Jur 2d, Criminal Law § 119.
    79 Am Jur 2d, Weapons and Firearms § 13.

      3. The credibility of an accomplice is a jury question. A defendant may be convicted solely on the uncorroborated testimony of an accomplice.
    4. A prosecutor’s failure to produce an indorsed witness for trial may be excused where the prosecutor makes a showing of due diligence in searching for the witness, and a trial judge’s finding of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown. Due diligence in law means doing everything reasonable, not everything possible.
    5. Proof of personal possession of a firearm is not required for conviction of felony-firearm.
    Affirmed.
    Beasley, J., dissented in part. He concurs with the majority except that he would hold that a defendant who was not in personal possession of a firearm may not be convicted of felony-firearm as an aider and abettor.
    Opinion of the Court
    1. Witnesses — Criminal Law — Indorsement — Discretion.
    The late indorsement of a witness is within the trial court’s discretion, which should be exercised with due regard for the defendant’s right to a fair trial.
    2. Appeal — Failure to Argue.
    A mere statement of position without argument or citation of authority is insufficient to bring an issue before an appellate court.
    3. Criminal Law — Evidence — Photographs — Victims.
    The admission of photographs of victims of crime is committed to the discretion of the trial court.
    4. Criminal Law — Evidence — Testimony of Accomplices.
    A defendant may be convicted solely on the uncorroborated testimony of an accomplice; the credibility of an accomplice is a jury question.

      5. Witnesses — Criminal Law — Indorsed Witnesses — Prosecutor’s Duty to Produce — Due Diligence — Discretion — Appeal.
    A prosecutor’s failure to produce an indorsed witness for trial may be excused where the prosecutor makes a showing of due diligence in searching for the witness, and a trial judge’s finding of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown; due diligence in law means doing everything reasonable, not everything possible.
    6. Criminal Law — Felony-Firearm — Evidence — Personal Possession op a Firearm.
    Proof of personal possession of a firearm is not required for conviction of felony-firearm.
    Dissent in Part by Beasley, J.
    7. Criminal Law — Felony-Firearm — Aiding and Abetting.

      A defendant who was not in personal possession of a firearm may not be convicted of felony-firearm as an aider and abettor.

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

      Richard L. Miller and Raymond L. Miller, for defendant Sullivan on appeal.

      Monsey G. Wilson, for defendant DeJarnette on appeal.
    Before: J. H. Gillis, P.J., and Allen and Beasley, JJ.
   J. H. Gillis, P.J.

The defendants were tried jointly and convicted of first-degree felony-murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), by a Detroit Recorder’s Court jury. Each was sentenced to a mandatory two years imprisonment on his felony-firearm conviction and to life imprisonment on his felony-murder conviction. They appeal as of right pursuant to GCR 1963, 806.1.

Defendant Sullivan first argues that the lower court erred in permitting the testimony of a prosecution witness whose name had not been endorsed on the information filed against him. The argument is without merit. The late endorsement of a witness is within the discretion of the trial court. That discretion should be exercised, with due regard for the defendant’s right to a fair trial. People v Ward, 85 Mich App 473, 479; 271 NW2d 280 (1978). In the present case, the witness’s name was endorsed on the information filed against codefendant DeJarnette and the cases were consolidated for trial. Furthermore, counsel for Sullivan was provided with the witness’s statement prior to trial. Lastly, an examination of the record discloses that the testimony of the witness in question was substantially the same as that of three other witnesses. Under these circumstances we conclude that the trial judge did not abuse his discretion in permitting the witness to testify.

Sullivan next contends that the lower court erred in admitting a photograph of the decedent. We note that the photograph was taken approximately seven months before the incident in question and depicted the decedent, his wife and a small child.

Initially, we note that appellate counsel has neither cited authority nor presented policy arguments in support of this contention. It is well settled that a mere statement of position without argument or citation of authority is insufficient to bring the issue before an appellate court. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). We shall address the issue nonetheless.

The admission of photographs of victims of crime is committed to the discretion of the trial court. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). The issue to be addressed in the admission of photographic evidence is whether the photograph is substantially necessary or instructive to show material facts or conditions or is merely calculated to excite passion and prejudice. People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973). H^re, the photograph was substantially necessary to show the identity of the victim. Furthermore, we again emphasize that the photograph depicted the victim’s appearance prior to the crime! It was in no way inflammatory or gruesome. Under such circumstances, it cannot be said that the lower court abused its discretion in admitting the photograph into evidence.

Defendant Sullivan contends that the trial court erred in denying his motion for a directed verdict of acquittal where the only testimony connecting him with the crime was provided by an accomplice who had been granted immunity. The argument is meritless. The credibility of an accomplice is a jury question. A jury may convict on such testimony alone. People v Ochko, 88 Mich App 737, 741; 279 NW2d 294 (1979). When one views all the evidence presented by the prosecution up to the time the motion was made, in the light most favorable to the prosecution, one finds that sufficient evidence was presented from which a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. See People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). The denial of defendant’s motion was without error.

Both defendants contend that the lower court erred in declaring an endorsed res gestae witness unavailable due to ill health and in excusing her production. A trial judge’s finding of diligent efforts to produce a res gestae witness and the concomitant decision to excuse production will not be reversed absent a clear abuse of discretion. Due diligence means doing everything reasonable, not everything possible. People v Frazier, 95 Mich App 570; 291 NW2d 125 (1980), MCL 767.40; MSA 28.980. No such abuse is here present.

The charges in this case arose out of an armed robbery committed against an elderly couple. During the course of the robbery, the husband was killed. The witness in question was the decedent’s wife. At the time of trial, the victim, who was 84 years old, was in a nursing home in Tennessee where she had been since the date of the killing. The officer in charge of the case had contacted her physician who stated that the witness was suffering from heart problems, that she was a diabetic and that she required daily private nursing care. The physician opined that if the witness were required to testify, this would have serious adverse consequences to her health. The physician advised against her being brought to Michigan to testify. Under these circumstances, the trial judge’s implicit finding that the prosecution was sufficiently diligent in its efforts to produce the witness was not an abuse of discretion.

Defendant DeJarnette further contends that the trial court’s decision to permit an investigating officer to testify as to statements which this witness made shortly after the attack constituted error as a violation of his right to confrontation. We disagree.

The statements in question were a single question as to her husband’s condition and a single declaration that she was not feeling well. These statements though hearsay were admissible as they fall within exceptions to the hearsay rule of exclusion. MRE 803(2) and 803(3) respectively. Nothing in the confrontation clause automatically requires exclusion of all hearsay. Whether a particular hearsay statement may be admitted without infringing on the defendant’s right of confrontation depends on the nature of the declaration and the circumstances of its making. People v Fell, 65 Mich App 543, 549; 237 NW2d 550 (1975). The nature of the declarations in the present case is such that we can perceive no way in which the defendant was prejudiced by their admission into evidence. Accordingly, the right to confrontation was not violated.

Defendant Sullivan next contends that a conviction under the felony-firearm statute requires personal possession of a firearm. That contention is refuted by People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), lv gtd 407 Mich 882 (1979), People v Atkins, 93 Mich App 524; 286 NW2d 901 (1979).

An examination of the remaining issues raised by the defendants discloses them to be without merit. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), Weatherford v Bursey, 429 US 545, 561; 97 S Ct 837; 51 L Ed 2d 30 (1977).

Affirmed.

Allen, J., concurred.

Beasley, J.

(dissenting in part). I respectfully dissent from that part of the opinion which holds that the felony-firearm statute does not require personal possession of a firearm. I would hold that one cannot be convicted of violating the felony-firearm statute as an aider and abettor. People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978).

Otherwise, I concur fully with the majority.


text:
    H & L HEATING COMPANY v BRYN MAWR APARTMENTS OF YPSILANTI, LTD
    Docket No. 44093.
    Submitted March 5, 1980, at Lansing.
    Decided May 19, 1980.
    H & L Heating Company brought an action to foreclose a mechanic’s lien on an apartment premises against Bryn Mawr Apartments of Ypsilanti, Ltd. (BMA), a registered limited partnership which owns the apartments in question. Bar-Har Investments, Inc. (BHI), and others who appeared to have a property interest in the premises were made defendants in accordance with the statutory and court rule requirement that all parties having an interest in a property subject to foreclosure be made parties to the action to foreclose a mechanic’s lien. Plaintiff made personal service of a summons and a copy of the complaint upon both the resident manager of the apartment complex and the president of BHI. On June 24, 1976, and July 7, 1976, defaults were entered against BMA and BHI respectively. Plaintiff mailed copies of the default and affidavit in support of the default to BMA and BHI on November 3, 1976. On November 20, 1978, the Washtenaw Circuit Court, Patrick J. Conlon, J., entered a default judgment against both BMA and BHI in the amount of $4,003.77 plus $246 costs and $500 attorney fees. Payment was ordered to be made on or before December 11, 1978, with a sale of the premises to take place if defendants defaulted. Defendants made a joint motion to set aside the defaults and default judgments, which was denied. Defendants subsequently filed a motion for a rehearing on the motion to set aside the defaults and default judgments. Following a hearing, the motion for rehearing was denied and the trial court assessed costs of $100 in favor of plaintiff, indicating that defendants’ motion for rehearing raised nothing which had not been raised in the original motion to set aside the defaults and default judgments and had required plaintiffs attorney to return to court and use time worth at least $100. Defendants appeal. Held:

      References for Points in Headnotes
    [1] 60 Am Jur 2d, Partnership § 330.
    [2] 46 Am Jur 2d, Judgments § 757 et seq.

    [3] 53 Am Jur 2d, Mechanics’ Liens § 359.
    [4] 53 Am Jur 2d, Mechanics’ Liens §§ 359, 425.
    [5] 53 Am Jur 2d, Mechanics’ Liens §§ 432, 433.

      1. The court rules require that service of process against a limited partnership must be made upon a general partner of that partnership. Since BMA is a limited partnership, service of process upon the resident manager of the apartment development does not satisfy the mandate of the court rules. While the president of BHI was a general partner of the BMA limited partnership, the service of process upon him was in his capacity as the president of BHI, not in his capacity as a partner of the limited partnership. Service of process upon a partner of a limited partnership in a capacity other than his partnership capacity does not satisfy the requirement of the court rule that service of process shall be upon a general partner of a limited partnership. Accordingly, the trial court never acquired jurisdiction over defendant BMA, and the usual temporal limitations on the time in which a motion to set aside the default and default judgment must be brought are not applicable. It, therefore, was error for the trial court to refuse to set aside the default and default judgment against defendant BMA.
    2. In an action to foreclose a mechanic’s lien, it is improper to enter a default money judgment against a defendant who was made a party to the proceedings 'because of the statutory requirement that the plaintiff join all parties having rights in the property which is subject to foreclosure. Since defendant BHI was made a defendant only because of its property interest in the subject premises, and in view of the fact that plaintiffs complaint did not allege any monetary liability on the part of BHI nor did it seek a monetary judgment against BHI, it was error to grant a default money judgment against BHI. Since defendant BHI is not answerable to plaintiff for damages, that default judgment must be set aside to prevent an unconscionable result.
    3. The court costs entered in favor of plaintiff by the trial court after the hearing on the motion for rehearing the motion to set aside the defaults and default judgments were in the nature of attorney fees. Since there is no authority for the granting of attorney fees for the time associated with a hearing on a motion for rehearing a motion to set aside defaults and default judgments in an action to foreclose a mechanic’s lien, it was error to assess defendants with those costs even if the motion for rehearing may have been frivolous.
    Reversed and remanded.

      1. Process — Service of Process — Limited Partnerships — Courts — Jurisdiction — Court Rules.
    Neither service of process upon a resident manager of an apartment complex owned by a limited partnership nor service of process upon a general partner of a limited partnership in a capacity other than that of a partner in the limited partnership is sufficient, under the court rule relative to service of process on limited partnerships, to confer jurisdiction on the circuit court over the limited partnership (GCR 1963, 105.3).
    2. Judgment — Default Judgment — Motion to Set Aside Default — Time Limits — Limited Partnerships — Service of Process — Court Rules.
    A failure to make proper service of process on a limited partnership renders inapplicable the usual time limitations within which one must bring a motion to set aside a default; a limited partnership which is not served with process in compliance with the controlling court rule is timely in its filing of a motion to set aside a default and default judgment even though such motion was brought two years after being notified that plaintiff had taken a default (GCR 1963, 105.3, 528.3[4]).
    3. Judgment — Default Judgment — Pleading — Discrepancy Between Complaint and Judgment — Mechanic’s Liens — Court Rules.
    It is improper to enter a default money judgment against a defendant which was made a party by reason of the statutory and court rule requirement that the plaintiff must join all parties having rights in the property which is subject to the foreclosure in an action to foreclose a mechanic’s lien where the plaintiff’s complaint alleges no monetary liability of that defendant and alleges only that that defendant might have an interest in the property (MCL 570.10; MSA 26.290, GCR 1963, 793).
    4. Judgment — Default Judgment — Motion to Set Aside Default Judgment — Time Limits — Unconscionable Result — Court Rules.
    A motion to set aside a default money judgment against a defendant which was not alleged to have monetary liability but rather only an interest in the property subject to the foreclosure in an action to foreclose a mechanic’s lien may be brought at any time; a default judgment entered under such circumstances should be set aside to prevent an unconscionable result (GCR 1963, 520.4, 528.3[6]).

      5. Costs — Attorney Fees — Default Judgment — Motion to Set Aside Default Judgment — Motion for Rehearing.
    Court costs in the nature of attorney fees are not properly awarded for the time involved in the attendance at a hearing on a motion for rehearing a motion to set aside a default judgment in a mechanic’s lien action, even if the trial court deems that the motion for rehearing was frivolous in nature, since the general rule in Michigan prohibits the awarding of attorney fees as an element of costs or damages.

      Thomas S. Leven, for Bryn Mawr Apartments of Ypsilanti, Ltd., and Bar-Har Investments, Inc.
    Before: M. J. Kelly, P.J., and D. F. Walsh and Beasley, JJ.
   M. J. Kelly, P.J.

On May 11, 1976, plaintiff filed suit against defendant Bryn Mawr Apartments (BMA) and Bar-Har Investments, Inc. (BHI), to foreclose a mechanic’s lien on the apartment premises and recoup damages in the amount of $4,003.77. Personal service of the summons and a copy of the complaint was effected on Betty Mullins, the BMA resident manager, on May 19, 1976, and on Thomas Cape, President of BHI, on June 3, 1976. On June 24, 1976, and July 7, 1976, defaults were entered against BMA and BHI respectively. Plaintiff mailed copies of the default and affidavit in support of the default to BMA and BHI on November 3, 1976. On November 20, 1978, the Washtenaw County Circuit Court entered a default judgment against both defendants for failure to plead or otherwise defend. The judgment determined that $4,003.77 was due to plaintiff, and ordered defendants to pay that sum plus $246 costs and $500 attorney’s fees. Payment was ordered to be made on or before December 11, 1978, with a sale of the premises if defendants defaulted. A copy of the judgment was mailed to defendants on November 20, 1978. A joint motion to set aside the defaults and default judgments was denied on January 10, 1979, and a motion for rehearing was denied on February 20, 1979. Defendants filed a claim of appeal as of right on March 8, 1979, pursuant to GCR 1963, 806.1. Plaintiff has not responded in this Court.

The complaint filed on May 11, 1976, alleged: that plaintiff furnished materials, supplies and labor with regard to the erection of a building on premises owned by BMA; that plaintiff had filed a mechanic’s lien on the premises; that BMA had failed to pay the amount due thereunder ($4,003.77, as of May 11, 1976); and that BHI, among others, appeared to have an interest in the premises. Plaintiff requested that the court determine, the amount due and, in default of payment therefor, order sale of the land with payment to plaintiff from the proceeds.

On December 11, 1978, the date scheduled for payment, defendants filed a joint motion to set aside the defaults and the default judgment. The motion was premised on the defendants’ allegations that full payment of all claims had been made, and that defendants’ attorney had no notice of the claim until after judgment had been entered. An affidavit in support of the motion stated: that BMA is a registered, limited partnership; that service on such an entity must be made on a general partner, pursuant to GCR 1963, 105.3(1), or by service upon a person in charge of the partnership office and by sending a summons and a copy of the complaint by registered or certified mail to a general partner, pursuant to GCR 1963, 105.3(2); that no general partner of BMA was ever so served; and that the court thus had no personal jurisdiction over BMA. Defendants’ meritorious defense was that plaintiff received full payment of the amount due by means of the 1977 liquidation of a vendor’s interest plaintiff held in certain property as security for the amount due from BMA. Defendant BHI alleged that the default judgment should be set aside as to it due to the fact that the mechanic’s lien and the underlying contract were between plaintiff and BMA only.

On December 22, 1978, plaintiff filed an answer to the motion in which it denied receipt of payment and denied that defense counsel was without notice of the case until after entry of the default judgment, alleging that he was "present on November 20, 1978, prior to' entry of default judgment”. Plaintiff further stated that the summons and a copy of the complaint served on Thomas Cape, president of BHI and a general partner of BMA, on June 3, 1976, were in full compliance with GCR 1963, 105.3(1) and that the land contract assignment was not made in satisfaction of sums due to plaintiff from BMA.

An order denying defendants’ motion was entered on January 10, 1979, which was followed by defendants’ motion for rehearing, filed January 30, 1979. The rehearing motion was premised on an alleged oral admission by a representative of plaintiff to defense counsel that plaintiff had received $24,000 in cash on liquidation of the security interest on the land contract. In answer, plaintiff argued that the alleged admission was refuted by an affidavit filed earlier in the case. On February 20, 1979, an order denying the motion for rehearing was entered.

I

Defendants argue that the default judgment must be set aside due to the trial court’s lack of personal jurisdiction over BMA resulting from defective service of process. A summons directed at BHI and a copy of the complaint were personally served on Thomas Cape as president of BHI, who is coincidentally also a general partner of BMA. No notation on that summons was directed at BMA or Thomas Cape as general partner of BMA; however, service of a summons and a copy of the complaint was effected upon Betty Mullins, the resident manager of the apartments. The file in this matter includes a return of service made on Betty Mullins and an affidavit of service upon BHI "by delivering same to Mr. Thomas Cape, President”. No return of service was made on any partner of BMA. Given Mr. Cape’s concomitant status as president of BHI and general partner of BMA, the question becomes whether the method of service sufficiently complied with GCR 1963, 105.3 which provides:

"Partnerships and Limited Partnerships. Service of process upon a partnership or limited partnership may be made by
"(1) Leaving a summons and a copy of the complaint with any general partner personally, or
"(2) Leaving a summons and copy of the complaint with a person in charge of a partnership office or business establishment at such office or place of business and sending a summons and a copy of the complaint by registered mail, addressed to any general partner at his usual place of abode or last known address.”

We find the service of process effected in the instant case did not sufficiently comply with the above rule to afford adequate notice to defendant BMA or to confer personal jurisdiction over BMA. The overriding purpose of service of process rules is to ensure actual notice and opportunity to defend. 1 Callaghan’s Michigan Pleading & Practice (2d ed), § 16.01, p 558. Although a general partner of BMA had actual notice of a suit against it, he received this notice indirectly, in his status as president of another defendant in the same suit. Mr. Cape was given no indication that he was served as a general partner of BMA. There was no mechanism to invoke any partnership responsibility. Mr. Cape was not personally served in his capacity as a general partner of defendant BMA nor did any partner receive process by registered mail in conjunction with the service upon Ms. Mullins. We conclude that the trial court did not acquire proper jurisdiction. See Reinecke v Sheehy, 47 Mich App 250; 209 NW2d 460 (1973). Further, failure to effect such service renders inapplicable the usual time limitation on motions to set aside default judgments. John W Masury & Son v Lowther, 299 Mich 516, 526; 300 NW 866 (1941), GCR 1963, 528.3(4). Defendant BMA’s motion was timely, though filed more than two years after plaintiff notified BMA that it was taking the default.

Because the default judgment as to BMA is void for want of jurisdiction we need not consider the issue of defendants’ meritorious defense.

II

Defendants claim further error in the trial court’s grant of default judgment against defendant BHI for money damages since plaintiff’s complaint did not seek a judgment against BHI. Defendant BHI was properly made a party to this action pursuant to MCL 570.10; MSA 26.290 and GCR 1963, 793 which require plaintiff to join all parties having rights in the property subject to the foreclosure of the mechanic’s lien. The complaint alleged no monetary liability in BHI as to plaintiff’s claim; it alleged only that BHI might have an interest in the premises. The mechanic’s lien itself indicates that BMA was the only party to the contract with plaintiff. Therefore, the default judgment against BHI cannot stand given the discrepancy between it and the relief sought in plaintiff’s complaint. Wayne Creamery v Suyak, 10 Mich App 41; 158 NW2d 825 (1968), and GCR 1963, 518.

GCR 1963, 520.4, provides in part:

"If personal service was made upon the party against whom the default was taken, it shall not be set aside unless application to have it set aside is made either before the entry of judgment or within 4 months after the default was regularly filed or entered except as provided in Rule 528. * * * A proceeding to set aside a default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.” (Emphasis added.)

GCR 1963, 528.3(6) permits the court to relieve a party from a final judgment or order for any reason justifying relief, unrestricted by specific time limitations within which the application must be made. In connection with the above rule, this Court, in McDonough v General Motors Corp, 6 Mich App 239, 246; 148 NW2d 911 (1967), discussed the propriety of setting aside a default judgment against a party who is apparently not liable to the plaintiff:

"Such an application for our own court rule appears appropriate in the instant case. Justice certainly is not served by extracting a judgment from one whose lack of connection with the grievance has been strongly indicated. The thrust of GCR 1963, 528.3(6), is clearly to free courts from the fetters of a set of specifically delineated bases for relieving from default whenever manifest injustice or an unconscionable result flows from the default.”

Good cause for setting aside the default judgment is shown when manifest injustice would result from permitting the default to stand. First Bank of Cadillac v Benson, 81 Mich App 550, 553; 265 NW2d 413 (1978). Along with their joint motion to set aside the default judgment, defendants filed an affidavit of facts asserting a meritorious defense of prior payment of the debt to plaintiff. Defendant BHI was not required to individually defend against the allegations contained in plaintiff’s complaint since it was named as a defendant solely because of its recorded interest in the premises subject to foreclosure of the mechanic’s lien. Defendant BHI is not legally answerable to plaintiff in damages here. The default judgment is hereby set aside to prevent an unconscionable result.

Ill

Finally, we find that the trial court abused its discretion in awarding costs of $100 to the plaintiff following denial of defendants’ motion for rehearing. Defendants contend that the motion for rehearing was based upon new evidence discovered after the initial motion to set aside the default and default judgment, indicating that plaintiff had been paid in full. At the close of the rehearing motion, the trial court assessed costs as follows:

"The Court: Motion is denied. Costs of $100 to the respondent. That’s all.
"Mr. Leven: Your Honor, he never asked for costs. He never asked for costs.
"The Court: Well, he’s getting costs because this is the second time I have heard the motion. It is no difference [sic] than from [sic] the first one. I denied the first one and you come back a month late, bringing him back and his time has got to be worth at least $100.
"Mr. Leven: The difference is, your Honor, that there was a conference held right afterwards—
"The Court: Wait a minute. Didn’t you hear me? Motion denied. $100 costs.
"Mr. Wooters: Thank you, your Honor. We will prepare an Order.”

MCL 570.12; MSA 26.292, provides that the court may "in its discretion, allow a reasonable attorney’s fee when judgment shall be rendered” in a proceeding to enforce a mechanic’s lien "in favor of the parties succeeding therein”. The court’s reference to plaintiffs attorney’s "time” suggests that the $100 costs were intended as attorney’s fees. The judge apparently assessed such an amount on the belief that defense counsel’s motion for rehearing was not significantly different from his motion to set aside the default. Such a premise does not bring the award within the statutory provision for attorney’s fees in actions to enforce mechanic’s liens. A motion for rehearing may be made in any action. Rather, the amount assessed appears to be in the nature of a penalty against defendants for requiring plaintiffs attorney to appear at a hearing on a frivolous motion. There is no authority for such an award. The general rule in Michigan prohibits the awarding of attorney’s fees as an element of costs or damages. Birou v Thompson-Brown Co, 67 Mich App 502, 515; 241 NW2d 265 (1976), State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 74; 212 NW2d 821 (1973), Salvador v Connor, 87 Mich App 664, 678-680; 276 NW2d 458 (1978) (Kelly, J., dissenting), lv den 406 Mich 966 (1979).

The defaults and default judgment and assignment of costs are hereby set aside and the cause remanded for further proceedings consistent with this opinion.

       This question of notice to defendants’ attorney is not discussed in defendants’ appellate brief.


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

text:
    PEOPLE v SCHINZEL (ON REMAND)
    Docket No. 44156.
    Submitted June 22, 1978, at Detroit.
    Decided October 3, 1978.
    Opinion on remand filed May 19, 1980.
    Leave to appeal applied for.
    Joseph Schinzel was convicted of second-degree murder, Recorder’s Court of Detroit, James A. Hathaway, J. Defendant appealed, and the Court of Appeals reversed on the basis of violation of the 180-day rule for bringing a prisoner to trial on an untried warrant, indictment or information. 86 Mich App 337 (1978). The people sought leave to appeal to the Supreme Court which, in lieu of granting leave, reversed the Court of Appeals and remanded for the taking of testimony at the trial court regarding the cause of the delay in bringing the defendant to trial and for subsequent review of that testimony by the Court of Appeals. 406 Mich 888 (1979). The trial court has taken the testimony and the Court of Appeals has now reviewed that testimony, which indicated that the delay was caused by a congested Recorder’s Court docket brought about by a change in that court’s docketing procedure. Held:

    The change in docketing procedures, which resulted in a large increase in the caseload of the trial judge, make the delay in this case an excusable delay. Therefore, there was no violation of the 180-day rule.
    Affirmed.
    R. M. Maher, P.J., dissented. He would hold that the changeover in docketing procedure could have been accomplished in a manner to ensure compliance with the 180-day rule in those cases in which the defendants were incarcerated and that the delay was, therefore, inexcusable for purposes of the statute. He would reverse and discharge the defendant.
    Opinion of the Court
    1. Criminal Law — Incarcerated Defendants — 180-Day Rule — Statutes.
    Good faith action to commence proceedings on an untried information or indictment against an inmate of a penal institution must be initiated within 180 days of receipt by the prosecutor of the requisite notice or the trial court loses jurisdiction over the matter; once such good faith action is taken, jurisdiction is lost only if the initial action is followed by inexcusable delay (MCL 780.131, 780.133; MSA 28.969[1], 28.969[3]).

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 249.
    [2, 3, 5] 21 Am Jur 2d, Criminal Law § 251.
    [4] 21 Am Jur 2d, Criminal Law §§ 242, 547.

      2. Criminal Law — Incarcerated Defendants — Delay in Trial — Docket Congestion.
    A delay in bringing a prisoner to trial on an untried information or indictment is inexcusable if it results from chronic docket congestion alone; however, a delay resulting from short-term docket congestion attributable to exceptional circumstances which hamper the normally efficient functioning of the trial court is an excusable delay.
    3. Criminal Law — Incarcerated Defendants — Delay in Trial — Docketing Procedure — Statutes.
    A delay in bringing a prisoner to trial which was caused by a change in docketing procedure in Detroit Recorder’s Court was excusable; therefore, the court did not lose jurisdiction to try the case under the statute which requires that proceedings against an inmate of a penal institution on an untried information must be initiated within 180 days of receipt by the prosecutor of the requisite notice (MCL 780.131; MSA 28.969[1]).
    Dissent by R. M. Maher, P.J.
    4. Criminal Law — Incarcerated Defendants — 180-Day Rule — Statutes.

      The purpose of the requirement that an inmate of a penal institution is to be brought to trial on an untried charge within 180 days of the prosecutor’s receipt of the requisite notice is to give the incarcerated defendant with charges pending against him the opportunity to have all of the sentences run concurrently (MCL 780.131; MSA 28.969[1]).

    5. Criminal Law — Incarcerated Defendants — Delay in Trial — Docketing Procedure — Statutes.

      A delay in bringing a defendant to trial, caused by a changeover in the docketing system of Detroit Recorder’s Court wherein the assigned judge received an increase in caseload, is not an excusable delay for purposes of the statute which requires that a prisoner with untried charges against him must be brought to trial within 180 days of receipt' by the prosecutor of the requisite notice (MCL 780.131; MSA 28.969[1]).

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

      Gerald M. Lorence, for defendant on appeal.
    Before: R. M. Maher, P.J., and J. H. Gillis and Bronson, JJ.
   On Remand

J. H. Gillis, J.

The defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, by a Detroit Recorder’s Court jury on May 23, 1977. He appealed to this Court arguing, inter alia, that the trial court lacked jurisdiction due to the asserted violation of the 180-day rule. MCL 780.131; MSA 28.969(1).

In a 2-to-l opinion, this‘Court reversed the defendant’s conviction and dismissed the charges against him, MCL 780.133; MSA 28.969(3), ruling that more than 180 days had elapsed from the time of the charge to the trial and that the people had not met the burden of establishing good faith action to comply with MCL 780.131; MSA 28.969(1). People v Schinzel, 86 Mich App 337; 272 NW2d 648 (1978) (J. H. Gillis, J., dissenting).

The people thereafter sought leave to appeal to the Supreme Court. In an order dated March 13, 1979, that Court, in lieu of leave to appeal, reversed the judgment of the Court of Appeals and remanded the case to the trial court for the making of a testimonial record to determine the cause of the delay between defendant’s arraignment and trial. The order further stated that "[a]fter the testimonial record is prepared, the Court of Appeals shall determine whether or not MCL 780.131; MSA 28.969(1) has been violated”. People v Schinzel, 406 Mich 888 (1979).

Pursuant to that order, testimonial hearings were held on April 18 and 25 and May 1, 1979. The transcripts of those hearings having been made available to this Court, we proceed to determine whether the statute has been violated.

Jurisdiction is not lost if the defendant does not go to trial within 180 days. The statutes, MCL 780.131 and 780.133, require only that good faith action to commence proceedings be initiated within the six-month time limit, People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). Thereafter, jurisdiction is lost only if the initial action is followed by an "inexcusable delay”. People v Hendershot, 357 Mich 300, 303-304; 98 NW2d 568 (1959).

Here, the prosecutor took sufficient good faith action to commence proceedings within the statutory period. The parties do not argue the contrary. The question presented, thus, is whether the delay which followed was such as to excuse compliance with the 180-day limitation. The answer is that it was.

The delay in the present case was occasioned by docket congestion in Detroit Recorder’s Court. A delay which results from chronic docket congestion alone constitutes an inexcusable delay. People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976). A delay which results from short-term docket congestion, attributable to exceptional circumstances which hamper the normally efficient functioning of the trial court, constitutes an excusable delay. People v Forrest, supra, at 273, ABA Standards, Speedy Trial, § 2.3(b) (1968), People v Asher, 32 Mich App 380; 189 NW2d 148 (1971). We find that the delay here falls within the latter category.

The delay between the original trial date of November 15, 1976, and the eventual trial date of May 17, 1977, was occasioned by the decision of the Recorder’s Court bench, with the approval of the Supreme Court, to return to the individual docket system of case assignments.

For the first ten months of 1976, Recorder’s Court utilized the central docket system. Under that system, the examining magistrate, after binding a defendant over, would assign the case to a Recorder’s Court judge for the purpose of conducting all pretrial proceedings. The case remained on that judge’s docket until the parties were prepared to sign a ready-for-trial certificate. The filing of the signed certificate concluded that judge’s involvement with the case. The case was then transferred to the central docket and assigned a trial date. On the trial date, the presiding judge would assign the case for trial to any judge who was then available.

The central docket system proved ineffective. In October, 1976, the decision was made to return Recorder’s Court to the individual docket system. Under that system the pretrial judge retained the case until trial or other final disposition. The effect of this change in docketing systems was to transfer back to each pretrial judge those of his cases which had been transferred to the central docket. During the three-month period which followed this change, the trial judge in the instant case received back at least 400 pending cases. This influx of cases, of which the defendant’s was one, caused the six-month delay in question.

On these facts, we are satisfied that the delay was an excusable one. The people have made an "affirmative showing of exceptional and unavoidable circumstances which hamper the normally efficient functioning of the trial courts”. People v Forrest, 273. There was no violation of the 180-day rule. The defendant’s conviction is affirmed.

Bronson, J., concurred.

R. M. Maher, P.J.

(dissenting). I must dissent from the majority’s conclusion finding that the delay in bringing this defendant to trial was excusable because of the change in docketing systems in Detroit Recorder’s Court.

The 180-day rule, MCL 780.131; MSA 28.969(1), provides that an inmate of a penal institution who is charged with a criminal offense "shall be brought to trial within 180 days” of receipt of the requisite notice. If trial is not had within the 180-day period, the court loses jurisdiction over the defendant. The purpose of the 180-day rule is to give the incarcerated defendant with charges pending against him the opportunity to have all of the sentences run concurrently. People v Loney, 12 Mich App 288, 292; 162 NW2d 832 (1968).

In the case at bar, the defendant was arraigned on the warrant on April 14, 1976. A preliminary examination was held on June 6, 1976. A pretrial was held on June 11, 1976. On July 30, 1976, the trial date was set for November 15, 1976. On October 13, 1976, the prosecutor requested an adjournment of the trial until after December 1, 1976, because of the unavailability of a witness who was in the armed forces. The request was granted. Because the Recorder’s Court was then switching away from a central docket system, the case was reassigned, on December 2, 1976, a new pretrial was held, at which time the judge set a trial date of May 17, 1977.

The statute does not require actual trial within the 180-day period, but only the taking of good faith action to bring the case to trial. People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), People v Hill, 402 Mich 272; 262 NW2d 641 (1978).

In People v Asher, 32 Mich App 380; 189 NW2d 148 (1971), this Court excused delays in complying with the 180-day rule where the court system was congested with thousands of additional cases due to the 1967 riot. This overload of the system was outside of the court’s control, and some delay was inevitable despite all good faith efforts. Even so, the postponement in Asher due to court congestion was from August 2, 1967, until September 18, 1967, or approximately six weeks.

In People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976), there was a 215-day delay not attributable to defendant, from March 29, 1975, until October 28, 1975. The prosecution contended that this delay was caused by the trial court in scheduling the case for trial due to docket congestion, was therefore an excusable delay, and should not be charged against the people. The Court said, 72 Mich App 273:

"In the case at bar the people have not made an affirmative showing of unavoidable delays which might justify this inaction. A mere recitation of the factor of a crowded docket, without more, cannot warrant visiting on the incarcerated defendant a longer imprisonment than might otherwise be in store. If congestion and delay result from inadequate court staffing or funding, the inevitable results of those delays must fall upon the people, who have the power to remedy court congestion.
"We hold that, if the defendant has not contributed to the delay, a period of otherwise unexplained inaction in excess of 180 days in the prosecution of a charge pending against an inmate is per se a violation of the statute, unless the people make an affirmative showing of exceptional and unavoidable circumstances which hamper the normally efficient functioning of the trial courts.”

In the case at bar, the trial judge testified on remand about the backlog of cases in the Detroit Recorder’s Court which was caused by the change in docketing system. He stated that at the time of the change-over, he had 256 cases, with 316 defendants, 60 of whom were in jail. His method of setting the cases for trial was "to set as early a trial as possible for those persons who were charged for serious offenses, capital offenses and were also in jail”. However, there is no indication whatsoever on this record that the trial judge took into account whether the incarcerated defendants were subject to the 180-day rule in setting the trial date.

I would find that the congestion in the Detroit Recorder’s Court was more analogous to the Forrest chronic congestion problem than to the Asher riot repercussions. While the change in procedures may have caused some judges to be assigned a heavier caseload than in their previous experience, there was no actual increase in the number of cases to be disposed of. Certainly, this new docketing system was a procedure under the direct control of the court, and could have been adjusted and manipulated to ensure compliance with the 180-day mandate. The fact that all jailed persons received the same priority in the eye of the judge would militate against a finding of "exceptional and unavoidable circumstances” in setting a trial date six months in the future for this defendant. Those incarcerated defendants who were entitled to be tried within 180 days should have received priority.

I would reverse and would discharge the defendant.

       The people, by way of supplemental brief, argue, as they argued when the matter was originally before this Court, that delays attributable to the judiciary are not to be charged against the prosecution. The argument was and still is without merit. People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976).