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

text:
    DESHLER v GRIGG
    Docket No. 78-2013.
    Submitted February 14, 1979, at Lansing.
    Decided May 2, 1979.
    Leave to appeal applied for.
    The salaries of the officers and trustees of Cambridge Township, Lenawee County, were raised by resolution of the township board at a "budget session” of the board. The increases were included in the budget adopted at an annual township meeting shortly thereafter but from the information distributed at the meeting there was no way of ascertaining that the salaries of township officials had been changed. Several months later, having been made aware that the method of raising their salaries may have been irregular, the board members passed a resolution setting the new salaries, retroactively to the time of the budget session at which they were initially adopted. Betty Deshler and other taxpayers of the township then brought an action against Marvin C. Grigg and the other members of the township board, for a declaratory judgment that the salary increases were void and should be repaid. The Lenawee Circuit Court, Kenneth B. Glaser, Jr., J., granted judgment for defendants. Plaintiffs appeal, alleging that salaries may only be determined by resolution at an annual township meeting. Held: The statutory provision for setting township officials’ salaries allows them to be set either by the electorate at an annual meeting or, alternatively, by resolution of the board subject to review by the electorate. The board’s resolution setting the salaries retroactively was proper.
    Affirmed
    1. Statutes — Construction — Inconsistencies.
    A court when construing a statute is bound to arrive at a reasonable construction and to reconcile seeming inconsistencies, striving to give effect to all the provisions of the statute.
    References for Points in Headnotes

       73 Am Jur 2d, Statutes § 254.

       73 Am Jur 2d, Statutes § 250.

       63 Am Jur 2d, Public Officers and Employees §§ 364-367.

       56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions §§ 167, 828.

      2. Statutes — Construction — Avoidance of Surplusage.
    Every word of a legislative enactment is presumed to have some force and meaning and every effort is to be expended in arriving at an interpretation of a statute which avoids declaring any portion of the legislature’s language to be surplusage.
    3. Towns — Township — Township Boards — Salaries — Statutes.
    Salaries of township board members may be fixed by the electorate at an annual meeting or, alternatively, by resolution of the board subject to review by the electorate (MCL 41.95[1], [3]; MSA 5.82[1], [3]).
    4. Towns — Townships — Township Boards — Retroactive Resolutions — Statutes.
    A township board is empowered to obviate mistakes and irregularities in a prior proceeding, at which it set its salaries, by retroactive resolutions so long as the rights of third persons are not impaired (MCL 41.95[3]; MSA 5.82[3]).

      Downs & Pirich, for plaintiffs.

      Robertson, Bartlow & Des Chenes, P.C., for defendants.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   M. J. Kelly, P.J.

Plaintiffs bring this appeal of right following a bench trial and entry of a judgment against them. This appeal presents a single question of law, there being no challenge to the lower court’s determination of the facts:

Does MCL 41.95; MSA 5.82 authorize a township board to fix its own salaries by resolution without prior approval at the annual township meeting?

Plaintiffs are taxpayers of Cambridge Township, Lenawee County, Michigan, who are contesting a 1976 raise in salaries for the township trustees from $1,000 per year plus per diem for special meetings, to $1,200 without a per diem, and for the other township officers of $500 each. Plaintiffs claim that the procedure by which these raises were accomplished violates MCL 41.95; MSA 5.82, and they are therefore void and ought to be repaid. Plaintiffs, however, do not claim any intent to conceal these raises on the part of the township officials and there is no evidence of any intent to do so.

The proofs showed that in late March, 1976, the township board met in a "budget session” at the township hall in Onsted, Michigan, and prepared a budget for the following year. At this meeting, they decided on the aforementioned increases of salary; however, they did not itemize the salaries in the budget but included each raise in its departmental line item together with all items budgeted for that office.

At the annual township meeting on April 3, 1976, the so-called "face sheet” of the proposed budget was the only thing distributed. There were questions about several areas of the budget, but only one mention of anything relating to salaries. Noting the item of $7,000 opposite the line item "financial clerk’s office”, a citizen asked "if the clerk got all that” and the clerk informed him that it also included supplies, postage and everything else needed by the clerk’s office. The amount of the clerk’s salary was not stated. There was no further mention of salaries; the budget was adopted without further disclosure as to the salaries and without further question.

At the September board meeting, one of the plaintiffs asked the township treasurer for the salaries of the township officials; these salary amounts were supplied to him and apparently did not correspond with audit figures maintained by the State of Michigan for the township. Rescission of the raise was discussed privately between defendant Grigg and plaintiff David Blake following the meeting. Grigg individually agreed there was irregularity. His sentiments were not shared by the township attorney and the other defendants who refused to repay the raises because of the procedural irregularity.

At the November board meeting, the raises were discussed and a resolution was passed setting the 1976 salaries in conformity with the March board meeting. Plaintiffs then brought this suit challenging the salary increases.

The trial court, in its opinion, noted that "this case * * * was an election year sparring match by opposing factions of township government”. Although acknowledging that the better procedure was to list township officials’ salaries separately, the trial court found that the board members intended no violation of the law and had only followed past practices and their township manual. The lower court, therefore, held that the township board had not acted in contravention of MCL 41.95; MSA 5.82 when it raised its salaries by resolution at the meeting of March, 1976. The statute was interpreted to allow the salary of the board members to be fixed at the annual township meeting, or, in the absence of such action, allow the board to fix its own salaries, subject to reversal either at an annual township meeting or at a special meeting of the township electors. Consequently, judgment for defendants was granted.

In this appeal, only subsections (1) and (3) of MCL 41.95; MSA 5.82 are at issue. These subsections provide:

"(1) The officers composing the township boards, board of registration, board of health, board of review, and inspectors of election shall be entitled to the salary fixed by the electors at the annual township meeting, and, in case of the neglect or failure of the electors to fix the salary, the officers shall be entitled to the same salary as the predecessors in office received the year before.
"(3) The salary of township officials who are paid a salary may be determined by resolution adopted by the township board. The electors at a subsequent township meeting may alter the amount of salary fixed by the resolution. A salary shall not be raised within 60 days before an election.”

Plaintiffs argue that salaries may only be determined by resolution of an annual township meeting. Thus, the plaintiffs maintain that subsection (1), in employing the word "shall”, sets forth the only possible means by which the salaries of township officials may be set. According to this argument, subsection (3) may never be applied due to the presence of subsection (1) and if correct would mandate a holding that the discussion and approval of the salary increases which occurred at the November board meeting would be invalid.

We think that plaintiffs’ proposed interpretation of the statute contravenes an important principle of statutory construction. Courts are bound to arrive at a reasonable construction of a statute and to reconcile seeming inconsistencies, striving to give effect to all the provisions of the statute. Roseville v Local #1614, International Ass’n of Fire-Fighters, AFL-CIO, 53 Mich App 547; 220 NW2d 147 (1974), In re Petition of State Highway Comm, 383 Mich 709; 178 NW2d 923 (1970). Every word of a legislative enactment is presumed to have some force and meaning, Wyandotte Savings Bank v State Banking Commr, 347 Mich 33; 78 NW2d 612 (1956), and every effort is to be expended in arriving at an interpretation of a statute which avoids declaring any portion of the legislature’s language to be surplusage. Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971). Because the interpretation of § 95 urged by plaintiffs would render subsection (3) "pure” surplusage, we are compelled to reject the argument.

Furthermore, plaintiffs’ argument is also contradicted by an earlier interpretation of these subsections by the Attorney General, set forth in 1 OAG, 1957, No. 2990, p 199 (April 29, 1957). The Attorney General’s opinion holds that subsections (1) and (3), taken together, prescribe alternative means by which the salaries of township board members may be fixed. They may be determined by the annual meeting of the electorate or, if the annual meeting fails to address the question, the salary of the predecessors in office will be the salary of the board members under subsection (1). However, should the board decide to act, it may do so under subsection (3), raising the salaries by resolution. This interpretation, which is urged by defendants, accords with the aforementioned principles of statutory construction, for it gives meaning to all the words of the statute.

Plaintiffs argue that, if the board may set its salary by resolution, control over the salaries will pass from the democratic process to the board members. In response to this contention, we note that the trial court accurately observed that ultimate control of the board’s salaries will always remain with the township electorate, due to the provision in subsection (3) for review of the board’s independent actions by a special meeting of the township electorate, MCL 41.25; MSA 5.25, or at the next annual meeting.

A collateral question raised in plaintiffs’ argument is whether the township board’s resolution at the November meeting was effective to validate the March salary increases retroactively. We answer this question in the affirmative. Generally, the Legislature has full power to enact laws to obviate mistakes and irregularities in prior proceedings of municipal corporations where they do not impair any contract or injuriously affect the rights of third persons. 56 Am Jur 2d, Municipal Corporations, § 116, pp 173-174. Analogously, we think that the township board, pursuant to its powers under subsection (3), is also empowered to obviate mistakes and irregularities in its prior proceedings through retroactive resolutions, so long as they do not impair the rights of third persons. No rights were impaired here. Furthermore, MCL 41.95(3) obviously contemplates retroactive ratification of board resolutions by the general electorate, for it states: "the electors at a subsequent township meeting may alter the amount of salary fixed by the resolution.” The fact that the statute contemplates subsequent ratification of board resolutions suggests that the mere fact that seven months elapsed between the March salary increase and the November ratification would not render retroactive approval ineffective.

Therefore, we hold that MCL 41.95; MSA 5.82 provides alternative means for increasing the salaries of township officials.

Affirmed.


source: Caselaw Access Project

author: R. M. Maher, J.

license: Public Domain

text:
    ESQUIVEL v AMERICAN FIDELITY FIRE INSURANCE COMPANY
    Docket No. 78-2121.
    Submitted March 7, 1979, at Detroit.
    Decided May 2, 1979.
    Plaintiff Juan Esquivel was a pedestrian when he was struck by a car driven by another. He and his wife, Olga, sued defendant, American Fidelity Fire Insurance Company, for personal protection insurance benefits under a policy of insurance covering an automobile owned by him but not involved in the accident. The Wayne Circuit Court, Thomas J. Foley, J., granted defendant’s motion for summary judgment. Plaintiffs appeal. Held: The no-fault act provides that, where a nonoccupant is covered either as owner or registrant of an insured motor vehicle or as a member of the same household as an owner or registrant, his own insurer is liable for any personal protection benefits to which he may be entitled.
    Reversed.
    Automobiles — Statutes — No-Fault Insurance.
    The no-fault act provides that, where a nonoccupant is covered either as owner or registrant of an insured motor vehicle or as a member of the same household as an owner or registrant, his own insurer is liable for any personal protection benefits to which he may be entitled (MCL 500.3114; MSA 24.13114).
    Reference for Points in Headnote
    New Topic Service Am Jur 2d, No-Fault Insurance § 18.

      Begole & Gray, for plaintiffs.

      Simon & Fried (by Christopher M. Seikaly), for defendant.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   R. M. Maher, J.

Plaintiffs appeal from the trial court’s order granting defendant’s motion for summary judgment on their claim for personal protection insurance benefits under a contract of no-fault automobile insurance between plaintiffs and defendant.

Plaintiff Juan Esquivel (hereafter referred to as plaintiff) was struck by an automobile operated by one Gordon Campbell. Plaintiff was a pedestrian at the time of the accident. He sought personal protection insurance benefits from defendant under a policy of insurance covering an automobile owned by plaintiff but not involved in the accident. The trial court granted summary judgment for defendant, on grounds that any recovery by plaintiff must be from the insurer of the automobile which struck plaintiff.

We reverse.

Priority of insurance coverage where more than one policy may provide coverage of a given accident is governed by §§ 3114 and 3115 of the insurance code, MCL 500.3114; MSA 24.13114, MCL 500.3115; MSA 24.13115. Section 3115 provides in pertinent part:

"(1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.” (Emphasis added.)

Subsection (1) of § 3114 provides:

"(1) Except as provided in subsections (2) and (3), a personal protection insurance policy applies to acciden tal bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.” (Emphasis added.)

In Porter v Michigan Mutual Liability Co, 80 Mich App 145, 149-150; 263 NW2d 318 (1977), this Court discussed the relationship between sections 3114 and 3115:

"Under § 3115(1), a person injured in an automobile accident while other than an occupant of a motor vehicle must claim PIP benefits, as between insurers of the automobile owner and operator, first from the insurer of the owner. Since a motorcyclist is, under the act, not an occupant of a motor vehicle, the motorcyclist injured in an automobile accident may recover from insurers of the owner, and then operator, of the automobile. However, this priority section is not controlling in this case.
"Section 3115(1) is qualified by § 3114(1). Section 3114(1) indicates that when PIP benefits are payable to an insured under his own policy, his insurer must pay all of these benefits even though the insured is also covered under another policy. Michigan Mutual, the company which issued the policy under which plaintiff was insured, is therefore liable to plaintiff for PIP benefits. Even though injured on a motorcycle, plaintiff may recover PIP benefits from his own insurer.”

Accord, Piersante v American Fidelity Fire Ins Co, 88 Mich App 607, 612; 278 NW2d 691, where the Court succinctly summarized the holding of Porter:

"By virtue of the reference to MCL 500.3114; MSA 24.13114 at the outset of MCL 500.3115; MSA 24.13115, the Court placed the motorcyclist’s own automobile insurer at the top of the priority list of MCL 500.3115; MSA 24.13115.”

Although both Porter and Piersante dealt with motorcyclists rather than pedestrians, their reasoning is applicable to pedestrian-automobile accidents as well.

The trial court in its decision relied on Davidson v Johnson, 76 Mich App 497; 257 NW2d 139 (1977) (Davidson I), in which a panel of this Court held that a motorcyclist struck by an automobile must claim benefits from the insurer of the owner, registrant or operator of the automobile involved in the accident, even though the motorcyclist was a named insured under a policy of no-fault insurance covering an automobile owned by himself or a member of his household. See also Hill v Aetna Life & Casualty Co, 79 Mich App 725; 263 NW2d 27 (1977). On rehearing, however, the same panel ordered that the plaintiff motorcyclists be paid personal protection insurance benefits by their own insurance companies rather than by the insurers of the automobiles involved in the accidents, thus in effect reversing Davidson I, Davidson v Johnson (On Rehearing), 79 Mich App 660; 262 NW2d 887 (1977).

The Davidson I Court held that §3115 established priorities for all nonoccupants injured in automobile accidents, while § 3114 established priorities only for occupants of motor vehicles, thus giving no effect to the reference to § 3114 in the first sentence of § 3115. We are of the opinion that § 3115 establishes priorities for those nonoccupants who are not otherwise covered, as, for example, where neither the nonoccupant nor anyone in his household owns an automobile. Where the nonoccupant is covered either as owner or registrant of an insured motor vehicle or as a member of the same household as an owner or registrant, § 3114 provides that his own insurer must pay him personal protection benefits.

We adopt the reasoning of Porter, supra, and Piersante, supra, and hold that plaintiff is entitled to claim personal protection benefits from defendant for any injuries suffered when he was struck by an automobile while a pedestrian. To the extent that the contrary holding of Davidson I survives, we decline to follow it.

Reversed. No costs, construction of a statute being involved.

       We do not believe that Underhill v Safeco Ins Co, 76 Mich App 13; 255 NW2d 349 (1976), cited in Davidson I, is to the contrary. There is no indication in the Underhill opinion that the motorcyclist therein was covered by a no-fault policy on an automobile registered to himself, his spouse or a relative domiciled in the same household. The Court in Underhill did not address the relationship between §§ 3114 and 3115.


author: Per Curiam.

text:
    ROWAN v SOUTHLAND CORPORATION
    Docket No. 77-4931.
    Submitted March 6, 1979, at Detroit.
    Decided May 2, 1979.
    Rose Rowan and Donald Rowan, husband and wife, brought an action against the Southland Corporation and Martin L. Durlacher and Kathryn Durlacher. The complaint alleged that defendants were owners of a party store at which Wayne L. Bradford, a minor, was allowed to purchase a twelve-pack of beer, that Bradford later became intoxicated as a result of consuming the beer, lost control of his automobile and struck an automobile driven by Rose Rowan, causing her injury. The complaint further alleged a violation of the dramshop act as well as negligence in failing to supervise employees and negligence in selling intoxicating beverages to a minor. Wayne Circuit Court, Irwin H. Burdick, J., held that plaintiffs’ exclusive remedy against defendants was an action under the dram-shop act, that their complaint alleged no common-law cause of action, and that failure to "name and retain” the allegedly intoxicated person rendered their complaint fatally defective. Judgment for defendants. Plaintiffs appeal. Held:

    1. An injured person who brings an action under the dram-shop act is required to name and retain the allegedly intoxicated person causing his injury as a party defendant.
    2. The "name and retain” amendment to the dramshop act does not violate due process nor place an undue restriction on a plaintiff’s right of access to the courts because a reasonable relationship exists between the legislative classification and a legitimate state interest.
    3. The Legislature has the power to define what parties are essential to a cause of action which is wholly their own creation.
    4. The "name and retain” amendment to the dramshop act is germane and incidental to the purpose of the liquor control act, which is the regulation and control of liquor traffic; therefore, there is no title-object violation of the constitution.

      References for Points in Headnotes
    [1, 3-7, 9] 45 Am Jur 2d, Intoxicating Liquors §§ 561, 566.

       16 Am Jur 2d, Constitutional Law § 287.

       45 Am Jur 2d, Intoxicating Liquors §§ 561, 562.

      5. The "name and retain” amendment to the dramshop act does not confer a special privilege on a small class of persons in violation of the equal protection clause of the constitution; instead, far from being a grant of a privilege, it is simply a limitation on the greater liability imposed upon liquor dealers by the dramshop act..
    6. The plaintiffs have not stated a common-law cause of action in negligence for injuries arising out of unlawful sales to minors because the dramshop act is the exclusive remedy for injuries arising out of unlawful sales, including sales to minors, by licensed retailers.
    7. Under the "name and retain” amendment to the dramshop act the plaintiff is not free to settle with the intoxicated person before bringing an action against the liquor licensee.
    Affirmed.
    1. Intoxicating Liquors — Dramshop Act — "Name and Retain” — Intoxicated Persons.
    An injured person who brings an action under the dramshop act is required to "name and retain” the allegedly intoxicated person causing his injury as a party defendant (MCL 436.22; MSA 18.993).
    2. Statutes — Legislature — Creation of Rights — Reasonable Restrictions.
    The Legislature, in creating'a right, may place reasonable restrictions on the exercise of that right.
    3. Intoxicating Liquors — Statutes — Dramshop Act — "Name
    and Retain” — Reasonable Classification — Due Process. The "name and retain” amendment to the dramshop act does not violate due process or place an undue restriction on a plaintiff’s right of access to the courts; a rational basis for the enactment of the "name and retain” amendment is demonstrated by (1) reduction of tavern-owner liability by restricting recourse to the dramshop act, (2) elimination of token settlements between plaintiffs and intoxicated persons followed by assistance to plaintiff in an action against a tavern owner, and (3) discouraging possible collusion and perjury by those too weak to resist the obvious temptations inherent in the original dramshop act (MCL 436.22; MSA 18.993).

      4. Intoxicating Liquors — Dramshop Act — "Name and Retain” — Forced Joinder of Parties — Constitutional Law — Court Rules.
    The "name and retain” provision of the dramshop act establishes a forced joinder of a defender and the intoxicated person; however, the provision does not usurp the rulemaking power of the Supreme Court because another court rule mandates forced joinder of parties whose presence is essential to enable a court to render complete relief (Const 1963, art 6, § 5, MCL 436.22; MSA 18.993, GCR 1963, 205, 206).
    5. Intoxicating Liquors — Legislature — Statutes — Dramshop Act — "Name and Retain” — Forced Joinder of Parties.
    The Legislature has the power to define what parties are essential to a cause of action which is wholly their own creation; therefore, although joint tortfeasors were not required to be joined in one action at common law, there is no violation of the rulemaking power of the Supreme Court by legislation which forces the joinder of a liquor retailer and an allegedly intoxicated person in a cause of action under the dramshop act under the "name and retain” amendment to that act, because both the act and the amendment are wholly statutory (MCL 436.22; MSA 18.993).
    6. Intoxicating Liquors — Dramshop Act — "Name and Retain” — Forced Joinder of Parties — Constitutional Law — Title-Object Clause — Liquor Control Act — Purpose of Act.
    Forced joinder of a liquor retailer and an allegedly intoxicated person pursuant to the "name and retain” amendment to the dramshop statute does not violate the title-object clause of the constitution because the amendment reduces tavern-owner liability, eliminates token settlements between plaintiff and an intoxicated tortfeasor and discourages collusion and perjury and is not beyond the scope of the title or object of the liquor control act and is germane and incidental to the purpose of the act, which is the regulation and control of liquor traffic (Const 1963, art 4, § 24, MCL 436.22; MSA 18.993).
    7. Intoxicating Liquors — Dramshop Act — "Name and Retain” — Constitutional Law — Equal Protection Clause — Liability of Liquor Dealers.
    The "name and retain” amendment to the dramshop act which requires a plaintiff to join allegedly intoxicated tortfeasors in an action against a tavern owner does not confer a special privilege on a small class of persons in violation of the equal protection clause of the constitution because the dramshop act imposes a duty upon liquor retailers which is greater than that imposed on others and creates a potential liability to which other persons are not exposed; therefore, far from being a grant of privilege, the "name and retain” provision is simply a limitation on the greater liability imposed upon liquor dealers (MCL 436.22; MSA 18.993).
    8. Intoxicating Liquors — Dramshop Act — Sales to Minors — Causes op Action — Negligence — Exclusive Remedy.
    A complaint allegedly stating a common-law cause of action in negligence for injuries arising out of the unlawful sale of alcoholic beverages to minors by a liquor retailer alleges nothing more than a violation of the retailer’s duty not to sell to minors and does not state a common-law cause of action because the dramshop act is the exclusive remedy for injuries arising out of unlawful sales, including sales to minors, by licensed retailers (MCL 436.22; MSA 18.993).
    9. Intoxicating Liquors — Dramshop Act — "Name and Retain” — Settlements — Causes op Action.
    The "name and retain” amendment to the dramshop act requires a plaintiff to bring an action against both a licensed dispenser of intoxicants and the alleged intoxicated person; thereafter the plaintiff is allowed to reach a settlement with one or both parties; however, the plaintiff is not free to circumvent the requirements of the dramshop act by waiting until a settlement has been reached with the allegedly intoxicated person before bringing an action against the liquor licensee (MCL 436.22; MSA 18.993).

      Philo, Atkinson, Darling, Steinberg & Harper, for plaintiffs.

      Law Offices of Nazar Berry (by Barry M. Kelman), for defendants.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   Per Curiam.

Plaintiffs appeal from the order of the trial court granting defendants’ motion for accelerated judgment of their complaint for failure to name the alleged intoxicated person as a defendant, as required by the dramshop act, MCL 436.22; MSA 18.993.

Plaintiffs’ complaint alleged that defendants were owners of a party store at which one Wayne L. Bradford, a minor, purchased a twelve-pack of beer. Bradford became intoxicated as a result of consuming the beer, lost control of his automobile and struck an automobile driven by plaintiff Rose Rowan, causing her injury. The complaint alleged violation of the dramshop act as well as negligence in failing to supervise employees and negligence in selling intoxicating beverages to a minor. The trial court held that plaintiffs’ exclusive remedy as against defendants was an action under the dram-shop act, that their complaint alleged no common-law cause of action and that failure to name and retain the alleged intoxicated person rendered their complaint fatally defective.

On appeal, plaintiffs mount a broad constitutional attack on the name and retain provision and claim in addition that their complaint stated a cause of action for common-law negligence. We reject both claims, and affirm the trial court.

Plaintiffs first contend that the name and retain provision denies them their First Amendment right of free access to the courts, "a 'fundamental right’ which triggers application of the 'strict scrutiny’ test of Fourteenth Amendment jurisprudence.” We assume that plaintiffs intend by this to raise a claim of violation of due process by denial of a fundamental right. However, the Supreme Court recently rejected out of hand the contention that a legislatively created cause of action constitutes a fundamental right requiring strict scrutiny of any restrictions imposed thereon by the Legislature, Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978).

The Court in Forest, supra, applied the traditional "rational basis” test in upholding the two-year statute of limitations on actions against governmental units for negligent maintenance. of highways against an equal protection attack, saying:

"The law has long held that, in creating a right, the Legislature may place reasonable restrictions on the exercise of that right. Bement v Grand Rapids & I R Co, 194 Mich 64; 160 NW 424 (1916). In giving plaintiffs the right to sue the state, Minty v Board of State Auditors, 336 Mich 370; 58 NW2d 106 (1953), the Legislature placed a specific time limit on plaintiffs’ exercise of that right. This time limit is neither arbitrary nor capricious. Therefore, it cannot be said that it violates equal protection of the law.” Forest v Parmalee, supra, at 362.

Similarly, this Court has upheld the name and retain provision of the dramshop act against the claim that it arbitrarily created two classes of plaintiffs, saying:

"The 'name and retain’ provision will, to some extent, reduce tavern-owner liability by restricting recourse to the dramshop act. The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provision will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act which has now been recognized by the Legislature and corrected through this amendment.
"These considerations constitute a rational basis for the enactment of the 'name and retain’ portion of the amendment.” Salas v Clements, 57 Mich App 367, 372; 226 NW2d 101 (1975), rev’d on other grounds 399 Mich 103; 247 NW2d 889 (1976).

For those same reasons, we find no violation of due process and no undue restriction of plaintiffs’ right of access to the courts.

Plaintiffs also claim that the name and retain provision usurps the rulemaking power of the Supreme Court, in violation of Const 1963, art 6, §5, by establishing a "forced joinder” provision which conflicts with the "permissive joinder” rule of GCR 1963, 206. This argument, however, ignores GCR 1963, 205, which mandates "forced joinder” of parties whose presence is essential to enable the court to render complete relief. Although joint tortfeasors were not required to be joined in one action at common law, see Donlin v Detroit United Railway, 198 Mich 327; 164 NW 447 (1917), the cause of action created by the dramshop act is wholly statutory, Salas v Clements, supra. We think that the Legislature has the power to define what parties are essential to a cause of action which is wholly their own creation.

Plaintiffs also allege that the name and retain provision violates the title-object clause of our constitution, Const 1963, art 4, § 24, by incorporating a provision governing judicial procedure in an act intended to regulate alcoholic beverages. However, this Court has rejected the same argument against the limitation of actions provision of the same statute, Gray v Blackman, 30 Mich App 212; 186 NW2d 76 (1971). We see no reason to reach a different result with regard to the name and retain provision.

Plaintiffs’ final constitutional argument is that the dramshop act confers a special privilege on a small class of persons, in violation of Const 1963, art 1, § 2, the equal protection provision of our constitution. The thrust of plaintiffs’ argument appears to be that by requiring joinder of the alleged intoxicated persons, the statute confers on liquor retailers an additional protection against liability not accorded other tortfeasors. Such an argument is absurd on its face. In fact, the statute imposes a duty upon liquor retailers which is greater than that imposed on others, and creates a potential liability to which other persons are not exposed, see Guitar v Bieniek, 402 Mich 152; 262 NW2d 9 (1978). Far from being a grant of privilege, the name and retain provision is simply a limitation on the greater liability imposed upon liquor retailers.

In addition to challenging the constitutionality of the name and retain provision, plaintiffs contend that their complaint stated a common-law cause of action for negligence. Plaintiffs’ complaint alleged that defendants were negligent in failing to supervise and to train their employees to guard against unlawful sales to minors. They now argue that there exists a common-law duty to supervise and to train employees to avoid unlawful sales independent of and distinct from the liability for the consequences of an unlawful sale which the dramshop act imposes. Plaintiffs emphasize that the negligence they allege occurred prior to the sale. However, it is indisputable that, absent a sale, no cause of action against defendants would have arisen. We conclude that the allegations in plaintiffs’ complaint allege nothing more than a violation of defendants’ duty not to sell intoxicants to minors. Compare Manuel v Weitzman, 386 Mich 157; 191 NW2d 474 (1971), and Grasser v Fleming, 74 Mich App 338; 253 NW2d 757 (1977). Because the dramshop act is the exclusive remedy for injuries arising out of unlawful sales — including sales to minors — by licensed retailers, plaintiffs have stated no common-law cause of action, Manuel v Weitzman, supra.

Plaintiffs argue that they should be exempted from compliance with the name and retain provision because it would be a futile act to join the allegedly intoxicated person at this stage. Plaintiffs earlier brought an action against the alleged intoxicated person, and reached a settlement with him. If joined in the present action, the putative drunk could successfully move for dismissal, raising the prior action as a bar. We find this argument unpersuasive. Plaintiffs are not free to circumvent the requirements of the dramshop act by waiting until they have reached settlement with the drunken driver before bringing an action against the liquor licensee. They were free to bring an action against both the defendants herein and the alleged drunk, as required by the act, and then to reach a settlement with one or both parties, Buxton v Alexander, 69 Mich App 507; 245 NW2d 111 (1976). They chose not to do so. We are not disposed to relieve them of the consequences of that freely-made choice.

Affirmed. Defendants may tax their costs.

       We do not wish to be understood as holding that no common-law cause of action survives as against private persons as opposed to liquor licensees, see Lover v Sampson, 44 Mich App 173; 205 NW2d 69 (1972).


text:
    PEOPLE v HACHEM
    Docket No. 78-267.
    Submitted January 5, 1979, at Grand Rapids.
    Decided May 2, 1979.
    Larry K. Hachem was convicted of driving 85 miles per hour in a 55 miles-per-hour zone, Recorder’s Court of Detroit, Andrew Wood, J. The defendant appeals, alleging that it was necessary for the prosecution to present evidence of the reliability and accuracy of the speedometer in the arresting officer’s patrol car before a reading from that speedometer could be admitted as evidence against the defendant. Held:

    A sufficient foundation was laid to establish the accuracy of the speedometer. Further, the police officer visually ascertained that the defendant was speeding. There was sufficient evidence to permit the introduction of the speedometer reading and to sustain the lower court’s decision.
    Affirmed.
    1. Evidence — Admissibility of Evidence — Speedometers — Traffic Cases — Accuracy of Speedometer.
    Evidence from a speedometer is acceptable evidence in traffic cases; while speedometers are not inherently accurate, they have acquired a certain reliance factor with the public in general.
    2. Evidence — Admissibility of Evidence — Speedometers — Conviction of Speeding.'
    A reading from an untested speedometer, although admissible as evidence of speeding, is generally not sufficient to sustain a conviction of speeding.
    3. Evidence — Sufficiency of Evidence — Speedometers — Proof of Accuracy.
    A speedometer reading is sufficient, in itself, to sustain a conviction of speeding where there is reasonable proof of the speedometer’s accuracy.

      References for Points in Headnotes

       7 Am Jur 2d, Automobiles and Highway Traffic § 326.
    Proof, by radar or other mechanical or electronic devices, of violation of speed regulations. 47 ALR3d 822.

       7 Am Jur 2d, Automobiles and Highway Traffic §§ 326, 327.
    Proof, by radar or other mechanical or electronic devices, of violation of speed regulations. 47 ALR3d 822.

      4. Evidence — Foundation — Admissibility of Evidence — Speedometers — Accuracy of Speedometer.
    A prima facie case of a speedometer’s accuracy was established by evidence that (1) the police officer driving the police car with the speedometer in question testified that he paced the defendant’s car for some distance, (2) the police car’s speedometer was checked against a calibration chart in the patrol car, and (3) the chart was compiled by comparing the patrol car’s speedometer readings, at various increments, to radar readings of the patrol car’s speed.

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

      DAvanzo, Danko & Aycock, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and M. J. Kelly, JJ.
   Per Curiam.

The defendant was found guilty of the misdemeanor of driving 85 miles an hour in a 55 mile zone, MCL 257.628; MSA 9.2328. He was sentenced to a $50 fine or five days in the Detroit House of Correction.

The determination that the defendant was speeding was based on the observation of the speedometer in a police vehicle that was pacing the defendant’s car. After pacing the vehicle and observing his speedometer, the trooper checked the accuracy of the speedometer on a calibration chart that was on the patrol car’s dashboard. The defendant argues that it was necessary for the prosecutor to present evidence of the speedometer’s reliability and accuracy before a reading from that speedometer could be admitted as evidence against the defendant. Defendant does not challenge the accuracy of the particular speedometer used and does not deny that he may have been speeding.

Evidence from a speedometer is duly accepted in traffic cases. People v Kenney, 354 Mich 191, 197; 92 NW2d 335 (1958). While speedometers are not inherently accurate, they have acquired a certain reliance factor with the public in general. State v Ing, 53 Hawaii 466; 497 P2d 575 (1972). Although a reading from an untested speedometer may be admissible as evidence of speeding, it is generally not sufficient to sustain a conviction for speeding. 61A CJS, Motor Vehicles, § 647(3), p 435. Nevertheless, speedometer readings have been held sufficient, in themselves, to sustain a conviction for speeding if there is reasonable proof of their accuracy. 21 ALR2d 1200 (Later Case Service), pp 447-449.

We think that, in the case at bar, a sufficient foundation had been laid establishing the accuracy of the speedometer. The police officer testified that he paced defendant’s car for some distance. The police speedometer was checked against a calibration chart in the patrol car. The chart was compiled by comparing the patrol car’s speedometer readings, at various increments, to radar readings of the patrol car’s speed; thus, the evidence established a prima facie case of the speedometer’s accuracy. Further, the police officer visually ascertained that defendant was speeding. We think this evidence is sufficient to permit the introduction of the speedometer reading and to sustain the lower court’s decision.

Affirmed.


author: Per Curiam. D. F. Walsh, P.J.

text:
    PEOPLE v LAWRENCE
    Docket No. 78-1132.
    Submitted November 9, 1978, at Lansing.
    Decided May 2, 1979.
    Leave to appeal denied, 407 Mich 851.
    Defendant, Pamela Lawrence, was convicted, on her plea of guilty, of probation violation in the Saginaw Circuit Court, Eugene Snow Huff, J. She had been placed on probation on condition that she stay at Rubicon-Odyssey House and participate in an educational program approved by her probation officer. Ten days after entering, defendant left Rubicon-Odyssey House, apparently because she was pregnant and the employees of the house were pressuring her to go to Utah and give up her baby. Defendant appeared before the court and was read the charge and given a copy of the charge, although she had no prior written notice as required by law. She was informed of her right to be represented by an attorney and of the fact that the court would furnish her an attorney if she could not afford one. She was also informed of her right to a hearing. After indicating her understanding of her rights, she pled guilty. Defendant appeals. Held:

    1. Defendant did not receive timely notice of the charge of probation violation.
    2. Lack of timely notice vitiated the voluntariness and intelligence with which the subsequent waiver Qf the rights to an attorney and to a hearing was made.
    3. Under the facts, defendant did not knowingly and voluntarily waive the timely notice requirement by pleading guilty.
    Reversed and remanded.
    D. P. Walsh, P.J., dissented. He would hold that no period of time need elapse between the service of notice of probation violation and a voluntary and knowing plea of guilty to the violation. He would affirm.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 568.

       21 Am Jur 2d, Criminal Law § 222.

       21 Am Jur 2d, Criminal Law §§ 219, 228, 238, 316, 317, 319,

       21 Am Jur 2d, Criminal Law §§ 316-319, 495.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

       21 Am Jur 2d, Criminal Law §§ 238, 484-496, 567.

      Opinion of the Court
    1. Criminal Law — Probation Revocation — Notice — Timely Service of Notice — Statutes.
    Written notice to a defendant of charged probation violations is statutorily required; such notice must be served sufficiently in advance of scheduled court proceedings so that the defendant has a reasonable opportunity to prepare (MCL 771.4; MSA 1134).
    2. Criminal Law — Probation Revocation — Notice — Timely Service of Notice.
    A defendant charged with violation of the terms of his probation was not served with timely notice of the violation where the probation revocation hearing was held contemporaneously with the defendant’s receiving written notice of violation.
    3. Criminal Law — Probation Revocation — Timely Service of Notice — Waiver.
    A probationer who did not receive timely notice of a charge of probation violation and appeared in court, without an attorney, where she was read the notice of violation, handed a copy of the document and asked to plead did not intelligently and voluntarily waive timely notice by admitting the violation where the probationer was pregnant, the condition of probation allegedly violated was that she stay at a particular house and participate in an educational program and the reason for her leaving the house was that the employees were pressuring her to go to Utah to have and give up her baby.
    4. Criminal Law — Probation Revocation — Timely Service of Notice — Right to Counsel — Waiver.
    Lack of timely notice of a probation violation vitiates any voluntary and intelligent waiver of the rights to an attorney and a hearing on the violation.
    Dissent by D. F. Walsh, P.J.
    5. Criminal Law — Probation Revocation — Timely Service of Notice — Waiver.

      A probationer who pled guilty to a probation violation charge knowingly and voluntarily waived timely notice of the violation where the court twice explained to her her right to be repre

      seated by an attorney, that, if she couldn’t afford an attorney, the court would furnish her one and that she was entitled to a hearing on the charges and where she indicated she understood these rights prior to entering her plea.

    6. Criminal Law — Probation Revocation — Plea of Guilty — Notice — Due Process.

      Due process does not require that any period of time elapse between the service of notice of probation violation and a voluntary and knowing plea of guilty to the violation.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Assistant Prosecuting Attorney, for the people.

      Stephen A. Seman, for defendant on appeal.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant was placed on probation after pleading guilty to attempted larceny in a building, MCL 750.360, 750.92; MSA 28.592, 28.287. Two of the conditions of her probation were that defendant enter and remain at Rubicon-Odyssey House and that she participate in an educational program approved by her probation officer. Ten days after being placed on probation defendant left Rubicon-Odyssey House, apparently because the employees there were pressuring her to go to Utah to have and give up the baby she was then carrying.

The issue in this case is whether a defendant who was not represented by counsel at the revocation proceeding may seek reversal and a remand from a probation revocation proceeding where no timely notice of the charges was given to defendant but she admitted one of the charges. On the facts of this case we answer yes and remand for further proceedings.

Defendant was arrested on a bench warrant charging a violation of probation based on her refusal to stay at Rubicon-Odyssey House or participate in an educational program. Defendant was brought before the circuit court where the charges were read to her by an assistant prosecuting attorney. The record shows that no notice was served before the hearing began. After defendant was handed a copy of the charges, the court informed her of her right to counsel and her right to a hearing if she was to contest the charges. Defendant stated she would not need an attorney and admitted she had left Rubicon House. The court accepted defendant’s statement as a plea of guilty to the first charged violation of probation. The entire proceeding filled less than seven pages of transcript.

There is no doubt that a defendant is entitled to receive the statutorily required notice of alleged violations sufficiently in advance of scheduled court proceedings to afford a reasonable opportunity to prepare. See, e.g., People v Gulley, 66 Mich App 112; 238 NW2d 421 (1975), lv den 396 Mich 850 (1976), People v Gillman, 71 Mich App 374; 248 NW2d 553 (1976), People v Radney, 81 Mich App 303; 265 NW2d 128 (1978). A majority of one panel has concluded that this right may be waived by admitting the violation. People v Bell, 67 Mich App 351; 241 NW2d 203 (1976), lv den 397 Mich 807 (1976).

The defendant in Bell was represented by an attorney and contested only one of two alleged violations. Even though the majority found a waiver of timely notice on one charge, the case was reversed and remanded because no timely notice had been given on the charge which was contested. Judge Danhof would have reversed and remanded on both charges for what he perceived to be a due process violation based on a lack of an intelligent waiver of the right to timely notice. 67 Mich App 351, 355.

We agree with the analysis of Judge Danhof in Bell. Although a case-by-case analysis provides little guidance for trial courts, it does allow this Court to identify possible abuses in an area which has such great significance to individual defendants. The present case is indicative of a problem greater than merely failing to serve timely notice. The defendant here appeared in court without an attorney, was read the notice of violation, handed a copy of that document and then asked to plead. Still expressing concern over her unborn child, she admitted facts which would constitute a violation of probation. A reading of the transcript can lead to no other conclusion than that she did not understand the significance of what she was doing. In short, the implied waiver of timely notice was not intelligently or voluntarily given.

Neither this Court nor the Supreme Court has found it necessary to impose a check list of rights for probation revocations on the circuit courts. People v Rial, 399 Mich 431; 249 NW2d 114 (1976). We do not intend to do so here. However, we are not required to affirm a proceeding which appears unjust. The defendant did not waive her right to timely notice of the charges by admitting one of the violations on the facts presented by this record. A lack of notice vitiated the voluntariness and intelligence of the subsequent waivers of the right to counsel and the right to a hearing.

The order revoking defendant’s probation is set aside and this cause is remanded to the trial court without prejudice to conduct a proper hearing or other proceedings after defendant is again given timely notice of the alleged violation.

D. F. Walsh, P.J.

(dissenting). I must dissent. Due process requires that a person charged with violation of probation must be given sufficient notice to permit adequate preparation for a hearing in a contested case. People v Gulley, 66 Mich App 112; 238 NW2d 421 (1975), Iv den 396 Mich 850 (1976). It is my strong conviction, however, that there is no mandatory due process requirement that a period of time elapse between the service of notice of probation violation and a truly voluntary and knowing plea of guilty to the violation.

In this case, before allowing the defendant to make any statement as to whether she was guilty or not guilty of the violation, the court carefully explained to the defendant that she had a right to be represented by an attorney, that, if she could not afford an attorney, the court would furnish one for her and that she was entitled to a hearing in court on the probation violation charges. The court then asked the defendant if she understood what he was telling her and she responded, "Uh-huh”. To make certain that the defendant understood the court then explained these rights a second time and again asked the defendant if she understood him. The defendant replied, "Yes, I understand.”

The court then asked the defendant if she wanted an attorney and she answered that she did not. The court asked if the defendant wanted to have a hearing, and she said, "No”. Finally the court asked, "Are you going to plead to the charges now?” The defendant said, "Yes”, and then entered her plea of guilty.

In People v Rial, 399 Mich 431; 249 NW2d 114 (1976), both defendant Rial and defendant Beene entered pleas of guilty at their initial hearings on the prosecutor’s petitions for revocation of probation. Both had been advised of their right to counsel and to a formal hearing on the charges. In upholding the guilty pleas the Court stated:

"Each defendant was advised by the court that if he wished to contest the alleged violations of his probation, a hearing would be held to determine the truthfulness of the charges, and he would be entitled to counsel at the hearing. Given the limited nature of these hearings, we hold that both defendants were adequately informed of their procedural and constitutional rights.” People v Rial, supra, 436.

In my judgment the defendant in this case clearly understood what the court was telling her and knowingly and voluntarily entered her plea of guilty. I find no violation of defendant’s due process rights in the court’s acceptance of that plea.

I would affirm.

       MCL 771.4; MSA 28.1134.

       The trial court’s warnings were apparently sufficient to avoid reversal on that score alone. People v Rial, 399 Mich 431; 249 NW2d 114 (1976).


text:
    FABBRINI FAMILY FOODS, INC v UNITED CANNING CORPORATION
    Docket Nos. 77-2766, 77-2767, 77-2768.
    Submitted December 7, 1978, at Detroit.
    Decided April 18, 1979.
    United Canning Corporation, a food processor, discovered the presence of botulism in some cans of mushrooms in its inventory. A distributor, Tolona Pizza Products Corporation, notified its customers of the botulism, including Fabbrini Family Foods, Inc., a pizza manufacturer. Fabbrini recalled its pizzas which contained mushrooms and buried them. Fabbrini then brought an action against United Canning and Tolona for damages for negligence and breach of warranty. United Canning and Tolona brought a third-party action for indemnification against Solbern Corp., the manufacturer of a mechanical filler used by United Canning to fill the cans with mushrooms. Solbern was later added as a primary defendant in the Fabbrini action. The Wayne Circuit Court, Roman S. Gribbs, J., entered judgment on a jury verdict in favor of Fabbrini against all three defendants and in favor of Tolona on its third-party claim against Solbern, but found no cause of action on United Canning’s third-party claim against Solbern. United Canning, Tolona and Solbern each appeal. Held:

    1. The trial court did not err in instructing the jury that lost profits could be awarded on a breach of warranty claim, and the jury’s award of damages based in part on lost profits was proper because there was evidence presented to show damages, including loss of profits.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 640, 850.
    22 Am Jur 2d, Damages § 296.

       63 Am Jur 2d, Products Liability §§ 3, 225.

       63 Am Jur 2d, Products Liability §§ 15-24.

       41 Am Jur 2d, Indemnity § 2.

       63 Am Jur 2d, Products Liability §§ 26, 27, 79.

       75 Am Jur 2d, Trial §§ 11, 12.
    Right of plaintiff suing jointly with others to separate trial or order of severance. 99 ALR2d 670.

       5 Am Jur 2d, Appeal and Error § 700.

       75 Am Jur 2d, Trial § 146.

       75 Am Jur 2d, Trial §§ 463, 482 et seq.

       63 Am Jur 2d, Products Liability §§ 42 et seq., 53.
    Manufacturer’s or seller’s duty to give warning regarding product as affecting his liability for product-caused injury. 76 ALR2d 9.

       63 Am Jur 2d, Products Liability §§ 26, 71.

      2. Sufficient evidence was presented to submit to the jury the questions of whether there was any "defect” in the mushrooms supplied to Fabbrini and whether there was any causal connection between the recall and the damages suffered.
    3. There was evidence presented from which the jury could . find negligence on the part of United Canning, thereby justifying the denial of indemnification to United Canning.
    4. The trial court’s severance of United Canning’s third-party action against Solbern for damages arising from injuries to customers other than Fabbrini was not an abuse of discretion.
    5. The verdicts were not so inconsistent as to require a reversal.
    6. The trial court did not abuse its discretion in allowing Fabbrini to reopen its case, after United Canning and Tolona had presented their defenses, for the purpose of adopting their testimony in order to avoid a directed verdict in favor of Solbern.
    7. Solbern’s motion for a directed verdict at the end of all the proofs was properly denied where there was some evidence presented that Solbern had a duty to warn users of its fillers of a latent risk.
    Affirmed.
    1. Damages — Loss of Profits — Sufficiency of Proof — Question of Fact.
    The issue of lost profits is one of sufficiency of proof, and the Court of Appeals will not interfere with the judgment of a jury given that some evidence of damages, including lost profits, was presented.
    2. Damages — Breach of Warranty — Loss of Profits.
    Loss of profits is a proper item of damages which may be awarded on a breach of warranty claim,
    3. Products Liability — Defects — Proximate Cause — Damages — Question of Fact.
    The questions of whether a plaintiff pizza manufacturer had shown a "defect” in mushrooms supplied by a defendant canning company, and whether there was any causal connection between the plaintiffs recall of its pizzas and its alleged damages suffered were questions for the jury where there were facts in evidence which might support a jury verdict in favor of the plaintiff.
    4. Indemnity — Freedom from Fault.
    One who seeks indemnification must be free from personal fault.
    5. Products Liability — Standard of Care — Customary Usage — Reasonably Prudent Conduct.
    The standard of care in a products liability case is that of reasonably prudent conduct; the customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard has been met, but such usage cannot be determinative of the standard.
    6. Trial — Severance — Judge’s Discretion.
    The granting or denial of separate trials rests in the sound discretion of the trial court; however, the power of severance should be exercised sparingly.
    7. Appeal and Error — Arguments of Parties — Search for Authority.
    The Court of Appeals is not required to search for authority to support the argument of a party where that party has cited no Michigan law in support of its argument.
    8. Trial — Order of Proofs — Judge’s Discretion.
    The order of admitting proofs in a trial; and the reopening of proofs upon motion of a party, are matters which rest in the sound discretion of the trial court (GCR 1963, 507.2, 509.3).
    9. Appeal and Error — Products Liability — Directed Verdict — Prima Facie Case.
    The standard of appellate review to be used in considering the granting of a directed verdict for a defendant in a products liability case is whether, taking the evidence in a light favorable to the plaintiff, a prima facie case of liability is established; if so, a motion for a directed verdict should be denied.
    10. Products Liability — Manufacturers — Duty — Warnings — Question of Fact.
    Manufacturers have a duty to provide adequate warning to potential users of their products of the latent risks of injury created by their selection of product design; the adequacy of such a warning is a question for the trier of fact.

      11. Products Liability — Manufacturers — Duty — Unreasonable Risk — Foreseeable Injury.
    A manufacturer has a duty to design and manufacture a product to eliminate unreasonable risks of foreseeable injury; a defect can be shown if the product is not reasonably fit for its intended, anticipated, or reasonably foreseeable use.

      Charfoos & Charfoos, P.C. (by J. Douglas Peters), for plaintiff.

      Riley & Roumell (by Thomas M. J. Hathaway, Robert J. Colombo, Jr. and Jane K. Souris), for United Canning Corporation.

      Franklin, Petrulis & Lichty, P.C., for Tolona Pizza Products Corporation.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for Solbern Corporation.
    Before: Beasley, P.J., and Bronson and N. J. Kaufman, JJ.
   Per Curiam.

On March 2, 1973, plaintiff Fabbrini Family Foods brought suit against defendants United Canning Corporation and Tolona Pizza Products Corporation. Fabbrini asserted negligence and breach of warranties stemming from a mushroom pizza recall in February, 1973. United Canning and Tolona then filed a third-party complaint against Solbern Corporation. Solbern was added as a primary defendant on April 8, 1974. On May 2, 1974, Fabbrini filed an amended complaint stating its intention to adopt the proofs of the other parties with respect to Solbern.

A jury trial was held November 17-December 10, 1976. The evidence showed that in January, 1973, United Canning noticed an abnormal number of swelled cans in its inventory. The problem was investigated by technical services representatives, and on February 16, 1973, botulism was confirmed in certain No. 10 cans of mushrooms processed by United Canning in January, 1973. United Canning then notified the United States Food & Drug Administration of this finding. The FDA in turn contacted Tolona Pizza Products Corp. in Chicago.

Tolona began calling all of its customers. On February 19, 1973, Tolona reached plaintiff Fabbrini Family Foods. In response to Tolona’s call, Fabbrini stopped shipments of pizzas with mushrooms, picked up pizzas already shipped, and eventually buried the recalled pizzas. The total number of pizzas buried was 29,188.

Further evidence was presented showing that third-party defendant Solbern Corp. had manufactured the mechanical filler used by United Canning to fill its No. 10 cans with mushrooms. The Solbern filler packed mushrooms more tightly into the cans than the previous hand filling process used by United Canning. A longer cooking time would then have been required (but was not used by United Canning) to destroy the Clostridium botulinum spores.

The jury returned a verdict of $211,000 in Fabbrini’s favor against all three defendants. The jury found for Tolona on its third-party claim against Solbern, but found no cause of action on United Canning’s complaint against Solbern. Following denials of their motions for judgment notwithstanding the verdict and for a new trial, United Canning, Tolona, and Solbern now appeal as of right.

Claims of United Canning and Tolona

The major issues raised on appeal by United Canning relate to the sufficiency of evidence of Fabbrini’s damages, the jury’s rejection of United Canning’s indemnification claim against Solbern, and the trial court’s severence of claims by United Canning against Solbern for damages relating to United Canning customers other than Fabbrini.

First, as to damages, United Canning argues that Fabbrini failed to show any loss of profits from the voluntary recall, and that in fact Fabbrini’s business picked up thereafter.

The issue of lost profits is one of "sufficiency of proof’. Fera v Village Plaza, Inc, 396 Mich 639, 643; 242 NW2d 372 (1976). In the instant case, Mario Fabbrini testified that 80-85% of the pizzas sold before the recall contained mushrooms. After the recall this dropped to 10%. The percentage of gross profit also dropped from 32.89% in 1972 to 19.4% for the last seven months of 1975. According to Fabbrini witnesses, this was because other higher cost items had to be substituted for mushroom pizzas in Fabbrini’s product mix, and the cost of pizzas had to be lowered in order to make them sell. In addition, Fabbrini’s accountant testified that the corporation’s share of the market dropped from 85% to 55% as a result of the recall. In his opinion, the total amount of lost profits was $345,384. Finally, two Fabbrini customers gave testimony that they were unable to retail Fabbrini mushroom pizzas after the botulism scare.

Unlike the situation in Fera, supra, defendants in the instant case offered no witnesses to refute the testimony of plaintiff’s witnesses. Defendants had the opportunity to and did cross-examine plaintiff’s witnesses extensively. The trial court instructed the jury that damages could not be awarded on the basis of guess, speculation, or conjecture. It was for the jury to weigh the evidence and determine the credibility of the witnesses. This Court will not interfere with their judgment on appeal, given that some evidence of damages, including lost profits, was presented. Fera, supra, The Vogue v Shopping Centers, Inc (After Remand), 402 Mich 546, 551-552; 266 NW2d 148 (1978).

We also find no error in the court’s instructions that lost profits could be awarded on a breach of warranty claim. Fera, supra, Uganski v Little Giant Crane & Shovel, Inc, 35 Mich App 88, 110; 192 NW2d 580 (1971).

Another claim of United Canning is that Fabbrini failed to show any "defect” in the mushrooms supplied, or any causal connection between the "voluntary” mushroom recall and the damages suffered. These contentions are without merit. There was evidence that Fabbrini had recalled cans of mushrooms from a code series believed at the time of the recall to contain botulism, rendering them defective for resale to the public. It was not until February 21, 1973, that it was determined that the mice fed Fabbrini pizzas died from peritonitis and not botulism; meanwhile, had Fabbrini not recalled the pizzas, a serious public health hazard could have existed if botulism had been present. The state veterinarian testified that Fabbrini really had no other reasonable choice than to recall the pizzas. In addition, before Fabbrini’s decision was implemented, FDA representatives threatened to inform Fabbrini’s customers to put the pizzas aside for Fabbrini to pick them up, and radio stations were advising the public that Fabbrini’s Alpena company was involved in a botulism recall. With these facts on the record, the questions of cause in fact and proximate cause were for the jury.

United Canning’s second major argument relates to indemnification. It is in effect a claim that there was insufficient evidence of negligence on the part of United Canning.

One who seeks indemnification must be free from personal fault. Minster Machine Co v Diamond Stamping Co, 72 Mich App 58, 62; 248 NW2d 676 (1976). In the case at bar, clearly United Canning had a duty to can mushrooms that were free from botulism. There was testimony that while United Canning filled its No. 10 mushroom cans with water from the top, other companies using the Solbern filler had a pipe going down to the bottoms of the cans, which mixed the water with the brine. In addition, the senior microbiologist from the American Can Company stated that United Canning did not always invert the cans before putting them in the retort. Witness Vecchione from United Canning testified that he had made no inquiry of other users of the Solbern filler to see how they put the water into the cans, and had made no request for new heat penetration tests from the American Can Co. or the National Canners Association. Vecchione was well aware of the properties of mushrooms; in fact, he could see the settling and packing down of mushrooms in No. 10 cans filled by the Solbern filler.

The above was certainly some evidence from which the jury could find negligence on the part of United Canning. The fact that United Canning relied upon National Canners Association 1966 heat penetration tests in fixing its cooking times and temperatures is not determinative. As stated in Moning v Alfono, 400 Mich 425, 457; 254 NW2d 759 (1977):

" 'The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard [of reasonably prudent conduct] has been met. Such usage cannot, however, be determinative of the standard. As stated by Justice Holmes:
"' "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” Texas & P R Co v Behymer, 189 US 468, 470; 23 S Ct 622; 47 L Ed 905 (1903).’ Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369-370; 189 NW2d 208 (1971).”

The third main issue raised by United Canning relates to the trial court’s severance from the major case involving Fabbrini that part of United Canning’s third-party complaint for damages arising from injuries to United Canning’s other customers. GCR 1963, 505.2 provides:

"The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”

The granting or denial of separate trials rests in the sound discretion of the trial court, Vormelker v Oleksinski, 32 Mich App 498, 501; 189 NW2d 135 (1971), lv den 385 Mich 771 (1971), however, the power of severance should be exercised sparingly. Osgerby v Tuscola Circuit Judge, 373 Mich 237, 241; 128 NW2d 351 (1964). In the instant case, the trial court originally agreed with Solbern that trying all damage claims together would be too complex and would confuse the jury. Eleven days into the trial, the court reconsidered its ruling, noting that the attorneys’ presentations had been extremely clear and understandable. After further arguments, however, the court concluded that the original decision to sever remained reasonable and in the interests of justice.

We find no abuse of discretion. The case was quite long and the issues complex. In addition, Fabbrini objected to trying all damage claims together. The trial court’s instructions did not preclude the jury from finding any damage to United Canning; the court explained clearly that if damages were awarded to Fabbrini against Tolona and/or United Canning, that would constitute damages to the indemnitees on the Solbern claim. There was no error.

In related issues United Canning argues that the jury verdicts were reversibly inconsistent and that the court gave erroneous instructions. We disagree. The jury verdicts can be explained as follows: 1) on Fabbrini’s claims the jury found negligence and possibly also breach of warranty as to United Canning, but breach of warranty only as to Solbern and Tolona, 2) on United Canning’s and Tolona’s third-party complaint, the jury indemnified Tolona because it found no negligence, but refused to indemnify United Canning because United Canning was found negligent.

We also find no error in the trial court’s instruction that Solbern had no duty to warn United Canning of the operating characteristics of the Solbern filler if United Canning knew or should have known of such characteristics. United Canning has cited no Michigan law supporting its argument that this instruction was erroneous, and this Court is not required to search for such authority. See Megge v Lumbermens Mutual Casualty Co, 45 Mich App 119, 121; 206 NW2d 245 (1973).

Claims of Solbern

Solbern’s main arguments on appeal concern the trial court’s denial of Solbern’s motions for directed verdict.

In an amended complaint filed May 2, 1974, Fabbrini stated that it would "rely on and adopt the proofs of the other parties” as to Solbern’s liability. In opening argument, counsel for Fabbrini told the jury that Fabbrini knew nothing about the third-party complaint against Solbern. However, counsel continued, if United Canning proved Solbern’s responsibility, Solbern would be liable for whatever damages were assessed in Fabbrini’s favor. No objections were made to these remarks or to the amended complaint.

Fabbrini then presented its case. At the close of Fabbrini’s proofs, Solbern moved for a directed verdict on the ground that no evidence of Solbern’s liability had been introduced. The trial court agreed, but took the motion under advisement and stated an intention to grant the motion unless some evidence against Solbern developed during the course of the trial.

United Canning and Tolona then presented their proofs and Solbern its defense. After all parties rested, Fabbrini moved to reopen its case and adopt the testimony of United Canning and Tolona against Solbern. The court granted this motion. The court stated that the matter was a discretionary one pursuant to GCR 1963, 509.3, and that there would be no prejudice to Solbern.

GCR 1963, 509.3 provides:

"When certain of the issues are to be tried by jury and others by the court, or where a number of claims, cross-claims, defenses, counterclaims, or third-party claims involve a common issue, the court shall determine the sequence in which such issues are to be tried, preserving at all times the constitutional right to trial by jury according to the basic nature of every issue to which a demand for jury as provided by Rule 508 has been served and filed.”

We are not certain of the applicability of the above rule to the case at bar. Rule 509.3 seems to be designed mainly to deal with problems of legal versus equitable issues present in the same case. See Authors’ Comments, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 445-446.

Nevertheless, the trial court’s ruling may be sustained on the basis of GCR 1963, 507.2, which provides that ''[ujnless otherwise ordered by the court, the plaintiff shall first present the evidence in support of his case” (emphasis added). The court’s ruling also finds support in the case law. The order of admitting proofs is a matter which rests within the sound discretion of the trial court. Coburn v Goldberg, 326 Mich 280, 285; 40 NW2d 150 (1949). The reopening of proofs upon motion of the plaintiff is also discretionary. Helmer v Dear-born National Ins Co, 319 Mich 696, 698-699; 30 NW2d 399 (1948), Rucker v Wyandotte Savings Bank, 6 Mich App 195; 148 NW2d 532 (1967). We find no abuse of discretion here, especially since Fabbrini’s amended complaint and opening statement must have alerted Solbern to the likelihood of a change in the order of proofs.

Next, Solbern assigns as error the court’s denial of its motion for directed verdict at the close of all proofs. Solbern argues that there was no evidence of a defect in the mechanical filler — it worked properly and did exactly what it was supposed to do. In addition, Solbern claims that, as a matter of law, it had no duty to warn United Canning of the operating characteristics of the filler, as these characteristics were or should have been obvious to United Canning.

We note initially the standard to be applied in reviewing the denial of a directed verdict:

"The standard of appellate review in measuring the granting of directed verdicts for defendants in product liability cases is whether, taking the evidence in a light favorable to plaintiff, a prima facie case of liability is established. If so, a motion for directed verdict should be denied. Only when all reasonable men would agree to facts which preclude liability, should a directed verdict be granted for defendant.” (Footnote omitted.) Blanchard v Monical Machinery Co, 84 Mich App 279, 282; 269 NW2d 564 (1978).

It is clear that manufacturers have a duty to "provide adequate warnings to potential users of their products of the latent risks of injury created by their selection of product design”. Owens v Allis-Chalmers Corp, 83 Mich App 74, 81; 268 NW2d 291 (1978). The adequacy of a warning is a question for the trier of fact. Owens, supra. The manufacturer’s duty also extends to designing and manufacturing a product to eliminate unreasonable risks of foreseeable injury. A "defect” can be shown if the product is not reasonably fit for its intended, anticipated, or reasonably foreseeable use. Elsasser v American Motors Corp, 81 Mich App 379, 384; 265 NW2d 339 (1978).

The design of the Solbern filler was apparently such that use of it to pack mushrooms without modification of other canning processes created a latent risk of injury. There was evidence that the vibrating action of the filler caused mushrooms to mat and pack down. Witness Eisenberg of Solbern testified that when he first heard of the botulism problem, his immediate response was to ask how the water was put into the cans and mixed with the brine. If, through Eisenberg, Solbern had enough knowledge of the canning process of United Canning to instantly perceive how other processes on the line interacted with the filler, we think that a question of fact was present regarding Solbern’s duty to warn a user that such interaction would affect the end product. Thus, the trial court did not err in refusing to take the issue of Solbern’s liability from the jury.

We have considered the other issues raised by the parties and have found them to be without merit. Having found no reversible error, we affirm the judgment of the trial court.

Affirmed.

       No. 10 cans are large cans used primarly by restaurants, food companies, and other institutional users.

       Since Tolona has adopted the arguments of United Canning on appeal, our discussion will be phrased in terms of issues raised by United Canning, but will in many instances apply also to Tolona.


text:
    RIVERS v FORD MOTOR COMPANY
    Docket No. 77-2686.
    Submitted February 5, 1979, at Detroit.
    Decided April 18, 1979.
    Plaintiff, Mary R. Rivers, while employed as a press operator for the Regal Stamping Company, suffered the traumatic amputation of three fingers on her left hand. Plaintiff brought an action against Ford Motor Company, the owner of the dies used in the press, for damages for personal injuries, alleging that Ford had breached its duties to her by allowing Regal to use unguarded dies. Judgment of no cause of action in favor of defendant, Wayne Circuit Court, Thomas J. Brennan, J. The plaintiff appeals alleging that the trial court erred 1) in instructing the jury on plaintiff’s contributory negligence, 2) in failing to give the plaintiff’s requested instruction on comparative negligence and 3) in instructing the jury on intervening negligence. Held:

    1. Contributory negligence is not a defense when a defendant breaches a common-law duty to provide safety equipment and this breach is the cause in fact of a plaintiff’s injury. In the instant case, the defendant had provided safety equipment which had been removed by Regal. However, Regal had provided the plaintiff with a different safety device which she failed to use. This failure of the plaintiff to use the safety equipment provided was the cause in fact of the accident. The instruction on the plaintiff’s contributory negligence was proper.
    2. Recent case precedent which replaced the doctrine of contributory negligence with that of comparative negligence was given limited retroactive effect. The case at bar fits the Supreme Court guidelines for retroactive application of the new doctrine. The failure to give an instruction on comparative negligence requires that this case be reversed and the matter remanded for a new trial.
    3. In light of the fact that the plaintiff introduced no evidence which would have shown that Ford could have reasonably foreseen that Regal would remove the safety equipment provided, the court did not commit reversible error in not instructing the jury that intervening negligence of a third party is not a superseding cause which would defeat Ford’s liability if Ford could have reasonably foreseen the intervening negligence. If the plaintiff, on retrial, can offer evidence that the defendant should have reasonably foreseen Regal’s removal of the safety equipment provided by defendant, the Standard Jury Instruction on intervening negligence should be supplemented.

      References For Points in Headnotes

       57 Am Jur 2d, Negligence §§ 303, 304, 314.

       57 Am Jur 2d, Negligence § 426 et seq.

       57 Am Jur 2d, Negligence §§ 8, 76, 199 et seq.

      Reversed and remanded.
    1. Negligence — Master and Servant — Contributory Negligence — Safety Equipment — Common-Law Duty.
    Contributory negligence is not a defense in an action for damages based on a breach of the common-law duty to provide safety equipment where this breach is the cause in fact of a plaintiff’s injuries.
    2. Negligence — Contributory Negligence — Comparative Negligence — Case Precedent — Limited Retroactive Effect.
    The Supreme Court has replaced the doctrine of contributory negligence with that of comparative negligence; the Court gave this new doctrine limited retroactive effect, holding that it is applicable "to any case presently [February 8, 1979] pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal”.
    3. Negligence — Instructions to Jury — Intervening Negligence — Foreseeability.
    A supplemental instruction to inform the jury in a negligence action that intervening negligence is not a superseding cause which would defeat a defendant’s liability if the defendant could have reasonably foreseen the intervening negligence should be given where the plaintiff offers evidence that the defendant should have foreseen the intervening negligence.

      Philo, Atkinson, Darling, Steinberg & Harper, for plaintiff.

      Dickinson, Wright, McKean, Cudlip & Moon (by John E. S. Scott and John A. Stevens), for defendant.

      Before: Danhof, C.J., and Bronson and Beasley, JJ.
   Per Curiam.

Plaintiff appeals as of right a judgment in favor of defendant Ford Motor Company pursuant to a jury verdict of no cause of action on plaintiff’s complaint.

On October 17, 1972, while employed as a press operator for the Regal Stamping Company in Detroit, Michigan, plaintiff Mary Rivers suffered the traumatic amputation of three fingers of her left hand. The injury occurred when plaintiff’s hand was in the die space of the press. Although Ford had originally outfitted the die with "kickers” that would automatically eject parts from the press, these had been removed by Regal. The dies were not "guarded” in any other fashion to prevent press operators from placing their hands in the die space, although Ford offered evidence that Rivers had been supplied with tongs by Regal to insert and remove parts from the press, and had been repeatedly told to use them.

Plaintiff then commenced this personal injury action against Ford Motor Company alleging that the defendant Ford Motor Company had violated its duties to the plaintiff by allowing the unguarded dies to be used by Regal.

First, relying on Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), plaintiff claims that the trial court erred in instructing the jury on plaintiff’s contributory negligence. Funk held that contributory negligence is not a defense when defendant breaches a common-law duty to provide safety equipment and this breach is the cause in fact of plaintiff’s injury. In the present case defendant did install safety equipment on the dies, namely the kickers, and thus the first part of the Funk test is not satisfied. Furthermore, plaintiff was provided with safety tongs which she failed to use, and if she had used them, the accident would not have occurred. Therefore, the cause in fact of the accident was not the failure to provide safety equipment, but plaintiff’s failure to use the safety equipment provided. The rule announced in Funk is thus not applicable. Tulkku v Mackworth Rees, Division of Avis Industries Inc, 76 Mich App 472; 257 NW2d 128 (1977), lv gtd 402 Mich 928 (1978).

Although the rule announced in Funk is not applicable and plaintiff’s negligence is a relevant consideration in determining defendant’s liability, the Michigan Supreme Court in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), replaced the doctrine of contributory negligence with that of comparative negligence. The Court gave this new doctrine limited retroactive effect, holding that it is applicable "to any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal”. Placek at 667. In the present case, plaintiff objected at trial to the instruction on contributory negligence and submitted to the trial court an alternate instruction on comparative negligence. On appeal the plaintiff labeled as error the trial court’s failure to give the instruction on comparative negligence. The issue was therefore preserved for appeal and the case must be reversed for a new trial.

Plaintiff next contends that the trial court erred in instructing the jury on intervening negligence. The instruction given was virtually identical to SJI 15.05. Plaintiff claims, however, that the standard jury instruction is not accurate because it does not inform the jury that the intervening negligence is not a superseding cause which would defeat defendant’s liability if defendant could have reasonably foreseen the intervening negligence. Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), 2 Restatement Torts, 2d, § 447, p 478. Plaintiffs point may have been well taken except that plaintiff indicates no evidence introduced below which would have shown that Ford could have reasonably foreseen that Regal would remove the kickers which Ford had installed on the dies. This being the case, the supplemental instruction which plaintiff now advocates was not applicable to the case and the trial court’s failure to give it was not reversible error. However, if upon retrial, the plaintiff can offer evidence that defendant should have reasonably foreseen Regal’s action, SJI 15.05 should be supplemented to correspond to the Supreme Court’s opinion in Comstock.

Finally, plaintiff alleges that numerous other instructions given by the trial court were erroneous. These instructions were not objected to at trial and therefore the alleged errors were not preserved for appellate review. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). If upon retrial these issues are brought to the attention of the trial judge, he can make whatever rulings are appropriate and perhaps even find solutions that are satisfactory to both parties. This being the case, we see no reason to anticipate plaintiffs objections and the trial court’s rulings and decide the issues now. Therefore, we express no opinion on the merits of the other issues raised by plaintiff.

Reversed and remanded.