author: V. J. Brennan, P. J.

text:
    LeBLOND v ALL RIGHT AUTO PARTS, INC.
    1. Workmen’s Compensation — Bankruptcy—Officers’ and Directors’ Liability — Statutes.
    Generally a workmen’s compensation claim may be discharged in bankruptcy, though in Michigan the officers and directors of a bankrupt corporation may be found liable for that portion of a claim which remains unsatisfied after execution against the corporation (11 USCA 22[b], 103[a], MCLA 418.647; MSA 17.237[647]).
    2. Workmen’s Compensation — Enforcement of Awards — Statutes.
    The Worker’s Disability Compensation Act provides for prompt enforcement of awards through the expeditious entry of judgments in the circuit courts (MCLA 418.863; MSA 17.237[863]).
    3. Workmen’s Compensation — Bankrupt Corporation — Officers’ and Directors’ Liability — Modification of Award.
    A plaintiff injured worker who has received a workmen’s compensation award against a bankrupt corporation may properly seek entry of a judgment in circuit court on his award against the officers and directors of the corporation prior to any execution of the award against the bankrupt corporation; however, the award should be modified by the circuit court to provide for the possibility of recovery from the bankrupt corporation.
    4. Workmen’s Compensation — Bankrupt Corporation — Judgment —Modification of Award — Waiver.
    A plaintiff injured worker who has received a workmen’s compensation award against a bankrupt corporation may receive a judgment on the award against the officers and directors of the corporation; the award should be reduced by the amount of the officers’ and directors’ provable share of the distributable assets possessed by the corporation; where such a plaintiff fails to assert his claim in the bankruptcy proceeding he waives his right to the funds of the bankrupt corporation.

      References for Points in Headnotes

       9 Am Jur 2d, Bankruptcy §§ 414, 779.
    82 Am Jur 2d, Workmen’s Compensation § 652.

       82 Am Jur 2d, Workmen’s Compensation § 572 et seq.

       9 Am Jur 2d, Bankruptcy §§ 414, 415, 552, 779.

      Appeal from Oakland, William J. Beer, J.
    Submitted January 4, 1978, at Lansing.
    (Docket No. 77-2703.)
    Decided February 23, 1978.
    Complaint by Larry J. LeBlond against All Right Auto Parts, Inc., Charles Schick, Douglas [sabelle and James Isabelle for enforcement of an award of workmen’s compensation benefits. Judgment for defendants. Plaintiff appeals.
    Reversed and remanded.

      Frank R. Langton & Associates, P. C. (by David W. Martin), for plaintiff.

      Charles E. Maloney, P. C, for defendants.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

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

   V. J. Brennan, P. J.

On May 20, 1977, Oakland County Circuit Judge William J. Beer dismissed plaintiff’s complaint against the defendants for enforcement of an award obtained by plaintiff against defendants from the Workmen’s Compensation Appeal Board. On June 8, 1977, Judge Beer dismissed plaintiff’s motion for rehearing. Plaintiff now appeals as of right. GCR 1963, 806.1.

Plaintiff suffered a broken leg while in the employ of defendant All Right Auto Parts [hereafter All Right]. He filed for workmen’s compensation and because he was an illegally employed minor was awarded double compensation, $96 per week, on June 7, 1974. The referee closed plaintiff’s award as of the final date of the hearing. On December. 16, 1974, the Workmen’s Compensation Appeal Board modified the award in plaintiff’s favor, ordering benefits to run through the date of the hearing and until further order.

Defendant All Right did not carry workmen’s compensation insurance. On October 4, 1974, defendant All Right filed for bankruptcy in the United States District Court for the Eastern District of Michigan. All Right was discharged from bankruptcy on February 13, 1975. Plaintiff filed no claim in the bankruptcy proceedings. Defendant had total assets of $3,383.99 on July 14, 1975, available for distribution to creditors.

On appeal, plaintiff argues the trial court erred by failing to enforce a worker’s compensation award against the individual officers and directors of defendant corporation which failed to carry workmen’s compensation insurance when the corporation filed for bankruptcy and the plaintiff failed to prove a claim in the bankruptcy proceedings.

At stake here is an interpretation of MCLA 418.647; MSA 17.237(647), which states that:

"If compensation is awarded under the provisions of this act against any employer who at the time of the injury has not complied with the provisions of section 611, [requiring employers to provide workmen’s compensation coverage] the employer shall not be entitled as to any judgment entered upon the award, to any of the exemptions of property from seizure and sale on execution allowed by statute. If the employer is a corporation, the officers and directors thereof shall be individually and jointly and severally liable for any portion of any such judgment as is returned unsatisfied after execution against the corporation.”

In essence, plaintiff argues that the statute should not bar recovery when the injured worker’s claim exceeds the assets available for distribution from a corporation in bankruptcy, even though the worker fails to make a claim against the corporation in the bankruptcy proceeding. This claim bears consideration.

Workmen’s compensation claims may be discharged in bankruptcy except where state law provides otherwise. See 11 USCA 22(b), 11 USCA 103(a), (c). In Michigan, we permit the assertion of such a claim against officers and directors of the corporation for the portion of the claim unsatisfied after execution against the corporation. MCLA 418.647; MSA 17.237(647).

Defendants admit that this provision applies to them. Further, although defendants disagree with the size and duration of plaintiffs workmen’s compensation award, no dispute exists that the award exceeds the $3,383.99 defendant All Right had available for distribution, even if all of defendant’s arguments about the award are accepted.

We recently discussed the procedure a plaintiff should follow under MCLA 418.647; MSA 17.237(647) when execution against a corporate defendant would be useless. We found that "where the officers and directors of a bankrupt corporation are individually and jointly and severally liable for a workmen’s compensation award, due to noncompliance with MCLA 418.611; MSA 17.236(611), a judgment may be entered against them in circuit court pursuant to MCLA 418.647; MSA 17.237(647) for any portion of the award remaining unpaid after the distribution of assets by the trustee in bankruptcy and the closing of the bankrupt estate”. Wyrybkowski v Cobra Pre-Hung Doors, Inc. 66 Mich App 555, 559; 239 NW2d 660 (1976).

In Wyrybkowski, defendant bankrupt corporation had failed to carry workmen’s compensation insurance. Plaintiff successfully petitioned the circuit court for entry of his workmen’s compensation award against the corporation and its officers and directors. He also made a claim in the bankruptcy proceeding and later received a distribution from the trustee in bankruptcy.

On appeal, we held that entry of the judgment prior to the distribution from the estate of the bankrupt was improper, but only because the judgment ignored the possibility that plaintiff might receive funds in the bankruptcy proceeding.

The Court noted that one of the policies of the workmen’s compensation act is to provide prompt enforcement of awards through the expeditious entry of judgments in the circuit courts. Wyrybkowski v Cobra Pre-Hung, supra at 558. See MCLA 418.863; MSA 17.237(863).

Our decision in Wyrybkowski does not require the circuit court to delay entry of a judgment against officers and directors of a bankrupt corporation until the closing of the bankruptcy proceedings. Thus, plaintiff may properly seek entry of a judgment on his workmen’s compensation award against officers and directors prior to any execution of the award against a bankrupt corporate defendant.

This holding comports with the policy behind the workmen’s compensation act of liberal construction in order to protect injured workers. Rodwell v Pro Football, Inc. 45 Mich App 408, 412; 206 NW2d 773 (1973), lv den, 390 Mich 775 (1973), Glick v H A Montgomery Co, 22 Mich App 678, 687; 177 NW2d 724 (1970), lv den, 383 Mich 788 (1970).

In the case at hand, plaintiff failed to prove his claim in the bankruptcy proceedings, unlike the plaintiff in Wyrybkowski. However, according to Wyrybkowski, the statute does not require prior execution of a workmen’s compensation award against a bankrupt corporate defendant before the plaintiff can have his workmen’s compensation award entered against officers and directors, provided that the award is modified to provide for the possibility of recovery from the bankrupt corporate defendant. Wyrybkowski v Cobra Pre-Hung, supra at 559. Thus, the trial court erred in failing to enter plaintiffs award, with appropriate modifications, against defendants.

To hold that plaintiffs failure to appear in the bankruptcy proceeding bars his claim against the officers and directors for the excess of his award over the distributable assets of the bankrupt corporate defendant not only would be contrary to our holding in Wyrybkowski but would defeat the purpose of MCLA 418.647; MSA 17.237(467). Clearly, the statute intends to afford redress to workmen’s compensation plaintiffs against the officers and directors of a corporation which fails to carry workmen’s compensation coverage. Holding against plaintiff in this case would defeat the protective policy of the workmen’s compensation act.

Plaintiffs judgment against the officers and directors should be reduced by the amount of their provable share of the distributable assets possessed by defendant bankrupt corporation. By failing to assert his claim in the bankruptcy proceeding, plaintiff waived his right to the funds of the bankrupt corporation. Consequently, as so modified, we reverse and remand for entry of judgment in plaintiffs favor.

Reversed, as modified.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v MILTON
    1. Appeal and Error — Directed Verdicts — Denial—Evidence.
    A defendant’s motion for a directed verdict of acquittal is properly denied if, viewing the evidence presented by the prosecution in the light most favorable to the prosecution, there is some evidence on which the jury could base a verdict of guilty.
    2. Criminal Law — Evidence—Elements—Material Points — -Sufficiency of Evidence.
    A conviction cannot constitutionally be sustained if there is no evidence on some element of the crime; however, unless there is no evidence at all on a material point, the sufficiency of the evidence is a question that should be left to the jury.
    3. Homicide — First-Degree Murder — Purpose of Causing Death— Conscious Indifference.
    A person must act with the purpose of causing death in order to commit first-degree murder; mere conscious indifference to the likelihood of death as a result of an intentional act is not enough to constitute first-degree murder.
    4. Homicide — First-Degree Murder — Second-Degree Murder — Premeditation — Deliberation—Malice.
    The elements of premeditation and deliberation distinguish first-degree murder from second-degree murder; a failure to define these elements for a jury independently of malice is error because it has the effect of abolishing the difference between first-degree and second-degree murder. 5. Criminal Law — Homicide—Premeditation—Deliberation.

      References for Points in Headnotes

       75 Am Jur 2d, Trial § 553.

       30 Am Jur 2d, Evidence § 1124 et seq.

       40 Am Jur 2d, Homicide §§ 45-52, 569.

       40 Am Jur 2d, Homicide § 501.

       40 Am Jur 2d, Homicide §§ 10, 52, 228.

       40 Am Jur 2d, Homicide § 72 et seq.

       5 Am Jur 2d, Appeal and Error §§ 787, 891-893.

       4 Am Jur 2d, Appeal and Error §§ 533-538.

      To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem.
    6. Homicide — Felony Murder — Essential Prerequisites — Proofs.
    It is essential for conviction under a felony murder theory for the prosecution to prove the underlying felony as well as the murder.
    7. Homicide — First-Degree Murder — Appeal and Error — Premeditated Murder- — Felony Murder — Evidence.
    A first-degree murder conviction must be overturned when the jury is instructed on both premeditated murder and felony murder when the evidence presented at trial is legally insufficient to establish the crime of felony murder.
    8. Criminal Law — Appeal and Error — Instructions to Jury — At-
    torney and Client. The Court of Appeals will reverse a defendant’s conviction in order to prevent manifest injustice where the trial court’s instructions omitted an essential element of the crime for which the defendant was convicted in spite of the fact that defense counsel did not object to the instructions, and successfully prevented them from being given in proper form.
    Appeal from Recorder’s Court of Detroit, James Del Rio, J.
    Submitted January 3, 1978, at Detroit.
    (Docket No. 30774.)
    Decided February 23, 1978.
    Herbert E. Milton was convicted of first-degree murder. Defendant appeals.
    Reversed and remanded.

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

      Carl Ziemba, for defendant on appeal.
    Before: Bashara, P. J., and J. H. Gillis and N. J. Kaufman, JJ.
   Per Curiam.

Defendant was convicted by a jury of first-degree murder, MCLA 750.316; MSA 28.548, in Recorder’s Court for the City of Detroit. He now appeals as of right, raising two allegations of error.

Defendant first contends that the trial court erred in denying his motion for a directed verdict of acquittal. We disagree.

Such a motion is properly denied if, viewing the evidence presented by the prosecution in the light most favorable to the prosecution, there is some evidence on which the jury could base a verdict of guilty. People v Garcia, 398 Mich 250, 256; 247 NW2d 547 (1976), People v DeClerk, 400 Mich 10, 18; 252 NW2d 782 (1977). A conviction cannot constitutionally be sustained if there is no evidence on some element of the crime. Johnson v Florida, 391 US 596, 598; 88 S Ct 1713, 1714-1715; 20 L Ed 2d 838, 840 (1968). However, unless there is no evidence at all on a material point, the sufficiency of the evidence is a question that should be left to the jury. People v Johnson, 397 Mich 686, 687; 246 NW2d 836 (1976).

In the instant matter, there was testimony that the defendant made repeated telephone threats to the decedent, his former girlfriend, after she moved in with another man. In these phone calls defendant referred to himself as a "hit man” and asked the decedent how she was enjoying the rest of her life. The person who shot the decedent could not be positively identified, but the victim made dying declarations implicating the defendant which were overheard by three witnesses. There was sufficient evidence that defendant was guilty of first-degree murder to justify denial of a motion for a directed verdict.

Nevertheless, we are constrained to reverse defendant’s conviction because of flagrant errors in the trial judge’s instructions to the jury.

The trial judge in his charge authorized the jury to convict the defendant of first-degree murder if he "either intended to kill the deceased or that he consciously created a very high degree of risk of death to another with knowledge of its probable consequences”. This is not the law. People v Potter, 5 Mich 1, 8 (1858), People v Scott, 6 Mich 287, 294 (1859), People v Hansen, 368 Mich 344, 351; 118 NW2d 422 (1962), People v Morrin, 31 Mich App 301, 314 n 17; 187 NW2d 434 (1971), lv den, 385 Mich 775 (1971). Mere conscious indifference to the likelihood of death as a result of a person’s intentional act is not enough; to commit first-degree murder, a person must act with the purpose of causing death. People v Garcia, 398 Mich 250, 259; 247 NW2d 547 (1976).

Another fatal flaw in the instructions was their failure to define the elements of premeditation and deliberation. These elements distinguish first-degree murder from second-degree murder. People v Vail, 393 Mich 460, 468; 227 NW2d 535 (1975). Failure to define these elements independently of malice has the effect of abolishing the difference between first-degree murder and second-degree murder. People v Morrin, supra, at 326, People v Hoffmeister, 394 Mich 155, 158; 229 NW2d 305 (1975). "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem”. People v Morrin, supra, at 329, see also, People v Vail, supra, at 468. In the instant case, nothing in the instruction afforded the jury any understanding of these crucial elements of the crime of which they convicted the defendant.

The trial judge’s charge also erroneously interjected an issue of felony murder which was neither encompassed by the information nor warranted by the evidence. The judge read to the jury a truncated version of the felony murder instruction, CJI 16:2:02, although the defendant was not charged with felony murder and there was no evidence that he committed or attempted to commit any of the felonies enumerated in MCLA 750.316; MSA 28.548, upon which a felony murder conviction might be predicated. An essential prerequisite for conviction under a felony murder theory is proof of the underlying felony as well as proof of the murder. People v Allen, 39 Mich App 483, 503; 197 NW2d 874 (1972), (Levin, P. J., dissenting), adopted by the Supreme Court, 390 Mich 383; 212 NW2d 21 (1973), People v Olsson, 56 Mich App 500, 504; 224 NW2d 691 (1974), lv den, 394 Mich 772 (1975), People v Skowronski, 61 Mich App 71, 75; 232 NW2d 306 (1975).

A first-degree murder conviction must be overturned when the jury is instructed on both premeditated murder and felony murder when the evidence presented at trial is legally insufficient to establish the crime of felony murder. People v Gilbert, 55 Mich App 168, 173-174; 222 NW2d 305 (1974), lv den, 393 Mich 774 (1974).

It should be noted that the prosecutor, Thomas Ziolkowski, attempted to cure part of the defective instructions at trial in an effort to insure that the jury was properly instructed on first-degree murder and to see that defendant received a fair trial.

However, the trial judge refused to amend his erroneous instructions when defense counsel stated that he was satisfied with the instructions, and would object if they were changed.

It would appear that defense counsel was deliberately trying to inject error into the trial in order to insure reversal on appeal should the jury return a verdict adverse to the defendant.

However, in spite of the fact that defense counsel did not object to the instructions and successfully prevented them from being given in proper form, we are required to reverse defendant’s conviction in order to prevent manifest injustice. See People v Townes, 391 Mich 578, 585-587; 218 NW2d 136 (1974), People v Lenkevich, 394 Mich 117, 122-124; 229 NW2d 298 (1975), People v Williams, 75 Mich App 53, 55; 254 NW2d 649 (1977), People v Joeseype Johnson, 75 Mich App 337, 341; 254 NW2d 667 (1977), People v Peoples, 75 Mich App 616, 620; 255 NW2d 707 (1977).

Reversed and remanded for a new trial.

       "The Court: Are you satisfied with the instructions given by the Court?
      "Mr. Henry [defense counsel]: The defense is satisfied.

        "Mr. Ziolkowski [assistant prosecutor]: I hate to bring it up, but again the instruction on premeditation and deliberation. It’s my understanding of the law that you should give an instruction on premeditation and deliberation. Define both.
      "The Court: All right. Are you satisfied with the instructions?
      "Mr. Henry: The defense is satisfied, your Honor.
      "Mr. Ziolkowski: Your Honor, may I offer this to the court. I have a short paragraph here—
      "The Court: Well, we will look at it. Let Mr. Henry see it.
      "One of the reasons that I didn’t consider that was that the book sent to us by the Supreme Court cautioned us not to use for example a definition of malice when we have a murder second degree or included offense included in our instructions. I don’t think premeditation or deliberation would be of any value, but I am willing to do whatever you and counsel agree on.
      "Mr. Henry: I think they understand the words deliberation, premeditation. Those are clear words. As the Court has indicated, the Supreme Court has laid down the guidelines of what should be said with the included offense. I can’t see why we should run any risk on that. I frankly am satisfied with the charge as given.
      "The Court: Well, do you object to it, counsel?
      "Mr. Henry: I would object to giving that.
      "The Court: Very well. We will leave it as it is, gentlemen.”


author: Per Curiam. J. H. Gillis, J.

text:
    TURNER v FORD MOTOR COMPANY
    Opinion of the Court
    1. Limitation of Actions — Borrowing Statute — Claims Accruing Outside the State — Statutes.
    Michigan’s borrowing statute provides in part that the period of limitation applicable to a claim accruing outside of the state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever bars the claim; therefore, a products liability claim for' personal injury which accrued in the state of Georgia, which has a two-year limitation period, would be barred in Michigan courts where the action was commenced after the two-year period had run, even though the action was started within Michigan’s three-year limitation period for such actions (MCLA 600.5861[2]; MSA 27A.5861[2]).
    2. Limitation of Actions — Borrowing Statute — Loss of Consortium — Derivative Claim.
    An action for loss of consortium which is derivative of a products liability personal injury action which accrued in Georgia is not barred in Michigan courts where the action was commenced within the four-year limitation period provided by Georgia law for such actions and within Michigan’s three-year limitation period; there is no inconsistency in barring a wife’s personal injury claim as untimely while allowing the husband’s claim for loss of consortium if the claims are subject to different limitation periods.

      References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions §§ 201, 306.
    Construction, application, and effect, with reference to statutory causes of action, of statute of forum which admits bar of statute of limitations of other state. 67 ALR2d 216.

       73 Am Jur 2d, Statutes § 186 et seq.

       61 Am Jur 2d, Pleadings §§ 12-14.

       16 Am Jur 2d, Conflict of Laws § 11.
    Place of tort: what is place of tort causing personal injury or resultant damage, for purpose of principle of conflict of laws that law of place of tort governs. 77 ALR2d 1266.
    Products Liability: what law governs liability of manufacturer or seller for property damage caused by product sold. 76 ALR2d 130.

       5 Am Jur 2d, Appeal and Error § 545.

      3. Statutes — Presumption Against Nullity.
    A statute should not be presumed to be a nullity; if reasonably possible, every part should be given effect.
    4. Pleading — Foreign Jurisdictions — Raising Issues — Statutes— Notice — Statutes of Limitation.
    A party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside of Michigan should give notice in his pleadings or other reasonable written notice; this requirement was sufficiently complied with by a defendant seeking an accelerated judgment based on a Georgia statute of limitations which barred the plaintiffs’ claim where the defendant in its brief in support of its motion for accelerated judgment cited the proper Georgia statute as the statute which barred the plaintiffs’ claim; there was no need to supply the full text of the statute to the court or to the plaintiffs because the statute was readily accessible and there was no demand before the trial court for a fuller showing (MCLA 600.2114a; MSA 27A.2114[1]).
    5. Torts — Right of Action — Lex Loci Delicti — Substantive Law— Significant Contacts — Case Precedent.
    Michigan courts have consistently held that the substantive law to be applied in a torts case is the law of the place where the tort occurred; the Court of Appeals is bound to follow a Supreme Court decision which expressly rejected the "significant contacts” approach unless the Court of Appeals is convinced by overwhelming evidence that the Supreme Court would overrule that decision today.
    Dissent by J. H. Gillis, J.
    6. Appeal and Error — Issues Not Raised in Lower Court.

      Generally, a claim may not be reviewed for the ñrst time on appeal where it was not the subject of a ruling of the court below.

    Appeal from Wayne, Myron H. Wahls, J.
    Submitted December 6, 1977, at Detroit.
    (Docket No. 30855.)
    Decided February 23, 1978.

      Complaint by Velma A. Turner and Edgar R. Turner, Jr., against Ford Motor Company for damages for personal injuries suffered by Velma Turner caused by a defective automobile and for Edgar Turner’s loss of consortium. Accelerated judgment for defendant. Plaintiffs appeal.
    Affirmed in part, reversed in part, and remanded.

      Denenberg, Tuiftey & Thorpe (by James A. Thorpe and Robert J. Bugge), for plaintiffs.

      Seavitt, Westcott, Miller, Stowe & Magnuson (by Thomas L. Misuraca), for defendant.
    Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   Per Curiam.

This is an appeal from an order granting accelerated judgment in favor of defendant Ford Motor Company in a products liability case. Plaintiffs’ complaint alleged that plaintiff Velma Turner was injured on February 12, 1972, in Unadilla, Georgia, when an automobile in which she was a passenger collided with a concrete abutment after its left rear wheel became detached from the vehicle. The automobile was allegedly designed, manufactured and assembled by defendant, and plaintiffs alleged that the accident was caused by various defects in the design, manufacture, and assembly of the vehicle. In addition to Mrs. Turner’s injuries, Mr. Turner’s loss of consortium was claimed as part of plaintiffs’ losses and damages resulting from the incident. The Turners’ theories of the case were negligence, breach of implied warranties, strict liability in tort, and wilful and wanton misconduct. The trial judge granted accelerated judgment as to all claims for the reason that they were barred by the statute of limitations. We affirm his order with respect to Velma Turner’s allegations of personal injury but reverse with respect to Edgar Turner’s allegation of loss of consortium.

The accident allegedly occurred on February 12, 1972, and suit was filed on February 10, 1975— more than two years but less than three years later. The Michigan borrowing statute, MCLA 600.5861(2); MSA 27A.5861(2) provides in part:

"The period of limitation applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where , the claim accrued or by the law of this state, whichever bars the claim.”

Since this case involves product liability claims against a manufacturer for personal injury, Velma Turner’s claims accrued in Georgia on February 12, 1972. Parish v B F Goodrich Co, 395 Mich 271; 235 NW2d 570 (1975). Under Michigan law, the limitations period applicable to personal injury claims like these is three years. MCLA 600.5805; MSA 27A.5805. Under the law of Georgia, the state where the claim accrued, the general personal injury limitations period is two years. Ga Code Ann § 3-1004. Since the Georgia limitations period would bar the claim, under the borrowing statute the claim is barred in our courts as well. Hill v Clark Equipment Co, 42 Mich App 405; 202 NW2d 530 (1972), lv denied, 388 Mich 801 (1972), Shamie v Shamie, 45 Mich App 384; 206 NW2d 463 (1973).

However, Georgia provides for a four-year limitations period for "actions for injuries to the person involving loss of consortium”. Ga Code Ann § 3-1004. With respect to Edgar Turner’s claim of loss of consortium, the shorter of the Georgia and Michigan limitations periods is the three-year Michigan limit, in which case this claim is not barred. Under Georgia law, a spouse may maintain an action for loss of consortium even if the other spouse’s personal injury claims based on the same accident are time-barred. Central of Georgia R Co v Harbin, 132 Ga App 65; 207 SE2d 597 (1974). The cases relied upon by defendant are distinguishable from the instant case because they involved inconsistent verdicts on the merits where one spouse brought an action for personal injury and the other brought a derivative action for loss of consortium. See Stone Mountain Memorial Association v Herrington, 225 Ga 746; 171 SE2d 521 (1969), Smith v Tri-State Culvert Manufacturing Co, Inc, 126 Ga App 508; 191 SE2d 92 (1972). But there is no inconsistency in barring a wife’s personal injury claim as untimely while allowing the husband’s claim for loss of consortium if the claims are subject to different limitations periods. The Georgia Legislature has provided for a two-year limit on most personal injury claims but a four-year limit on such claims involving loss of consortium. The only inconsistency is the work of the Georgia Legislature. Any other interpretation would reduce the longer loss-of-consortium limitations period to a nullity, since a claim of loss of consortium presupposes an originally valid personal injury claim by the other spouse and the latter claim is subject to a two-year limitations period. A statute should not be presumed to be a nullity; if reasonably possible, every part should be given effect. Stowers v Wolodzko, 386 Mich 119, 133-134; 191 NW2d 355 (1971), Peters v Department of State Highways, 66 Mich App 560, 563; 239 NW2d 662 (1976), 2A Sutherland, Statutory Construction (4d ed, 1973), § 46.06, p 63. The way to effectuate every part of Ga Code Ann § 3-1004 is to allow a loss-of-consortium claim even if the underlying claims of the injured spouse are barred by a shorter limitations period. Central of Georgia R Co v Harbin, supra. Otherwise the four-year limit on loss-of-consortium claims would be illusory.

Defendant urges us not to enforce the Georgia limitation period in consortium cases because it is against the public policy of Michigan. It is contended that Michigan’s policy is to apply the same statute of limitations to all claims arising from a single tortious transaction. Assuming that to be true, it merely shows that Georgia law is different, not that its enforcement would violate public policy. We see nothing immoral, unjust to, or inconsistent with the interests of our citizens in applying this statute of limitations. Rick v Saginaw Bay Towing Co, 132 Mich 237, 240; 93 NW 632; 102 Am St 422 (1903), Eskovitz v Berger, 276 Mich 536; 268 NW 883 (1936), Lieberthal v Glens Falls Indemnity Co of Glens Falls, New York, 316 Mich 37, 42; 24 NW2d 547 (1946), Growe v Growe, 2 Mich App 25, 32-33; 138 NW2d 537 (1965), lv denied, 377 Mich 708 (1966), 1 Restatement, Conflict of Laws, 2d, § 90, p 267.

Plaintiffs also argue that the defendant improperly pleaded and proved the foreign statute on which it relied. MCLA 600.2114a; MSA 27A.2114(1) provides in pertinent part:

"A party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this state shall give notice in his pleadings or other reasonable written notice.”

In its brief in support of the motion for accelerated judgment, the defendant cited Ga Code Ann § 3-1004 as the statute of limitations which barred the plaintiffs’ claims. We reject plaintiffs’ contention that defendant was obliged to furnish the full text of the statute to the court or to them. We note that there was no demand for a fuller showing before the trial court. Since the statute is readily accessible, citation to it in the supporting brief was sufficient notice under the statute.

Finally, we are constrained to reject plaintiffs’ proposal to replace the lex loci delicti choice-of-law principle with the "significant contacts” approach employed in many other jurisdictions. Our courts have repeatedly held that the substantive law to be applied in a torts case is the law of the place where the tort occurred. Kaiser v North, 292 Mich 49; 289 NW 325 (1939), Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969), Sweeney v Sweeney, 71 Mich App 428; 248 NW2d 571 (1976). We are bound to follow the Abendschein decision, where a unanimous Supreme Court criticized and expressly rejected the "significant contacts” approach, unless we are convinced by overwhelming evidence that the Supreme Court would overrule that decision today. Abendschein v Farrell, 11 Mich App 662, 679; 162 NW2d 165 (1968), affirmed, 382 Mich 510 (1969), Burton Drywall, Inc v Kaufman, 69 Mich App 85, 90; 244 NW2d 367 (1976), lv granted, 399 Mich 875 (1977). We have seen no such evidence. Furthermore, even if the "significant contacts” test were adopted, it would be irrelevant in this case because the borrowing statute controls the question whether the applicable Michigan or sister-state statute of limitations governs claims accruing in the other state. See, 1 Restatement, Conflict of Laws, 2d, § 6, p 10, Hill v Clark Equipment, supra, at 407.

Affirmed in part, reversed in part and remanded for proceedings not inconsistent with this opinion.

J. H. Gillis, J.

(dissenting). I respectfully dissent. Plaintiffs’ counsel made no reference to the longer statute of limitations period applicable to loss-of-consortium claims in any of the lower court proceedings. Accordingly, since the issue was not raised before the trial court, it should not be considered for the first time on appeal. See, Falk v Civil Service Commission of Macomb County, 57 Mich App 134, 137, 138; 225 NW2d 713 (1974), lv den, 394 Mich 819 (1975), Buxton v Alexander, 69 Mich App 507, 509-510; 245 NW2d 111 (1976), lv den, 399 Mich 827 (1977), Three Lakes Association v Whiting, 75 Mich App 564, 575; 255 NW2d 686 (1977).

I would affirm the lower court’s order in its entirety.

       The only other arguably applicable period is the four-year limitations period in contract cases specified in Uniform Commercial Code § 2-725 (MCLA 440.2725; MSA 19.2725). This would apply, if at all, only to the breach of warranty claims. We believe the Supreme Court would probably apply the three-year personal injury limitations period, not the four-year contract limitations period, to such a products liability personal injury action. Waldron v Armstrong Rubber Co (On Remand), 64 Mich App 626, 633; 236 NW2d 722 (1975), see, Huhtala v Travelers Insurance Co, 401 Mich 118, 126; 257 NW2d 640 (1977), but see, Reid v Volkswagen of America, Inc, 512 F2d 1294 (CA 6, 1975). We need not decide this question now, since the applicable Georgia limitations period is shorter than that prescribed by either of the Michigan statutes.

       Plaintiffs’ counsel made no reference to the longer limitations period for loss-of-consortium claims in his answer to the motion for accelerated judgment or in oral argument. The general rule is that an issue not raised before the trial court cannot be raised on appeal. However, the defendant has fully briefed the issue, and in the interest of justice we choose to consider it. People v LeBlanc, 399 Mich 31, 49, n 12; 248 NW2d 199 (1976), Hart v Wayne County, 61 Mich App 188, 190; 232 NW2d 678 (1975), reversed on other grounds, 396 Mich 259; 240 NW2d 697 (1976).


text:
    PEOPLE v WITTEBORT
    1. Constitutional Law — Criminal Law — Witnesses—Prior Recorded Testimony — Cross-Examination—Admissibility at Trial — Statutes.
    Michigan criminal procedure, under the appropriate circumstances, permits the introduction of prior recorded sworn testimony taken in accordance with generally accepted rules of evidence; however, the right to cross-examine and confront witnesses is secured by the constitution, and where a defendant has been effectively denied these rights at a preliminary examination, testimony taken at the examination may not be introduced at trial (US Const, Am VI, XIV, MCLA 768.26; MSA 28.1049).
    2. Witnesses — Criminal Law — Preliminary Examination Testimony — Cross-Examination—Admissibility at Trial.
    Perfunctory cross-examination of a witness at a preliminary examination may be sufficient to admit the transcript of this witness’s testimony at a later trial at which the witness is unavailable.
    3. Witnesses — Criminal Law — Preliminary Hearing Testimony— Cross-Examination — Admissibility at Trial.
    Generally, the transcript of a witness’s testimony at a preliminary hearing is admissible at a later criminal trial at which the witness is unavailable where the defendant was represented by counsel at the preliminary hearing and apparently failed to exercise what was an adequate opportunity for cross-examination.
    4. Witnesses — Criminal Law — Prior Recorded Testimony — Cross-Examination — Opportunity to Cross-Examine — Adequacy of Opportunity.
    Admissibility of a witness’s prior recorded sworn testimony at a preliminary hearing turns upon the opportunity for cross-examination at the preliminary hearing; adequacy of opportunity depends upon qualitative factors such as the presence and participation of counsel, the nature of the proceeding, the character of the witness and his connection with the events, the extent and subject of his direct testimony, and the time and preparatory opportunities available to the accused and his attorney.

      References for Points in Headnotes
    [1-6] 21 Am Jur 2d, Criminal Law §§ 343, 344.
    29 Am Jur 2d, Evidence § 761.
    Claim of privilege by a witness as justifying the use in criminal case of his testimony given on a former trial or preliminary examination. 45 ALR2d 1354.

      5. Appeal and Error — Witnesses-—Preliminary Examination Testimony — Judge’s Discretion- — Review of Record.
    A determination of whether a trial court abused its discretion in admitting the preliminary examination testimony of a witness at a later trial requires a qualitative review of the record.
    6. Witnesses — Criminal Law — Preliminary Examination Testimony — Cross-Examination—Admissibility at Trial.
    Mere opportunity at a preliminary examination to cross-examine a witness who later becomes incapable of testifying at trial may be insufficient for a trial court to admit the testimony of that witness, but where the record indicates that cross-examination would have been counter-productive to the defendant and where counsel participated to the extent of interposing objections to questions asked on direct examination of the witness, the constitutionally mandated adequate opportunity to cross-examine the witness has been met and the earlier testimony of the witness is admissible at the later trial.
    Appeal from Muskegon, John H. Piercey, J.
    Submitted November 1, 1977, at Grand Rapids.
    (Docket No. 30899.)
    Decided February 23, 1978.
    Arthur W. Wittebort was convicted of breaking and entering a building with intent to commit a felony. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, and Gerald W. Gibbs, Assistant Prosecuting Attorney, for the people.

      Marietti, Mullally & Grimm, for defendant.

      Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   Per Curiam.

Defendant was convicted of breaking and entering, MCLA 750.110; MSA 28.305, placed on two years probation and ordered to pay court costs of $100. He appeals, raising two contentions, only one of which merits discussion.

Defendant contends that the trial court committed reversible error by admitting the preliminary examination testimony of a witness who died prior to trial.

Admission of such evidence is governed generally by People v Martin #2, 21 Mich App 667, 671; 176 NW2d 470 (1970), lv den 384 Mich 820 (1971):

"Under the appropriate circumstances, Michigan criminal procedure permits the introduction of prior recorded testimony (MCLA § 768.26 [Stat Ann 1954 Rev § 28.1049]), in accordance with generally accepted rules of evidence. 5 Wigmore, Evidence (3rd Ed), §§ 1395, 1396, 1402. However, the United States Supreme Court has declared that the 6th Amendment right to cross-examine and confront witnesses is secured to state court defendants through the 14th Amendment. Douglas v. Alabama (1965), 380 US 415 (85 S Ct 1074, 13 L Ed 2d 934). Accordingly, where a defendant has been effectively denied his rights of cross-examination and confrontation at a preliminary examination, testimony taken at the examination may not be introduced at trial. Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L Ed 2d 923).”

The precise question we must answer is, under the facts of this case, was defendant denied his constitutional right of cross-examination and confrontation?

At the preliminary examination, assigned counsel for defendant recognized a witness, a Mr. Jami-son, as a client. Defendant’s original counsel, recognizing the conflict of interest, explained it to the examining magistrate and moved for an adjournment to "arrange for a public defender without conflict”.

The magistrate took a brief recess to look for another public defender in the building. Substitute counsel was procured. Witness Jamison was then sworn and the examination continued. Jamison gave crucial incriminating testimony. Substitute counsel did not question him, nor did he ask for an adjournment of the preliminary examination.

There is no definitive Michigan case law covering this factual situation. Perfunctory cross-examination was held sufficient in People v Martin #2, supra. There, this Court held that:

"Where defendant is represented by counsel at preliminary hearing, and counsel apparently fails to cross-examine fully a given witness, the transcript of this witness’s testimony is admissible at trial if * * * the opportunity for cross-examination was available but not exercised.” (Emphasis in original.) 21 Mich App at 676.

In this case, as an "opportunity” for cross-examination existed at the preliminary examination, the authority cited above would appear to bar relief for defendant. However, it is not enough to speak of "opportunity” without looking to see how the Martin Court defined the term.

This Court in Martin considered the following passage from Pointer v Texas, 380 US 400, 407; 85 S Ct 1065; 13 L Ed 2d 923 (1965):

" 'The case before us would be quite a different one had [the] statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.’ ” 21 Mich App at 672.

Judge (now Justice) Fitzgerald also examined relevant California precedent:

"Of particular importance to the case at bar, where the nature of the preliminary examination is being challenged, is People v. Gibbs (1967), 255 Cal App 2d 739, 743 (63 Cal Rptr 471). In reversing appellant’s conviction, the court there said:
" 'Bare existence of an opportunity for cross-examination in a prior proceeding supplies only a limited indicator of the opportunity’s adequacy. Pointer v. State of Texas holds the opportunity inadequate when the accused has no lawyer. The presence and participation of counsel, however, do not necessarily ensure the opportunity’s adequacy. Qualitative factors play a role. The nature of the proceeding; the character of the witness and his connection with the events; the extent and subject of his direct testimony; the time and preparatory opportunities available to the accused and his attorney — these are some of the influential factors.’ ” (Emphasis in original.) 21 Mich App at 673.

It is, therefore, noteworthy that the Martin Court reached its conclusion only "after careful study of the record” and only because it was "apparent that defense counsel declined to cross-examine Mrs. Dunning for his own reasons.” 21 Mich App at 676.

In this case, we have undertaken a qualitative review of the record as suggested in People v Gibbs, supra. From the record adduced both at the preliminary examination and at trial, we cannot say that the trial court abused its discretion. The extent and subject of witness Jamison’s testimony indicates that cross-examination would have been counter-productive to defendant. Furthermore, substitute counsel participated to the extent of interposing objections to questions asked on direct examination of witness Jamison. Therefore, although mere "opportunity” to cross-examine may be insufficient for a trial court to admit preliminary examination testimony of a witness who died prior to trial, in this case, defense counsel had the constitutionally mandated "adequate” opportunity.

As there was no error, we affirm.

       Appellant’s second argument, concerning a prosecutorial motion regarding defendant’s prior felony convictions, has been considered and is without merit.


author: Per Curiam. Allen, J.

text:
    PEOPLE v TEBEDO
    Opinion of the Court
    1. Arrest — Arrest Without Warrant — Felonies—Reasonable Cause — Statutes.
    A police officer may not, without a warrant, arrest a person for a felony unless a felony has been committed and the officer has reasonable cause to believe that the person arrested has committed it (MCLA 764.15[c]; MSA 28.874[c]).
    2. Arrest — Investigatory Stop — Unusual Conduct.
    A police officer may stop a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest where the officer has observed unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.
    3. Arrest — Investigatory Stop — Justification for Stop.
    An investigative stop of a person by police must be justified at its inception and must be reasonably related in scope to the circumstances which justified the interference in the first place.
    4. Arrest — Flight by Suspect — Relation to Crime.
    The fact that a suspect flees at the approach of the police does not by itself justify an arrest; the police must positively relate the flight to the commission of a crime.
    5. Arrest — Investigatory Stop — Reasonable Suspicion-Subsequent Acts of Accused — Evidence.
    Police officers who stop a person for investigation of possible criminal activity may not use subsequent actions of the accused to supply the reasonable suspicion which is essential to justify the initial intrusion; therefore, an inculpatory statement made by a defendant after his arrest is not admissible in evidence where the police did not have reasonable cause to arrest the defendant.

      References for Points in Headnotes

       5 Am Jur 2d, Arrest §§ 24, 25, 32.

       5 Am Jur 2d, Arrest § 45.
    What constitutes probable cause for arrest — Supreme Court cases. 28 L Ed 2d 978.

      Concurrence by Allen, J.
    6. Arrest — Investigatory Stop — Suspicious Persons — Evidence. Police officers had a sufficient basis to stop a person to inquire of him what he was doing where the person was discovered at 5 a.m. standing behind a row of apartment buildings shortly after a suspicious person had been reported in the area and where the person fled as the police car approached; without more, however, the police were not justified in arresting the person because there was no indication of criminal activity, and a statement made by the person after his arrest cannot be used to inculpate him in a robbery which occurred three days earlier.

    Appeal from Genesee, Ollie B. Bivins, Jr., J.
    Submitted December 7, 1977, at Lansing.
    (Docket No. 31039.)
    Decided February 23, 1978.
    Gary M. Tebedo was convicted of armed robbery. Defendant appeals.
    Reversed, and new trial granted.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

      Terrance P. Sheehan, for defendant on appeal.
    Before: R. B. Burns, P. J., and Allen and R. M. Maher, JJ.
   Per Curiam.

Charged with armed robbery, MCLA 750.529; MSA 28.797, defendant was convicted by a jury on March 18, 1976. The trial court sentenced him to a term of 30 to 40 years. He comes before this Court on a delayed appeal.

On June 25, 1975, a Kroger grocery store on Corunna Road in Flint Township was robbed. On June 28, 1975, two officers from the Flint Township police department received a call from a Genesee County police car that a suspicious person had been spotted in the area of the Kroger store on Corunna Road. No connection was made between the individual spotted and the June 25th robbery.

The officers drove to an area approximately one-quarter mile from the store, stayed 10 to 15 minutes but saw no one. They then proceeded into a private drive in the rear of the nearby Circle Court Apartments where defendant lived. They saw defendant standing behind the last row of buildings, about ten feet from the door of his apartment. As they approached defendant in their marked police car, he ran.

One of the officers got out of the car and gave chase. After pursuing defendant for two blocks, the officer drew his gun and ordered defendant to halt. He laid defendant on his stomach and handcuffed him. It was then, according to the police testimony, that defendant said "he knew we had him for the robberies and that’s why he ran”. The officer also testified that defendant’s only suspicious action was his running; he indicated that while defendant was standing outside his residence he was doing nothing suspicious.

Defendant alleges error in the trial court ruling which admitted into evidence the statement defendant made when first stopped by police. He claims that because his arrest was unlawful, the incriminating statement must be suppressed as the fruit of the poisonous tree.

A police officer may not without a warrant arrest a person unless a felony has been committed and the officer has reasonable cause to believe that such person has committed it. MCLA 764.15(c); MSA 28.874(c). A police officer may, however, "in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest”. Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). It is not unlawful for a police officer to stop persons when he has observed "unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot”. People v Whalen, 390 Mich 672, 680; 213 NW2d 116 (1973).

But in justifying the intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v Ohio, supra, at 21. In the present case the parties dispute whether the actions of the officers constituted an investigative stop or an arrest.

We note first that, whatever it is determined to be, the officers could articulate no specific facts which would warrant an intrusion of the kind made upon defendant. They stated that when first spotted, defendant was merely standing about ten feet from the door of his apartment* an action which cannot reasonably be called suspicious.

"There must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended.” Sibron v New York, 392 US 40, 73; 88 S Ct 1889; 20 L Ed 2d 917 (1968) (Harlan, J., concurring).

The officers in this case had no knowledge and no reason even to suspect that defendant was linked to a robbery which occurred three days earlier. Their testimony reveals the police made no connection between the defendant and the robbery of the grocery store.

Moreover, an investigative stop — if the police action is so characterized — must be justified at its inception and must be reasonably related in scope to the circumstances which justified the interference in the first place. Terry v Ohio, supra, at 20. The justification in this case was a radio report that a suspicious person had been seen in the vicinity of the Kroger store. A stop of even limited scope in such a situation is of dubious propriety. The "stop” in this case was not, however, limited in scope nor strictly tied to and justified by circumstances which rendered its initiation permissible. Rather, the police actions constituted an arrest, as the trial court aptly explained to the jury. Laying one who has been detained on his stomach on the ground and then handcuffing him are not the elements of an investigative stop.

The police and the prosecutor attempt to justify the warrantless arrest on the basis of defendant’s flight from the police car. Flight alone does not justify an arrest, particularly when, as here, defendant’s running is not flight from the scene of a reported crime. The police must positively relate the flight to commission of a crime. People v Dogans, 26 Mich App 411; 182 NW2d 585 (1970).

"Flight may be some evidence of consciousness of wrongdoing, but it does not necessarily point to the commission of a felony. A police officer may not arrest for consciousness of wrongdoing. He must have reasonable cause to believe that a felony has been committed and that the accused person committed it.” 26 Mich App at 421 (Footnotes omitted.)

When first observed by the police, defendant was doing nothing suspicious. On that basis the officers had no reason to arrest or even to stop the defendant. Defendant began to run. It must be emphasized that he was not running from the scene of any reported criminal activity. The police try to justify their actions by calling defendant’s flight suspicious.

For purposes of an investigatory stop, police officers cannot use subsequent actions by the accused to supply the reasonable suspicion essential for the initial intrusion. The initial intrusion must be justified. Nor can mere suspicion of an individual, the most the officers could have had in this case, be proper justification for a warrantless arrest. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963), People v Reeves, 23 Mich App 183; 178 NW2d 115 (1970). The officers were not investigating a particular crime; they were not aware of any crime which had just been committed from which defendant could have been fleeing; they did not relate defendant to the robbery at the Kroger store three days earlier.

That a person, doing nothing suspicious, should run at the sight of a police car does not warrant the officers in that car to pursue the individual on foot, to order him to halt at gunpoint, to lay him on the ground on his stomach and to handcuff him, when the only suspicious activity was the individual’s flight, precipitated by the officers’ initial intrusion. No probable cause to make a warrantless arrest of defendant existed.

We realize that police should not shrug their shoulders and allow crime to occur. Yet good police work is characterized not only by the prevention and detection of crime but also by the avoidance of intrusions upon personal privacy in violation of the fourth amendment. People v Lillis, 64 Mich App 64; 235 NW2d 65 (1975).

The police action in this instance when there was no probable cause to arrest was too great an intrusion on defendant’s privacy to be sanctioned. The arrest was unlawful. Defendant’s statement, made after the arrest, should have been suppressed. The conviction is reversed and defendant is granted a new trial.

Allen, J.

(concurring). I write separately in concurrence to distinguish this case from People v Kirchoff, 74 Mich App 641; 254 NW2d 793 (1977). In the instant case, the only facts known to the officers was that a person standing behind a row of apartment buildings at 5 a.m., an area where a suspicious person had recently been reported to the officers, fled as the officers’ patrol car approached. These facts provided a sufficient basis for a limited Terry v Ohio type investigatory stop. But they did not justify laying the defendant on the ground and handcuffing him.

At 5 a.m., and in view of the earlier report to the officers concerning a suspicious person in the apartment building area, it would have been appropriate to inquire of the individual what he was doing. Even in light of the fact that the individual fled, there was no indication of criminal activity which, at that point, warranted arrest without prior questioning of the fleeing person’s activities. The handcuffing was an arrest which was a serious intrusion upon the freedom of the individual and precluded the use of the statement made by defendant upon arrest.

In Kirchoff, supra, the defendant was apprehended by the police about 11:20 p.m., shortly after he fled from police after observing their patrol car. The police attempted to make an initial investigatory stop but the defendant again fled and some 100 yards later threw away a knapsack in which was found packets of marijuana. It was concluded that the initial stop in Kirchoff was warranted. Such a stop would have been warranted in the instant case. Further, the Court found that the knapsack had been "abandoned” by the defendant and thus, under Hester v United States, 265 US 57; 44 S Ct 445; 68 L Ed 898 (1924), the search of the knapsack’s contents and their admissibility in evidence was lawful. The abandonment rationale is non-existent in the instant case and may not be used to justify the introduction in evidence of defendant’s incriminating statement made following the handcuffing. In my opinion, the type of intrusion made in the instant case exceeded a Terry investigative stop and therefore I agree with the majority that, in this case, the exclusionary rule should apply.

       392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).


text:
    AVANT v NATIONAL BANK OF DETROIT
    1. Action — Civil Rights — Damages—Discrimination—Private Employment — Labor Relations.
    A plaintiff can maintain a civil damage action for redress of his statutorily created right to be free from discrimination in private employment, and this remedy may be pursued in addition to the remedial machinery provided by statute.
    2. Civil Rights — Judicial Remedies — Damages—Discrimination— Private Employment — Department of Civil Rights — Administrative Law.
    A plaintiff may avail himself of a judicial remedy to recover compensation for damage suffered by reason of discrimination in private employment even though a complaint, alleging essentially the same facts, filed by the plaintiff with the Michigan Department of Civil Rights is pending when the suit is begun.
    Appeal from Wayne, Charles Kaufman, J.
    Submitted November 1, 1977, at Detroit.
    (Docket No. 77-479.)
    Decided February 23, 1978.
    Leave to ap-
    peal applied for.
    Complaint by Billie Avant against the National Bank of Detroit seeking damages for discrimination in private employment. Defendant’s motions for summary and accelerated judgments were denied. Defendant appeals by leave granted.
    Affirmed.

      Ovander W. Stoner, for plaintiff.
    References for Points in Headnotes
    [1, 2] 15 Am Jur 2d, Civil Rights § 293.
    Fair employment statutes designed to eliminate racial, religious, or national origin discrimination in private employment. 44 ALR2d 1138.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Bettye S. Elkins and Seth M. Lloyd), for defendant.
    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   Per Curiam.

On February 4, 1976, plaintiff filed a complaint with the Michigan Department of Civil Rights claiming that because of her sex and race she was unfairly demoted and bypassed for a merit increase. While the matter was pending, on May 6, 1976, plaintiff started a suit for damages alleging essentially the same facts. Defendant filed motions for summary judgment and accelerated judgment, which were denied.

Defendant appeals by leave granted claiming that plaintiff has failed to exhaust her administrative remedies before the Michigan Department of Civil Rights.

The claim is without merit. Pompey v General Motors Corp controls. We are not persuaded that Michigan Civil Rights Commission v Clark requires a different result here. An additional reason for affirmance here is the subsequent voluntary dismissal of the proceeding before the Michigan Department of Civil Rights. We affirm denial of the motions for summary judgment and accelerated judgment.

Affirmed, with costs.

       385 Mich 537, 560; 189 NW2d 243 (1971), where the Court said:
      " We hold that plaintiff can maintain a civil damage action for redress of his statutorily created right to be free from discrimination in private employment, and that this remedy may be pursued in addition to the remedial machinery provided by statute.”

       390 Mich 717, 724, n 3; 212 NW2d 912 (1973).

       It should be noted that we express no opinion here regarding the manifold issues concerning such matters as possible consolidation, overlapping or inconsistent relief, duplicate damage awards, and the like.


text:
    GREEN v SUDAKIN
    1. Negligence — Malpractice—Unwanted Child — Damages—Public Policy.
    An award of damages for the unwanted birth of a normal, healthy, child is not contrary to public policy; the birth of such a child does not confer an unquestionable benefit upon the parents, which outweighs, as a matter of law, any detrimental expenses related to the birth and rearing of the child.
    2. Negligence — Damages—Unwanted Child — Reasonable Ascertainment — Routine Computations — Recovery Allowed.
    Damages to compensate parents for the expenses of rearing an unwanted child are not speculative or ethically questionable; the cost of rearing a child is a computation which is routinely performed; the law is clear that there need only be a basis for reasonable ascertainment of the amount of the damages and where the fact of liability is proven, difficulty in determining such damages need not bar recovery.
    3. Contracts — Breach of Contract — Damages—Personal Noncommercial Contracts — Mental Anguish — Recovery for Breach.
    Generally, damages for mental anguish are not permitted in breach of contract actions; however, an exception to this rule has been created where the contract at issue is highly personalized and noncommercial and where a breach of duty will inevitably and necessarily result in mental anguish, pain and suffering.
    Appeal from Wayne, Joseph A. Moynihan, Jr., J.
    Submitted January 3, 1978, at Detroit.
    (Docket No. 77-1289.)
    Decided February 23, 1978.
    Leave to appeal applied for.
    Complaint by Ruth Green and Herbert Green against Leonard B. Sudakin and Joseph Stern for damages for medical malpractice and breach of contract. Judgment for plaintiffs. Defendants appeal.

      References for Points in Headnotes

       61 Am Jur 2d, Physicians and Surgeons § 135.

       22 Am Jur 2d, Damages § 195.

      Affirmed.

      Jeffrey M. Mallon, for plaintiffs.

      Harvey, Kruse & Westen, P. C. (by Jonathan Martin), for defendants.
    Before: Bashara, P. J., and J. H. Gillis and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiffs commenced this action in Wayne County Circuit Court seeking damages from defendant-doctors for alleged medical malpractice and breach of contract.

The record reveals that plaintiff-wife consulted with defendants, and decided to have a tubal ligation performed immediately following the birth of her third child. The purpose of such a procedure is to prevent future pregnancies.

After delivering plaintiffs’ third child, defendants failed to perform the agreed upon tubal ligation. The issue of whether or not plaintiffs were notified of this fact was contested at trial. Plaintiffs claimed that defendants failed to inform them of the fact that the operation was not performed. Hence, plaintiffs, apparently in reliance upon defendants’ promise to perform the operation, took no birth control precautions subsequent to the delivery of their third child, which resulted in plaintiff-wife promptly becoming pregnant with her fourth child.

The jury determined that defendants had failed to notify plaintiffs of the fact that the tubal ligation had not been performed, and entered a verdict of $95,000 in favor of plaintiffs.

Defendants appeal citing several instances of error.

Defendants first contend that an award of damages for the unwanted birth of a normal, healthy child is contrary to the public policy of this state. Defendants claim that the birth of such a child confers an unquestionable benefit upon the parents, which outweighs, as a matter of law, any detrimental expenses related to the birth and rearing of the child.

Such an assumption has been expressly rejected by this Court in the case of Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971), lv den, 385 Mich 753 (1971). Therefore, we find no public policy considerations which warrant that defendants be exempted from the consequences of their negligent acts.

Defendants next contend that an award of damages to compensate plaintiffs for the expenses of rearing their fourth child would be speculative and ethically questionable. We disagree.

As Troppi, supra, points out, the cost of rearing a child is a computation which is routinely performed in numerous cases:

"As to the costs of rearing the child until his majority, this is a computation which is routinely performed in countless cases.
"It should be clear that ascertainment of gross damages is a routine task. Whatever uncertainty attends the final award arises from application of the benefits rule, which requires that the trier of fact compute the dollar value of the companionship and services of an unwanted child. Placing a dollar value on these segments may well be more difficult than assessing damages for, say, Mrs. Troppi’s lost wages. But difficulty in determining the amount to be subtracted from the gross damages does not justify throwing up our hands and denying recovery altogether.
"Michigan law is clear that there need only be a basis for reasonable ascertainment of the amount of the damages. Where the fact of liability is proven, difficulty in determining damages will not bar recovery.” Troppi, supra, at 261.

Hence, we find that the damages in the instant matter are reasonably ascertainable.

Defendants’ allegation that the damages are unethical under the circumstances of the instant matter fails in light of the Troppi case, supra.

Defendants finally contend that the trial court erred in instructing the jury that their verdict could include an award for mental pain and suffering.

We note that damages for mental anguish are generally not permitted in breach of contract actions. However, an exception to this rule has been created by the courts in cases where the contract at issue is

" * * * concerned not with trade and commerce but with life and death, not with profit but with elements of personality, not with pecuniary aggrandizement but with matters of mental concern and solicitude, then a breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering. In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.” Stewart v Rudner, 349 Mich 459, 471; 84 NW2d 816 (1957).

In Stewart, supra, the Supreme Court upheld an award of damages for mental anguish where a physician breached a contract to perform a Caesarean section on a patient which resulted in the death of the unborn child. The Court concluded that the contract was highly personal in nature, and that no reasonable person could doubt that mental pain and suffering were within the contemplation of the parties in the event that the physician failed to perform the agreed-upon operation.

The agreement in the instant matter is intensely personal in nature. The failure to perform such a contract could foreseeably cause great mental pain and suffering.

Therefore, we find that a damage award for mental anguish is appropriate under the circumstances of the case at bar.

The other issues raised on appeal do not merit discussion by this Court.

Affirmed. Costs to plaintiffs.

       Defendants, Doctors Sudakin and Stern, were partners in a medical practice which was limited to obstetrics and gynecology.

       Plaintiff-wife was pregnant with her third child at the time of the consultations.

       The Michigan Supreme Court has recognized, in wrongful death actions, that the dollar value of a child’s services and companionship is not too uncertain as to be left to the judgment of the trier of fact. See Wycko v Gnodtke, 361 Mich 331; 105 NW2d 118 (1960), approved in Smith v Detroit, 388 Mich 637; 202 NW2d 300 (1972), MCLA 600.2922; MSA 27A.2922.


text:
    FIRST BANK OF CADILLAC v BENSON
    1. Judgment — Default Judgment — Setting Aside Default — Good Cause — Meritorious Defenses.
    Both good cause and a meritorious defense must be shown before a default judgment will be set aside; good cause is defined as (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand.
    2. Courts — Computing Time — Court Rules.
    Michigan Court Rules provide that in computing time, the day of the act, event or default after which the designated period of time begins to run is not included while the last day of the period is to be included; two additional days are allowed when service by mail is addressed for delivery outside the county of mailing (GCR 1963, 108.6, 108.7[1]).
    3. Courts — Computing Time — Notice—General Rule.
    The general rule with regard to the computation of legal notice is that the day of performance of the required act is included and the day from which the notice begins to run is excluded; when an act is to be done a certain number of days before a day stated, then that day is excluded in the computation; but where the act is to be done a certain number of days before another act, then the day on which that act is to be done is included.
    4. Courts — Procedure—Attorney and Client.
    An appellant’s failure to obtain counsel for more than a month after his first attorney withdrew from his case does not reasonably excuse his failure to comply with a production order by the lower court entered prior to his attorney’s withdrawal where all proceedings in the case were suspended for thirty days to provide the appellant the opportunity to secure counsel.

      References for Points in Headnotes

       46 Am Jur 2d, Judgments §§ 708, 740.

       20 Am Jur 2d, Courts § 84.
    47 Am Jur 2d, Judgments §§ 1152, 1178.

       20 Am Jur 2d, Courts §§ 84, 86.

       7 Am Jur 2d, Attorneys at Law § 143.

       46 Am Jur 2d, Judgments §§ 724, 737.
    Opening default or default judgment claimed to have been obtained because of attorney’s mistake as to time or place of appearance, trial, or filing of necessary papers. 21 ALR3d 1255.

      5. Appeal and Error — Attorney and Client — Attorney’s Neglect —Default Judgments — Setting Aside Judgments.
    The neglect or omission of a party’s attorney does not constitute adequate grounds for setting aside a default judgment; the neglect of an attorney is generally regarded as attributable to his client.
    Appeal from Wexford, William R. Peterson, J.
    Submitted January 6, 1978, at Grand Rapids.
    (Docket No. 77-2445.)
    Decided February 23, 1978.
    Complaint by the First Bank of Cadillac for interpleader against Arnold E. Benson and Violet M. Benson to settle the defendants’ adverse claims to a bank account with the plaintiff. The bank was allowed to deposit the funds from the account with the Wexford County Clerk and to withdraw from the case. The defendants then filed cross-claims with respect to the account. Judgment for Violet M. Benson. Arnold E. Benson appeals.
    Affirmed.

      Benson & Wotila, for Arnold E. Benson.

      Herrinton, Herrinton & Hughes, P. C., for Violet M. Benson.
    Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   Per Curiam.

The First Bank of Cadillac commenced this interpleader action against Arnold E. Benson and Violet M. Benson. The bank was allowed to deposit $26,195.82 plus interest with the Wexford County Clerk, leaving the adverse claimants, the appellant and the appellee in this case, to file cross-claims with respect to the bank account.

Andy E. Benson died, leaving a widow, Violet M. Benson, the appellee, and an only son by a prior marriage, Arnold E. Benson, the appellant. In 1971, a general savings account was opened at the bank. The signature card for the account contained the signed name of Andy E. Benson and the printed name of Arnold E. Benson. Arnold never submitted a signature card to the bank.

In 1976, a new signature card was delivered to the bank on which the signatures of Andy E. and Violet M. Benson provided for a joint account. The reverse side was also signed by both parties, thus providing for a joint account with survivorship benefits.

Both Arnold and Violet laid claim to the funds. Arnold contended that Andy held the account in trust for Arnold; that the account was a gift; that Andy made a change in account ownership only in his final illness; that Andy was, therefore, incompetent to make a change in ownership; and that Violet interfered with a trust agreement between Arnold and Andy by inducing the change. Violet laid claim to the account on the basis that it was a joint and survivorship account.

On April 20, 1977, the trial court entered judgment against Arnold on three grounds: default for failure to comply with discovery orders; summary judgment pursuant to GCR 1963, 117.2(3) and accelerated judgment pursuant to GCR 1963, 116.1(5). On May 9, 1977, Arnold moved to set aside the default judgment pursuant to GCR 1963, 520 and 528.3. The motion was denied. Arnold appeals as of right.

In the instant case, a default judgment was entered against appellant for failure to comply with the court’s order of December 28, 1976, which required production on or before January 15, 1977, of certain documents requested by appellee.

On February 1, 1977, appellee filed a motion for an order to show cause for appellant’s failure to comply with the court order. On March 8, 1977, because appellant’s attorney withdrew from the case, the trial court ordered that all proceedings in the case be suspended for 30 days. Appellee again moved on April 8, 1977, for an order to show cause. The trial court issued the order on April 11, 1977, and required appellant to appear on April 20, 1977. Appellant failed to appear on April 20, 1977, and the trial court entered the default judgment.

Before a default judgment will be set aside both good cause and a meritorious defense must be shown. Butler v Cann, 62 Mich App 663; 233 NW2d 827 (1975), Okros v Myslakowski, 67 Mich App 397; 241 NW2d 223 (1976). Good cause is defined as:

"(1) a substantial defect or irregularity in the proceedings upon which the default was based,
"(2) a reasonable excuse for failure to comply with the requirements which created the default, or
"(3) some other reason showing that manifest injustice would result from permitting the default to stand.” 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Authors’ Comments, p 662.

See, also, Mission Investment Co v Perfect Totalisator Corp, 51 Mich App 376; 214 NW2d 898 (1974).

Appellant claims there was a substantial defect or irregularity in the proceedings because he had insufficient notice of the April 20 hearing. GCR 1963, 520.2(2) requires that "[i]f the party against whom judgment by default is sought has appeared in the action, he * * * shall be served with written notice of the application for judgment at least 7 days prior to the hearing”.

In computing time, the day of the act, event or default after which the designated period of time begins to run is not included while the last day of the period is to be included. See GCR 1963, 108.6. Two additional days are allowed when service by mail is addressed for delivery outside the county of mailing. GCR 1963, 108.7(1).

The hearing on appellee’s motion for an order to show cause was held on April 11, 1977; the first day under the 7-day notice was Tuesday, April 12 and the last day of the 7-day period was Monday, April 18. The two-day mailing period meant that the hearing could be held on Wednesday, April 20.

April 20, the day the hearing was scheduled, is properly included as the last day. The general rule with regard to notice includes the day of performance and excludes the day from which the notice begins to run. Gantz v Toles, 40 Mich 725 (1879), In re Miller’s Estate, 173 Mich 467; 139 NW 17 (1912). When an act is to be done a certain number of days before a day stated, then that day is excluded in the computation, but where, as here, the act is to be done a certain number of days before another act, then the day on which that act is to be done is included. Chaddock v Barry, 93 Mich 542; 53 NW 785 (1892).

Appellant also suggests that he had a reasonable excuse for his failure to comply with the production order because he was unable to obtain counsel. Given the circumstances, we do not find appellant’s suggested excuse to be reasonable. Appellant had more than a month in which to retain new counsel after his first attorney withdrew. The length of the period makes it impermissible for us to find appellant had a reasonable excuse.

Appellant contends there is another ground which provides the reasonable excuse necessary for setting aside a default judgment. He claims he thought he had complied with the production order because he believed that his attorney had produced the requested documents. However, neglect or omission of a party’s attorney does not constitute adequate grounds for setting aside a default judgment. Badalow v Evenson, 62 Mich App 750; 233 NW2d 708 (1975). In Michigan, the neglect of an attorney is generally regarded as attributable to his client. White v Sadler, 350 Mich 511; 87 NW2d 192 (1957). Appellant cannot, therefore, rely on his attorney’s neglect to provide him with the reasonable excuse he seeks.

Finally, appellant claims that manifest injustice would result if the default is not set aside. In determining whether manifest injustice would occur, each case should be examined on its own facts. Appellant likens his situation to that of the party in Mission Investment Co v Perfect Totalisator Corp, supra. We find that case distinguishable. There the default was due to defense counsel’s failure to file a timely answer. The Court apparently felt that it would be manifestly unjust if the party there was denied his day in court.

In the present case, only because he failed to secure counsel for himself, when he had sufficient time to do so, is defendant being denied his day in court. Appellant placed himself in the situation and should not be heard to complain of manifest injustice. The problem was of his own making.

Appellant has failed to demonstrate the good cause necessary to set aside a default judgment. Consequently, the trial court’s entry of a default judgment is affirmed.


text:
    MOCK v CITY OF DETROIT
    1. Depositions — Attendance at Deposition — Orders Limiting Attendance — Parties—Authority op Court — Court Rules.
    A trial court was without authority to issue an order precluding the presence of plaintiffs from the depositions of any other coplaintiff because the court rule which restricts the presence of persons at a deposition makes a specific exception as to parties from orders limiting attendance at depositions; such an order of the trial court, issued without the authority to issue the order, is void (GCR 1963, 306.2).
    2. Dismissal and Nonsuit — Orders—Failure to Obey Order — Authority to Issue Order.
    Dismissal of the plaintiffs’ cause of action cannot be ordered for the failure of the plaintiff to obey an order that the trial court did not have the power to issue.
    Appeal from Wayne, Thomas J. Foley, J.
    Submitted December 19, 1977, at Detroit.
    (Docket No. 77-2876.)
    Decided February 23, 1978.
    Leave to appeal applied for.
    Complaint by Clarence Mock, Johnny Mock, Marguerite Mitchell and Lucille Holmes against the City of Detroit, the Department of Transportation and Leonard H. Sutton for damages for personal injuries suffered when the automobile in which they were riding was struck by a bus driven by defendant Sutton. A defense motion to dismiss the action with prejudice due to the plaintiff’s failure to comply with a discovery order was granted. Plaintiffs appeal.
    Reversed and remanded.
    References for Points in Headnotes

       23 Am Jur 2d, Depositions and Discovery § 45.

       24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit § 56.

      Walter A. Lucken, for plaintiffs.

      Roger E. Craig, Corporation Counsel, and Mercedes Mueckenhein, Senior Assistant Corporation Counsel, for defendants City of Detroit and the Department of Transportation.
    Before: Bashara, P. J., and Beasley and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Plaintiffs appeal a trial court order dismissing their cause of action against defendants. Dismissal was granted on defendant’s motion after plaintiffs refused to obey the court’s discovery order requiring each plaintiff to be deposed without the presence of the other co-plaintiffs.

Suit was initiated by plaintiffs to recover for personal injuries allegedly sustained when the automobile in which they were riding was struck from behind by defendant’s bus, which was being driven by defendant, Sutton. Sometime after the accident Sutton relocated and cannot be found. He and plaintiffs were the only witnesses to the accident.

Noting the circumstances of Sutton’s unavailability, defendant city urges affirmance of the trial court’s discovery order as the only means by which the plaintiffs could be effectively cross-examined and the validity of their allegations tested. The city refers to the uniformity of the plaintiffs’ answers to its interrogatories. It suggests that presence of all plaintiffs at each other’s deposition will facilitate their fabrication of testimony, frustrating the city’s efforts to reveal the truth.

Whether a trial court may issue an order under GCR 1963, 306.2 to preclude a party from attending the deposition of a co-party is the determinative question we must resolve. Defendant contends that such authority is provided by that clause contained in rule 306.2 that states "or the court may make any other order which justice requires to protect the party or witness from annoyance, undue expense, embarrassment, or oppression”. GCR 1963, 306.2. However, this clause is preceded by a delineation of possible discovery orders permitted by the rule. One of those specifically addresses orders restricting the presence of persons at a deposition and states, "or that the examination shall be held with no one present except the parties to the action and their officers and counsel.” Id. (Emphasis added.)

This latter provision has been construed by other jurisdictions with a similarly phrased discovery rule to give all parties the right of attendance at depositions. Further, Federal procedure from which this rule was derived contains identical language, but was subsequently amended. FR Civ P 26(c), amending FR Civ P 30(b). See also 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 110. As a consequence of that amendment, the power of the courts was enlarged to permit exclusion of a party from presence at a deposition. Galella v Onassis, 487 F2d 986, 997 (CA 2, 1973).

Since our rule has not been amended and makes a specific exception as to parties from an order limiting attendance at depositions, we conclude that the trial court was without authority to preclude the presence of plaintiffs from the deposition of co-plaintiffs.

That the trial court’s order is erroneous is also suggested by the committee comments to rule 306.2, reported at 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 110. The purpose of the rule is to protect deponents from a deposing party’s abuse of the discovery proceedings, not to protect the deposing party. Id.

Accordingly, we also conclude that the order of dismissal was improper. Orders of dismissal under rule 313.2, by the clear language of that rule, are available only for disobediance of an order issued pursuant to GCR 1963, 310, 311, or 313.1. GCR 1963, 313.2. Additionally, punishment by dismissal cannot be ordered for failure to obey an order that the court did not have the power to issue. This is analogous to the rule developed in the context of contempt proceedings. See Stowe v Wolverine Metal Specialties Co, 242 Mich 624; 219 NW 714 (1928).

In rule 306.2, the express exception for parties from an order restraining attendance of persons at depositions left the court without power to issue the order challenged by plaintiffs. As a consequence, that order was void. Id.

Reversed and remanded for proceedings consistent with this opinion. Costs to plaintiffs.

       The order of dismissal was predicated upon GCR 1963, 313.2, which in pertinent part provides:
      ''.2 Failure to Comply With Order.
      "(1) Contempt. If a party or other deponent refuses to be sworn or refuses to answer any question after being directed to do so by the court in the county in which the deposition is being taken or by the court in which' the action is pending, the refusal may be considered a contempt of the court which made such order.
      "(2) Other Consequences. If any party or an officer or managing agent of a party refuses to obey an order made under subrule 313.1 requiring him to answer designated questions, or an order made under either Rule 310 or 311, the court may make such orders in regard to the refusal as are just.”

       The discovery order was issued pursuant to the provisions of GCR 1963, 306.2, which states:
      "Orders for the Protection of Parties and Deponents. Upon motion seasonably made by either party or by the person to be examined and upon reasonable notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated time or place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers and counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments or research need not be disclosed, or that parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, undue expense, embarrassment or oppression. The court shall not order the production or inspection of any writing prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writing that reflects an attorney’s mental impressions, conclusions, opinions, or legal theories.”

        See, e.g., Reynolds v Reynolds, 217 Ga 234, 245-246; 123 SE2d 115, 127 (1961) (language of court rule similar to GCR 1963, 306.2), Anderson v Snyder, 91 Conn 404; 99 A 1032 (1917) (language of court rule similar to GCR 1963, 306.1), Gillis v First National Bank of Frederick, 47 Okla 411; 148 P 994 (1915) (language of court rule similar to GCR 1963, 306.1).