author: J. H. Gillis, J.

text:
    SWANSON v CITIZENS INSURANCE COMPANY
    Docket Nos. 45860, 45974.
    Submitted May 8, 1980, at Grand Rapids.
    Decided July 23, 1980.
    Leave to appeal applied for.
    Mr. and Mrs. Phillip Klingaman were killed in an automobile accident. Mr. Klingaman was driving his automobile which was insured by Auto-Owners Insurance Company. Mrs. Klingaman also owned an automobile, which was insured by Citizens Insurance Company. The Klingamans were survived by their infant daughter. The daughter’s co-guardians, Robert A. Swanson and Thelma G. Swanson, and the administrator of the Klingamans’ estates, John R. Holmes, brought an action against both Auto-Owners and Citizens seeking to recover survivor’s benefits and expenses for replacement services. The Calhoun Circuit Court, Creighton R. Coleman, J., granted partial summary judgment to the defendants, finding that neither insurance policy extended personal protection benefits to the spouse of the named insured. After a trial, the court found that survivor’s benefits are computed without deducting from the decedent’s gross wages amounts paid in taxes or used in personal consumption, that Social Security survivor’s benefits are not set off against benefits for replacement services expenses, that expenses for replacement services are included within survivor’s loss benefits subject to the statutory $1,000 per 30-day period and 3-year limitations, and that the maximum recovery for replacemnet services expenses was $20 per day. The court assessed interest against the defendants. The defendants appeal and the plaintiffs cross-appeal. Held:

    1. In determining the amount of survivor’s loss benefits the decedent’s gross wages must be reduced by an amount fairly representing the decedent’s personal consumption and also by the amount which would have been paid in taxes.
    2. Social Security survivor’s benefits are to be set off only against the no-fault survivor’s loss benefits which represent loss of contributions of tangible things of economic value, and not against benefits representing expenses for replacement services.

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d (Rev), Automobile Insurance § 368.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.
    [3] 7 Am Jur 2d (Rev), Automobile Insurance § 344.
    [4] 7 Am Jur 2d (Rev), Automobile Insurance § 354.
    [5-7] 7 Am Jur 2d (Rev), Automobile Insurance § 363.

      3. The award of interest was in error. The plaintiffs have failed to present proof of the decedents’ personal consumption and potential tax expenses, and have therefore not presented reasonable proof of the amount of loss sustained. Therefore, the payment of benefits was not overdue, and interest was not properly assessed.
    4. Neither of the Klingamans’ policies extended personal protection benefits to the other. The partial summary judgments in this regard were proper.
    5. The statutory limitation of $20 per day for replacement services expenses applies separately to each policy, and the plaintiffs are therefore entitled to recover up to $40 per day for those expenses.
    6. Expenses for replacement services are included within the term "survivor’s loss” and are subject to the statutory limitation on survivor’s loss benefits.
    Affirmed in part, reversed in part and remanded.
    1. Insurance — No-Fault Insurance — Survivor’s Benefits — Reduction in Gross Wages — Statutes.
    A decedent’s gross wages are to be reduced by an amount fairly representing the decedent’s personal consumption and by the amount which would have been paid in taxes when determining the amount of tangible things of economic value a plaintiff is entitled to receive as survivor’s loss benefits under a policy of no-fault automobile insurance (MCL 500.3108; MSA 24.13108).
    2. Insurance — No-Fault Insurance — Personal Protection Benefits — Governmental Benefits — Statutes.
    Only duplicative government benefits are required to be set off from personal protection benefits received under a no-fault automobile insurance policy; therefore, Social Security survivor’s benefits are required to be set off only against the no-fault survivor’s loss benefits which represent the loss of contributions of tangible things of economic value, not against survivor’s benefits which represent expenses for replacement services (MCL 500.3109; MSA 24.13109).
    3. Insurance — No-Fault Insurance — Personal Protection Benefits — Interest.
    Interest is assessable against overdue personal protection insurance benefits; such benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of the loss sustained.
    4. Insurance — No-Fault Insurance — Personal Protection Benefits — Statutes.
    Personal protection insurance benefits do not extend to the spouse of a named insured if the spouse is entitled to such benefits under a policy of his or her own (MCL 500.3114[1]; MSA 24.13114[1]).
    5. Insurance — No-Fault Insurance — Personal Protection Benefits — Survivors.
    A survivor’s right to recover personal protection insurance benefits which would have been due a decedent had he survived is derivative of the decedent’s right to recover those benefits.
    6. Insurance — No-Fault Insurance — Replacement Services — Dependents — Statutes.
    A surviving dependent’s right to recover expenses for replacement services, under a no-fault automobile insurance policy, is derivative of the injured person’s right to recover had he survived; therefore, where a husband and wife are both killed in an accident and each has a separate no-fault policy the statutory limitation of $20 per day for replacement services expenses is available to a surviving dependent under each policy (MCL 500.3108; MSA 24.13108).
    7. Insurance — No-Fault Insurance — Replacement Services — Survivor’s Loss — Statutes.
    Expenses for replacement services are encompassed within the term "survivor’s loss” in the no-fault automobile insurance statute which is subject to the statutory limitation of $1,000 per 30-day period for no more than 3 yeárs (MCL 500.3108; MSA 24.13108).

      Sloan, Risdon, Beneñel & Farrer, for plaintiffs.

      Lilly & Domeny, P.C. (by Sally Zack Wheeler), for defendant Citizens Insurance Company.

      Allen, Hatch, Letzring & Hill, for defendant Auto-Owners Insurance Company.
    Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

This is an automobile no-fault insurance action. On December 24, 1976, Mr. and Mrs. Phillip Klingaman were killed in an automobile accident. The accident occurred while Mr. Klingaman was driving his automobile in which his wife was a passenger. Mr. Klingaman’s vehicle was insured with defendant Auto-Owners Insurance Company (Auto-Owners). Mrs. Klingaman owned her own automobile which was insured with defendant Citizens Insurance Company (Citizens).

The decedents were survived by their infant daughter, Melanie. On April 18, 1977, plaintiffs, as co-guardians of the estate of Melanie, instituted suit against both defendants. Plaintiffs sought to recover, inter alia, survivor benefits pursuant to MCL 500.3108; MSA 24.13108 including certain economic losses and expenses for replacement services.

Each defendant moved for partial summary judgment pursuant to GCR 1963, 117.2(3) claiming that its policy did not extend personal protection insurance benefits to the spouse of the named insured. The motions were granted.

On July 25 and 26, 1978, a nonjury trial was held as to the no-fault benefits claimed by the surviving daughter against both defendants. The parties thereafter filed various trial, reply and supplemental briefs addressed to the legal issues raised during the course of the trial.

On November 28, 1978, the lower court issued a written decision in the case. Insofar as is relevant to the issues raised on appeal, the court found that:

(1) Survivor’s benefits payable as personal protection benefits, MCL 500.3108; MSA 24.13108, are computed with reference to the decedent’s gross wages not reduced by the amount the deceased would have paid in taxes nor by the amount the deceased would have spent on personal consumption;

(2) The set-off provision of MCL 500.3109; MSA 24.13109 requires a deduction of Social Security benefits only from the amounts plaintiffs are entitled to receive in compensation for the loss of contribution of tangibles of economic value and not from replacement service expenses incurred;

(3) The term "survivor’s loss” in MCL 500.3108; MSA 24.13108 includes expenses for replacement services as well as loss of contribution of tangible things of economic value and that these benefits are subject to the $1,000 per 30-day period and three-year limitation contained in the statute; and that

(4) The maximum amount plaintiffs could recover as replacement service expenses was $20 per day notwithstanding the fact that both of the surviving daughter’s parents were killed in the same accident and each had separate no-fault insurance policies on their respective automobiles.

On February 9, 1979, the lower court entered a judgment in accordance with this decision. The lower court assessed interest against both defendants pursuant to MCL 500.3142; MSA 24.13142. Defendants appeal and plaintiffs cross-appeal from the decision and judgment as of right.

We shall address first the issues raised by the defendants and then proceed to those issues raised by plaintiffs by way of cross-appeal.

The defendants first contend that the lower court erred in computing plaintiffs’ award of compensation for loss of tangible things of economic value under MCL 500.3108; MSA 24.13108 in that the decedents’ gross wages were utilized without a deduction therefrom of the amount of taxes the decedents would have paid on such wages or of the amount the decedents would have spent on personal consumption. We agree.

In determining the amount of "tangible things of economic value” a plaintiff is entitled to receive as survivor’s loss personal protection insurance benefits, the decedent’s gross wages must be reduced by an amount fairly representing the decedent’s personal consumption and also by the amount which would have been paid in taxes. Schwark v Lilly, 91 Mich App 189, 198; 283 NW2d 684 (1979), MCL 500.3108; MSA 24.13108. The case is remanded to the circuit court for proper determination of the amount of "tangible things of economic value” which Melanie would have received from her parents.

The defendants next contend that the lower court erred in deducting the Social Security survivor’s benefits only from the amount plaintiffs are entitled to receive in compensation for the loss of contributions of things of economic value. It is argued that a set-off is proper against survivor’s benefits payable for loss of contributions of tangible things of economic value and for expenses for replacement services. We cannot agree.

MCL 500.3109; MSA 24.13109 was designed to require set-off only of duplicative government benefits. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 544-547; 273 NW2d 829 (1979), reh den 406 Mich 1103 (1979), app dis 444 US 803; 100 S Ct 22; 62 L Ed 2d 16 (1979), Schwark v Lilly, supra, 195, fn 4. Social Security survivor’s benefits are intended to provide persons dependent on the wage earner with protection against the economic hardship occasioned by the loss of the wage earner’s support. No benefits are paid for lost services. See 42 USC 401 et seq. Such benefits, thus, duplicate only those survivor’s benefits received pursuant to the no-fault policy which represent the loss of contributions of tangible things of economic value. O’Donnell, supra, 545. They do not duplicate the survivor’s benefits which represent expenses for replacement services. Accordingly, we hold that § 3109 requires setoff of Social Security survivor’s benefits only against the survivor’s loss benefits which represent the loss of contribution of tangible things of economic value. The lower court’s decision in this respect was without error.

The defendants lastly contend that the lower court erred in awarding plaintiffs interest pursuant to MCL 500.3142; MSA 24.13142. That statute provides that interest is assessable against overdue personal protection insurance benefits. Such benefits are "overdue” if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of loss sustained.

In the present case, plaintiffs failed to offer any proof of the decedents’ personal consumption expenses or potential tax expenses. Rather, plaintiffs argued and the lower court erroneously agreed that a survivor’s personal protection benefits which represent the loss of contributions of tangible things of economic value are to be based on the decedent’s gross earnings. See supra. We hold that plaintiffs’ failure to offer any proof of the decedents’ personal consumption and potential tax expenses constituted a failure to produce reasonable proof of the amount of the loss sustained. The personal protection benefits were, thus, never overdue as per the statutory definition. The lower court’s assessment of interest against the defendants was erroneous and is reversed.

Plaintiffs, by way of cross-appeal, contend that the lower court erred in concluding that the insurance policies involved did not extend personal protection benefits to the spouse of the named insured and in granting partial summary judgments.

MCL 500.3114(1); MSA 24.13114(1) requires that personal protection insurance policies cover accidental bodily injury to the spouse of the named insured. Accidental bodily injury includes death. MCL 500.3105(3); MSA 24.13105(3). Thus, a personal protection insurance policy applies to claims arising from the death of the named insured’s spouse. The second sentence of MCL 500.3114(1); MSA 24.13114(1), however, renders the named insured’s policy inapplicable when personal protection benefits are also payable under the spouse’s policy. That sentence reads:

"When personal protection insurance benefits are payable to or for the benefit of an injured person [the named insured’s spouse] under his own policy and would also be payable under the policy of his spouse [the named insured] * * * the injured person’s [the named insured’s spouse’s] insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.”

As applied to the instant case, this sentence means that Mr. Klingaman’s policy with Auto-Owners did not extend personal protection benefits to Mrs. Klingaman; her policy with Citizens did not extend such benefits to Mr. Klingaman.

A survivor’s right to recover personal protection benefits is derivative of the decedent’s right to recover the same. Belcher v Aetna Casualty & Surety Co, 83 Mich App 207; 268 NW2d 349 (1978), lv gtd 405 Mich 826 (1979). See also Moshier v Financial Indemnity Co, 92 Mich App 605, 610, fn 1; 285 NW2d 385 (1979). Neither one of the decedents being able to recover under his/her spouse’s policy, the survivor similarly could not recover. The lower court’s grants of partial summary judgments were without error.

Plaintiffs next contend that the lower court erred in limiting the amount which plaintiffs could recover as expenses for replacement services to $20 per day. Plaintiffs argue that when a husband and wife are both killed in an accident and each has a separate no-fault policy, the statutory, MCL 500.3108; MSA 24.13108, limitation of $20 per day for the replacement services expense element of survivor’s loss benefits applies separately to each policy. We agree and reverse the lower court.

MCL 500.3107; MSA 24.13107 provides that an injured person may be reimbursed for expenses incurred in obtaining services in lieu of those which he would have performed for the benefit of himself or of his dependent up to a limit of $20 per day. A dependent of the injured person may receive the same reimbursement should the injured person die. MCL 500.3108; MSA 24.13108. Shavers v Attorney General, 402 Mich 554, 620; 267 NW2d 72 (1978). The right of the dependent to recover expenses for replacement services is derivative of the injured person’s right. Moshier, supra, 609. Here, had Mr. and Mrs. Klingaman survived, each would have been entitled to recover replacement service expenses up to $20 per day. Their dependent’s rights in this respect are derivative. Plaintiffs, thus, are entitled to recover up to $20 per day from each of the defendants for a total of $40 per day.

Plaintiffs lastly contend that expenses for replacement services are not encompassed within the term "survivor’s loss” so as to subject such expenses to the $1,000 per 30-day period and three-year limitation contained in MCL 500.3108; MSA 24.13108. The contention has been decided adversely to the plaintiffs in Moshier v Financial Indemnity Co, supra, 609-612. The term "survivor’s loss” includes expenses for replacement services and these benefits are subject to the $1,000 per 30-day period and three-year limitation.

Affirmed in part; reversed in part. Remanded for further proceedings consistent with this opinion. No costs, neither party having prevailed in full.


source: Caselaw Access Project

author: R. B. Burns, P. J.

license: Public Domain

text:
    BENTON HARBOR LIBRARY BOARD v CITY OF BENTON HARBOR
    Docket No. 46167.
    Submitted June 3, 1980, at Grand Rapids.
    Decided July 23, 1980.
    The City of Benton Harbor enacted an ordinance requiring city employees to be residents of the city. The Benton Harbor Library Board brought an action seeking a declaration that the city was wrongfully attempting to enforce the residency requirement upon members and employees of the board. The Berrien Circuit Court, Zoe S. Burkholz, J., granted summary judgment in favor of the board, holding that the board was an independent body and was not subject to the residency requirement. The city appeals. Held:

    The statute which enables municipalities to establish library boards and the city charter provision which created the board both envision the independent nature of the library board. The statute and charter take precedence over the city residency ordinance. Therefore, the board members and employees are not subject to the residency requirement.
    Affirmed.
    Municipal Corporations — Libraries — Library Boards — Statutes — City Charters.
    A local library board created pursuant to statutory and city charter provisions, both of which envision an independent library board, is in fact independent and the board members and employees are not subject to a city residency requirement (MCL 397.205; MSA 15.1665, Benton Harbor City Charter, §3.42).
    Reference for Points in Headnote
    [1] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 247.

      Samuel R. Henderson, for plaintiff.

      K. Morris Gavin, for defendant._

      Amicus Curiae: Michigan Library Association (by Anderson, Carr & Street).

    Before: R. B. Burns, P.J., and Mackenzie and J. T. KALLMAN, JJ.

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

   R. B. Burns, P. J.

Plaintiff filed suit in Berrien County Circuit Court claiming that the defendant was wrongfully attempting to enforce a residency requirement mandated by city ordinance upon members and employees of the library board. The circuit court held that the plaintiff was an independent body and not subject to the defendant’s residency requirement. Defendant appeals and we affirm.

Plaintiff was created in 1899 pursuant to 1877 PA 164, MCL 397.201 et seq.; MSA 15.1661 et seq. The act provides in part as follows:

"Sec. 5. Said directors shall, immediately after appointment, meet and organize, by the election of one of their number president, and by the election of such other officers as they may deem necessary. They shall make and adopt such by-laws, rules and regulations for their own guidance and for the government of the library and reading room, as may be expedient, not inconsistent with this act. They shall have the exclusive control of the expenditure of all moneys collected to the credit of the library fund, and of the construction of any library building, and of the supervision, care, and custody of the grounds, rooms, or buildings constructed, leased, or set apart for that purpose: Provided, That all moneys received for such library shall be deposited in the treasury of said city to the credit of the library fund, and shall be kept separate and apart from other moneys of such city, and drawn upon by the proper officers of said city, upon the properly authenticated vouchers of the library board. Said board shall have power to purchase or lease grounds, to occupy, lease, or erect an appropriate building or buildings for the use of said library; shall have power to appoint a suitable librarian and necessary assistants, and ñx their compensation; and shall also have power to remove such appointees; and shall, in general, carry out the spirit and intent of this act in establishing and maintaining a public library and reading room.” MCL 397.205; MSA 15.1665. (Emphasis added.)

Section 3.42 of the Benton Harbor City Charter provides in part:

"Such Board shall have full charge of any and all public libraries in the City of Benton Harbor and shall have the power to employ librarians and other persons deemed necessary to operate said libraries; also shall have full power to expend as they deem best, all monies appropriated for library purposes, except as hereinafter provided and may make such rules and regulations as they deem best and proper relative to the conduct of any such library and to the conduct of the persons within such library. Provided, however, that all finances of the Library Board shall be under the control and supervision of the Director of Finance.”

Both the statute and the city charter envision an independent library board.

The Michigan Supreme Court in Bostedor v Eaton Rapids, 273 Mich 426; 263 NW 416 (1935), faced a situation where the city commission removed all members of the library board, sold the library building and attempted to relocate the library. The Court held that the statute controlled over a conflicting section of the city charter. The Court stated:

"It was evidently the purpose of the legislature in authorizing and regulating such libraries by general law to remove the same from politics and factional disturbance.” 273 Mich 426, 429.

In the present case both the statute and the city charter envision an independent library board and in our opinion the statute and charter take precedence over the ordinance.

Affirmed. No costs, a public question.


author: Allen, J.

text:
    PEOPLE v DROSSART
    Docket No. 46289.
    Submitted May 14, 1980, at Marquette.
    Decided July 23, 1980.
    Leave to appeal applied for.
    Steven Drossart was found guilty of criminal sexual conduct in the third degree, but mentally ill, Delta Circuit Court, Clair J. Hoehn, J. He appeals, alleging that the trial court committed reversible error in permitting introduction of opinion testimony of expert witnesses regarding his mental capacity at the time of the charged offense and that the trial court abuses its discretion in denying his motion for a continuance for the purpose of a further physical examination, thereby violating his right to a court-appointed psychiatric evaluation. Held:

    1. The trial court did not err in permitting expert testimony regarding the defendant’s mental capacity. A witness qualified as an expert on the subject of insanity may state his opinion of a person’s mental condition upon the basis of observation, a hypothetical question, or the testimony of other witnesses, and, once given the appropriate legal standard by the examining attorney or trial judge, may apply his findings and conclusions to those standards and opine as to whether the defendant was or was not mentally ill or insane at the time of the charged offense. Such testimony did not invade the province of the trial judge to govern over matters of law, nor that of the jury to draw legal conclusions.
    2. The grant or denial of a motion for continuance and further physical evaluation is subject to the discretion of the trial court, and, the defendant having no legitimate reason for requesting the continuance, there was no abuse of discretion in the trial court’s denial of defendant’s motion.
    Affirmed.
    References for Points in Headnotes
    [1] 31 Am Jur 2d, Expert and Opinion Evidence §§ 85-94.
    [2] 21 Am Jur 2d, Criminal Law §§ 31-45.
    [3, 4] 21 Am Jur 2d, Criminal Law §§ 45, 53.
    [5-7] 31 Am Jur 2d, Expert and Opinion Evidence § 69.
    [8] 31 Am Jur 2d, Expert and Opinion Evidence §§ 22, 23.
    [9] 31 Am Jur 2d, Expert and Opinion Evidence § 69 et seq.

    [10] 17 Am Jur 2d, Continuance § 3.

      1. Witnesses — Expert Witnesses — Lay Witnesses — Opinions — Basis — Distinctions — Evidence — Ultimate Issues of Fact — Juries — Criminal Law.
    Expert and lay witnesses may express their opinions of the mental condition of an accused during a criminal trial, although the lay witness must base his opinion on the facts and circumstances within his own knowledge, while an expert qualified on the subject of insanity may state his opinion of a person’s mental condition upon the basis of observation, a hypothetical question, or the testimony of other witnesses, and such evidence is not objectionable merely because it embraces an ultimate issue of fact to be decided by the jury.
    2. Criminal Law — Insanity Defense — Mental Illness — Legal Definitions.
    The definitions used to describe the concepts of mental illness and insanity, at least for purposes of avoiding criminal responsibility, must come from the law.
    3. Criminal Law — Insanity Defense — Instructions to Jury — Ultimate Issue.
    The trial court has the responsibility to properly charge a jury on the elements of an insanity defense when such an issue is raised in a criminal trial; however, once instructed on the issue, the jury or trier of fact is required to decide the ultimate issue of the defendant’s sanity at the time of the offense.
    4. Criminal Law — Jury — Responsibility — Application of Law to Facts — Sanity — Expert Assistance.
    The jury has the sole responsibility of applying the given rules of law to the facts relating to the defendant’s mental condition; however, the expert knowledge of psychiatrists and psychologists can be of assistance to the jury in arriving at their determination.
    5. Witnesses — Expert Witnesses — Nature of Testimony — Legal Requirements — Legal Conclusions.
    An expert witness should not be permitted to testify about the requirements of law which apply to the particular facts of a case or to phrase his opinion in terms of a legal conclusion.
    6. Witnesses — Opinions — Applicable Law — Definition of Legal Criteria — Use of Legal Standard.
    A witness may not give his opinion as to what law is applicable in a given cases but may testify to the facts relevant to the applicable legal principles, and where the legal criteria are adequately defined by the questioner or trial court, so as to be correctly understood by the jury, the witness may properly phrase his opinion in terms of some familiar legal standard.
    7. Witnesses — Opinions — Standards Fixed by Law — Courts — Juries.
    No witness, whether expert, nonexpert, or however qualified, is permitted to express an opinion as to whether or not the person or conduct in question measures up to a standard which has been fixed by law, as the court must instruct the jury as to the law, and the jury must draw its own conclusions from the evidence.
    8. Witnesses — Opinions — Province of the Jury — Interpretation of Facts.
    It is error to permit a witness to invade the province of the jury by giving his own opinion or interpretation of a set of facts where a jury is as capable as anyone else of reaching a conclusion on those facts, or the matter is within the scope of a jury’s common knowledge.
    9. Witnesses — Expert Witnesses — Submission to Jury — Criteria.
    An expert’s opinion can be submitted for a jury’s consideration where the expert’s particular training and experience in a special field of activity is largely unfamiliar to the jury.
    10. Criminal Law — Continuance — Judicial Discretion.
    The grant or denial of a motion for continuance and further physical evaluation of an accused is subject to the .discretion of the trial court, and, absent a clear abuse of such discretion, the decision will not be overturned.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Steven L. Pence, Prosecuting Attorney, (by Mary C. Smith, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Davis, Olsen & Vinocur Law Office, for defendant on appeal.
    Before: Mackenzie, P.J., and Bronson and Allen, JJ.
   Allen, J.

On November 29, 1978, defendant was found guilty by a jury of criminal sexual conduct in the third degree, but mentally ill. MCL 750.520d(l)(a); MSA 28.788(4)(l)(a). He was sentenced to a prison term of 7 to 15 years.

Prior to trial on the charged offense, defendant filed a notice of intent to claim an insanity defense. On the morning of trial, defense counsel moved to prevent the prosecutor from asking any questions of the expert witnesses calling for their opinions of the defendant’s sanity or insanity. Defense counsel acknowledged that the experts could "help to determine whether or not there is a thought disorder or whether or not behavior is affected”. However, counsel claimed that the experts’ testimony would have to cease at that point because their giving an opinion of the defendant’s sanity would invade the province of the jury by "requesting the person on the stand to give a legal opinion and also the ultimate issue”. The trial judge denied the motion stating that "[t]he Court rule specifically provides for an expert giving an opinion, even though that opinion invades the province of the jury and it goes to the ultimate issues in the case”.

During the trial, defendant called as his expert witness a psychiatrist, Dr. Paul Lucas. After describing his examination procedures, Dr. Lucas testified that defendant suffered from a hyperactive condition due to a "minimal degree of brain dysfunction” that was organic in origin. As a result, defendant had a condition of "thought disorder” resulting in impaired judgment and behavior. In addition, defendant’s thinking and behavior was described as impulsive and with poor controls which meant that he had "difficulty in controlling his behavior and his responses to stimuli and his thinking”. Dr. Lucas testified that one effect of these conditions was that defendant was "unable to conform to the requirements of the law”. Dr. Lucas also testified that the terms "sane” and "insane” are not medical or psychiatric terms.

On cross-examination by the prosecutor, Dr. Lucas testified that defendant could "tell right from wrong” by having the substantial capacity to appreciate the wrongfulness of his conduct. However, defendant did "not necessarily” have the ability to conform his conduct to the requirements of the law. When the witness was asked if he had formed an opinion "as to the defendant’s criminal responsibility” on the day of the crime, defense counsel objected on the ground that the prosecutor was asking for an opinion on "a question of law that this gentlemen is not an expert on”. The objection was overruled by the trial judge who, after ascertaining that the witness was familiar with the legal definition of "insanity”, asked the witness if he had an opinion on whether the defendant was insane on the day of the crime. Dr. Lucas testified that the defendant did suffer from a mental illness or defect and that as a result of this defect, the defendant was insane because he lacked a capacity to conform his conduct to the requirements of the law.

In rebuttal, the prosecution offered the testimony of Dr. Newton Jackson, a clinical psychologist at the state Forensic Center in Ann Arbor. After describing his examination procedures as they related to his court ordered evaluation of the defendant, the witness testified that the defendant did not suffer from thought disorder or mood disturbance, and, thus, in his opinion, was not mentally ill at the time of the alleged offense. When asked if he had an opinion whether defendant knew right from wrong or whether he "lacked substantial capacity to conform his conduct to the requirements of the law”, Dr. Jackson responded:

"[T]he definition of legal insanity, first indicates that the defendant must be mentally ill, to be legally insane. Then as a result of that mental illness, unable to appreciate the wrongfulness of his conduct or unable to conform his conduct to the law. In my opinion, this defendant was not mentally ill at the time of the alleged offense. It is possible that due to intoxication he may not have been aware of the wrongfulness or he may not have been able to control himself, but that is not due to mental illness, and therefore in my opinion, the defendant was not legally insane at the time of the alleged offense.”

On cross and redirect examination, Dr. Jackson explained his opinions in detail.

At the close of the trial, the trial judge instructed the jury that they were the sole and exclusive judges of the facts and that it was their duty to determine which witnesses to believe. The jury was told that if the evidence was capable of more than one interpretation, they should accept the one more favorable to defendant. The jury was also charged with determining whether the defendant was sane or insane at the time of the offense. Detailed definitions and the elements of the terms "mental illness” and legal "insanity” were also explained to the jury. In addition, the judge indicated that several factors were important in determining whether defendant was insane at the time of the crime, aside from the testimony of the expert witnesses: the existence of a brain dysfunction, the effect of defendant’s living environment, and his actions at the time of the alleged offense. Defense counsel did not object to the jury instructions.

During jury deliberations, the jury requested that the trial court provide them with a definition of the term "mentally ill”. This request was fulfilled. The jury returned a verdict of guilty but mentally ill. Defendant appeals as of right.

Defendant claims that the trial court committed reversible error in permitting, over his objection, introduction of the testimony of the expert witnesses relating to their opinions of whether the defendant was mentally ill and insane at the time of the charged offense. Defendant does not contest the qualifications of the witnesses as experts in the field of mental diseases or that they had knowledge and skills peculiar to experts rather than to lay persons. Nor does he dispute that facts relating to defendant’s alleged insanity required expert interpretation or analysis. MRE 702, Dep’t of Natural Resources v Frostman, 84 Mich App 503, 505; 269 NW2d 655 (1978). Rather, defendant argues that, while an expert witness may give his opinion on a matter even though it pertains to an ultimate issue of fact (MRE 704), he may not give his opinion on ultimate conclusions of law.

The reasons given by defendant for objecting to this type of opinion evidence are stated in his brief as follows:

"The opinions constituted conclusions of law, and allowing an expert to testify to such conclusions invades the function of the jury. * * *
"Compounding the Court’s error was its permission to allow that expert to comment on Michigan law. Prior to giving his opinion, Mr. Jackson commented on the legal definition of insanity in Michigan. * * * This testimony made the witness more influential with the jury. He usurped the function of the Judge.”

In short, the issue presented is whether the expert witness’s opinion testimony is incompetent because it addresses a question of law, thereby invading the province of the judge and jury.

Both the expert and lay witness may express their opinions on the mental condition of the accused at the time of the charged offense, although, in the latter case, the witness must base his opinion on "the facts and circumstances within [his] own knowledge”. People v Cole, 382 Mich 695, 707; 172 NW2d 354 (1969).

"A witness who is qualified as an expert on the subject of insanity may state his opinion of a person’s mental condition upon the basis of observation, a hypothetical question, or the testimony of other witnesses.” 3 Wharton, Criminal Evidence (13th ed), § 609, pp 173-174.

People v Hawthorne, 293 Mich 15; 291 NW 205 (1940), People v Lamont Crawford, 66 Mich App 581; 239 NW2d 670 (1976), 23 CJS, Criminal Law, § 867c, 31 Am Jur 2d, Expert & Opinion Evidence, § 86. Opinion evidence of this sort is not objectionable merely because it embraces an ultimate issue of fact to be decided by the jury. MRE 704, Commonwealth v Marshall, 364 NE2d 1237, 1242 (Mass, 1977), Smith v State, 265 Ind 283; 354 NE2d 216 (1976), Williams v State, 265 Ind 190, 199; 352 NE2d 733 (1976), Commonwealth v Knight, 469 Pa 57, 70-75; 364 A2d 902 (1976), United States v Scavo, 593 F2d 837, 843-844 (CA 8, 1979), United States v Milton, 555 F2d 1198 (CA 5, 1977), United States v Erskine, 588 F2d 721, 722 (CA 9, 1978). Compare, United States v Milne, 487 F2d 1232, 1234-1235 (CA 5, 1973), United States v Chandler, 393 F2d 920, 926, fn 17 (CA 4, 1968), Washington v United States, 129 US App DC 29, 31; 390 F2d 444 (1967), see Saltzburg & Redden, Federal Rules of Evidence, Manual (2d ed) (1980 Supp), Rule 704, p 183, see generally McCormick, Evidence, § 12, pp 26-28, 7 Wigmore, Evidence, §§ 1920, 1921.

It is important to note, therefore, that a qualified witness may testify that the accused is suffering from a mental condition involving "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life”, MCL 330.1400a; MSA 14.800(400a). In addition, the opinion rule does not prevent that witness from concluding that, as a consequence of the above mental condition, the accused "lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law”. MCL 768.21a(l); MSA 28.1044(1)(1). The question which remains is whether the expert witness can go one step further, proceeding to opine that because defendant suffered from some or all of the foregoing mental conditions resulting in "mental illness”, he was "insane” at the time of the alleged offense.

The precise issue was raised and cursorily answered in a footnote, contrary to defendant’s contention, in People v Livingston, 57 Mich App 726, 733, fn 8; 226 NW2d 704 (1975), remanded 396 Mich 818 (1976), and again in People v Crawford, 89 Mich App 30, 36-37; 279 NW2d 560 (1979). However, because the issue never has been addressed in depth, and because applicable propositions of law seemingly dictate a contrary conclusion, it is necessary to consider the issue at length.

The concept of mental illness and insanity suggests reference to the medical and psychiatric sciences. Still, we have little difficulty in concluding that the definition used to describe those terms, at least for purposes of avoiding criminal responsibility, must come from the law. People v Martin, 386 Mich 407, 415-423; 192 NW2d 215 (1971), cert den sub nom Lewis v Michigan, 408 US 929; 92 S Ct 2505; 33 L Ed 2d 342 (1972), Biggs, The Guilty Mind: Psychiatry & The Law of Homicide, (Isaac Ray Award Lecture Series, 1955), p 117. Hence, when the issue of insanity is raised in a criminal case, the trial court has the responsibility to properly charge the jury on the elements of the defense. MCL 768.29a; MSA 28.1052(1). Once instructed on the issue, however, the jury or trier of fact is required to decide the ultimate issue of the defendant’s sanity at the time of the offense. Martin, supra, 422, People v Woody, 380 Mich 332; 157 NW2d 201 (1968). While the expert knowledge of psychiatrists and psychologists can be of assistance to the jury in arriving at their determination, Hawthorne, supra, the jury has the sole responsibility of applying the given rules of law to the facts relating to the defendant’s mental condition. Martin, supra, 415-419, 422.

Although the ultimate issue rule no longer stands in the way of expert testimony stating opinions on crucial questions to be decided by the trier of fact, it is important that the expert witness not be permitted to testify about the requirements of law which apply to the particular facts in the case or to phrase his opinion in terms of a legal conclusion. In the former case, the claim is that the province of the judge is invaded, while in the latter, the contention is that the province of the jury is invaded.

I. Invading the province of the judge

Where the area of the witness’s expertise is within the special knowledge of the trial judge who is charged with having special legal knowledge and the duty to instruct the jury on the applicable law, then the witness’s opinion on the same matter is properly excluded as invading his province. Thus, the basis for objecting to expert opinions on legal matters is related to the notion that the witness’s judgment on that matter is not necessary since the trial judge can determine the matter equally well. 7 Wigmore, supra, § 1952.

In People v Lyons, 93 Mich App 35, 45-47; 285 NW2d 788 (1979), this Court held that, even though he was a securities expert, it was erroneous to permit an expert witness to supply his definition of the statutory term "security” under MCL 451.501(3); MSA 19.776(101X3) because it was the exclusive responsibility of the trial judge to find and interpret the applicable law.

"Allowing witnesses to testify as to questions of law invites jury confusion and the possibility that the jury will accept as law the witness’s conclusion rather than the trial judge’s instructions.”

Likewise, a medical expert’s opinion as to the applicable law of criminal responsibility for insanity is of no aid to the jury and could possibly confuse them in light of their duty to apply the law solely as explained by the judge at the end of the case. State v Kelly, 118 NJ Super 38, 54; 285 A2d 571 (1972).

To this extent, then, the witness’s legal opinion on the issue of insanity is both incompetent and irrelevant. The testimony is incompetent because opinions by medical experts on the correct legal standard of criminal responsibility in Michigan is outside the range of the witness’s expertise in the field of mental diseases. Commonwealth v O’Con ner, 387 NE2d 190, 195-196 (Mass App, 1979), State v Kelly, supra, 7 Wigmore, supra, § 1952. The testimony is also irrelevant because it is not "otherwise admissible” under MRE 403, 701, 702. MRE 704, McCormick, supra, § 12, p 27, fn 47. Thus, even if the medical expert were competent to testify about his understanding of the applicable legal standard for insanity, the resultant "confusion of the issues or misleading the jury” by a potentially conflicting instruction given by the trial judge would be a proper ground for excluding the testimony from trial. MRE 403. This is especially true where there is possibility that the witness might develop his own legal definition, standard, or criterion for measuring criminal insanity or mental illness. Kempsey v McGuiness, 21 Mich 123 (1870), In re Powers Estate, 375 Mich 150; 134 NW2d 148 (1965), Lyons, supra, 46-47.

A witness may not give his opinion as to what law is applicable in a given case but may, of course, testify to the facts relevant to the applicable legal principles. Also, where the legal criteria are adequately defined by the questioner or the trial court, MCL 768.29a(l); MSA 28.1052(1X1), so as to be correctly understood by the jury, the witness may properly phrase his opinion in terms of some familiar legal standard. McCormick, supra, § 12, pp 28-29. Generally, the witness should state his opinion of the defendant’s mental condition in his own language and by such ordinary and professional forms of expression as will best convey his own ideas of the matter. Still, if, in expressing his ideas and opinion on the matter, the witness refers to legal standards properly explained by the trial court or examining attorney, there can be no danger of usurping the role of the trial judge to deal with questions of law.

"The capacity of an accused person to be legally responsible for the crime charged depends * * * upon a legal definition; and it would therefore be * * * improper to ask for the witness’ testimony without first eliminating the element of law from the question.” 7 Wigmore, supra, § 1958(2), p 123. (Emphasis added.)

Contrast, People v Liggett, 378 Mich 706; 148 NW2d 784 (1967).

The courts in other jurisdictions support introduction of an expert witness’s opinion testimony relating to the defendant’s sanity or insanity against a challenge that it is a question of law properly reserved for the trial judge. Commonwealth v O’Conner, supra, Commonwealth v McHoul, 352 Mass 544, 553-554; 226 NE2d 556 (1967), Atkinson v State, 391 NE2d 1170, 1175 (Ind App, 1979), Commonwealth v Sheehan, 383 NE2d 1115, 1120 (Mass, 1978), State v Skaggs, 586 P2d 1279, 1283 (Ariz, 1978), Hurst v State, 356 So 2d 1224, 1236 (Ala Crim App, 1978), State v Jensen, 251 NW2d 182, 189 (ND, 1977), Bethea v United States, 365 A2d 64, 81 (DC App, 1976), Beardslee v United States, 387 F2d 280, 295 (CA 8, 1967). And see, 10 Model Penal Code (ULA), §4.07, pp 495-496, Ladd, Expert Testimony, 5 Vanderbilt L Rev 414, 423 (1952).

In the case at bar, there was no invasion of the trial judge’s province to instruct the jury on the applicable principles of law relating to the defendant’s asserted defenses of insanity and mental illness. The testimony of the expert witnesses, doctors Lucas and Jackson, did not involve the giving of an opinion on the issue of what is or should be the appropriate legal standard for determining whether an individual should be held criminally responsible for his behavior. Rather, once given the appropriate legal standards by either the examining attorney or the trial judge, the witnesses applied their medical/psychological findings and conclusions to those standards and opined that the defendant was or was not mentally ill and/or insane at the time of the charged offense. Their testimony involved a subject matter completely unrelated to the judge’s special legal knowledge and did not conflict with any of the instructions read to the jury at the close of the case. As such, their testimony did not invade the province of the trial judge to govern over matters of law.

II. Invading the province of the jury.

Defendant contends that to permit an expert witness to testify that the accused is "mentally ill” or "insane” is a conclusion of law which is akin to giving an impermissible opinion on the guilt or innocence of the accused. People v Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975), People v Stoddard, 48 Mich App 440, 448; 210 NW2d 470 (1973), People v Row, 135 Mich 505, 507; 98 NW 13 (1904). The leading case which most accurately states the applicable principle of law is Grismore v Consolidated Products, 232 Iowa 328, 361; 5 NW2d 646 (1942). There the Iowa Supreme Court stated:

"When a standard, or a measure, or a capacity has been fixed by law, no witness whether expert or non-expert, nor however qualified, is permitted to express an opinion as to whether or not the person or the conduct in question measures up to that standard. On that question the court must instruct the jury as to the law, and the jury must draw its own conclusion from the evidence.”

Accordingly, a witness is not permitted to tell the jury how to decide the case. Thus, a witness is prohibited from opining on the issue of a party’s negligence or nonnegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibilty of an accused, or his guilt or innocence. Id., James v Krpan, 116 Ariz App 216; 568 P2d 1114 (1977), Parks, supra, Stoddard, supra, Row, supra.

The reason for this rule is that where a jury is as capable as anyone else of reaching a conclusion on certain facts, it is error to permit a witness to give his own opinion or interpretation of the facts because it invades the province of the jury. People v Walker, 40 Mich App 142, 145; 198 NW2d 449 (1972), People v O’Leary, 6 Mich App 115; 148 NW2d 516 (1967). The same rule applies when it is an expert opinion being offered on a matter equally within the scope of a jury’s common knowlege. People v McGillen #2, 392 Mich 278; 220 NW2d 689 (1974), People v Fritch, 170 Mich 258; 136 NW 493 (1912), People v Vanderhoof, 71 Mich 158; 39 NW 28 (1888), People v Miller, 33 Mich App 279; 189 NW2d 789 (1971), People v Zimmerman, 12 Mich App 241; 162 NW2d 849 (1968). However, where the expert’s particular training and experience in a special field of activity — such as the study of mental diseases — is largely unfamiliar to the jury, his opinion can be submitted for the jury’s consideration. Id., People v Davis, 217 Mich 661; 187 NW 390 (1922), People v Pullen, 24 Mich App 289; 180 NW2d 108 (1970). Accordingly, since it is undisputed that the expert witnesses in the case at bar were qualified to give expert opinions on the defendant’s mental condition at the time of the offense, Hawthorne, supra, Martin, supra, it follows that they were not precluded from giving opinions related to the ultimate issue in fact on the ground that to do so would invade the province of the jury. MRE 704, see Dudek v Popp, 373 Mich 300; 129 NW2d 393 (1964).

There is no danger that the role of the jury will be usurped because the jury is always free to reject the testimony of any witness, including the opinions of experts. 7 Wigmore, supra, §§ 1920, 1921.

" 'The function of an expert witness in a case concerning sanity or insanity is advisory in nature. He does not state a fact but gives an opinion in order to aid the jury or trier of fact. The trier of fact must make the ultimate decision on this issue.’ Smith v. State (1972), 259 Ind. 187 at 189, 285 N.E.2d 275 at 276. These opinions need not stop short of conclusions phrased in Hill v. State [252 Ind 601; 251 N.E.2d 429 (1969)]. In Sotelo v. State (1976), [264] Ind [298], 342 N.E.2d 844, for example, two court-appointed psychiatrists testified that the defendant in that case was unable to conform his conduct to the requirements of the law and was therefore legally insane. An opinion by an expert witness upon an ultimate fact in issue is not excludable for that reason. 'The argument that such an opinion usurps the function of the jury is simply not valid. When the opinion is given, the witness has no such intent and could not accomplish this feat even if he wanted to for the simple reason that the jury is free to reject the opinion and accept some other view.’ DeVaney v. State (1972), 259 Ind. 483 at 490, 288 N.E.2d 732 at 737.” Williams v State, 265 Ind 190, 199; 352 NE2d 733 (1976).

In the case at bar, the jury did just that. While the defendant’s expert witness testified that in his opinion the defendant was mentally ill resulting in his "insanity”, the prosecution’s expert witness opined that the defendant was not mentally ill and, therefore, could not be legally insane. The jury seemingly rejected both of these points of view, choosing instead, in finding him guilty, to conclude that the defendant was mentally ill, but not insane. As a result of this verdict, we can confidently say that the jury did not feel bound by the opinions of the expert witnesses; it was free to and did reach its decision notwithstanding the "legal conclusions” made by the witnesses at trial.

Accordingly, the trial court did not err in permitting the expert witnesses to testify that in their opinion the defendant was or was not "mentally ill” or "insane” at the time of the alleged offense. The objection that such testimony is an improper legal conclusion, invading the provinces of the judge and jury, is without merit.

Defendant raises the issue of whether the trial court abused its discretion in denying defendant’s motion for continuance for the purpose of further physical evaluation, thereby violating his right to a court-appointed psychiatric evaluation pursuant to MCL 768.20a(3); MSA 28.1043(1X3).

Seven days prior to the commencement of the scheduled trial, defendant filed a motion for continuance for the purpose of obtaining further evaluation in Illinois regarding whether alcohol (purportedly consumed by defendant on the night of the alleged crime) could cause abnormal changes in defendant’s brain wave activity, resulting in defendant’s insanity at the time of the crime. At the hearing on the motion held two days later, defense counsel explained the lateness of the motion by the fact that he had only recently become familiar with the new testing procedure and that there was no closer facility for conducting the particular evaluation sought than the one in Illinois. The trial court denied the motion on the grounds that it came too late and that it would be an onerous burden on the court and the county financial system to send the defendant out of state for an evaluation. The court stated that its decision would be different if the examination were to take place in Michigan. In denying defendant’s motion for new trial on the same issue, the trial judge added that the reason for his denial included that:

"1. The cost would be prohibitive.
"2. It was not demonstrated that the procedure was scientifically accurate, nor widely accepted.
"3. It was not demonstrated that the procedure would be applicable to this Defendant.
"4. Defendant did not demonstrate that the program would accept him as a patient.”

The granting or denial of a motion for continuance is subject to the discretion of the trial court, and, absent a clear abuse of such discretion, the decision will not be overturned. People v Knox, 364 Mich 620; 111 NW2d 828 (1961), People v Carter, 54 Mich App 69, 73; 220 NW2d 330 (1974). In People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972), the Supreme Court reversed the trial court for denying defendant’s motion for continuance, enumerating various factors which the Court considered important in reviewing the matter. These factors were acknowledged and applied in People v Wilson, 397 Mich 76, 81; 243 NW2d 257 (1976):

"1) [T]he defendant was asserting a constitutional right; 2) he had a legitimate reason for asserting the right; 3) he was not quilty of negligence; 4) prior adjournments of trial were not at the defendant’s behest. To these four points we add the traditional requirement that defendant on appeal must demonstrate prejudice resulting from the trial court’s abuse of discretion. MCLA 769.26; MSA 28.1096.
"These five factors, while not the sine qua non to a determination of abuse of discretion, are useful criteria in this case.”

Application of factors 4, 3 and 2, respectively, leads us to conclude that the trial judge did not abuse his discretion in denying defendant’s motion for a continuance.

First, it must be assumed that defendant adequately demonstrated prejudice to his cause. Although the primary defense to the criminal sexual conduct charge was insanity, the defendant "might have lost a possible defense” by his alleged inability to present a valid, albeit related, defense of insane reaction to alcohol. Roberts v People, 19 Mich 401, 419-423 (1870), People v Toner, 217 Mich 640; 187 NW 386; 23 ALR 433 (1922). There is no evidence in the record that the defendant caused the trial to be adjourned several times before. Wilson, supra, 83.

The motion for continuance was untimely. The offense occurred on the night of August 27, 1978. A complaint was issued the following day, and defense counsel appointed shortly thereafter. On September 13, 1978, defense counsel gave notice that he proposed to claim an insanity defense. A motion and order for independent psychiatric evaluation was filed on September 20 and 26, 1978, respectively. On October 3, 1978, the prosecutor’s motion for examination at the Center for Forensic Psychiatry was granted. On October 31, 1978, the trial judge notified the parties that the trial was scheduled for November 27, 1978, and no objection was raised or filed. On November 8, 1978, defendant was found competent to stand trial. It was not until November 20, 1978, that defense counsel filed the motion for continuance, nearly three weeks after the matter was set for trial and only one week prior to the scheduled trial date. While the motion was not per se untimely, the record reflects that the only reason the motion came so late was because defense counsel was not familiar with the possible defense of alcohol induced insanity. However, as the trial judge indicated at the hearing on the motion, the particular defense had been in existence and recognized in this state since at least 1870. Roberts, supra. As such, we are disinclined to consider the trial judge’s finding of untimeliness a clear abuse of discretion, particularly where the defendant’s motion for independent evaluation was made and granted nearly two months prior to his later motion for further evaluation.

As previously noted, defendant had made an initial showing that he had a valid defense based upon the facts elicited at the preliminary examination. Roberts, supra, Toner, supra. Still, there was no showing that defendant had a bona fide right to require the state to incur the expense of sending him to Illinois for the requested evaluation. United States ex rel Smith v Baldi, 344 US 561; 97 L Ed 549; 73 S Ct 391 (1953), Barber v State, 248 Ark 64; 450 SW2d 291 (1970), Anno: Right of indigent defendant in criminal case to aid of state by appointment of investigator or expert, 34 ALR3d 1256, § 6b, c, d, pp 1278-1286. Rather, the decision to grant the request, like the decision to grant the request for a continuance, seemingly rests in the sound discretion of the trial judge. Id. Cf. People v Atsilis, 60 Mich App 738; 231 NW2d 534 (1975). Accordingly, it is evident that the defendant did not have a legitimate reason for requesting a continuance for the purpose of conducting the out-of-state evaluation.

Accordingly, there was no abuse of discretion in the trial court’s denial of defendant’s motion for a continuance and further physical evaluation.

Affirmed.


author: K. B. Glaser, J.

text:
    PEOPLE v BOND
    Docket No. 47286.
    Submitted May 13, 1980, at Lansing.
    Decided July 23, 1980.
    Eric L. Bond was convicted, on his plea of guilty, of negligent homicide, Eaton Circuit Court, Hudson E. Deming, J. Defendant was placed on probation, a condition of which was that he pay to the decedent’s insurer, as restitution, the amounts the insurer had paid for funeral expenses and damage to the decedent’s automobile. Defendant appeals, alleging that it was improper to impose payment of restitution to a crime victim’s insurer. Held:

    The probation statute allows restitution to the person or persons injured or defrauded. The sentencing judge was free to fashion a just remedy and, in keeping with the liberal interpretation of the probation statute intended by the Legislature, restitution to an insurer of a victim may properly be ordered.
    Affirmed.
    1. Criminal Law — Sentencing — Probation — Restitution — Insurers.
    A sentencing judge, when sentencing a defendant to probation, is free to fashion a just remedy including the imposition of restitution as a condition of probation; payment of restitution to a victim’s insurer is a proper condition of probation as long as the purpose of that payment and the manner in which it was determined is set forth in the record.
    2. Criminal Law — Sentencing — Probation — Restitution — Reparation — Statutes.
    Restitution, for purposes of the statute governing the imposition of probation, includes reparation (MCL 771.3[3]; MSA 28.1133[3]).
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 565, 565.3.
    Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim. 79 ALR3d 976.
    [2] 73 Am Jur 2d, Statutes § 299 et seq.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul F. Berger, Prosecuting Attorney, and C. Sherman Mowbray, Assistant Prosecuting Attorney, for the people.

      Smith Brothers Law Office, P.C., for defendant on appeal.
    Before: D. F. Walsh, P.J., and Bashara and K. B. Glaser, JJ.

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

   K. B. Glaser, J.

Defendant was convicted of negligent homicide, contrary to MCL 750.324; MSA 28.556, on his plea of guilty. The charges against him arose from an auto accident which caused the death of the driver of another vehicle. As a condition of his probation, defendant was ordered to pay decedent’s insurance company, as restitution, $3,400 automobile damage and $745 funeral expenses which had been paid to decedent’s estate by that company. Defendant appeals as of right.

On appeal, defendant argues that restitution, as used in the probation statute, MCL 771.3(3); MSA 28.1133(3), is limited to compensation of direct victims of a crime; not indirect victims such as decedent’s insurance company.

Thus, the question is whether decedent’s insurance company is a person injured within the meaning of the statute. The resolution of that quesion depends on the intent of the Legislature in enacting MCL 771.3(3); MSA 28.1133(3). It provides, in relevant part:

"The court may impose other lawful conditions of probation, including restitution in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment may be proper.”

In People v Pettit, 88 Mich App 203; 276 NW2d 878 (1979), this Court held that funeral and automobile expenses are proper subjects of restitution. The Court said:

"The circuit judge was within his statutory sentencing authority in imposing restitution as a condition of probation. The Michigan Legislature has expressly announced its intent that the granting of probation is a matter of grace. Sentencing judges are given wide latitude in setting the conditions of probation. Only if those conditions are unlawful will this Court disturb the sentencing judge’s determination.” Pettit, supra, 205. (Citations omitted.)

We conclude that the language of the statute in setting restitutional limits "as the circumstances of the case may require or warrant, or as in its judgment may be proper” as well as the broad discretion as to costs, indicates an intent that the sentencing judge should be free to fashion a just remedy under all the conditions.

In Pettit, supra, 207, the Court held that as to causation it was sufficient if there was "persuasive support in the record for the sentencing judge’s conclusion”. That standard is equally applicable to the question of the identification of "the person or persons injured or defrauded”. This is consistent with the liberal interpretation intended by the Legislature so long as the purpose of that payment and the manner in which it was determined is set forth. This has been done in the instant case.

Defendant also argues that the lower court’s action is more consistent with the term reparation than restitution. As noted in People v Pettit, su pra, 205, fn 1, in Michigan, for purposes of the probation statute, restitution includes reparation.

We hold that the order of restitution in the present case was not unlawful or an abuse of discretion.

Affirmed.


author: R. B. Burns, P.J.

text:
    STATE OF MAINE v HORTON
    Docket No. 48007.
    Submitted June 5, 1980, at Grand Rapids.
    Decided July 23, 1980.
    The State of Maine, Department of Human Services, hereinafter plaintiff, initiated an action in Kalamazoo Circuit Court against Edward M. Horton, hereinafter defendant, for reimbursement pursuant to the Uniform Reciprocal Enforcement of Support Act. Plaintiff submitted an affidavit of Anna Horton, stating that she had received public assistance from plaintiff for the support of her minor child who had been born to her and the defendant. The Kalamazoo Circuit Court, Patrick H. McCauley, J., entered an order directing the defendant to pay child support to plaintiff. Defendant appeals alleging that the judgment of divorce between defendant and Mrs. Horton provided that Mrs. Horton was not to remove the child from the State of Michigan without the approval of the court. Mrs. Horton had taken the child to Maine without court approval and the court had previously terminated the defendant’s obligation to support the minor child "until further order of this Court”. Held:

    1. The Uniform Reciprocal Enforcement of Support Act permits a state to be reimbursed by a non-resident parent for support furnished to his minor child by the state if the court determines the parent had a duty of support.
    2. "Duty of support” under the act includes any duty which is imposed or imposable by law. The trial court has continuing jurisdiction to modify the support provision of the divorce judgment; therefore the duty of support was "imposable” and the defendant has a "duty of support” under the act.
    3. Issues ancillary to a duty of support such as whether Mrs. Horton is in contempt of court should not be considered in determining whether the defendant has a duty of support under URESA.
    Affirmed.
    References for Points in Headnote
    [1] 23 Am Jur 2d, Desertion and Nonsupport §§ 126,131 et seq.

    Construction and application of state statutes providing for reciprocal enforcement of duty to support dependents. 42 ALR2d 768.

      Parent and Child — Support — URESA — Statutes.
    The Uniform Reciprocal Enforcement of Support Act permits a foreign state to be reimbursed by a parent for support furnished to his minor child by the foreign state if the court determines the parent had a "duty of support” as defined by the act, including any duty of support imposed or imposable by law; the fact that the custodial parent may be in contempt of court for having removed the child to the foreign state without permission of the court does not bar the imposition of a support obligation under the act (MCL 780.159 et seq.; MSA 25.225 et seq.).

      James J. Gregart, Prosecuting Attorney, and Michael H. Dzialowski, Assistant Prosecuting Attorney, for plaintiff.

      Dennis S. McCune, for defendant.
    Before: R. B. Burns, P.J., and Mackenzie and J. T. Kallman, JJ.

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

   R. B. Burns, P.J.

This is an appeal by the defendant, Edward M. Horton, from an order of the circuit court directing him to pay child support to plaintiff. We affirm.

The circuit court action was initiated by plaintiff under the Uniform Reciprocal Enforcement of Support Act (URESA), pursuant to MCL 780.159; MSA 25.225(9). By affidavit of Anna Horton, the plaintiff established that Mrs. Horton had received public assistance from plaintiff for the support of her minor child, Susan Darlene Horton, who had been born to her and defendant on December 1, 1963. Plaintiff claims that defendant has a duty to support the minor child and that he must reimburse plaintiff for the support it is providing to the child.

Defendant denies that he has a duty to support his minor child. Defendant claims that the judgment of divorce provided that Mrs. Horton was not to remove the child from the State of Michigan without the approval of the court. Mrs. Horton had taken the child to Maine without court approval and on November 4, 1971, the court terminated defendant’s obligation to support the minor child "until further order of this Court”.

As framed by the trial court the sole issue presented is whether the November 4, 1971, order terminating support precludes the entry of a support order under URESA.

Pursuant to § 14 of URESA, defendant may be ordered to reimburse plaintiff for support furnished to his minor child if the trial court determines that defendant has a "duty of support”. MCL 780.164; MSA 25.225(14). "Duty of support” is defined by the act to include:

"any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial (legal) separation, separate maintenance or otherwise”. MCL 780.153(6); MSA 25.225(3X6). (Emphasis added.)

The trial court correctly determined that a "duty of support” was "imposable” upon defendant. Under the language of the order terminating defendant’s support duty and pursuant to MCL 552.17; MSA 25.97 the trial court has continuing jurisdiction to modify this provision of its previously issued judgment of divorce. Accordingly, as the trial court had the power to impose a duty of support upon defendant, defendant had a "duty of support” within the meaning of the act.

We further agree with the trial court’s decision to exercise its power to impose upon defendant a duty of support (from the date of the entry of the new order of support) notwithstanding that Mrs. Horton may be in contempt of court. Issues ancillary to a duty of support should not be considered in this URESA action.

Affirmed. No costs, a public question being involved.


text:
    SEYBOLD v SEYBOLD
    Docket No. 49296.
    Submitted June 6, 1980, at Grand Rapids.
    Decided July 23, 1980.
    Janet Seybold obtained an order in Barry Circuit Court for payment of support from Arthur Seybold. Subsequently, Arthur Seybold brought an action for divorce in Kent Circuit Court. The Barry Circuit Court found him in contempt for failure to pay support. The Kent Circuit Court then entered a judgment of divorce in which any support arrearages were set aside. Arthur Seybold then filed a motion in Barry Circuit Court for dismissal of the support' action and of the contempt order. The court, Hudson E. Deming, J., denied the motion and held that the arrearages accumulated prior to the date of the judgment of divorce were still owing and that the support order was enforceable. Arthur Seybold appeals. Held:

    Under the language of the Family Support Act a prior support order becomes void upon the effective date of a judgment of divorce, but the support order does not become void ab initio. The arrearage which was accrued prior to the date of the divorce judgment remains a valid obligation and the support order may be enforced by contempt proceedings. The Barry County action is not otherwise affected by the Kent County judgment.
    Affirmed.
    Divorce — Support Orders — Arrearages — Statutes.
    An order directing a father to pay support to his wife and minor children who live separate from the father becomes void upon the effective date of a judgment of divorce entered between the parties; however, any arrearage which was accrued under the support order prior to the date of the divorce judgment remains a valid obligation of the father and the support order may be enforced by contempt proceedings (MCL 552.454, 552.455; MSA 25.222[4], 25.222[5]).
    Reference for Points in Headnote
    [1] 24 Am Jur 2d, Divorce and Separation §§ 708 et seq., 862, 868.

      Robert C. Engels, Prosecuting Attorney, and
      Dale A. Crowley, Assistant Prosecuting Attorney, for plaintiff.

      Van Hattum, Hickman & Harrison, P.C., for defendant.
    Before: R. B. Burns, P.J., and Mackenzie and J. T. Kallman, JJ.

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

   R. B. Burns, P.J.

Defendant appeals from a decision of the circuit court denying his motion to set aside support arrearages and a contempt citation that was issued against him for the arrearages. On appeal a stipulated statement of facts has been submitted which provides as follows:

"1. On or about July 19, 1977, the Circuit Court for the County of Barry entered a modified order for support and alimony in the amount of $30.00 per week in Case #B76-230-DS.
"2. On or about May 11, 1978, the defendant-appellant filed a complaint for divorce in the Circuit Court for the County of Kent against the plaintiff-appellee, in Case #78-35026-DM.
"3. In said divorce proceedings in Kent County, the defendant-appellant, Arthur Seybold, disputed the paternity of the youngest child of the parties.
"4. On or about December 2, 1979, the Circuit Court for the County of Barry found the defendant-appellant guilty of contempt for failure to pay support and sentenced him to pay $500.00 or serve six months in the Barry County Jail.
"5. The defendant-appellant does not have the resources to pay $500.00 and therefore has been incarcerated since December 2, 1979.
"6. On or about December 28, 1979, a Judgment of Divorce was entered by the Circuit Court for the County of Kent, Judge Woodrow A. Yared. Said Judgment of Divorce provided, in part, as follows:
" ’SUPPORT ARREARAGES
" 'IT IS FURTHER ORDERED AND ADJUGED that any support arrearages are hereby set aside and held for naught, in consideration of the plaintiffs withdrawing his claim of non-paternity of the parties’ youngest child.’
A copy of said Judgment of Divorce was attached to defendant-appellant’s Exparte Application for Emergency Appeal.
"7. On January 2, 1980, the defendant-appellant moved the Circuit Court for the County of Barry to dismiss the within cause on the basis of MCL 952.455, claiming that the Judgment of Divorce as above set forth makes the prior order of support null and void and therefore unenforceable.
"8. Said motion was heard by the consent of the parties and the Court on January 4, 1980, and the Circuit Court for the County of Barry denied the motion holding that although no additional support could be accumulated under said prior order of support entered by the Circuit Court of the County of Barry, that any support arrearages existing up until December 28, 1979, could continue to be enforced.”

Section 1 of the Family Support Act, MCL 552.451; MSA 25.222(1), provides that a married woman with minor children who lives separate from the father of the children may seek an order directing the father to support her and the children. The act further provides that the order becomes null and void if a judgment of divorce is entered between the parties. MCL 552.455; MSA 25.222(5). Under the language of the statute, the support order becomes void "upon the effective date of the judgment”.

The statute does not provide that the support order is void ab initio. Any arrearage which was accrued under the support order prior to the effective date of the divorce judgment remains a valid obligation of the defendant and the support order can be enforced by contempt proceedings.

Defendant’s claim that the Kent County judgment decided the question of arrearage and that the Barry County action is barred by res judicata is without merit. The Barry County court order preceded the judgment of the Kent County court and the Kent County action was not decided on the merits. Plaintiffs subsequent waiver of her right to the arrearages in the Kent County action does not affect the Barry County court’s prior order of contempt or the right of the department of social services to collect the arrearages as provided by MCL 552.454; MSA 25.222(4).

Affirmed.


author: Per Curiam.

text:
    PEOPLE v MORRIS
    Docket No. 78-2279.
    Submitted April 17, 1980, at Detroit.
    Decided July 24, 1980.
    Hazel Morris was charged with first-degree murder and felony-firearm in the Recorder’s Court of Detroit. She agreed to plead to second-degree murder and felony-firearm in exchange for a 5 to 15 year sentence for the homicide plus 2 years on the felony-firearm. She withdrew her plea and was convicted of manslaughter and felony-firearm and sentenced to 7-1/2 to 15 years on the former and 2 years on the latter, Samuel H. Olsen, J. She appeals, alleging as error the court’s failure to instruct, sua sponte, on the theory of accidental homicide and the sentence imposed. Held:

    1. The record disclosed the defense of diminished capacity, not accident. The trial court did not err in not instructing on accidental homicide.
    2. The court was not bound by the terms of a repudiated agreement. The record does not disclose that the sentence was based on improper considerations.
    Affirmed.
    1. Homicide — Defenses — Accidental Homicide — Instructions to Jury.
    A trial judge in a homicide case did not err in failing to instruct, sua sponte, on the theory of accidental homicide where the entire record reveals a defense based upon diminished capacity of the defendant rather than accident.
    2. Homicide — Sentencing — Plea Bargaining.
    A defendant who was charged with first-degree murder, had agreed to plead guilty to second-degree murder in return for a sentence of 5 to 15 years, withdrew her plea and stood trial, and was subsequently convicted of manslaughter was not imsentenced to 7-1/2 to 15 years in the absence of a showing that the sentence was based upon some improper consideration.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide §§ 498 et seq., 514 et seq.

    [2] 21 Am Jur 2d, Criminal Law § 491.5.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Clarence H. Ledwon, for defendant.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. F. Walsh, JJ.
   Per Curiam.

Following the killing of her husband, defendant was charged with first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). She was tried by a jury and convicted of the felony-firearm charge and manslaughter, MCL 750.321; MSA 28.553. Defendant was sentenced to 7-1/2 to 15 years imprisonment for manslaughter in addition to 2 years for felony-firearm and appeals now by right.

Of the six issues raised by defendant on appeal, we find that only two merit discussion. First, defendant contends that the trial court erred in failing to instruct the jury on a theory of accidental homicide without being requested to do so. The case cited in support of this proposition states that:

"However, when as here the defense theory is accidental homicide, the defense requests an instruction on the theory, and there is evidence to support the theory, the trial court must properly instruct the jury on the defense theory.” People v Lester, 406 Mich 252, 254-255; 277 NW2d 633 (1979).

The Lester case demonstrates a feature which the other leading cases in this area share, i.e., that the defense theory urged on appeal was, in fact, a central issue in the defendant’s trial. Even where defense counsel failed to request jury instructions pertaining to a particular theory of defense, the absence of such an instruction has been held to be reversible error because the jury’s attention was not clearly directed to a central issue in the case. People v Ora Jones, 395 Mich 379, 394; 236 NW2d 461 (1975). People v Stanley Jones, 69 Mich App 459, 461; 245 NW2d 91 (1976).

In the above-cited cases and others, it is readily apparent that defense counsel emphasized the particular defense theory at trial. For instance, in Ora Jones, supra, 385, it is noted that defense counsel asserted accident as a defense in both opening and closing statements. The same was true in People v Lester, supra, 253-254, and in People v Hoskins, 403 Mich 95, 99; 267 NW2d 417 (1978), where the opinion recites that, "[djefense counsel advanced his theory of self-defense from his initial voir dire of and opening remarks to the jury through his closing argument”.

In contrast, the present defendant’s theory of defense was clearly and repeatedly stated to be one of diminished capacity. Defense counsel in both opening and closing arguments, and during discussions while trial was in progress, explicitly asserted that he was pursuing a defense of diminished capacity to intend to commit murder. Nowhere in the transcript did defense counsel proffer a defense based on accident. Through defense witnesses and throughout his arguments defense counsel focused upon defendant’s relationship with her husband and upon the psychological inability of defendant to form a plan to kill her husband. Defendant did testify that she picked up her husband’s pistol intending to frighten him and that the gun went off. She stated, "I guess I must have struck the trigger. I didn’t intend to do it though.” And in closing argument defense counsel asserted, "You’ve got to squeeze the trigger to go off. I’m not going to suggest to you that Hazel Morris didn’t have her hand on it and that it did not go off. It’s like — a sneeze or a cough, it happened.” Perhaps this testimony and these comments of counsel do describe an accident, but that does not mean that the theory of defense was one of accident. Rather, the entire record demonstrates a defense based upon the diminished capacity of the defendant. In conclusion then, we find that defendant did not present a defense theory of accidental homicide, that defendant did not request an instruction pertaining thereto, that, while there may have been evidence which was inferentially supportive of an accident theory, it was not the design of defendant or her counsel to emphasize it as such and that, therefore, there was no need for the trial court to instruct the jury on accidental homicide. People v Trammell, 70 Mich App 351; 247 NW2d 311 (1976).

Defendant’s second argument concerns her sentence. Defendant had agreed to plead guilty to second-degree murder and felony-firearm for which a sentence of 5 to 15 years plus 2 years would have been imposed. She withdrew from that agreement and claims that her greater sentence after the jury had convicted her of the lesser offense of manslaughter constituted a penalty for the exercise of her right to a jury trial. The record does not support this contention. Comments of the trial court just prior to sentencing disclose that the court believed that defendant’s motive in killing her husband was jealousy and anger. There is no indication that defendant’s sentence was based upon her disavowal of the plea agreement or upon other improper considerations. People v Snow, 386 Mich 586; 194 NW2d 314 (1972). The trial court was not bound by the terms, of an agreement which defendant had repudiated, and defendant was sentenced within the allowable limits prescribed for the offense of which she was convicted.

Affirmed.


text:
    DEANER v UTICA COMMUNITY SCHOOL DISTRICT
    Docket No. 78-5488.
    Submitted March 4, 1980, at Detroit.
    Decided July 24, 1980.
    Leave, to appeal applied for.
    Chester C. Deaner, Jr., was injured while participating in a high school wrestling class. He and his father, Chester C. Deaner, brought an action for damages against the Utica Community School District, Eric B. Johnston, D.O., the doctor who had examined Chester Deaner, Jr., and approved his physical condition for wrestling, Robert Dilday, the class instructer, Joseph Schloff, a student instructer, and Jeffrey Facsko, a fellow student with whom Deaner was wrestling when the injury occurred. The Macomb Circuit Court, Edward J. Gallagher, J., granted summary judgment in favor of defendant Johnston on the ground that, there was no genuine issue of material fact that plaintiffs had failed to plead a malpractice claim and in favor of the school district on the basis of governmental immunity from tort liability. Plaintiffs appeal. Held:

    1. Examination of the affidavits and depositions reveals that an issue of fact does exist as to the course followed by Dr. Johnston in examining Chester Deaner, Jr. Summary judgment in favor of Dr. Johnston was, therefore, not proper.
    2. Summary judgment in favor of the school district, based upon governmental immunity, was proper.
    Affirmed in part, reversed in part.
    1. Motions — Judgment — Summary Judgment — Affidavits — Court Rules.
    A motion for summary judgment made on the grounds that there is no genuine issue as to material facts is to be supported by affidavit; where the affidavit or other proof is legally insufficient the nonmoving party need not produce evidence to demonstrate that there is a material issue of fact (GCR 117.2[3]).
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Summary Judgment §§ 18, 22, 25.
    [2] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 11, 38-41.
    Modern status of doctrine of sovereign immunity as applied to public schools and institutions of higher learning. 33 ALR3d 703.

      2. Schools — Torts — Governmental Immunity — Statutes.
    The operation of a public school is a governmental function, thereby providing a school district with governmental immunity from tort liability (MCL 691.1407; MSA 3.996[107]).

      Lakin, Worsham & Victor, P.C. (by Phil Bozzo), for plaintiffs.

      Seavitt, Westcott, Miller, Stowe & Magnuson (by Barbara L. Quenneville), for defendant Utica Community School District.

      Sullivan, Ranger, Ward & Bone, for defendant Eric B. Johnston, D.O.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   Per Curiam.

Plaintiff Chester C. Deaner, Jr. was enrolled in a combative sports physical education course at Eisenhower High School in the Utica Community School District. The course included wrestling. Defendant Johnston examined plaintiff on September 9, 1972, and approved his physical condition for wrestling. On February 16, 1973, while wrestling in class with fellow student Jeffrey Facsko, plaintiff suffered a subluxation of two vertebrae which resulted in quadriplegia.

The trial court granted summary judgment for defendant Johnston, pursuant to GCR 1963, 117.2(3), on the ground that there was no genuine issue as to any material fact and that Johnston was therefore entitled to judgment as a matter of law. The trial court granted summary judgment for defendant Utica Community School District, pursuant to GCR 1963, 117.2(1), on the ground that the school district was immune from tort liability under MCL 691.1407; MSA 3.996(107). Plaintiffs appeal from those orders.

GCR 1963, 117.3 requires that a motion based on GCR 1963, 117.2(3) be supported by affidavits. In Brooks v Reed, 93 Mich App 166, 174; 286 NW2d 81 (1979), this Court discussed the supporting affidavit requirement. There, as here, defendant was the moving party.

"In a summary judgment proceeding, an affidavit is employed as a voluntary statement made ex parte. 3 Am Jur 2d, Affidavits, § 1, p 380. The function of an affidavit by the defendant is to establish affirmatively that there is no basis in fact to support plaintiff’s claim. To that end, the defendant must come forward with some evidentiary proof — some statement of specific fact. Durant v Stahlin, [375 Mich 628; 135 NW2d 392 (1965)], Doornbos v Nordman, 26 Mich App 278, 281; 182 NW2d 362 (1970).”

In other cases, it has been held that the nonmoving party need not meet a legally insufficient affidavit. See for example McCoy v DeLiefde, 376 Mich 198, 208; 135 NW2d 916 (1965), Hollerud v Malamis, 20 Mich App 748, 762; 174 NW2d 626 (1969), and Jones v Shek, 48 Mich App 530, 533; 210 NW2d 808 (1973). The nonmoving party therefore need not produce evidence to demonstrate that there is a material issue of fact as to a point on which a moving party has not produced an affidavit or other evidence.

Here neither side’s affidavits, depositions, or evidence touched on the relevant standard of care or on a causal link between defendant Johnston’s conduct and the injury. Comparison of defendant Johnston’s affidavit with the deposition of Chester C. Deaner, Jr., shows the existence of an issue of fact as to the course defendant Johnston followed in examining Deaner. However, the failure of Johnston to find such a defect or disease is completely consistent with the theory that he was negligent in failing to find one. That Deaner stated in his deposition that he had not known of such a defect did not necessarily mean that no such defect existed, or that Johnston was not negligent in failing to find it. The trial court’s grant of summary judgment for defendant Johnston therefore must be reversed.

In Bush v Oscoda Area Schools, 405 Mich 716, 727-728; 275 NW2d 268 (1979), Justice Levin, writing for the Court, stated:

"Three Justices have indicated in other opinions that a school district is subject to liability for negligence in the operation of a school and would therefore find it unnecessary to decide whether the complaint states a claim within the defective building provision. Because there is no majority to so hold, we must determine whether the complaint states a claim within the defective building provision.

This statement is useful as a guide for interpreting Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), in the context of the present case. In Parker, Justices Fitzgerald, Kavanagh, and Levin limited the term "governmental function” to those activities of essence to governing. They determined that the operation of a general hospital was not of essence to governing because it was not an activity of such peculiar nature that it could only be done by government. These are the Justices that Bush indicates would hold the operation of a school is not a governmental function.

Justice Moody agreed that only those activities of essence to governing were governmental functions. However, his view of what activities were of essence to governing was more expansive than that of Justices Fitzgerald, Kavanagh, and Levin. In Parker, at 200, he said:

"[A]s a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions ánd therefore not immune.”

Justice Moody applied this standard to determine in Parker that the operation of the general hospital was not of essence to governing and in Perry that the operation of a mental hospital was of essence to governing. His reasoning was succinctly explained in Cronin v Hazel Park, 88 Mich App 488, 490-491; 276 NW2d 922 (1979):

"In determining that the operation of a general hospital is nongovernmental, Justice Moody found five factors to be relevant. First, the number of private general hospitals is far greater than the number of governmental hospitals in this state. Second, the fiscal involvement of the state in the operation of such hospitals is significantly displaced by private payment. Third, government has little direct responsibility for placing patients in public general hospitals. Fourth, the day-today care afforded to the substantial majority of patients in general hospitals is not of a uniquely governmental character or precipitated by governmental mandate. Fifth, holding cities liable for negligent operation of general hospitals would not be an unacceptable interference with their ability to govern. The operation of a state mental hospital he distinguished on the grounds that government plays a pervasive role in the area of mental health, appropriating substantial state funds to that field and declaring as a public policy the care and treatment of mentally disabled persons. Also, he reasoned that the number of private mental hospitals available to the judiciary to deal with the institutional needs of the public is inadequate. Finally he found that the day-to-day day care by an attendant, physician, or other employee on the staff of a mental hospital represents a uniquely governmental function. Justice Moody noted that the line of demarcation between general hospitals and mental hospitals was imperfect but just, within the confines of the present statute.”

Operation of a public school presents factors similar to those relied on by Justice Moody to distinguish mental hospitals from general hospitals. The government plays a pervasive role in the area of education, appropriating substantial state funds to that field and declaring education as a public policy. See Const 1963, art 8, §§ 1 & 2. The number of private schools is inadequate to meet the educational needs of the public. Finally, while private schools exist to educate some students, the provision of a free and universal education is a uniquely governmental function. Therefore, we would find that the trial court was correct in granting summary judgment to the school district based on governmental immunity.

Plaintiffs also argue that they stated a claim under the "public buildings” exception to governmental immunity, MCL 691.1406; MSA 3.996(106). However, while some of the language in plaintiffs’ complaint might, if broadly construed, fall within this exception, plaintiffs’ answer to defendant school district’s motion for summary judgment admitted that plaintiffs’ complaint was not within the scope of the public buildings exception.

Finally, plaintiffs urge us to hold the governmental immunity statute unconstitutional. Until such time as the Supreme Court reverses prior law and finds the statute unconstitutional we are bound by precedent. See Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich App 677; 256 NW2d 240 (1977).

Affirmed in part and reversed in part.

       I would hold on equal protection grounds that a school district is subject to the same liability as a private school. See Thomas v Dep’t of State Highways, 398 Mich 1, 14; 247 NW2d 530 (1976). Justice Kavanagh and Justice Fitzgerald have said in an opinion which I signed that the operation of a school is not a governmental function. Thomas v Dep’t of State Highways, supra, pp 21-22. See, also, Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978).”