author: Per Curiam. Beasley, J.

text:
    PEOPLE v GOODARD
    Docket No. 21009.
    Submitted January 4, 1978, at Grand Rapids.—
    Decided April 4, 1978.
    Richard L.' Goodard was convicted of first-degree murder in Marquette County Circuit Court, Bernard H. Davidson, J. Defendant Appeals. Held:

    The trial court committed reversible error by giving an instruction to the jury which effectively removed the element of malice from the jury’s consideration.
    Reversed.
    Beasley, J., dissented:
    The instruction which is claimed to be erroneous was not objected to in the trial court and because there has been no showing of manifest injustice on the record there should be no review of the alleged error.
    Further, assuming arguendo that the issue had been preserved for review, a reading of the full, total jury instruction does not indicate that the defendant was denied a fair trial and, therefore, the defendant’s conviction should be affirmed.
    Opinion of the Court
    1. Homicide — Malice—Instructions to Jury — Unlawful Motive— First-Degree Murder.
    An instruction to the jury in a murder trial on the element of malice which states that malice includes every unlawful and unjustifiable motive is an erroneous instruction and requires the reversal of a defendant’s conviction of first-degree murder.
    References for Points in Headnotes

       40 Am Jur 2d, Homicide §§ 488, 498 et seq.

       75 Am Jur 2d, Trial §§ 628, 920.

       40 Am Jur 2d, Homicide § 510.

       75 Am Jur 2d, Trial § 710 et seq.

       40 Am Jur 2d, Homicide § 560.

       40 Am Jur 2d, Homicide § 50.

       75 Am Jur 2d, Trial §§ 906, 910.

       75 Am Jur 2d, Trial §§ 604, 614.

      2. Appeal and Error — Criminal Law — Instructions to Jury — Conflicting Instructions — Presumptions.
    A defendant’s conviction must be reversed where the trial court has given conflicting instructions, one erroneous and one without error; in such cases it may be presumed that the jury followed that instruction which was erroneous.
    3. Homicide — Malice—Permissible Inference — Presumption of Law — Deliberate Act — Unjustifiable Killing.
    Malice is a permissible inference to be drawn by the jury rather than a presumption of law; malice is not always or necessarily implied from any deliberate or cruel act nor from an unprovoked, unjustifiable or inexcusable killing.
    4. Criminal Law — Elements of Crime — Jury Consideration.
    A defendant has an absolute right to a jury determination upon all essential elements of a charged offense.
    5. Homicide — Malice—Elements of Murder — Jury Consideration —Appeal and Error.
    Malice is an essential element of the crime of murder and it is reversible error for a trial court to effectively remove the element of malice from jury consideration.
    6. Homicide — Murder—Malice—Term of Art.
    Malice as an element of murder is a term of art and does not mean malice as used in ordinary speech.
    Dissent by Beasley, J.
    7. Appeal and Error — Criminal Law — Instructions to Jury — Preserving Issue.

      A criminal defendant seeking a review of allegedly erroneous instructions to the jury must make a timely objection to those instructions, absent a showing of manifest injustice.

    8. Criminal Law — Instructions to Jury — Entirety of Instructions —Portions of Instructions — Appeal and Error.

      Instructions to the jury are to be read as a whole; assigning error to bits and pieces pulled out of context does not advance the cause of justice.

    9. Homicide — Malice—Instructions to Jury — Jury Consideration —First-Degree Murder — Entirety of Instructions.

      A trial court’s instructions to the jury on the element of malice were not erroneous and a defendant’s conviction of ñrst-degree murder should be affirmed where the instructions on malice,

      when read as a whole, did not remove the element of malice from the jury’s consideration and do not indicate that the defendant was denied his right to a fair trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary Walker, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, by Thomas C. Nelson, Assistant Attorney General), for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   Per Curiam.

Convicted after a jury trial of first-degree murder and sentenced to life imprisonment, defendant appeals as of right.

On September 25, 1973, Earl DeMarse was fatally stabbed while on guard duty at the Marquette State Prison. Inmate Gary DeWar testified that the day before the killing, defendant told him he was going to kill the guard the next morning. Defendant allegedly said he would wear coveralls to keep the blood off his clothes. He also showed DeWar a black-handled knife, 10 to 12 inches long.

On the morning the homicide occurred, defendant was seen wearing coveralls. Inmate Richard Patterson testified that he saw defendant holding DeMarse by the shirt and stabbing him with a knife.

Shortly after the homicide occurred, two guards found appellant and two other inmates in the yardshack. They searched the men and returned them to their cells. A pair of bloodstained coveralls was found in the shack about one-half hour afterwards.

A knife was found in the auditorium piano two days after DeMarse was killed. The knife was covered with a type-A bloodstain. The victim’s blood was type-A. The knife, however, was not the knife defendant had shown inmate DeWar before the killing.

Defendant alleges a number of errors, but we find one issue dispositive. In instructing the jury, the court charged:

"In defining a crime of murder, either first or second degree, I inform you that a necessary element is that the killing must have been done with malice aforethought. Malice is here used in a technical sense, including not only anger, hatred or revenge, but every other unlawful and unjustiñable motive.” (Emphasis supplied.)

In Nye v People, 35 Mich 16 (1876), the Court declared such an instruction to be erroneous.

"The definition of malice given in the case would remove manslaughter from the catalogue of homicides. Every crime must be attended with an unlawful and unjustifiable motive. Malice includes those which are more wicked, but it does not include them all. There are many unlawful and unjustifiable motives which have never been classed as malicious.” 35 Mich at 18.

The erroneous instruction cannot be saved by reference to the instructions which follow. There is clear error in the rest of the instructions. But even if there were not, we must abide by the longstanding rule in Michigan of reversing convictions in cases in which the trial court has given conflicting instructions, one erroneous and the other without error. In such cases, "it may be presumed that the jury followed that instruction which was erroneous”. People v Eggleston, 186 Mich 510, 514-15; 152 NW 944 (1915). See, also People v Burkard, 374 Mich 430; 132 NW2d 106 (1965).

"When an allegedly erroneous instruction is subject to two or more interpretations, it is logical to read the instructions in their entirety to determine if the trial court resolves the ambiguity by other comments it makes and instructions it gives.” People v Beard, 78 Mich App 636, 639; 261 NW2d 27 (1977).

The instruction given by the trial court is not ambiguous or susceptible to differing interpretations. Reference to the rest of the trial court’s instructions, had they been without error, would have served no purpose. We presume the jury followed the erroneous instruction. Therefore, in accord with Eggleston, Burkard, and Beard we must reverse the trial court decision on the basis of the erroneous instruction.

We are aware of the results reached in People v Borgetto, 99 Mich 336; 58 NW 328 (1894), and People v Livingston, 63 Mich App 129; 234 NW2d 176 (1975), but in light of Eggleston and Burkard, we must regard Borgetto as implicitly overruled.

There is another serious error in the remainder of the trial court’s instructions. The trial court charged the jury as follows:

"Therefore, malice is implied from any deliberate or cruel act against another however sudden.
The law implies from such unprovoked, unjustifiable or inexcusable killing, the existence of that wicked disposition which the law terms malice aforethought.”

In Maher v People, 10 Mich 212 (1862), the Supreme Court held that malice is not implied by law.

"The question whether * * * [malice] existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, * * * and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as a presumption of law.” 10 Mich at 217-218. (Emphasis in original.)

More than a century later, in People v Martin, 392 Mich 553; 221 NW2d 336 (1974), the Supreme Court reaffirmed the holding of Maher v People, supra.

"Michigan has long ago considered malice a permissible inference to be drawn by the jury rather than a presumption of law.” 392 Mich at 561.

Contrary to the trial court’s instruction, malice is not always or necessarily implied from any deliberate or cruel act nor from an unprovoked, unjustifiable or inexcusable killing. Malice may be implied and the jury may infer it, but the law does not imply malice. The trial court’s instruction effectively removed from jury consideration the element of malice.

A defendant has an absolute right to a jury determination upon all essential elements of the charge. People v Reed, 393 Mich 342; 224 NW2d 867 (1975), citing United States v England, 347 F2d 425, 430 (CA 7, 1965). Malice is an essential element of the crime of murder. People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971). The trial court committed reversible error by effectively removing the element of malice from jury consideration.

Finally, the trial court’s explanations of the term "malice” are patently erroneous.

"If one without cause inflicts a wrong upon another, we call him wicked and malicious.”

The implication from this portion of the judge’s instruction is that malice is tantamount to wickedness. Such is not the case.

"Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter.” People v Morrin, supra, at 310-311.

Malice, as an element of murder, is a term of art. Contrary to the implication of the trial court’s charge, the term does not mean malice as used in ordinary speech.

"It is well-nigh impossible to communicate to jurors in the arcane jargon of malice aforethought the mental state required. No doubt many jurors are confused, and many, in error but understandably, make up their own working definition out of their own appreciation of what malice aforethought 'must’ mean.” People v Morrin, supra, at 320.

Insofar as it defines malice only in terms of the absence of justifiable circumstances and equates malice with wickedness, the trial court’s instruction is reversibly erroneous.

Because the instruction given by the trial court is replete with error, defendant’s conviction is reversed.

Beasley, J.

(dissenting). I respectfully dissent.

Defendant was convicted by a jury of first-degree murder and sentenced to life imprisonment, and now appeals as of right. The majority would reverse that conviction on the basis of allegedly erroneous instructions by the trial court.

It is well settled that, absent a showing of manifest injustice, criminal defendants seeking a review of allegedly erroneous instructions to the jury must make a timely objection to those instructions. There was no objection in the within case; indeed, defense counsel expressed satisfaction with the instructions as given. Considering the overwhelming evidence of guilt in the within case and reading the instructions as a whole, I would hold that there was no affirmative showing of manifest injustice on the record and would decline to review the alleged error.

However, assuming arguendo that the issue had been preserved for review, I would hold, for the following reasons, that there was no reversible error.

The first of three complained-of instructions is quoted by the majority as follows:

"In defining a crime of murder, either first or second degree, I inform you that a necessary element is that the killing must have been done with malice aforethought. Malice is here used in a technical sense, including not only anger, hatred or revenge, but every other unlawful and unjustifiable motive.”

The majority correctly note that the above-quoted instruction given in that exact form, but standing alone, was found to be erroneous by the Supreme Court. However, there was more to the instruction given in the within case. The trial court continued:

"It is not confined to particularly ill-will to the deceased, but is intended to denote an action flowing from a wicked and corrupt motive. A thing done, as the book says, 'malo animo’, meaning with an evil mind; with a bad purpose or wrong intention and, therefore, malice is implied from any deliberate or cruel act against another however sudden. The time in which the wicked purpose is formed is immaterial. Malice aforethought does not imply deliberation or the lapse of considerable time between the formation and execution of the intent to take life but rather denotes purpose and design. It means malice existing at any time before the act so as to be its moving cause or concomitant.”

Subsequent to Nye v People, our Supreme Court held that the Nye instruction, with additional language virtually identical to that quoted above from the within case, was not erroneous.

I would hold that the instruction, when read as a whole, was not erroneous. I also do not agree with the majority that People v Borgetto was implicitly overruled by People v Eggleston and People v Burkard. My reading of Borgetto indicates that it stands for the proposition that a jury instruction must be read as a whole, and that assigning error to bits and pieces pulled out of context does not advance the cause of justice.

The majority further contend that there was serious error in the remainder of the trial court’s instructions on malice. I would hold that there was no reversible error in the instructions when read as a whole. Following the above-quoted instruction from the within case, the trial court defined first-degree murder, then stated:

"Murder in the second degree is similarly defined except the element of premeditation is lacking. If one without cause inflicts a wrong upon another, we call him wicked and malicious, so when one without any legal provocation, justification or excuse intentionally kills another, he is called a murderer. The law implies from such unprovoked, unjustifiable or inexcusable killing, the existence of that wicked disposition which the law terms malice aforethought.”

The majority hold that the instruction given by the trial court had the effect of removing the essential element of malice from the jury’s consideration and cite Maher v People and People v Martin in support of their holding. I would find that both Maher and Martin are distinguishable from the within case.

Maher was a prosecution for assault with intent to commit murder where the defendant offered evidence tending to show an adulterous intercourse between his wife and the victim of the shooting on the morning of and within half an hour of the assault. Defendant also offered evidence that he had followed his wife and the victim to the woods and followed the victim to a tavern when the pair came out of the woods. A few minutes before entering the tavern where he shot the victim, defendant had been met by a friend who told him that defendant’s wife and the victim had had sexual intercourse in the woods the day before. This evidence was rejected by the court. Evidence was admitted that when defendant entered the tavern he was in a state of excitement and was perspiring heavily. When asked if he had been at work, he replied that he had been across the lake. The question on appeal was whether the evidence offered by defendant regarding the statement his friend made to him had been properly rejected from evidence. The Court held that it had-not, and stated:

"It is for the court to define the legal import of the term, malice aforethought, or, in other words, that state of disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as in their judgment, they deserve: and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist.” (Emphasis in original.)

In Maher, the question of the existence or nonexistence of the element of malice was, indeed, taken from the jury. They were not allowed even to know of the evidence which would have tended to negate the existence of malice and reduce the severity of the assault charge. By rejecting the evidence offered by defendant, the trial court, in Maher, withdrew the question from the jury. He presumed malice existed.

In the within case, there is no evidence issue; the jury had before them all the evidence from which to make a determination in the particular case of whether or not defendant had acted with malice aforethought. The trial court did not take that element away from the jury; it merely attempted to provide them with a working definition so they could determine whether it existed.

Martin is also distinguishable from the within case. In Martin, the trial court instructed the jury that if a man kills another suddenly without any warning, "where a deadly weapon is used”, the law implies malice and the killing is murder. Our Supreme Court held that the instruction effectively eliminated the verdict of manslaughter from the jury’s consideration. Since the trial court had charged, as a matter of law, that the use of a deadly weapon implies malice, the jury was left with no alternative other than to logically deduce that, since a deadly weapon was used, the defendant must be guilty of murder. The thrust of Martin is that when a jury instruction, read as a whole, obfuscates and confuses the jury, a defendant is denied a fair trial and conviction must be reversed and a new trial granted.

There is no deadly weapon problem in the within case. In that respect, this case is more like People v Rosemary Gibson, where an instruction virtually identical to that in the within case was given. The Court’s comments on finding the instruction not to be erroneous are instructive. The Court stated:

"Certainly, in the present case, the conclusion is inescapable that the charge does not suffer the same deficiencies that caused reversal in Martin. It is, of course, possible, perhaps probable, that many a defendant before this Court will enthusiastically grasp the language 'the law implies malice’ in each and every situation and claim reversible error. We think this is wrong and is an incorrect reading of Martin.
"The underlying question before this Court is, again, whether the charge took away from the jury’s determination that important element of 'malice aforethought’. We think not. In the instant case, the trial judge instructed the jury that should they find an .'unprovoked, unjustifiable, or inexcusable killing’ the law will imply malice. The preliminary facts were for the jury to decide. Nothing was taken away from their determination. Certainly, upon finding an 'intentional, unprovoked, unjustifiable and inexcusable killing’ the jury was mandated by the law to find malice aforethought, as that is the definition of the term.”

The Rosemary Gibson holding was followed also in People v Cooper and People v Fabian. I would hold, therefore, that the instruction in the within case did not remove the element of malice aforethought from the jury’s consideration.

Finally, I am not convinced that the trial court’s explanations of the term "malice”, when read as a whole, were "patently erroneous”. My reading of the full, total jury instruction does not indicate defendant was denied his right to a fair trial.

I would affirm.

       GCR 1963, 516.2. People v Spaulding, 42 Mich App 492, 496; 202 NW2d 450 (1972).

        Nye v People, 35 Mich 16, 18 (1876). The Court, in Nye, stated:
      "The definition of malice given in this case would remove manslaughter from the catalogue of homicides. Every crime must be attended with an unlawful and unjustifiable motive. Malice includes those which are more wicked, but it does not include them all. There are many unlawful and unjustifiable motives which have never been classed as malicious.”

       35 Mich 16 (1876).

         People v Borgetto, 99 Mich 336, 340; 58 NW 328 (1894). The Court stated:
      "Unlike the case of Nye v People, 35 Mich 16, the court, in this case, did not stop with the bare definition of ’malice’ contained in the first part of the quotation, ending with the word 'motive’, but it included the qualification of that language by what followed. In the case of Nye the jury were told that the offense would be murder if Nye and Betts, or Betts alone, begun the attack. Again, the charge in the case of Nye lost sight of the distinctions between murder and manslaughter, which here were carefully described. This definition of 'malice’ is one common to the books, being enunciated by a celebrated judge in a celebrated case, and the use of the term 'malo animo’ is so explained by the context that it was not likely to mislead an unlearned juror. We discover no error in the charge.”

        People v Borgetto, supra, People v Livingston, 63 Mich App 129; 234 NW2d 176 (1975). In Livingston, the Court reaffirmed the principle that jury instructions are to be considered in their entirety. They are not to be scrutinized line by line by the appellate courts. See also, People v Frank Johnson, 58 Mich App 1, 5; 226 NW2d 730 (1975).

       99 Mich 336; 58 NW 328 (1894).

        People v Eggleston, 186 Mich 510; 152 NW 944 (1915), People v Burkard, 374 Mich 430; 132 NW2d 106 (1965). Eggleston and Burkard stand for the proposition that where conflicting instructions are given to the jury, one correct and one erroneous, it may be presumed that the jury followed that instruction which was erroneous. The within case is distinguishable from both Eggleston and Burkard. In Eggleston, the court gave one instruction which put the burden on the defendant to prove the defense of insanity by a preponderance of proof and other instructions which clearly indicated that the burden was on the prosecution to prove all the necessary elements of the crime beyond a reasonable doubt — including the sanity of the defendant. In Burkard, the conflicting instructions had to do with self-defense — one indicating an erroneous danger-in-fact test and the other indicating the correct reasonable-belief test for self-defense. The result of following the incorrect instruction in either Eggleston or Burkard would clearly have been manifest injustice to the defendants involved. In the within case, on the other hand, we are not dealing even with two separate instructions, but the continuation of a single instruction. Nor should the second portion of the instruction be considered as conflicting with what followed — the latter portion was but an illumination of the former. At any rate, I cannot believe that the former was so confusing as to mislead the jury as to the meaning of malice, especially when read in the context of the entire instruction. See also, People v Beard, 78 Mich App 636; 261 NW2d 27 (1977).

        People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971).

       10 Mich 212 (1862).

       392 Mich 553; 221 NW2d 336 (1974).

       10 Mich 212, 217-218 (1862).

       392 Mich 553; 221 NW2d 336 (1974).

        People v Martin, supra, p 563, where the Court stated:
      "Review of the instructions in toto persuades us that the latter consideration must prevail where the chargeable offenses are not adequately defined and the essential elements necessary to establish them are either absent or presented in a manner which creates doubt as to whether the jury understood and appreciated the court’s instructions.” (Footnote omitted.)

       71 Mich App 543; 248 NW2d 613 (1976).

        People v Rosemary Gibson, supra, pp 553-554. The Court also noted:
      "There is, in fact, no basis here for comparing this to the charge in Martin. Martin dealt with the use of a deadly weapon in the commission of a homicide. The trial court charged 'if a man kills another suddenly without any warning, where a deadly weapon is used the law implies malice and the killing is murder’. * * * This differs substantially from the situation here, in that the mere finding by the jury that the defendant used a deadly weapon compelled their determination in Martin that malice was shown regardless of the jury’s decision regarding his intent. The use of a weapon in the perpetration of a killing can be insolubly ambiguous; no conclusion of malice can always be discerned solely from its use. However, with the present charge, a jury which finds all of the aforementioned preliminary facts has in fact found malice and the law does conclude malice exists from such a finding. Fundamentally, we submit, this differs from Martin.” See also, People v Conway, 70 Mich App 629; 247 NW2d 317 (1976), rev’d, 399 Mich 885 (1977).

       73 Mich App 660; 252 NW2d 564 (1977).

       77 Mich App 52; 257 NW2d 673 (1977). See also, People v Johnson, 53 Mich App 329; 220 NW2d 65 (1974).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v BAINES
    Docket No. 30299.
    Submitted November 1, 1977, at Grand Rapids.—
    Decided April 4, 1978.
    Erick C. Baines was charged with armed robbery and carrying a concealed weapon and pled guilty to assault with intent to rob being armed and on March 26, 1974, was placed on probation for four years. On October 25, 1975, defendant was arrested again for armed robbery and carrying a concealed weapon. Probation violation proceedings were instituted and at the outset defense counsel pointed out that the underlying charges were pending against the defendant and argued that not to delay the revocation hearing until the underlying criminal prosecution had been culminated would result in the defendant’s being placed in double jeopardy. The Detroit Recorder’s Court, Joseph A. Gillis, J., refused to delay the revocation hearing, noting that no trial date had been scheduled, and revoked the defendant’s probation. Defendant appeals. Held:

    The defendant’s rights against self-incrimination were not prejudiced by the trial court’s refusal to delay the revocation proceeding until the culmination of the trial on the underlying charges where the prejudice feared to the defendant’s right not to incriminate himself did not materialize in that the defendant took the stand at the hearing and denied all involvement in the underlying crimes and, further, the underlying charges were not resolved by a subsequent trial but by a plea of guilty.
    Affirmed.
    Criminal Law — Probation Violation — Constitutional Law — Self-Incrimination — Revocation Hearing — Plea of Guilty.
    A criminal defendant who was on probation and while on probation was charged with armed robbery and carrying a concealed weapon, and because of those charges was also charged with violation of probation, did not have his Fifth Amendment rights violated by the trial court’s refusal to postpone his probation revocation hearing pending the disposition of the underlying criminal charges where the prejudice feared, deterrence from testifying at the revocation hearing, was never realized because the defendant testified at length at the hearing, denying all involvement in the crimes charged and where the underlying charges were not resolved by a subsequent trial but by a plea of guilty; however, the trend of authority in this area would seem to indicate that a delay of the revocation proceeding until after trial on the underlying criminal charges normally would be preferable.

      Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 349 et seq., 562-568.

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

      Gerald S. Surowiec, for defendant on appeal.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   Per Curiam.

Defendant, who had been charged with armed robbery and carrying a concealed weapon, pled guilty to assault with intent to rob being armed, MCLA 750.89; MSA 28.284, and on March 26, 1974, he was placed on probation for four years. On October 25, 1975, while on probation, defendant was arrested again for armed robbery and carrying a concealed weapon. As a result, probation violation proceedings were instituted with defendant’s arraignment on August 26, 1976, and resumed on September 6, 1976. At the outset of the probation violation hearing, defense counsel pointed out that charges of armed robbery and carrying a concealed weapon — the same charges which formed the basis of the probation violation charge — were pending against the defendant. Defense counsel argued that not to delay the revocation hearing until the underlying criminal prosecution had been culminated would result in the defendant’s being placed in double jeopardy. Noting that no trial date had yet been scheduled, the trial court refused to delay the revocation hearing. Probation was revoked and defendant now appeals.

The issue, more artfully framed on appeal, is whether the trial court’s refusal to adjourn the probation revocation hearing pending disposition of the underlying criminal charge violated defendant’s Fifth Amendment right against self-incrimination.

This issue is not easily resolved. The dilemma it poses has been stated as follows:

"When the state holds a revocation hearing initially, therefore, a criminal trial in some cases properly may follow. The possibility of such a subsequent trial forces the defendant to decide whether to present a defense at the revocation hearing. Since, at the criminal trial, the state may be able to use evidence that the defendant presents at the initial proceeding, the defendant is confronted with the choice of either producing evidence at the revocation hearing and thus providing the state with incriminating evidence, or not producing evidence and thus forgoing a valuable defense. For example, suppose the state’s only evidence that the defendant was at the scene of the crime is hearsay, and therefore admissible at the revocation hearing but inadmissible at trial. In this situation, the defendant will undoubtedly be forced either to forgo a defense at the revocation hearing (such as, 'He hit me first’) or provide one that can later be used by the state to establish a critical element of its case. Forcing him to so choose suggests a possible infringement of the defendant’s privilege against self-incrimination.” Note, Revocation of Conditional Liberty for the Commission of a Crime: Double Jeopardy and Self-Incrimination Limitations, 74 Mich L Rev 525, 536-537 (1976).

While the trend of authority on this question would seem to indicate that a delay of the revocation proceedings would normally be preferable, we need not anticipate the bent of our Supreme Court on the issue. The prejudice feared, deterrence from testifying at the revocation hearing, was never realized here. This defendant testified at length at the hearing, denying all involvement in the crime charged. Further, here the underlying charges were not resolved by a subsequent trial but by a plea of guilty. For these reasons, we affirm.

       The American Bar Association’s Standards Relating to Probation (Approved Draft, 1970), § 5.3 provides: "A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge.” The commentary points out that a prior revocation hearing with its lower standard of proof and concomitantly greater incentive to present an active defense might "compromise” the privilege against self-incrimination. Id., at 63. The Model Penal Code would go further and require a conviction before probation can be revoked for that crime. Model Penal Code, § 301.3, Comment (Tent. Draft No. 2, 1954), pp 150-151. The California Supreme Court, for one, has banned the use of probation revocation hearing testimony in a later criminal trial; the court was acting in its supervisory capacity but the self-incrimination problem was the reason for the rule. People v Coleman, 13 Cal 3d 867; 120 Cal Rptr 384; 533 P2d 1024 (1975).


text:
    BANK OF THE COMMONWEALTH v HULETTE
    Docket No. 77-1727.
    Submitted January 10, 1978, at Detroit.
    Decided April 4, 1978.
    Plaintiff, Bank of the Commonwealth, commenced this action against Orren D. Hulette in Macomb County Circuit Court, Walter P. Cynar, J., seeking recovery on two notes in a contract action. Accelerated judgment was granted and the action dismissed because defendant had commenced a prior action in Wayne County Circuit Court against plaintiff and the payee on the notes, seeking to have the notes declared null and void because of fraud. Plaintiff appeals. Held:

    Accelerated judgment was improper because joinder of counterclaims is permissive in Michigan and the decision not to file counterclaims in the first litigation (Wayne County) allows the plaintiff to maintain a separate independent action in another county (Macomb). However, under the facts of this case, the Macomb County lawsuit should be held in abeyance until termination of the litigation in Wayne County by final order at the circuit court level.
    Reversed and plaintiff’s action held in abeyance pending the outcome of the Wayne County Circuit Court action.
    1. Judgment — Accelerated Judgment — Action—Joinder of Counterclaims — Separate Actions — Court Rules.
    Michigan provides for permissive joinder of counterclaims; therefore where a party declines to file any counterclaims in pending litigation he is then free to maintain a separate independent action of his own even though he could have set up a counterclaim in the first action; where such a separate action is commenced it is improper to grant accelerated judgment on the ground that another action is pending between the same parties involving the same claim (GCR 1963, 116.1[4], 203.2).
    References for Points in Headnotes

       20 Am Jur 2d, Courts §§ 167, 169. 20 Am Jur 2d, Counterclaim, Recoupment, and Setoff §§ 8, 155-157.

       20 Am Jur 2d, Courts §§ 82, 86.

       1 Am Jur 2d, Actions §§ 91-94.

      2. Action — Determination of Actions — Court Rules.
    Michigan court rules are to be construed to secure the just, speedy, and inexpensive determination of every action (GCR 1963, 13).
    3. Action — Two Lawsuits — Disposition of First — Second Held in Abeyance.
    A second lawsuit may be held in abeyance pending disposition of the first lawsuit where the rights of the parties to the second action cannot be properly determined until questions raised in the first action are settled.

      Honigman, Miller, Schwartz & Cohn (by Sheldon S. Toll), for plaintiff.

      Leroy M. Ogle, for defendant.
    Before: Allen, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   Per Curiam.

Plaintiff appeals an accelerated judgment granted to the defendant under GCR 1963, 116.1(4).

Plaintiff commenced this action in Macomb County Circuit Court seeking recovery on two notes in a contract action. Accelerated judgment was granted and the action dismissed on April 25, 1977, because defendant had commenced a prior action in Wayne County Circuit Court against the plaintiff and the payee on the notes, seeking to‘ have the notes declared null and void because of fraud. The issue presented is whether this was a proper basis for the trial court to grant accelerated judgment under GCR 1963, 116.1(4) ("another action is pending between the same parties involving the same claim”).

We hold accelerated judgment was improper under the instant facts. We order, however, that the Macomb County lawsuit be held in abeyance until termination of the litigation in Wayne County by final order at the circuit court level.

Michigan provides for permissive joinder of counterclaims. GCR 1963, 203.2. Plaintiff declined to file any counterclaims in the Wayne County litigation. Plaintiff was then free to maintain a separate independent action in Macomb County against defendant, even though the action could have been set up as a counterclaim in Wayne County. Karakas v Dost, 67 Mich App 161, 172-173; 240 NW2d 743, lv den, 396 Mich 869 (1976), citing Restatement, Judgments, § 58, p 230. Res judicata would not apply. Cf. Sahn v Brisson, 43 Mich App 666, 671; 204 NW2d 692 (1972).

There is a split of authority, however, on whether or not the second lawsuit may be held in abeyance pending disposition of the first lawsuit. 1 Am Jur 2d, Abatement, Survival, & Revival, § 33, p 73, provides:

"Thus, some courts have determined that since the causes of action in suits for cancellation, reformation, or rescission and those for enforcement of rights under a contract are not the same, and the relief sought is not the same, such suits are not ground for abatement of a second action although they are both founded on the same contract. In other jurisdictions it is held that though a suit to cancel a contract and a suit to enforce 'the contract or recover damages for its breach are not based on the same cause of action and do not seek the same relief, nonetheless, a suit for cancellation will abate a later suit based on the provisions of the contract, on the basis that if the contract is invalid there is nothing on which to base the second action.”

Since the Michigan court rules "are to be construed to secure the just, speedy, and inexpensive determination of every action”, GCR 1963, 13, we order the Macomb County lawsuit stayed until the Circuit Court in Wayne County passes on the validity of the notes. We follow the rule set forth in 1 Am Jur 2d, Actions, §§ 92-94, pp 621-622, which provides in part:

"Where the rights of parties to the second action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed.”

The order of the Macomb County Circuit Court granting an accelerated judgment to defendant is reversed. Under the authority of GCR 1963, 820.1(7), the Macomb County Circuit Court action is held in abeyance pending the outcome of the Wayne County Circuit Court action on the validity of the instant notes.

No costs, neither party having prevailed in full.


text:
    ROOT v REPUBLIC INSURANCE COMPANY
    Docket No. 77-2067.
    Submitted February 14, 1978, at Lansing.
    Decided April 4, 1978.
    A. Z. Root and his wife Maritina Root sold a house to Michael Lea under a land contract, and Lea obtained a policy of fire insur- ' anee with Republic Insurance Company. The policy contained a "contract of sale” clause insuring the vendors’ interest. The property was destroyed by fire, and an award was made by Republic to Lea. The Roots, upon notification from Lea’s counsel regarding the award, filed a complaint against Republic seeking recovery of an amount representing the balance due on the land contract on the date of the fire. The Oakland Circuit Court, William J. Beer, J., granted the plaintiffs’ motion for summary judgment, and Republic Insurance Company appeals. Held:

    1. The plaintiffs were not required to file a proof of loss within 60 days of the loss pursuant to a policy provision because under the "contract of sale” provision the plaintiffs are made subject to any mortgage clause in the policy and are therefore to be treated as mortgagees, who are not, under the policy, required to file a proof of loss until they are notified of the loss by the defendant insurer.
    2. The trial court did not err in holding that plaintiffs’ action was not barred by laches, because plaintiffs were not notified that the defendant required affirmative action on their part until they received the notice from Lea’s counsel and immediately thereafter sought relief.
    3. The trial court’s award of damages to plaintiffs based on the amount owing on the land contract on the date of the fire was proper.
    4. On the facts of the case, the insurer is not entitled to subrogation or to an assignment of the land contract.
    Affirmed.
    References for Points in Headnotes

       44 Am Jur 2d, Insurance §§ 1652, 1721.

       44 Am Jur 2d, Insurance §§ 1915, 1944.

       44 Am Jur 2d, Insurance § 1652.

       44 Am Jur 2d, Insurance §§ 687, 1721.

      1. Insurance — Vendor and Purchaser — Contract of Sale Clause —Mortgage Clause — Proof of Loss.
    A contract of sale clause in a policy of fire insurance in which the vendee is the named insured which indicates that the vendor of the insured property is also insured subject to any mortgage clause in the policy should be interpreted so as to treat the vendor as a mortgagee; therefore, a suit by the vendor against the insurer is not barred by the vendor’s failure to file a proof of loss where the policy does not require such filing by a mortgagee until he receives notification of the loss from the insurer.
    2. Equity — Laches—Affirmative Defense.
    Laches is an affirmative defense which depends not on mere lapse of time but principally on the requisite of intervening circumstances which would render inequitable any grant of relief to a dilatory plaintiff; a trial judge did not err by finding that laches did not bar a plaintiffs action where the plaintiff was given no indication that the defendant required affirmative action by the plaintiff until the plaintiff had received a notification from the defendant and where upon receiving notification the plaintiff immediately sought relief.
    3. Insurance — Vendor and Purchaser — Fire Insurance — Rights of Parties — Liability to Land Contract Vendor.
    Generally, the rights of partie s to a fire insurance policy are fixed as of the date of the fire, and an insurer’s liability under a policy to a land contract vendor is not affected by the vendor’s possible liability to the vendee for excess payment on the land contract.
    4. Insurance — Land Contract — Assignment of Contract.
    An insurer is not entitled to an assignment of a land contract on which it has been ordered to pay the balance due where the provision of the insurance policy under which such an assignment could be required applies only where the insurer claims "no liability existed”; such a provision has no application where the insurer has admitted liability.

      Allen C. Ingle, for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, for defendant.

      Before: Danhof, C. J., and Bronson and N. J. Lambros, JJ.

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

   Per Curiam.

This appeal involves the liability of the insurer of residential property to land contract vendors under a fire insurance policy purchased by a vendee which contains a "contract of sale” clause insuring the vendors’ interest.

Plaintiffs sold a house to Michael Lea under a land contract. Lea obtained fire insurance with defendant, Republic Insurance Company. This policy contained a "contract of sale” clause which provided in part:

"A contract for sale of the property described in this policy having been made between the insured and Maritina Root, 26205 Powers Rd., Farmington Hills, MI 48024: T. H., the interest of said last named party is also insured hereunder, but without any increase in the amount of insurance, and subject to all other terms, provisions and conditions of this policy, including any Mortgage Clause forming a part of this policy.”

The "standard mortgage clause” in the policy provides in part:

"K. STANDARD MORTGAGE CLAUSE: Applies to Building Items only; (but this entire clause is void unless name of mortgagee or trustee is inserted on the first page of this policy in space provided therefor):
"Loss or damage, if any, under this policy, shall be payable to the mortgagee [or trustee], named on the first page of this policy, as interest may appear, and this insurance as to the interest of the mortgagee [or trustee] only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee [or trustee] shall, on demand, pay the same.”

No mortgagee or trustee appears in the space provided on the first page of the policy. The policy also defines the "mortgagee interests and obligations”:

"If loss hereunder is made payable, in whole or in part, to a designated mortgagee not named herein as the insured, such interest in this policy may be can-celled by giving to such mortgagee a ten days’ written notice of cancellation. If the insured fails to render proof of loss such mortgagee, upon notice, shall render proof of loss in the form herein specified within sixty (60) days thereafter and shall be subject to the provisions hereof relating to appraisal and time of payment and of bringing suit. If this Company shall claim that no liability existed as to the mortgagor or owner, it shall, to the extent of payment of loss to the mortgagee, be subrogated to all the mortgagee’s rights of recovery, but without impairing mortgagee’s right to sue; or it may pay off the mortgage debt and require an assignment thereof and of the mortgage. Other provisions relating to the interests and obligations of such mortgagee may be added hereto by agreement in writing.”

The property was destroyed by fire on May 2, 1975. Michael Lea filed a claim against Republic which eventually resulted in an award by an umpire-appraiser of $22,500, judgment for which was entered on March 12, 1976. On April 1, 1976, Republic’s counsel wrote to the Roots, advising them that Lea’s judgment would be satisfied within five days, unless the Roots objected. The Roots had not filed a claim prior to receipt of this letter. On April 15, 1976, a check for $22,500 was delivered to Lea’s counsel. Lea had continued to make payments on the land contract until April 2, 1976, reducing the balance due to $16,498.15. Lea is purportedly out of the jurisdiction and is not a party to this suit.

The Roots began the instant lawsuit on April 30, 1976, seeking recovery under the Republic policy in accordance with the contract of sale clause. The amount sought, $17,292.19 plus interest, represented the balance due on the land contract at the date of the fire.

Plaintiffs summary judgment motion was granted by the lower court. Defendant appeals of right, raising four issues.

I.

Defendant first argues that plaintiffs’ suit was barred, relying on a provision of the policy which requires "the insured” to file a proof of loss within 60 days of the loss and another provision barring suit "unless all the requirements of this policy shall have been complied with”. Plaintiffs respond that the contract of sale clause is expressly subject to "any mortgage clause forming a part” of the policy, and that under the "mortgagee interests and obligations” provision quoted above, the mortgagee is required to give proof of loss only upon notice by the insurer. No such notice was given in the instant case.

We hold that plaintiffs’ interpretation of the contract of sale provision is the correct one. The plain language of the contract of sale clause indicates that plaintiffs-vendors are treated as mortgagees by making them subject to any mortgage clause in the policy. Cf. Mundhenk v Liverpool & London & Globe Insurance Co, Ltd, 311 Mich 571; 19 NW2d 103 (1945). See, also, West v Farm Bureau Mutual Insurance Co of Michigan, 63 Mich App 279; 234 NW2d 485 (1975). As such, proof of loss is required only upon notice. As no notice was given by the insurer, plaintiffs’ suit is not barred by a failure to furnish proof of loss.

II.

Defendant also asserts that plaintiffs’ action was barred by laches.

Laches is "an affirmative defense which depends not on mere lapse of time but principally on the requisite of intervening circumstances which would render inequitable any grant of relief to the dilatory plaintiff”. Lewis v Poel, 376 Mich 167, 169; 136 NW2d 7 (1965). In the case at bar, defendant knew of plaintiffs’ interest by the terms of the contract of sale which was part of the policy. Plaintiffs were given no indication that defendant required affirmative action on their part until they received the April 1, 1976, letter. In light of facts asserted by plaintiffs that immediately upon receipt of the letter they sought a stay of judgment and also because suit was filed on April 30, 1976, we cannot say that the trial court erred in finding plaintiffs’ action not barred by laches on defendant’s summary judgment motion.

III.

Defendant’s next argument is that the trial court erred in awarding damages to plaintiffs based on the balance due on the land contract at the date of the fire and not taking into account subsequent payments by Lea on the land contract.

Generally, the rights of the parties to a fire insurance policy are fixed as of the date of the fire. Booker T Theatre Co v Great American Insurance Co, 369 Mich 583; 120 NW2d 776 (1963), Sietsema v Freemont Mutual Insurance Co, 38 Mich App 582; 196 NW2d 841 (1972). Plaintiffs’ possible liability to Lea for excess payment under the land contract does not affect defendant’s liability to plaintiffs under the insurance contract.

IV.

Finally, defendant argues that under the "mortgagee interests and obligations” provision quoted above, it may require an assignment of the land contract on which it has been ordered to pay the balance due. However, the provision relied upon applies only if the insurer claims "no liability existed” as to the mortgagor or owner. Here, the insurer admitted liability and proceeded through appraisal to fix the amount of liability. On the facts of this case, the insurer is not entitled to subrogation or an assignment.

Affirmed. Costs to appellees.

       See MCLA 500.2832; MSA 24.12832.

       The motion was based on GCR 117.2(2) and (3).

       This is true even though the "standard mortgage clause” does not, by its terms, apply, since no mortgagee is named on page one of the policy.


text:
    WILHELM v DENTON
    Docket No. 77-2442.
    Submitted December 6, 1977, at Grand Rapids.—
    Decided April 4, 1978.
    Leora Wilhelm brought a complaint against Arthur T. Denton and Linda C. Denton alleging breach of a contract to purchase certain real estate and seeking an order of specific performance of that contract. Plaintiff also filed a motion to amend her complaint to include damages in the alternative and for declaratory relief to control the resale of the property in the event the court felt that specific performance was not a proper remedy. The parties made cross motions for summary judgment. The Circuit Court for the County of Emmet, Martin B. Breighner, J., denied plaintiffs request to amend the complaint and granted summary judgment to the defendants. The court held that the plaintiff would have an adequate remedy at law and that since the property had not been resold a suit for damages was premature. Plaintiff appeals. Held:

    A trial court has the discretion to award specific performance of a contract to transfer title to realty even where a remedy at law exists for the plaintiff. Specific performance should be awarded in such a case in the absence of some showing that to do so would be inequitable.
    Reversed and remanded.
    1. Specific Performance — Vendor and Purchaser — Contracts— Land.
    The vendor in a contract involving land may be entitled to specific performance of the contract in an appropriate case.
    2. Specific Performance — Vendor and Purchaser — Contracts— Remedy at Law — Adequacy—Land.
    The adequacy of a remedy at law is not a bar to specific performance where a contract involves the sale of realty.
    References for Points in Headnotes

       71 Am Jur 2d, Specific Performance §§ 115,119, 126.

       71 Am Jur 2d, Specific Performance §§ 153, 154.

       71 Am Jur 2d, Specific Performance §§ 7, 113.

      3. Specific Performance — Court’s Discretion — Matter of Rights.
    The grant of specific performance of a contract is within the discretion of a trial court and cannot be demanded as a matter of right.
    4. Specific Performance — Vendor and Purchaser — Court’s Discretion — Contracts—Land—Breach.
    Specific performance of a contract to sell land may not be arbitrarily refused by a trial court and in the exercise of sound judicial discretion should be granted, in the absence of some showing that to do so would be inequitable.

      Richard H. Scholl, for plaintiff.
    Before: Danhof, C. J., and M. J. Kelly and T. M. Burns, JJ.
   Per Curiam.

Plaintiff brought this action for specific performance of a written contract to sell realty. The trial court granted summary judgment to the defendants, holding that plaintiff, the vendor, would have an adequate remedy at law and that since the property had not been resold a suit for damages was premature. The trial court had earlier refused plaintiff’s request to amend her complaint to include declaratory relief to control the resale of the property to avoid problems of mitigation of damages. Plaintiff appeals and we reverse.

This case calls for application of well-settled principles. The vendor in a contract involving land may be entitled to specific performance in an appropriate case. Pearson v Gardner, 202 Mich 360; 168 NW 485; 1918F LRA 384 (1918), Coleman v Larsen, 243 Mich 618; 220 NW 670 (1928), 71 Am Jur 2d, Specific Performance, § 115. The adequacy of a remedy at law is not a bar to specific performance where the contract involves realty. Janiszewski v Shank, 230 Mich 189, 193; 202 NW 949 (1925), Brin v Michalski, 188 Mich 400, 405-406; 154 NW 110 (1915), Lutz v Dutmer, 286 Mich 467, 482-483; 282 NW 431 (1938).

The grant of specific performance is within the discretion of the trial court and cannot be demanded as a matter of right. However, when the subject of the contract is the sale of land, specific performance may not be arbitrarily refused, and in the exercise of sound judicial discretion should be granted, in the absence of some showing that to do so would be inequitable. Foshee v Krum, 332 Mich 636; 52 NW2d 358 (1952), Hager v Rey, 209 Mich 194; 176 NW 443 (1920).

Since the judgment below was entered on cross-motions for summary judgment, the record is not sufficient to allow us to order specific performance. It does show, however, that the reasons given by the trial court for denying specific performance are erroneous. We therefore vacate the judgment and remand for the taking of proofs on plaintiffs complaint.

This disposition renders discussion of plaintiffs second issue unnecessary.

Reversed for proceedings not inconsistent with this opinion. Costs to appellant.


text:
    RUSSELL v V. I. C. METAL PRODUCTS COMPANY
    Workmen’s Compensation — Hand Injury — Loss op Industrial Use —Amputation—Physical Loss.
    The test for determining loss of industrial use in a workmen’s compensation case involving the loss of a portion of a hand is the degree of loss as compared with the actual physical loss by destruction or amputation; loss of industrial use is functionally equivalent to actual physical loss, as by destruction or amputation.
    Appeal from Workmen’s Compensation Appeal Board.
    Submitted February 8, 1978, at Grand Rapids.
    (Docket No. 77-2669.)
    Decided April 4, 1978.
    Claim by David Russell against V. I. C. Metal Products Company and American Mutual Liability Company for workmen’s compensation. Benefits granted. The Workmen’s Compensation Appeal Board aifirmed. Defendants’ application for leave to appeal to the Court of Appeals was denied. Defendants filed an application for leave to appeal to the Supreme Court and the Supreme Court remanded the case to the Court of Appeals for consideration, 400 Mich 842 (1977). On consideration, remanded for further proceedings.

      Gillett & Carpenter, for plaintiff.

      Cholette, Perkins & Buchanan (by Edward D. Wells), for defendants.
    Reference for Points in Headnote
    82 Am Jur 2d, Workmen’s Compensation §§ 289, 344, 350.

      Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   Per Curiam.

Plaintiff was employed by defendant, V. I. C. Metal Products Company, an automobile parts manufacturer, as a punch press or stamping press operator. He was injured on August 28, 1972, when the press accidentally came down on his left hand, amputating the little, ring and middle fingers and a portion of the palm. The middle finger was surgically reattached. Defendants voluntarily paid disability benefits for the specific loss of the two fingers. Plaintiff returned to work in March, 1973, and resumed his former job as press, shearer, and reamer operator.

On May 10, 1973, plaintiff filed a petition for specific loss and loss of industrial use of his left hand. Benefits for loss of industrial use were awarded.

Plaintiff continued working for the defendant until November 22, 1974, when it closed down its plant and laid off all the workers. On June 11, 1975, plaintiff filed a second petition which requested a determination of general disability and sought general disability benefits. After a hearing, plaintiff was found to be totally disabled and compensation was ordered to be paid beyond the specific loss period.

The Workmen’s Compensation Appeal Board upheld the decision of the administrative law judge on the issue of specific loss of industrial use of the left hand and also the decision regarding total disability. The appeal board ordered compensation to be paid until the defendant could prove that plaintiff was employed or that suitable employment is available.

Defendants sought leave to appeal the board’s decision to this Court, which was denied. Application was then filed in the Michigan Supreme Court, which remanded the case to the Court of Appeals for consideration as on leave granted. Russell v VIC Metal Products, 400 Mich 842 (1977).

Defendants raise two issues on appeal, only one of which need be answered herein. This issue is whether the appeal board applied the correct legal standard in determining that plaintiff lost the industrial use of his left hand.

The test for determining loss of industrial use is the degree of loss as compared with the actual physical loss by destruction or amputation. Hutsko v Chrysler Corp, 381 Mich 99; 158 NW2d 874 (1968). Loss of industrial use is functionally equivalent to actual physical loss, as by destruction or amputation. Pintar v Copper Range Mining Co, 79 Mich App 518; 261 NW2d 69 (1977).

After reading the appeal board’s opinion, we are not convinced that the above standard was used by the board in making its decision. Thus, we remand this case to the appeal board for a determination of whether the plaintiff suffered the loss of industrial use of his left hand in accordance with the Hutsko standard.

Remanded for proceedings not inconsistent with this opinion. No costs.


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

text:
    KERSTEN v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 77-1593.
    Submitted February 8, 1978, at Grand Rapids.—
    Decided April 11, 1978.
    James Kersten and Beverly Kersten brought an action for a declaratory judgment of liability under a policy of insurance against the Detroit Automobile Inter-Insurance Exchange, the Secretary of State, and others, in Kalamazoo County Circuit Court, Robert L. Borsos, J., as a result of an accident which occurred when a vehicle driven by Beverly Kersten struck a tire and rim in the passing lane of the public highway on which she was driving. Plaintiffs were granted a declaratory judgment of liability. The court found that the tire and rim assembly was a spare tire from an unidentified motor vehicle and that physical contact with the tire and rim was sufficient contact with the negligent vehicle under Michigan’s then hit- and-run statute to provide collision insurance coverage under plaintiffs’ insurance policy with the defendant Insurance Exchange. Defendant Detroit Automobile Inter-Insurance Exchange appeals. Held:

    Plaintiffs’ recovery was dependent upon physical contact by the hit-and-run vehicle and plaintiffs’ vehicle under the policy of insurance and the then existing statute. A collision with a tire and rim on a highway is not physical contact with a vehicle because a tire and rim are not an automobile.
    Recovery may be allowed where an intervening vehicle or an object are propelled into an insured’s automobile by a hit and run vehicle where there is convincing evidence of the hit-and-run vehicle and the possibility of fraud is minimal; but where an insured collides with a loose tire and rim on a highway the possibilities of fraud, in the absence of definite and specific proof of physical contact with an unidentified vehicle, are too great to conclude that recovery was intended under the hit-and-run provisions of the insurance policy.

      References for Points in Headnotes
    [1, 3-9] 7 Am Jur 2d, Automobile Insurance §§ 135, 136.5.
    Rights and liabilities under "uninsured motorists” coverage. 79 ALR2d 1252.
    Uninsured motorist indorsement: validity and construction of requirement that there be "physical contact” with unidentified or hit-and-run vehicle. 25 ALR3d 1299.
    [2, 3, 10] 5 Am Jur 2d, Appeal and Error §§ 819, 882.
    [3, 7, 8, 10] 7 Am Jur 2d, Automobile Insurance § 136.7.
    What constitutes "automobile” for purposes of uninsured motorist provisions. 65 ALR3d 851.

      Reversed.
    Judge J. H. Gillis, concurring, would also reverse on the ground that the trial court’s findings of fact were based upon speculation and conjecture and were, therefore, erroneous.
    Opinion of the Court
    1. Insurance — Automobiles—Uninsured Motorist — Hit-and-Run —Physical Contact — Damages—Statutes.
    Recovery for hit-and-run personal injury damages, prior to Michigan’s no-fault insurance law, required physical contact by an unidentified vehicle with a plaintiff or with a vehicle occupied by the plaintiff under both uninsured motorist coverage and by statute; furthermore, the Secretary of State, as director of the uninsured motorist fund, could not be joined as a defendant for the purpose of payment from the fund unless physical contact with the unidentified vehicle had been established (MCLA 257.1112, 257.1133; MSA 9.2812, 9.2833).
    2. Appeal and Error — Findings of Fact — Clearly Erroneous Findings.
    A finding of fact made by a trial court will be set aside only if it is clearly erroneous; a finding of fact is clearly erroneous where, although there is some evidence to support it, a reviewing court which has examined all of the evidence is left with the definite and firm conviction that a mistake has been committed. 3. Appeal and Error — Automobiles—Tire and Rim— Physical Contact — Legal Conclusions — Rejection.
    A trial court’s legal conclusion that a collision with a loose tire and rim on a highway was physical contact with an automobile is rejected; a tire and rim on a highway are not an automobile.
    4. Insurance — Automobiles—Phantom Vehicle Claims — Physical Contact — Prevention of Fraud.
    The physical contact between vehicles provision in insurance policies issued prior to the no-fault insurance statute was designed to reduce the possibility of fraud in accidents involving a hit-and-run vehicle; the purpose of the language was to prevent phantom vehicle claims — the possibility that a motorist who negligently lost control of his own vehicle would recover by alleging that an unknown vehicle caused him to lose control.
    5. Insurance — Automobiles—Hit-and-Run—Physical Contact— Intervening Vehicle — Prevention of Fraud.
    Courts permit recovery under an insured’s hit-and-run coverage where the hit-and-run vehicle strikes a second or intervening vehicle which in turn is propelled into the insured vehicle; under these circumstances, there is physical contact, although indirect and transmitted, between the insured vehicle and the hit-and-run vehicle, and in this intervening vehicle situation the possibility of fraud is minimal.
    6. Insurance — Automobiles—Hit-and-Run—Physical Contact— Causal Connection — Transmitted Force — Intermediate Vehicles — Propelled Object Cases.
    Recovery is permitted under an insured’s hit-and-run coverage where the evidence discloses a direct causal connection between the hit-and-run vehicle and the plaintiif-insured’s vehicle which was carried through by a continuous and contemporaneously transmitted force; in situations involving an intermediate vehicle or a propelled object there must be convincing evidence of a hit-and-run vehicle.
    7. Insurance — Automobiles—Hit-and-Run—Tire on Highway— Chain of Events — Objective and Inferential Evidence— Speculative Causation.
    Recovery under an insured’s hit-and-run coverage should be denied where the insured’s vehicle strikes a tire and rim on a highway causing him to lose control where he is only able to raise an inference of a contemporaneous and continuing propulsion of the tire and rim from a disappearing hit-and-run vehicle; clearly definable or objective evidence rather than inferential evidence is necessary to show a beginning and ending of a contemporaneously occurring chain of events, and where nothing links the tire and rim with the hit-and-run vehicle except an inference drawn from the presence of a spinning tire and rim on the road, the chain of causation is stretched too thin and is too speculative.
    8. Insurance — Automobiles—Hit-and-Run—Phantom Vehicle— Physical Contact — Fraud.
    The possibilities of fraud, in the absence of definite and specific proof of physical contact with an unidentified vehicle, are too great to allow insurance recovery for a collision with a loose tire and rim left behind on a highway by a phantom vehicle under the hit-and-run provisions of an insurance policy.
    9. Insurance — Automobiles—Hit-and-Run—Physical Contact— Absence of Fraud.
    The statutory and policy mandates of physical contact between an insured and an unidentified hit-and-run vehicle cannot be ignored even where there is no claim of fraud.
    Concurrence by J. H. Gillis, P. J.
    10. Appeal and Error — Findings of Fact — Speculation and Conjecture — Clear Error.

      A trial court’s ñndings of fact are erroneous, based upon speculation and conjecture, and reversible where the court failed to explore all of the plausible explanations as to how a tire and rim came to be on a highway at the time they were struck by a plaintiff-insured's vehicle.

      Martell & Allen, for plaintiffs.

      James, Dark, Craig & Brill, for Detroit Automobile Inter-Insurance Exchange.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Regina Ann King, Assistants Attorney General, for Michigan Department of State.
    Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   Allen, J.

Defendant Detroit Automobile Inter-Insurance Exchange (DAIIE), appeals from an April 13, 1977, declaratory judgment, GCR 1963, 521, holding that, under plaintiffs’ insurance policy and under Michigan’s then hit-and-run statute, MCLA 257.1112; MSA 9.2812, DAIIE was liable to plaintiffs for damages arising out of an accident occurring May 14, 1975, when the vehicle driven by Beverly Kersten struck an unidentified truck tire spinning in front of her on the passing lane of the highway on which she was driving. At the bench trial the issue was whether the unusual circumstances of this case entitled plaintiffs to insurance benefits under pre-no-fault law.

I. Facts

The insurance policy plaintiffs carried with DAIIE provided for protection in the event of an accident with an uninsured automobile if plaintiffs’ injuries were caused by the ownership, maintenance or use of said uninsured automobile. Uninsured automobile was defined to include a "hit-run” motor vehicle. And a "hit-run” motor vehicle was defined, inter alia, as "a motor vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident * * * ”.

At the time of the accident, insurers in this state were required to make uninsured motorist coverage available, MCLA 500.3010; MSA 24.13010. Also in existence at the time of the accident was a motor vehicle accident claims fund created by the Motor Vehicle Accident Claims Act. MCLA 257.1101 et seq.; MSA 9.2801 et seq. Section 12 of that act provided for hit-and-run coverage:

"Where the death of or personal injury to any person is occasioned in this state by a motor vehicle but the identity of the motor vehicle and of the driver and owner thereof cannot be established, any person who would have a cause of action against the owner or driver in respect to the death or personal injury may bring an action against the secretary * * * . In any action commenced under this section, physical contact by the unidentified vehicle with the plaintiff or with a vehicle occupied by the plaintiff, is a condition precedent to such action.” MCLA 257.1112; MSA 9.2812. (Emphasis supplied.)

Section 13 of the act precluded joining the Secretary of State, the director of the fund, "unless physical contact by the unidentified vehicle with the plaintiff or with the vehicle occupied by the plaintiff or with such other vehicle which was involved in the accident has been established”. MCLA 257.1113; MSA 9.2813. The physical contact requirement was added to both sections in 1968. 1968 PA 223. Thus, both under the policy of insurance and by statute, plaintiffs’ recovery was dependent upon "physical contact” by the hit-and-run vehicle and plaintiffs’ car.

Sometime between 10 p.m. and 11 p.m., on May 14, 1973, Beverly Kersten was injured when the automobile she was operating went out of control after striking a truck tire and rim assembly. The tire was in the middle of the passing lane on northbound US-131, a limited access expressway near Kalamazoo. Kersten had just passed another car when she saw an object in the road ahead of her. She applied her brakes but could not avoid the object. Just before hitting the object she recognized it as a large tire which was on its side and spinning in the same fashion as a coin just before it comes to rest. Around noon of the same day, a truck carrying a load of scrap tires spilled a number of tires on the highway in the area of the Kersten accident. Moments after the Kersten accident, a car driven by witness Marilyn VanKampen hit a truck tire lying in the passing lane of the same stretch of highway.

The tire and rim assembly which Kersten hit was retrieved. There was a large gash in the tire, apparently from the collision. Appellant’s expert testified that the tire probably could have held air prior to the accident. The tire was quite old, had virtually no tread, and the inner fabric was exposed in places. Appellant’s expert described it as "not even a good carcass”, and stated that it could have been a junk or scrap tire. However, on cross-examination, the expert also admitted that the tire could have been driven a short distance and could possibly have been used as a spare tire. The expert further testified that the tire and rim had definitely not worked loose from the axle of a moving vehicle.

II. Issues and trial court’s findings

The trial judge recognized that the “physical contact” requirement was the basic issue in the case and made findings of fact and conclusions of law which fully satisfied the physical contact requirement. It is the legal adequacy of the trial court’s findings of both fact and law upon which our resolution of this case turns.

We summarize the court’s findings as follows: First, the tire and rim assembly which caused the accident was a spare tire mounted on or under the trailer of a passing truck from which it fell, rolling into the path of plaintiffs’ vehicle. The court stated that while it was not unusual to see a truck full of old tires being transported to the junk yard, the facts in the case "do not show that this tire and rim came from a load of junk tires”. Second, under the rationale in Lord v Auto-Owners Insurance Co, 22 Mich App 669; 177 NW2d 653 (1970), physical contact with the total (as distinguished from only a part) of the hit-run vehicle is not required. Since no fraud was shown or alleged in the instant case, Lord may be extended to include situation where an object has fallen off an unidentified vehicle and has struck plaintiffs’ car. Third, even if direct physical contact is required, such condition has been fulfilled in the instant case because the tire and rim assembly is a motor vehicle.

III. Legal sufficiency of the trial court’s findings of fact

We first consider whether the trial court’s findings of fact are supported by the evidence. From the facts related in the various depositions and statements, five possible scenarios emerge as to how the tire and rim assembly happened to be on the highway in front of the Kersten car. The trial judge chose possibility five. Unfortunately, the bulk of the record is contained in depositions and statements with trial testimony taken from only a single witness. Thus, the trial judge was disadvantaged in having to make findings of fact based upon an unusually scanty record and without the benefit of cross-examination from the key witnesses involved. But based upon the record available to him, situation five is as supportable as any of the other possibilities. The fact that the tire was spinning — this testimony being unrefuted — suggests that the tire had recently dropped off an unidentified vehicle and was not a part of the load of tires which had spilled on the highway some ten hours earlier. The fact that the accident occurred on a limited access highway which was completely fenced on both sides and where pedestrians or non-motorized vehicles are rarely found, suggests that the tire was not rolled onto the highwáy by children or pranksters. The fact that the tire expert witness, called by the Secretary of State, admitted that the tire "could have been a spare” and that such tires sometimes escape from a truck or trailer supports the trial court’s finding that the tire was a spare. The fact that the tire included a rim also gives some support to the trial court’s findings of fact.

A finding of fact made by a trial court will be set aside only if it is clearly erroneous. Michigan Sugar Co v Jebavy-Sorenson Orchard Co, 66 Mich App 642, 644; 239 NW2d 693 (1976), Muskegon v Lipman Investment Corp, 66 Mich App 378, 383; 239 NW2d 375 (1976). A finding of fact is clearly erroneous where, although there is some evidence to support it, a reviewing court which has examined all of the evidence is left with the definite and firm conviction that a mistake has been committed. Tuttle v Department of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), BPA II v Harrison Township, 73 Mich App 731, 736; 252 NW2d 546 (1977). 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Rule 517, p 596. We therefore conclude that while the evidence is regretfully thin and subject to other interpretations it is not clearly erroneous.

IV. Trial court’s conclusions of law

Having accepted the trial court’s findings of fact we now turn to the trial court’s findings of law. As noted earlier, the court held that as a matter of law the spare tire was a "motor vehicle” in itself. The court also held that because no claim of fraud was present, the facts found by the court constituted sufficient "physical contact” to fall within the policy of insurance. We speedily reject the legal conclusion that the tire is a motor vehicle. Just as a horseshoe is not a horse, so, too, a tire and rim is not a car. Neither is an abandoned muffler or a broken tailpipe. As was stated in Blankenbaker v Great Central Insurance Co, 151 Ind App 693, 701; 281 NE2d 496 (1972), "to reach any other conclusion would be a significant retreat from reality”.

The court’s conclusion as to physical contact raises a question of first impression in Michigan. The physical contact provision is designed to reduce the possibility of fraud. The purpose of the language is to prevent phantom vehicle claims— the possibility that a motorist who negligently lost control of his own vehicle would recover by alleging that an unknown vehicle caused him to lose control. Lord v Auto-Owners Insurance Co, 22 Mich App 669; 177 NW2d 653 (1970), State Farm Mutual Auto Insurance Co v Spinola, 374 F2d 873 (CA 5, 1967). Recently, physical contact has been stretched to include situations where no direct contact occurs. The most common circumstance in which recovery is thus permitted is the intervening vehicle situation where the hit-and-run vehicle strikes a second or intervening vehicle which in turn is propelled into the insured vehicle. Under these circumstances, there is a physical contact, although indirect or transmitted, between the insured vehicle and the hit-and-run vehicle. The possibility of fraud in such a situation is minimal. Because of these factors, apparently all courts have permitted recovery under the insured vehicle’s hit-and-run coverage. Louthian v State Farm Mutual Insurance Co, 493 F2d 240, 242 (CA 4, 1973). Michigan courts are no exception. Lord v Auto-Owners Insurance Co, supra. Many of these cases have been collected in Anno: Uninsured Motorist Indorsement: Validity and Construction of Requirement That There be "Physical Contact” with Unidentiñed or Hit-and-Run Vehicle 25 ALR3d 1299.

The physical contact requirement has been further stretched to permit recovery where an object is propelled into the insured vehicle by another vehicle which does not stop. The primary example of such a situation is the case of a stone thrown off by the tires of a passing vehicle. Barfield v Insurance Co of North America, 59 Tenn App 631; 443 SW2d 482 (1968), and Gavin v Motor Vehicle Accident Indemnification Corp, 57 Misc 2d 335; 292 NYS2d 745 (1968), and Anno: 25 ALR3d 1299, supra. In Allied Fidelity Insurance Co v Lamb, 361 NE2d 174 (Ind App 1977), the Court upheld recovery where a truck propelled a rock through the windshield of the insured vehicle because "a substantial physical nexus between the unidentified vehicle and the intermediate object is established”. 361 NE2d at 179. But some courts have refused to stretch the physical contact requirement to this degree. See Smith v Great American Insurance Co, 29 NY2d 116; 272 NE2d 528 (1971), Government Employees Insurance Co v Goldschlager, 44 App Div 2d 715; 355 NYS2d 9 (1974).

Likewise, courts confronted with a situation where, as in the instant case, a part of a vehicle is deposited on the highway by a preceding vehicle, have refused to loosen the physical contact requirement to permit recovery. In Blankenbaker v Great Central Insurance Co, 151 Ind App 693; 281 NE2d 496 (1972), plaintiff struck a tire and rim on the highway. The Court held that the physical contact was "too remote and disconnected”. In distinguishing this decision, the later Lamb court found that the indirect physical contact doctrine failed to permit recovery for plaintiff Blankenbaker because of "temporal and causal remoteness”.

In Wynn v Doe, 255 SC 509; 180 SE2d 95 (1971), a vehicle driver skidded on oil spilled at some prior time by another vehicle. Recovery was denied because of lack of physical contact with the hit-and-run vehicle. Similarly, recovery is denied where an object is thrown from or propelled by an occupant of a passing vehicle and strikes the insured. Ford v Monroe, 559 SW2d 759 (Mo App, 1977), Mazon v Farmers Insurance Exchange, 107 Ariz 601; 491 P2d 455 (1971), Aetna Casualty & Surety Co v Head, 240 So 2d 280 (Miss, 1970).

A common thread runs through the cases cited and explains the difference between recovery in some instances and no recovery in others. Recovery is permitted where the evidence discloses a direct causal connection between the hit-and-run vehicle and plaintiffs vehicle and which connection carries through to the plaintiffs vehicle by a continuous and contemporaneously transmitted force from the hit-and-run vehicle. For example, the intermediate vehicle cases such as Lord, supra, are explained because there is evidence of a simultaneous causal connection. Similarly, in the propelled object cases such as Lamb, supra, there is a direct causal connection by means of a continuous and contemporaneously transmitted force. Further, in such cases there is convincing evidence of a hit-and-run vehicle. But where a tire or a trunk or other piece of cargo lying on the highway is struck and, unlike the propelled stone cases, there is no clear testimony but only an inference of a contemporaneous and continuing propulsion of the object from a disappearing hit-and-run vehicle, recovery is denied. The chain of causation is stretched too thin and is too speculative.

If the above analysis is correct, plaintiffs may not recover even though we accept as true the facts found by the trial court. Plaintiff stated she sighted the tire in the left lane of US-131 as she was passing a slower moving vehicle. No one saw the truck or trailer which dropped the tire. Nor did the slower moving vehicle which Kersten was passing stop, even though a violent accident had occurred just ahead of it. That an unidentified vehicle deposited the tire is inferred by the trial judge from the facts. But inferred facts do not show a clearly definable beginning and ending of a contemporaneously occurring chain of events. Nothing links the tire and rim with the hit-and-run vehicle except an inference drawn from the presence of a spinning tire and rim on the road. Both the intermediate vehicle cases and the propelled object cases require clearly definable or objective evidence (rather than inferential evidence) of a link between a disappearing vehicle and plaintiffs vehicle.

"We hold that the 'physical contact of such vehicle’ includes the physical contact of that vehicle with an intermediate vehicle or other object which, in the same mechanism of the accident, strikes the assured’s vehicle. * * * Specifically, the injury causing impact must have a complete, proximate, direct and timely relationship with the first impact between the hit-and-run vehicle and the intermediate vehicle. In effect, the impact must be the result of an unbroken chain of events with a clearly deñnable beginning and ending, occurring in a continuous sequence.” Springer v Government Employees Insurance Co, Inc, 311 So 2d 36, 39-40 (La App, 1975). (Emphasis supplied.)
"Blankenbaker is factually distinguishable from the case at bar. Here, a causal connection is established between the hit-and-run automobile and the intermediate propelled object. Here, the possibilities of fraud are remote. Here, there exists objective evidence from which the trier of fact could reasonably conclude that the unidentified vehicle was the original transmitter of the force causing the accident.” Allied Fidelity Insurance Co v Lamb, supra at 178.

Judicial insistence upon a clearly definable or directly provable nexus between the hit-and-run vehicle and the injured party is predicated upon the prevention of fraud. While fraud is not suggested in this case the circumstances are highly susceptible to fraud. Each tire which is struck could be claimed to be spinning; each muffler, tailpipe or other part of a vehicle asserted to be bumping on the highway. In most cases, such accidents do not occur where other witnesses are present and, thus, as here, no one could disprove the injured party’s statement of fact. In such circumstances it becomes easy to assert and hard to disprove the presence of a phantom vehicle. In our opinion, the possibilities of fraud are too great to conclude that, in the absence of proof more definite and specific than here, recovery was intended under the language of the insurance policy.

Our conclusion is supported by two other courts which have faced strikingly similar cases. In Government Employees Insurance Co v Goldschlager, 44 App Div 2d 715; 355 NYS2d 9 (1975), recovery under hit-and-run coverage was denied when a tire and rim assembly bounded across a highway and struck the insured vehicle. The New York court held that the required physical contact with the hit-and-run vehicle was not met. In Blankenbaker v Great Central Insurance Co, supra, the Court held:

"In the case before us1, no other vehicle was shown to be within the area of the accident. There was a total lack of evidence tending to establish a causal connection between some vehicle and this tire and rim assembly. The assembly was not shown to be- a part of a hit- and-run automobile, which is essential to invoking the indirect physical contact doctrine. Amidzich v Charter Oak Fire Ins. Co, supra; State Farm Mutual Auto Ins. Co v Spinola, supra; Ely v State Farm Mutual Automobile Ins Co, supra. Consequently, there was no physical contact, direct or indirect, with a hit-and-run 'automobile’.” 151 Ind App at 702; 281 NE2d at 501-502.

Finally, we reject the argument that where there is no claim of fraud, the statutory and policy mandates of physical contact could be largely ignored. A similar claim was made and rejected in Orpustan v State Farm Mutual Automobile Insurance Co, 7 Cal 3d 988; 103 Cal Rptr 919; 500 P2d 1119 (1972).

"This uncontradicted fact, plaintiff says, should suffice where, as here, there is a clear absence of any fraud. But if the physical contact requirement could be satisfied by merely showing that the hit-and-run vehicle was the proximate cause of the accident, this provision would be largely written out of the statute. Thereby, the protection against phantom-car frauds would be diluted and the door reopened to the abuses which motivated the Legislature’s imposition of the 'physical contact’ requirement to come within the contemplated coverage of the statute.” 7 Cal 3d at 993.

For all of the foregoing reasons we hold that the chain of physical contact between the unidentified hit-and-run vehicle and the Kersten car is too attenuated and too inferentially established to satisfy the physical contact requirement of the statute and policy as a matter of law even under the set of facts found by the trial court.

Reversed.

R. B. Burns, J., concurred.

J. H. Gillis, P. J.

(concurring). While I am in complete agreement with the result reached by the majority in the instant case, I am compelled to write separately in order to express my dissatisfaction with the factual findings made by the trial court.

The majority opinion sets forth, in footnote 7, five possible explanations as to how the tire and rim happened to be in the middle of the highway when plaintiffs’ car passed. The trial court determined that possibility number five explained the presence of the tire on the highway.

I cannot affirm the trial court’s factual findings since I find them to be based upon speculation and conjecture. I believe that there are more than five plausible explanations as to how the tire and rim came to be upon the highway at the time of the accident.

Accordingly, I would find the trial court’s factual findings erroneous and reverse on that basis as well.

       Repealed prospectively by MCLA 257.1133; MSA 9.2833, effective January 2, 1976.

       After the institution of the no-fault automobile insurance scheme, this statute was repealed. 1972 PA 345.

       The record contains statements from witnesses Cook, VanKampen, Anderson and Niedzielski. Cook stated that on the night in question he was driving north on the highway when he saw a large tire lying in the passing lane, that after he passed the tire he looked in his rearview mirror and observed the car behind him strike the tire, become airborne, but pull to a stop on the right side of the highway. Cook then drove his car back to the scene of the impact where he found Marilyn VanKampen sitting in her car in a dazed condition. Marilyn VanKampen stated that on the date and time in question she was driving north on highway 131 when she struck a large tire, became airborne but managed to pull her car off the right side of the road. Witnesses Anderson and Niedzielski lived in separate apartments near the scene of the Kersten-VanKampen accidents. Each heard a large crash and "a few seconds later” another crash. Each proceeded to the scene of the noise where each saw two vehicles, one on highway 131 and one which had plunged over the overpass. Both Anderson and Niedzielski were positive that the Kersten accident occurred first.

       "3. The tire and rim assembly was a 'spare tire’ mounted on or under and dropped from or escaped from an unidentified motor vehicle a short time before such assembly collided with plaintiffs’ motor vehicle.” Judge’s Finding of Fact, Declaratory Judgment.

       "2a. The 'physical contact’ provision of both the statute and the policy does not require direct physical contact with the negligent vehicle in this case because there has been no fraud nor contributory negligence either pleaded or proved.” Judge’s Conclusion of Law, Declaratory Judgment.

       "2b. That even were the Court to hold that the 'direct physical contact’ requirements apply here, such provisions have been fulfilled. Under the circumstances of this case, the tire and rim assembly is a 'vehicle’ and/or 'motor vehicle,’ as those terms are used in the policy and statute for the reason that this Court has found that the tire and rim had shortly before the accident been an integral part of a motor vehicle and not just a part of the cargo carried by a motor vehicle.” Judge’s Conclusion of Law, Declaratory Judgment.

       First, the tire may have been dropped at noon on US 131 after a truck lost part of its load of junk tires. Sunset on the evening of the accident was at 8:55 p.m. The weather was clear; visibility was unlimited. Perhaps the daylight motorists between noon and nightfall were able to avoid the tire and rim. But plaintiff, who approached the tire after 10 p.m., did not spot the tire because of the darkness.
      Second, that the tire was pushed on the highway by pranksters.
      Third, that the tire and rim, part of a load of junk tires, had recently fallen off a truck preceding plaintiffs’ vehicle. In support of this theory is the fact that the tire was in very bad shape, according to the tire expert.
      Fourth, the same as three above, but that the tire had been dropped sometime before plaintiff approached. In conflict with this theory is plaintiff’s testimony that the tire was spinning like a coin.
      Fifth, the situation may have been as in possibility three above, except that the tire was a spare and not a junk tire. In support of this theory is the presence of the tire rim and the testimony that the tire could hold air.

       Where objects are thrown by an occupant of a passing vehicle the transmitting force is the product of the occupant of the vehicle rather than the vehicle itself. Much the same analysis e1xplains Wynn v Doe, supra. Whether or not the oil came from the hit-and-run car, there was no direct connection between the two vehicles because whatever force there might have been, had dissipated.

       In Blankenbaker the tire and rim were never found and Blankenbaker was unable to explain how it happened to be there but "assumed it was dropped by a large vehicle”. Plaintiffs in the case before us would distinguish Blankenbaker on grounds that in the instant case a tire was found and when found, was spinning. However, the Indiana court assumed as true the fact that a large tire and rim was in the highway but declined to accept plaintiff’s assumption "it was dropped by a large vehicle”. Similarly, we hold that the trial court’s assumption that the tire and rim just fell off a disappearing truck or trailer is insufficient proof to establish indirect physical contact.

       The majority concludes that these findings are not erroneous.