author: Beasley, J.

text:
    CONEL DEVELOPMENT, INC. v RIVER ROUGE SAVINGS BANK
    Docket No. 30221.
    Submitted April 6, 1978, at Detroit.
    Decided July 5, 1978.
    Leave to appeal applied for.
    Conel Development, Inc. entered into a contract with Underground Television Inspection by Seaway, Inc. in connection with improvements to be made in a land development in Iosco County. Upon a failure of performance, Conel brought an action against River Rouge Savings Bank, Underground Television, William Brewer, Shirley A. Brewer, and Charles F. Dorris for damages for breach of contract. River Rouge Savings Bank was alleged to be a surety for Underground Television, whose directors were the individual defendants. The individual defendants were eventually dismissed by stipulation and the case was divided into two jury trials, the first with respect to liability, the second as to damages. The Wayne Circuit Court, Blair Moody, Jr., J., entered judgments upon jury verdicts holding River Rouge Savings Bank liable to plaintiff and assessing damages against both the bank and Underground Television. The bank appeals, alleging the trial court erred in not requiring a special verdict, that it should not have been held liable on the contract, and challenging the sufficiency of the evidence. Held:

    1. The trial court did not err by not requiring a special verdict. The parties stipulated on the record that they would take a general verdict and such a stipulation, when approved by the court, acts as a waiver of any objection the parties might have to the taking of a'general verdict.
    2. Defendant bank claimed the statute of frauds as a defense to being held liable as surety for Underground Television. There was sufficient evidence, however, which, if believed by the jury, would support a finding that the bank agreed to act as surety and to support a finding of estoppel circumventing the statute of frauds defense.

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Stipulations § 8.
    75 Am Jur 2d, Trial § 468.
    [2] 28 Am Jur 2d, Estoppel and Waiver § 1.
    [3] 73 Am Jur 2d, Statute of Frauds § 565.
    Promissory estoppel as basis for avoidance of statute of frauds. 56 ALR3d 1037.
    [4, 5] 4 Am Jur 2d, Appeal and Error § 533.
    [5] 4 Am Jur 2d, Appeal and Error § 76.

      Affirmed.
    1. Trial — Special Verdict — General Verdict — Discretion—Abuse —Stipulation op Parties — Waiver of Objections — Court Rules.
    A trial court’s failure to require a special verdict pursuant to a written request of a defendant is not error where the record does not indicate an abuse of the trial court’s discretion and where counsel for both parties stipulated on the record to take a general verdict rather than the special verdict; the stipulation did not deprive the court of its discretion to require a special verdict but, when approved by the court, became binding on the parties as a waiver of any objection they might have to the taking of a general verdict (GCR 1963, 514).
    2. Estoppel — Definitions—Words and Phrases.
    Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts.
    3. Estoppel — Statute of Frauds — Question of Fact — Appeal and Error — Sufficiency of Evidence.
    The question of whether a plaintiff may overcome a defense based on the statute of frauds by claiming estoppel is a question of fact; on review of a verdict for the plaintiff the question is whether there was sufficient evidence which, if believed by the trier of fact, would support a finding of estoppel sufficient to circumvent the statute of frauds.
    4. Appeal and Error — Instructions to Jury — Objection—Preserving Question — Court Rules.
    A party must indicate on the record his objection to a trial court’s instructions to the jury in order to preserve the issue for appeal (GCR 1963, 516.2).
    5. Appeal and Error — Jury—Findings of Fact.
    A jury’s findings are not to be upset absent a claim of instructional error or a claim of a specific instance of an improper appeal to prejudice or passion.

      Farber & Downs, P. C., for plaintiff.

      Anthony J. Knerly, for defendant River Rouge Savings Bank.
    Before: M. J. Kelly, P. J., and D. E. Holbrook, Jr., and Beasley, JJ.
   Beasley, J.

On February 25, 1971, plaintiff, Conel Development, Inc., a Michigan corporation with its principal place of business in Iosco County, filed a five count complaint against defendants, River Rouge Savings Bank, hereinafter referred to as RRSB, Underground Television Inspection By Seaway, Inc., hereinafter referred to as UTV, and three individual defendants, William R. Brewer, Shirley A. Brewer and Charles F. Dorris, seeking damages for alleged breach of a contract to construct roads, install underground drainage lines and make other improvements in developing Lakewood Shores, near Oscoda, in Iosco County.

Count I alleged a joint venture between defendants RRSB, UTV and Brewer to share in the performance and profits of the Conel contract, so as to make defendant RRSB liable for defaults under the contract. Count IV alleged defendant RRSB agreed to be surety for and to guarantee performance by UTV. Count V alleged defendant RRSB fraudulently misrepresented to plaintiff regarding defendants UTV and Brewer to induce plaintiff to enter into the original 1968 contract.

Upon these allegations and theories, plaintiff sought damages, both compensatory and punitive. Eventually, in 1975, the case against the three individual defendants was dismissed with prejudice by stipulation.

By stipulation, the case was divided into two jury trials, the first with respect to liability and, after the first jury found for plaintiff against defendant RRSB, a second, in which a jury awarded plaintiff $800,000 in damages against both defendants RRSB and UTV. Defendant RRSB’s motions for judgment notwithstanding the verdict after each verdict were denied by the trial judge in written opinions. Defendant RRSB now appeals as of right.

On appeal, defendant bank claims the trial court should have required a special verdict. The record indicates that defendant bank filed a written request for a special verdict.

GCR 1963, 514 affords the trial court discretion to require special verdicts and spells out the procedure for their application. Prior to adoption of the 1963 General Court Rules, Michigan permitted both general verdicts with special questions and the alternative special verdicts in lieu of a general verdict. GCR 1963, 514 eliminated authorization of general verdicts with special questions as a matter of right, but retained discretion in the trial judge to require a special verdict in which case there was no general verdict. In this case, counsel for the parties expressly stipulated on the record, in open court, to take a general verdict rather than the special verdict defendant bank had earlier requested. While this stipulation did not deprive the trial judge of his discretion to require a special verdict, it was in the nature of a bargain between the parties and became, when approved by the court, binding on both parties as a waiver of any objection they might have to the taking of a general verdict.

In his brief on appeal, counsel for defendant bank goes outside the record to assert the trial court "indicated it would absolutely not grant appellant’s request for a special verdict under any circumstances”. Apparently, counsel for defendant is attacking the enforceability of his own stipulation on the ground that he was making the best of a bad situation; namely, defense counsel believed the judge would deny his motion for special verdiets. This type of extra-judicial argument is deplorable. If defense counsel wished to make this argument, he should have put his claim on the record in open court before the case went to the jury. Nothing in the record indicates defendant preserved for appeal an issue regarding a special verdict. No objection was made to the form of the verdict. Only after the jury rendered a verdict for plaintiff, did defendant raise this issue. Furthermore, the record does not indicate that there would have been an abuse of discretion if the trial court had denied a request for a special verdict. We reject this claim of defendant as being totally without merit.

Defendant bank claims it should not have been held liable under a contract which it did not sign. Defendant bank says that neither the plaintiff’s theories of liability, namely, suretyship, joint venture or fraud, nor the evidence supporting these theories was sufficient to support the judgment. In this connection, defendant bank also claims that denial of its preliminary motions for accelerated judgment and later, for summary judgment, hampered and improperly defeated its efforts to defend against plaintiff’s claims. From the record, it is not readily apparent as to who was the major culprit for the lengthy delay in bringing this case to trial. However, it is quite clear that this is another case where the parties discovered each other to death; certainly, the dreams of the professors that the great broadening of the discovery rules in 1963 would serve the cause of justice was not realized in this case.

The motion for accelerated judgment was based upon a claim that another similar action between the same parties was pending and a claim that the action was barred by the statute of frauds, citing GCR 1963, 116.1(5). Defendant bank accompanied its motion with a document entitled "Memorandum of Authorities, Fact and Argument in Support of Motion for Accelerated Judgment and Other Relief’. This document, which is replete with argumentative adjectives, claims reliance upon MCL 566.132 and 566.135; MSA 26.922 and 26.924. Plaintiff denied that its claim contravened the statute of frauds and filed a memorandum supporting its position. Denial by the trial court of defendant’s motion was not clearly erroneous.

Defendant bank’s motion for summary judgment was accompanied by a brief and memorandum of authority. Plaintiff filed a reply memorandum of authority, which essentially asserted defendant’s motion was an argument regarding the facts. The trial court held with plaintiff and denied the motion for summary judgment. We decline to find the trial court’s ruling in denying the motion was clearly erroneous.

Defendant bank then filed one of several interlocutory motions for leave to appeal with the Court of Appeals, which motions were denied.

With respect to plaintiffs theory that defendant bank acted as a surety or guarantor, there was testimony which, if believed, supported such a conclusion. Defendant bank claims a writing was necessary if the suretyship issue was to be submitted to the jury. Based upon the statute of frauds, this claim was raised in defendant bank’s July 17, 1974, interlocutory application for leave to appeal, which was denied by this Court.

However, in the present appeal as of right, the issue has been reduced to collateral status because of the general nature of the verdict and the possibility that the jury found for plaintiff on the basis of one or both of the alternative theories of liability. Nevertheless, we give consideration to the statute of frauds issue.

MCL 566.132(2); MSA 26.922(2) requires that, every agreement to answer for the debt or default of another be in writing and signed by the party to be charged. The only writing in the within case evidencing a promise by the defendant bank was an introductory letter given by defendant bank to UTV president Brewer vouching for Brewer’s character and integrity. Defendant RRSB argues that this letter alone can not satisfy the statute of frauds requirement for a surety arrangement.

To overcome the statute of frauds defense, plaintiff relies on an estoppel theory. Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts. Where a plaintiff alleges estoppel to circumvent the statute of frauds, a question of fact is raised which must be resolved at trial by the trier of fact. The question on review becomes: Was there sufficient evidence, which, if believed by the trier of fact, would support a finding of estoppel sufficient to circumvent the statute of frauds?

Carl Brownell, president of plaintiff company, testified that he would not have proceeded with any agreement with UTV without a performance bond, had he not received assurances from defendant bank’s vice president, Fay Wilber, as to the reliability of UTV as a contractor. After Brownell’s telephone conversation with Wilber regarding UTV’s president Brewer, Brownell immediately began contract negotiations with Brewer, culminating in the contract now in dispute. It also appears that another officer of the bank was actively participating in the running of UTV’s financial operations. Brownell testified:

"They had Kassel running his business down below, coming up to collect the checks, issuing credit memos and Kassel told me that the bank really wanted him to have this job because of the money he would make off of it which would reduce the additional debt that he had with the bank which I didn’t know he had of some' $64,000.00 and everything — all the people that I was involved with which would be Brewer and Kassel, the way they operated indicated that the bank was running the operation.”

Kassel was a vice president of defendant bank. UTV president Brewer testified:

"Well, the bank offered to personally guarantee me on the job. In other words, when Mr. Kassel, first off, told Mr. Brownell in his office, he pulled out one of his cards that had Vice President on it and he told Mr. Brownell, he said, 'I don’t know what you are worried about a bond for when you got the River Rouge Savings Bank behind this man with assets of . . . ’, I don’t know, he quoted a figure but I don’t know what it was.”

On review of the whole record, we are convinced that there was sufficient evidence presented which, if believed by the jury, would support a finding that defendant bank agreed to act as surety for UTV and sufficient to support a finding of estoppel circumventing defendant bank’s statute of frauds defense.

We are also satisfied that there was sufficient evidence to support sending to the jury and instructing the jury regarding plaintiff’s alternative theories of joint venture and fraudulent misrepresentation.

Defendant’s other issues on appeal are essentially defendant’s disagreements with the jury’s findings and its claim that the verdict was against the great weight of the evidence. Defendant made no objection to the trial judge’s instruction to the jury on the law. GCR 1963, 516.2 places the burden on counsel to indicate on the record his specific objection to the charge. Only by so doing, does he preserve his right to raise the issue on appeal. There was ample and sufficient evidence which, if believed, supported each jury’s verdict.

In the absence of a claim of instructional error, or a claim of an improper appeal to prejudice or passion, neither of which is here claimed, the jury’s findings are not to be upset.

Affirmed, with costs.

       The original contract, dated June 7, 1968, was between plaintiff, the subdivider and land developer, and defendant UTV, a construction contractor allegedly specializing in sewer inspection by television. In February of 1969, defendants UTV and Brewer left the Oscoda job site amid charge and counter-charge of breaking the contract. UTV sued plaintiff and defendant RRSB, which suit was settled in October, 1971, by plaintiff paying $5,000 to Brewer and defendant RRSB paying $18,000 to'UTV.

       Defendant bank entitled this part of its request for jury instructions, "Request For Special Verdict”, consisting of 15 questions that the jury was to be required to answer. Presumably, defendant bank intended the trial judge to attempt to sort out the answers and arrive at a verdict. The double-barreled nature of some of the questions would have made it difficult to find a verdict for plaintiff. For example:
      "10. If you answer yes to question 8, do you find as a matter of fact that such promise was made in addition to the promise of Underground Television to Conel Development under the contract of June 7, 1968 and that the Bank received no benefit from such a promise.”

       2 Honigman & Hawkins, Michigan Court Rules Annotated, p 503, note 3; GCR 1963, 514; see, Ketola v Frost, 375 Mich 266; 134 NW2d 183 (1965), and particularly, fn 4 on p 274.

       The transcript states as follows:
      "MR. CRAIG: Your Honor, I offer the following stipulation. I offer to stipulate that the Plaintiff will waive its right or claim of punitive damages or statutory damages arising out of the claim of fraud. In consideration for us making that stipulation it is the Defendant’s agreement to take a general as opposed to a specific verdict on the question of fraud.
      "MR. KNERLY: So stipulated.
      "THE COURT: Fair enough.”

       While the agreement between the parties was not binding on the trial judge, it certainly is not assignable error that he refused to honor the request of defendant bank for a special verdict after deféndant bank’s express withdrawal of that request.
      Courts ordinarily look with favor on stipulations designed to simplify, shorten or settle litigation and save costs to the parties. Such stipulations should be encouraged by the courts rather than discouraged and enforced by them unless good cause is shown to the contrary. Ball v Ex-Cell-O Corp, 52 Mich App 550, 554; 218 NW2d 85 (1974), Dana Corp v Employment Security Commission, 371 Mich 107, 110; 123 NW2d 277 (1963), 83 CJS, Stipulations, § 2, pp 2-3.

       In his opinion in response to defendant’s motion for judgment notwithstanding the verdict and for new trial, the trial judge said:
      " * * * Counsel cannot now assert that a special finding should have been requested of the jury. The Court’s memory recalls it was specifically raised in discussion and waived and rejected by the parties before the Court’s instructions were given.”

       On July 12, 1971, defendant bank filed a motion for accelerated judgment primarily based on alleged application of the statute of frauds. Answer was filed, oral argument had, and on August 12, 1971, an order entered denying the motion.

       On June 6, 1974, defendant bank filed a motion for summary judgment under GCR 1963, 117.1 and 117.2(1) and (3). On June 21, 1974, an order was entered denying that motion.

       There were many, many pages of depositions of many parties filed in this case. We will not estimate the added cost of the discovery to the other costs of the litigation. Whether it was necessary is, at best, conjectural. The questions are, will the exorbitant cost of discovery relegate late 20th century trials to the role of the dinosaur, and does exhaustive, seemingly endless, discovery contribute to a more just result?

       Much later, in 1974, defendant bank filed a petition for leave to file interlocutory appeal which was denied by this Court on September 13, 1974, for various reasons, one of which was application of the so-called 18-month rule provided in GCR 1963, 806.2 which provides: "In no event shall leave to appeal be granted later than 18 months from entry of the order or judgment appealed from in any civil matter.”

        Hetchler v American Life Insurance Co, 266 Mich 608, 613; 254 NW 221 (1934), Schudlich v Yankee, 272 Mich 482; 262 NW 395 (1935), Postal v Home State Bank, 284 Mich 220; 279 NW 488 (1938).

        Pursell v Wolverine-Pentronix, Inc, 44 Mich App 416; 205 NW2d 504 (1973).

       The trial court instructed the jury fully regarding this issue without objection by defendant RRSB.

       The reference is to the first trial on the liability of defendant RRSB issue. In the second trial, counsel for defendant made two objections to the charge. Review indicates that the trial court granted the request regarding depth of the stumps and denied the request relating to the Plat Act. We do not find the instruction objected to clearly erroneous.

       Defendant, RRSB, makes a broad assertion that the size of the verdict indicates prejudice or passion, but indicates no specific instance of an improper appeal to prejudice or passion. This is insufficient. Carreras v Honeggers & Co, Inc, 68 Mich App 716, 729; 244 NW2d 10 (1976), Stowers v Wolodzko, 386 Mich 119, 141; 191 NW2d 355 (1971).


source: Caselaw Access Project

author: D. E. Holbrook, J.

license: Public Domain

text:
    DUCKETT v NORTH DETROIT GENERAL HOSPITAL
    Docket No. 30541.
    Submitted December 12, 1977, at Detroit.
    Decided July 5, 1978.
    Leave to appeal applied for.
    Douglas Duckett died on March 3, 1971, at the age of 16, of acute purulent meningitis of the left cerebral hemisphere. Leroy Duckett, individually and as the administrator of the estate of Douglas Duckett, deceased, commenced a wrongful death action against Dr. Yuille and North Detroit General Hospital. During trial, Dr. Yuille settled with the plaintiff for the limit of his insurance coverage. The action against the hospital continued and ended with a verdict and judgment of no cause of action for the defendant, Wayne Circuit Court, Horace W. Gilmore, J. Plaintiff appeals. Held:

    1. The trial judge committed no reversible error by refusing to permit the plaintiff to read into the record questions put to a witness at a deposition, which a pretrial judge had found objectionable where (1) the plaintiff made no objection at trial or at the deposition, (2) the plaintiff made no offer of proof, and (3) the plaintiff chose to introduce the witness’s testimony by way of deposition rather than calling that deponent as an adverse witness whereby plaintiff could have fully cross-examined him.
    2. There was no error in the instruction to the jury on proximate cause because, in the context in which it was given, it was fair and did not prejudice the plaintiff and was word for word from the Standard Jury Instructions.
    3. The trial court was required to give an instruction requested by the plaintiff on violation by the defendant hospital of rules or regulations promulgated by the State Director of Health pursuant to statutory authority. Failure to give this instruction was reversible error.
    Reversed and remanded.
    References for Points in Headnotes
    [1] 23 Am Jur 2d, Depositions and Discovery § 130 et seq.

    [2] 75 Am Jur 2d, Trial § 610.
    [3] 61 Am Jur 2d, Physicians, Surgeons and Other Healers § 214.
    75 Am Jur 2d, Trial §§ 588,’ 589.

      1. Evidence — Admissibility of Evidence — Depositions—Appeal and Error.
    A ruling by a trial judge, in a medical malpractice action, that certain answers to questions asked by the plaintiff at a deposition of a physician were inadmissible was not error where (1) the plaintiff chose to present the physician’s testimony by way of deposition rather than calling him as an adverse witness, (2) the plaintiff made no objection to the rulings at trial or at the deposition, and (3) the plaintiff made no offer of proof.
    2. Negligence — Proximate Cause — Instructions to Jury — Stan- . dard Jury Instructions — Appeal and Error.
    A trial judge’s instructions to a jury on proximate cause, to which a plaintiff objected, in a medical malpractice action, was not erroneous where the instruction on proximate cause was word for word from the Standard Jury Instructions and a review of the entire statement made by the trial judge reveals that in the context in which it was given it was fair and did not prejudice the plaintiff.
    3. Negligence — Medical Malpractice — Instructions to Jury— Rule Violations — Hospitals—Care of Physician — Administrative Rules.
    A trial court, in a medical malpractice action, should have given a requested instruction to the jury pertaining to the violation by a defendant hospital of a rule or regulation promulgated by the state Director of Health pursuant to statutory authority where the rule involved was very appropriate to the question of negligence (1960 AACS R 325.1027).

      Peter R. Barbara & Associates, P. C. (by Peter R. Barbara and Frank G. Becker), for plaintiff.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, P. C., for defendant.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   D. E. Holbrook, J.

After listening to testimony for approximately four weeks in a medical malpractice case, a Wayne County Circuit Court jury returned a verdict of no cause of action. Plaintiff appeals as of right.

Plaintiffs deceased son, Douglas Duckett, age 16, died on March 3, 1971, of acute purulent meningitis of the left cerebral hemisphere. The plaintiff sued North Detroit General Hospital and Dr. Yuille, the attending physician, for the wrongful death of his son. During trial, Dr. Yuille settled with the plaintiff for $124,000, the limit of his insurance coverage. Plaintiff continued the trial against the hospital which ended with a verdict of no cause of action.

On February 7, 1971, Douglas Duckett began to complain of headaches. On February 10, 1971, his parents took him to Holy Cross Hospital for an examination. At Holy Cross Hospital, his condition was diagnosed as a cold and he was given a prescription. Douglas took the medication prescribed but his condition did not improve.

On February 12, 1971, Mrs. Duckett took Doug-. las to Dr. Yuille’s office where Douglas told the doctor of his headaches. Dr. Yuille asked him to return on February 18, 1971. After Douglas was examined the second time by Dr. Yuille, he was told that he could go home and would not need to return for further care.

As her son’s condition did not improve, Mrs. Duckett called Dr. Yuille’s office on February 25, 1971, to seek advice. The receptionist told her that Dr. Yuille was on the staff of North Detroit General Hospital and Douglas could be taken directly there. Mr. Duckett took Douglas to the hospital and arrived at the emergency room at 10:50 a.m. on February 25, 1971.

Dr. Pinna saw Douglas in the emergency room. He ordered a spinal tap and a chemical and miscroscopic analysis of the spinal fluid as well as a culture and sensitivity analysis of the purulent discharge from the left nostril. Dr. Pinna stated that the spinal tap did not indicate anything specific. The culture and sensitivity analysis of the purulent discharge from the left nostril was never done. Also, an electronencephalographic test, which was ordered by Dr. Yuille on February 26, was not performed.

Dr. Fogt relieved Dr. Pinna at 1 p.m. and ordered that chest X-rays be taken. Douglas was formally admitted to the hospital at 2:10 p.m. based on the unknown origin of the headaches. Dr Yuille was contacted and agreed to the admission. Upon his admission, Douglas was given pain medication. Following his admission, Douglas was not seen by another doctor until the next day, February 26, 1971. On February 26, 1971, Dr. Quiambao took the admission history and performed a routine physical examination of Douglas. He made an admitting diagnosis of cephalgia, frontal sinusitis left, possible meningitis pneumococcus. Dr. Quiambao testified that Douglas’s complaint of stiffness of the neck and headaches led him to believe that meningitis may be involved. Douglas received further pain medication on February 26 and 27.

On February 28, 1971, Dr. Yuille ordered, via the telephone, an intravenous solution of penicillin and also stated that Douglas was to receive percodan every four hours as needed. The penicillin was not administered until 5 p.m. and the only percodan administered was at 5:45 p.m. The hospital records do not indicate that Douglas was seen by a physician on February 27 or 28.

On March 1, 1971, Dr. Yuille visited Douglas at 12:30 p.m. and at 1:45 p.m. he had him placed in isolation. On March 2, while Douglas remained in isolation, he was under the care of a registered nurse. The nurse became concerned about Douglas’s condition and notified the Cardiac arrest team at 2:50 a.m. Dr. Yuille and the Duckett family were notified of Douglas’s deteriorating condition. Douglas remained in critical condition until he died at 4:24 p.m. on March 3.

Dr. Carl Maier, an expert in emergency room medicine, testified on behalf of the plaintiff. Dr. Maier had developed a program for providing regular physician services for various hospitals in the Cleveland area. In his opinion, the diagnosis and treatment of meningitis and sinusitis would be the same both for Detroit and Cleveland. He testified that the standard practice was for one emergency room physician to remain responsible for the care, diagnosis and treatment of emergency room patients until the patient’s own physician arrived to take charge of the patient. He also testified that the standard practice required the house physician to care and treat an admitted emergency room patient when the only contact with the attending family phyisican was a phone call to the emergency room doctor. He testified that the in-house physician had a duty to see the patient within an hour or two of having arrived on the ward to evaluate what had been done, to conduct an independent history and physical examination and achieve an independent diagnosis. This diagnosis should then be given to the attending physician. Dr. Maier also testified that nurses had a duty to contact the patient’s personal physician or their supervisor if they detect a problem in the patient’s health care. Based upon a review of the pertinent medical records, Dr. Maier testified that the care rendered to Douglas Duckett was below the standard of care required for patients similarly situated at the time. According to Dr. Maier, the care received by Douglas during his hospitalization at the defendant hospital was below that required for patients being admitted for a similar type problem. The breaches of the standard of care specified by Dr. Maier included a failure to obtain a proper history from the patient; the failure to order sufficient diagnostic testing in the emergency room; the division of treatment between various doctors; failure to institute antibiotic treatment prior to 5 p.m. on February 28, 1971, and the failure of the nursing staff to alert their superiors or doctors as to the deterioration in the plaintiffs condition.

Dr. Maier testified that the proximity of the sinus cavity to the venous drainage into the brain enables the infection to directly affect the brain. Consequently, the sinusitis could have been transported to the left side of the brain and established bacterial meningitis. Given the nature of the infection afflicting Douglas Duckett, he testified that massive therapy using multiple antibiotic drugs via intravenous route should have been administered immediately. He testified that the pain medication given to Douglas before 5 p.m. on February 28, 1971, had no treating affect on the infectious process. He testified that if proper care would have been given to Douglas, in his opinion, Douglas would not have died. He further testified that the defendant hospital would be more competent to handle the care of Douglas than the attending physician.

The trial judge was not going to let Dr. Maier testify as to the local standard of care in Detroit hospitals because Dr. Maier was from Cleveland. However, after Dr. Maier consulted with Dr. Krome, the director of the emergency department at Detroit General Hospital, the court allowed Dr. Maier to testify. The qualifications for his testimony were based on his conversation with Dr. Krome as to the standards of care in Detroit.

Dr. Krome testified for the defendant and disputed Dr. Maier’s interpretation of their conference. He testified generally that there was no breach of the standard of care in this case on the part of North Detroit General Hospital.

The first issue raised by plaintiff merits no discussion.

The second issue plaintiff raises on appeal is whether the trial judge erred in sustaining the decision of the pretrial judge as to the inadmissibility of certain answers to questions asked by the plaintiff at a deposition of a physician.

The plaintiff asserts that the pretrial judge’s decisions, sustained by the trial judge, unfairly restricted his right to cross-examine adverse witnesses and constitutes reversible error.

On July 29, 1975, plaintiff took a second deposition from Dr. Alshab, during which defendant objected to some questions asked by plaintiff. The pretrial judge ruled on the various objections and ruled that some of the questions were improper and therefore Dr. Alshab was not to answer them. At trial, plaintiff chose to present Dr. Alshab’s testimony by way of deposition rather than calling him as an adverse witness. The trial judge did not permit plaintiff to read into the record those questions which the pretrial judge had found objectionable.

Plaintiff’s position is untenable. First, since he made no objection at trial or at the deposition, he cannot now raise the issue as reversible error. Arnold v Ellis, 5 Mich App 101; 145 NW2d 822 (1966). Second, since plaintiff made no offer of proof he cannot assert that the defendant’s objections were improperly sustained. GCR 1963, 604, Illenden v Illenden, 46 Mich App 710, 714; 208 NW2d 565 (1973), lv den, 390 Mich 783 (1973). Third, if plaintiff wished to fully cross-examine Dr. Alshab, plaintiff could have called him as a witness at trial, but this he did not do. Thus, plaintiff’s second issue is without merit.

Next, the plaintiff maintains that the trial judge improperly deviated from the Standard Jury Instructions on the question of proximate cause and thus committed reversible error.

The trial judge gave the following instruction:

"Now what do I mean when I talk about proximate cause? Proximate cause is not in any way a complicated concept of law. When I sue [sic] the words 'proximate cause,’ I mean first, that there must have been a connection between the conduct of the defendant which the plaintiff claims was negligent and the injury complained of or the death of the decedent, and second, that the occurrence which is claimed to have produced the injury was a natural and probable result of such conduct. In other words, proximate cause is not complicated. Negligence in a vacuum means nothing. Before negligence can be actionable, negligence must, number one, be in fact a cause of death, and second, the death, the injury here, must have naturally and proximately flowed from the negligence. And that is all we mean when we talk about proximate cause.
"Now there may be more than one proximate cause. And to be a proximate cause, the claimed negligence of the defendant hospital need not be the only cause nor the last cause. A cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence.
"Now if you decide that the Defendant North Detroit General Hospital was negligent and that such negligence was a proximate cause of the death of Douglas Duckett, it is not a defense that the conduct of Doctor Yuille, who is no longer a party, may have also caused the occurrence. In other words, if you decide North Detroit General Was [sic] negligent and that negligence was a proximate cause, it is not a defense that the conduct of Doctor Yuille was also a proximate cause.
"However, if you decide that the only proximate cause was the conduct of Doctor Yuille and not the North Detroit General Hospital, then your verdict should be for the defendants.”

The plaintiff asserts that these instructions constitute error inasmuch as SJI 15.01 is the proper instruction on proximate cause and the instruction previously quoted expanded the proximate cause instruction and prejudiced the plaintiff. We do not agree.

The Standard Jury Instruction on proximate cause is as follows:

"When I use the words 'proximate cause’ I mean first, that there must have been a connection between that conduct of the defendant which plaintiff claims was negligent and the injury complained of by the plaintiff, and second, that the occurrence which is claimed to have produced that injury was a natural and probable result of such conduct of the defendant.”

The trial judge’s instruction was word for word from the Standard Jury Instructions. We have reviewed the entire statement made by the judge to which plaintiff objects and find that in the context in which it was given, it was fair and did not prejudice the plaintiff. We find no error.

The last issue plaintiff raises on appeal is whether the trial court committed reversible error when it refused to read certain rules and regulations to the jury. The plaintiff asserts that the rules and regulations which plaintiff requested that the trial court read to the jury pertained to the duties owed by the hospital to its patients and thus the trial court committed reversible error in failing to read them. The defendant maintains that these rules and regulations requested by plaintiff were not pertinent to the instant case so no error was committed.

Plaintiff requested that the trial court give SJI 12.07 — Violation by Defendant of Rules or Regulations Promulgated Pursuant to Statutory Authority. The State Director of Health has adopted certain regulations pursuant to authority given him by state statute. Rule 7.1 adopted by the State Director of Health provides that: "All persons admitted to a hospital shall be under the continuing daily care of a physician licensed to practice in Michigan.” 1960 AACS R 325.1027. Further, the plaintiff requested the following instruction:

"If you find that the Defendant Hospital violated one or more of these rules or regulations before or at the time of the occurrence, such violations are evidence of negligence which you should consider, together with all the other evidence, in deciding whether defendant was negligent. If you find that said defendant was negligent, you must decide whether such negligence was a proximate cause of the injuries and damages to plaintiffs.”

The trial court instructed the jury as follows:

"Now the State of Michigan has adopted, and let me elaborate a little bit on what I have said here, the State of Michigan has adopted a statute or a law which is applicable to hospitals which says the governing body of each hospital shall be responsible for the operation of the hospital and for the qualify [sic] of care rendered in the hospital.”

The instruction that the trial court gave was proper but we rule that the trial court was required to give requested SJI 12.07. The reading of the whole statute authorizing promulgation of rules by the State Director of Health was not necessary.

We do not agree with defendant that Rule 7.1 is inappropriate under the facts of the instant case. The hospital records indicate that no doctor saw Douglas on February 27 and 28 while he was a patient at the hospital. Thus, the rule which requires a hospital to provide a patient with the continuing daily care of a physician is very appropriate to the question of negligence.

Defendant maintains Rule 7.1 applies only to a patient accepted by the hospital who has no physician of his own and that the rule does not apply where the patient’s physician has staff privileges at the hospital. For us to adopt this argument would discourage hospitals from checking their patients daily to assure that proper medical treatment is being provided to the patient. Rule 7.1 states: "All persons admitted to a hospital shall be under the continuing daily care of a physician licensed to practice in Michigan.” Rule 7.1 does not create an undue burden on the hospital. Such attention by a hospital would help to assure that a patient is receiving proper medical care.

We have considered the issues raised by defendant in cross-appeal and find them to be without merit. /

Reversed and remanded for a new trial. Costs to plaintiff.


author: V. J. Brennan, J. M. F. Cavanagh, J.

text:
    PEOPLE v MAYNARD
    Docket No. 31160.
    Submitted February 15, 1978, at Detroit.
    Decided July 5, 1978.
    Leave to appeal applied for.
    Ronald D. Maynard was convicted of attempted larceny from a motor vehicle in the Wayne Circuit Court, Harry J. Dingeman, Jr., J. Defendant appeals claiming reversible error in the trial court’s instructions to the jury. Held:

      A claim of error regarding a trial court’s incorrect statement of the law may be raised for the first time on appeal. The use of the capacity standard, in instructing a jury on intoxication as a defense to a crime requiring specific intent, was not reversible error per se and did not require reversal where the jury was also informed by use of the Cooley standard that the defendant must be proven to have actually possessed the specific intent at the time the crime was committed, regardless of intoxication or any other reason whatsoever. The instruction was harmless error since the defendant claimed that he did not have the capacity to form a specific intent and thus offered his defense upon the very basis embodied in the instruction. A trial court may not instruct the jury so as to require, rather than permit, a finding of intent from a defendant’s acts since a conclusive presumption that intent must be found from acts of a defendant would effectively remove intent as an element of the crime charged.
    Affirmed.
    M. F. Cavanagh, J., dissented and would hold that an instruction which incorporates both the capacity and Cooley standards results in reversible error where it predominately stresses the improper capacity standard; emphasizing such standard prejudices a defendant claiming lack of memory by leading the jury to overlook the possibility that the defendant, though capable, did not have a larcenous intent, but did have .some other intent, which he can’t remember.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 810 et seq., 891 et seq.

    75 Am Jur 2d, Trial § 906 et seq.

    [2-4, 7] 21 Am Jur 2d, Criminal Law §§ 107, 108.
    75 Am Jur 2d, Trial §§ 426, 743.
    [5] 75 Am Jur 2d, Trial §§ 719, 781.
    [6] 5 Am Jur 2d, Appeal and Error § 624 et seq.

    75 Am Jur 2d, Trial § 192 et seq.

      Opinion of the Court
    1. Appeal and Error — Instructions to Jury — Failure to Object.
    A trial court’s incorrect statement of the law may be initially raised on appeal; failure to object to an instruction to the jury does not always proscribe an allegation of error.
    2. Criminal Law — Instructions to Jury — Drunkenness—Defense of Intoxication — Crimes of Specific Intent.
    A proper jury instruction on intoxication as a defense to those crimes requiring specific intent informs the jury to consider whether the defendant had in fact possessed specific intent where specific intent could be negated by voluntary intoxication; an instruction which stresses the defendant’s capacity to form the necessary specific intent and which, therefore, misdirects the jury’s attention to a consideration unrelated to the specific intent element to be proved is unacceptable.
    3. Criminal Law — Appeal and Error — Instructions to Jury — Capacity Standard — Cooley Standard — Defense of Intoxication — Crimes of Specific Intent.
    The use of the capacity standard, in instructing a jury on intoxication as a defense to those crimes requiring specific intent, is not reversible error per se and does not require reversal where the jury has also been informed by use of the Cooley standard that the defendant must be proven to have actually possessed the specific intent at the time the crime was committed, regardless of intoxication or any other reason whatsoever.
    4. Criminal Law — Appeal and Error — Harmless Error — Instructions to Jury — Capacity Standard — Defense of Intoxication —Specific Intent.
    The erroneous use of the capacity standard, in instructing a jury on intoxication as a defense to those crimes requiring specific intent, was harmless error in a trial for attempted larceny from a motor vehicle where the defendant claimed that he did not have the capacity to form a specific intent and thus offered his defense upon the very basis embodied in the instruction given.
    5. Criminal Law — Instructions to Jury — Intent—Presumptions— Acts of Defendant.
    A conclusive presumption that intent must be found from acts of a defendant is not permitted because this would effectively remove intent as an element of the crime charged; therefore, a trial court may not instruct a jury so as to require, rather than permit, a finding of intent from a defendant’s acts.
    6. Criminal Law — Appeal and Error — Preserving Error.
    A criminal defendant was not deprived of a fair trial by allegedly erroneous comments by the prosecutor on cross-examination and in closing argument where no objection was made to the comments during cross-examination or following closing argument.
    Dissent by M. F. Cavanagh, J.
    7. Criminal Law — Appeal and Error — Instructions to Jury — Intoxication— Capacity Standard — Cooley Standard — Prejudice — Lack of Memory — Intent.

      An instruction to a jury, in a trial for attempted larceny from a motor vehicle, on the defense of intoxication which incorporates both the capacity and Cooley standards is reversible error where the instruction predominately stresses the improper capacity standard; an instruction which emphasizes the capacity standard prejudices a defendant claiming lack of memory by leading the jury to overlook the possibility that the defendant, though capable, did not have a larcenous intent, but did have some other intent, which he can’t remember.

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

      Daniel J. Wright, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.
   V. J. Brennan, J.

Defendant Ronald DeWayne Maynard was convicted by jury on June 2, 1976, of attempted larceny from a motor vehicle, contrary to MCL 750.356a; MSA 28.588(1). On August 25, 1976, he was sentenced to from 20 months to 2-1/2 years imprisonment. Defendant filed this appeal as of right on December 6, 1976. GCR 1963, 806.1.

The facts of this case may be simply stated. On April 19, 1976, while leaving his place of business for the evening, complainant James Foster noticed the defendant had entered his parked car and was attempting to remove the citizens’ band radio. Defendant was in the process of unscrewing the radio from its holding bracket. Complainant confronted defendant and was told that he was taking the radio in order to meet child support payments. Complainant remained with defendant until the police arrived.

At trial, defendant presented an intoxication defense. His own testimony indicated that at the time of the theft he was not conscious of what he was doing. However, contrary testimony of complainant and the arresting officers was presented to the effect that defendant did not appear intoxicated. One office? stated he believed defendant had had a couple of drinks. The jury subsequently convicted defendant.

On appeal, defendant raises three allegations of error. We need address only one claim at any length.

Defendant contends the trial court committed reversible error by instructing the jury according to the capacity standard and not the Cooley standard in its charge to the jury concerning defendant’s intoxication defense.

The trial court instructed the jury on intoxication in the following way:

"The felonious intent is an essential and inseparable ingredient in every larceny. Every taking of the possession of the property of another is larceny when an intent to steal incurs at the time of the taking.
"Now, the Court instructs you that the intent with which an act is done is an act or emotion of the mind seldom if ever capable of direct or positive proof, but it is to be arrived at by such just and reasonable deductions or inferences from the acts and facts proved as the guarded judgment of a candid and cautious man would ordinarily draw therefrom.
"When the illegal act is done with an unlawful intent the law warrants the presumption or inference that a person intends the results or consequences to follow an act which he intentionally commits, which ordinarily is follow such acts [sic]. In this case the defendant alleges he was intoxicated and that he was unable to form a criminal intent or felonious intent. For that reason, members of the jury in this connection I charge you as follows: That while it is true that drunkenness or intoxication cannot excuse crime it is equally important where certain intent is a necessary element of an offense that the crime cannot be committed without the existence of the intent, and so such intent is just as necessary to be proven as the act itself. If the respondent by reason of the drunkenness or intoxication is incapable of entertaining such a specific intent a conviction cannot be sustained. Now, the jury may draw an inference as to the intent with which a particular act was done as they draw all other inferences from any fact in evidence which to their minds they fairly believe exists, and in considering any question they may and should take into consideration the nature of the defendants act or the temporary or disposition mind [sic] at the time the crime was committed or performed and all other circumstances to throw light upon the intention in which it was made.
"In determining whether the larceny was committed with the intent to permanently deprive the owner of his property it is material for the jury to inquire into the defendants mental faculties, and whether they were so far overcome by the effects of intoxication as to render him incapable of entertaining that intent. If his mental faculties were so far overcome by the intoxication that he was not conscious of what he was doing, or if he did know what he was doing, but he did not know why he was doing it or that his actions and the means he was using were calculated or adapted to commit a larceny then he did not have sufficient capacity to entertain the intent. In that event the jury cannot infer that intent from his acts. But if he knew what he was doing, why he was doing it and that his actions with the means he was using to [sic] were naturally adapted to the commission of larceny then the intent to commit larceny should be inferred from his acts to the same extent as if he was sober.
"The defendant is not to be held responsible for the intent, if he was too drunk for a conscious exercise of the will to form the particular intent, or in other words too drunk to entertain it.”

Defendant did not object to this instruction at trial. However, we will review defendant’s claim despite the absence of such objection. People v Grim, 65 Mich App 143, 146; 237 NW2d 221 (1975), People v Chambers #2, 64 Mich App 386, 392; 236 NW2d 703 (1975).

The law regarding a trial court’s responsibility to instruct on an intoxication defense has been much litigated recently in Michigan. The standard for trial court instruction has thus become clearer in the past year or so. What is required is instruction which informs the jury to consider whether defendant had in fact possessed specific intent in crimes where specific intent could be negated by voluntary intoxication. What has been found unacceptable is instruction which stresses defendant’s capacity to form the necessary specific intent and so misdirects the jury’s attention to a consideration unrelated to the specific intent element to be proved. People v Crittle, 390 Mich 367, 372; 212 NW2d 196 (1973).

However, decisions also indicate that instructing the jury on the capacity standard is not reversible error per se. Use of the capacity standard has not been found to require reversal where the jury has also been informed by use of the Cooley standard that the defendant must be proven to have actually possessed the specific intent at the time the crime was committed, regardless of intoxication or any other reason whatsoever. People v Gunter, 76 Mich App 483, 492; 257 NW2d 133 (1977), People v Scott, 55 Mich App 739, 741-746; 223 NW2d 330 (1974). We stated the following in Scott:

"Where, as here, the trial court affirmatively instructs the jury that they must address themselves to the question of whether defendant did in fact have the necessary intent, the giving of the so-called 'capacity standard’ not only does not create any irreconcilable conflict, inconsistency or confusion, but rather it more fully informs the jury of the overall scope of their duty.” (Emphasis added.) 55 Mich App at 745.

See also People v Gunter, supra, at 492.

We must determine here whether the trial court properly instructed the jury. Clearly, wording equivalent to the intoxication instruction disapproved in Crittle does appear on the record. See People v Crittle, supra, at 373-374. However, equally clear is instructional wording taken directly from the acceptable Cooley standard. See People v Walker, 38 Mich 156, 158 (1878). The question is whether the jury left the courtroom knowing that to convict they must find the defendant did in fact possess the necessary specific intent to commit larceny, regardless of any possible intoxication. We find that the court did sufficiently inform the jury of their responsibility. Despite the capacity language, we find the charge constantly emphasizes that defendant’s guilt would not be established unless specific intent were in fact proven to exist at the time the crime was committed.

Further, even were we to find the capacity standard stressed to the point of error, we would hold that the error is harmless in this case. People v Stephens, 71 Mich App 33, 37; 246 NW2d 429 (1976), People v Sizemore, 69 Mich App 672, 678-679; 245 NW2d 159 (1976), People v Parsons, 59 Mich App 79, 86; 228 NW2d 852 (1975). Unlike Crittle, where defendant claimed that he intended nothing more than a prank and so argued that he had a different intent than a larcenous intent, defendant in this case claims only that he did not have the capacity to form a specific intent. In essence, then, defendant offered his defense upon the very basis embodied in the instruction given. He was arguing that he did not have the necessary criminal intent because he could not have formed the intent. Thus, had the jury found defendant’s testimony believable, they would have had a clear duty to acquit him. The prejudice implicit in the fact situation presented in Crittle is absent in this case. The error, if any, was harmless beyond a reasonable doubt. People v Christensen, 64 Mich App 23, 32-34; 235 NW2d 50 (1975).

As to defendant’s second claim of error, there is no basis to reverse because we do not believe the trial court’s instruction shifted the burden of overcoming the presumption as to defendant’s acts onto the defendant. In short, the court did not instruct the jury so as to require, rather than permit, a finding of intent from defendant’s acts. People v Ross, 69 Mich App 705, 708-709; 245 NW2d 335 (1976), People v Jordan, 51 Mich App 710, 716; 216 NW2d 71 (1974).

As to defendant’s third claim concerning the prosecution’s comments on cross-examination and in closing argument, we do not believe defendant was deprived of a fair trial where no objection was made to these comments during cross-examination or following closing argument. People v William Clark, 68 Mich App 48, 52; 241 NW2d 756 (1976). However, even were we to consider defendant’s claim on appeal, we find the prosecution’s remarks unplanned and the remainder of his cross-examination of defendant permissible. See People v Jones, 75 Mich App 261, 274-275; 254 NW2d 863 (1977), People v McMillan, 68 Mich App 113, 120; 242 NW2d 518 (1976).

Affirmed.

D. E. Holbrook, P. J., concurred.

M. F. Cavanagh, J.

(dissenting). For the reasons expressed in People v Grim, 65 Mich App 143, 145; 237 NW2d 221 (1975), and Judge Allen’s dissent in People v Lutzke, 68 Mich App 75, 82-83; 241 NW2d 765 (1976), (reversed at 399 Mich 870; 251 NW2d 691 [1977], on the basis of People v Crittle, 390 Mich 367; 212 NW2d 196 [1973]), I find the intoxication instruction herein to be erroneous.

I do not believe that the error here can be dismissed as harmless.

Defendant’s testimony was that, because of intoxication, he had no memory of the events in question. This is consistent with two factual theories, either of which would constitute a defense: (1) defendant did not have the requisite intent because of incapacity; and (2) though capable, defendant did not have a larcenous intent, but did have some other intent, which he can’t remember.

The error of the reasoning in People v Stephens, 71 Mich App 33, 35-37; 246 NW2d 429, 430-431 (1976), and People v Sizemore, 69 Mich App 672, 677-679; 245 NW2d 159, 162-163 (1976), is that, by equating a claimed lack of memory with a claimed lack of capacity, they overlook the possibility of defendant’s second line of defense. An instruction which emphasizes the capacity standard prejudices a defendant claiming lack of memory by leading a jury to overlook the same possibility.

For these reasons, I would reverse.


author: Bronson, J. M. J. Kelly, J.

text:
    PEOPLE v PARKER
    Docket No. 31252.
    Submitted October 5, 1977, at Grand Rapids.
    Decided July 5, 1978.
    Leave to appeal applied for.
    While a patient at a mental institution, Jeffrey A. Parker discussed with the hospital staff his criminal sexual involvement with a young child. Someone at the hospital informed the City of Wyoming police of these admissions. The police obtained a warrant and arrested the defendant, upon his release from the institution, on a marijuana charge based upon the defendant’s attempt to turn over marijuana and drug paraphernalia to police prior to his hospitalization. At the police station defendant was asked to sign a Miranda rights waiver form. The defendant refused to sign and stated that he would rather talk to an attorney. No attorney was ever furnished. About 1-1/2 hours later defendant waived his rights and confessed to a 1975 kidnapping, sexual assault and stabbing of a five-year-old girl. Prior to the defendant’s trial on those charges, the trial judge, at a Walker hearing, ruled the confession admissible. Subsequently, defendant was convicted of kidnapping, second-degree criminal sexual conduct and assault with intent to do great bodily harm less than murder, Kent Circuit Court, George R. Cook, J. Defendant appeals, challenging the admissibility of the confession. Held:

    The trial court, erred in ruling the confession admissible where counsel had been requested but not provided, and the prosecution had not sustained its heavy burden of proof in showing that subsequent to his request for counsel, defendant knowingly and intelligently waived this right. The admission of the confession at trial was not harmless error.
    Reversed and remanded.
    References for Points in Headnotes
    [1, 7] 21 Am Jur 2d, Criminal Law § 314.
    [1-7] 29 Am Jur 2d, Evidence § 555 et seq.

    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.
    [2, 6] 21 Am Jur 2d, Criminal Law §§ 314-318.
    [3] 21 Am Jur 2d, Criminal Law §§ 316-318.
    [4] 21 Am Jur 2d, Criminal Law § 368.
    [5] 29 Am Jur 2d, Evidence § 590.

      M. J. Kelly, J., dissented. He would hold that the waiver by defendant of his Miranda rights without counsel being present was proper and that the confession was admissible, and he would affirm.
    Opinion op the Court
    1. Constitutional Law — Criminal Law — Interrogation op Defendant — Right to Counsel — Right to Remain Silent.
    The interrogation of an individual must cease until an attorney is present where the individual states that he wants an attorney; at that time the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning; if the individual cannot obtain an attorney and indicates that he wants one before speaking to police, the police must respect the decision to remain silent.
    2. Constitutional Law — Criminal Law — Right to Counsel— Waiver — Interrogation of Defendant — Burden of Proof.
    A person who has invoked his right to counsel may later waive that right without an attorney; however, if an interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.
    3. Constitutional Law — Criminal Law — Right to Counsel — Right to Remain Silent — Assertion of Rights — Waiver—Burden of Proof.
    A more careful scrutiny is required of a suspect’s waiver of his right to counsel where the waiver is made without the presence of counsel after the desire to have counsel has been asserted than for a waiver made prior to the assertion of the right to counsel, or after the assertion of the right to remain silent; the normal heavy burden which the prosecution bears in proving the validity of a waiver should be of a very high standard where waiver of a previously invoked right to counsel is involved.
    4. Constitutional Law — Criminal Law — Right to Counsel — Confession — Assertion of Rights — Burden of Proof — Harmless Error.
    A defendant’s confession should not have been ruled admissible where it was obtained from the defendant without the assistance of counsel shortly after the defendant had asserted his right to counsel and where the prosecution failed to carry its very heavy burden of proof that the defendant validly waived his right to counsel; the admission of the defendant’s confession was not harmless error.
    Dissent by M. J. Kelly, J.
    5. Appeal and Ehkor — Constitutional Law — Criminal Law — Confessions — Voluntariness.

      A reviewing court is required to examine the entire record and independently determine the issue of voluntariness where error is alleged in the admission of a defendant’s confession; the reviewing court should reverse where it is left with a deñnite and ñrm conviction that a mistake was committed.

    6. Constitutional Law — Criminal Law — Right to Counsel— Waiver — Interrogation of Defendant.

      A ñnding of a knowing and intelligent waiver of the right to counsel is impossible where a suspect requests counsel during interrogation; if however, the police terminate the interrogation, subsequent circumstances may provide a basis for a later knowing and intelligent waiver of the right to counsel.

    7. Constitutional Law — Criminal Law — Right to Counsel — Miranda Warning — Interrogation of Defendant — Confessions —Voluntariness.

      The Miranda ruling does not erect an absolute per se bar on any conversation with the accused by the police after the accused has requested counsel, it only inhibits investigative interrogation related to the speciñc crime itself; therefore, where a defendant was advised that he was under arrest for possession of marijuana, was read his Miranda rights and asserted his right to counsel, and where the record reveals that there was no further interrogation on the marijuana charge and that there was no interrogation of the defendant about certain other crimes or references made to them prior to the defendant’s waiver of the right to counsel, and where there was a subsequent confession concerning the other crimes, the waiver should be held valid and the confession deemed voluntary and admissible as evidence against the defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Donald A. Johnston III, Chief Appellate Attorney, for the people.

      Loeks, Buth, Wood & Weidaw, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   Bronson, J.

Defendant was convicted on July 12, 1976, after a bench trial, of kidnapping, MCL 750.349; MSA 28.581, second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), and assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. He appeals of right.

We reverse all three convictions, holding that a confession introduced at trial was obtained in violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

In early December, 1975, defendant appeared at the Wyoming, Michigan Police Department and attempted to turn over some marijuana and drug paraphernalia. No arrest was made. A few days later, defendant attempted suicide by taking a drug overdose. After emergency treatment, he was transferred to a mental institution. While at the institution, defendant began to discuss his criminal sexual involvement with a young child in conversations with hospital staff. Someone at the hospital informed the Wyoming police of these admissions. The police obtained a warrant and arrested defendant upon his release on a marijuana charge, based on defendant’s attempt to turn over the drug to police prior to his hospitalization. Officer Cline of the Wyoming Police Department admitted that at the time of defendant’s arrest on the marijuana charge, the information received from the hospital had caused him to focus upon defendant as the prime suspect in the 1975 kidnapping, sexual assault and stabbing of a five-year-old girl.

Defendant was taken to the Wyoming police station. Officer Cline testified that he then asked defendant to sign a Miranda rights waiver form:

"Q. Did he sign this?
"A. No, sir, he did not.
"Q. Do you know why he did not, or did he indicate why?
"A. He advised me at that time that he would rather talk to an attorney before talking to me about it.”

No attorney was ever furnished. Different versions of what happened next were presented by defendant and Officer Cline. Defendant testified that immediately after he requested an attorney, Officer Cline began to interrogate him, stating that he had a good idea that the defendant had something on his mind, and suggesting that he could insure that defendant would get the psychiatric treatment he desired if he confessed. Officer Cline testified that he first "processed” defendant on the marijuana charge and then the two engaged in "general conversation” for about an hour. Cline testified that defendant initiated the idea of treatment at a forensic center and confessed after Cline had indicated that treatment could be obtained.

There is no dispute that about 1-1/2 hours after defendant had asked for an attorney, he waived his rights and confessed. An hour after that he again waived his rights and confessed on video tape.

After a pretrial Walker hearing, the trial judge held the confession admissible, relying on Michigan v Mosley, 423 US 96; 96 S Ct 321; 46 L Ed 2d 313 (1975), although he expressed doubts about the applicability of that case.

As stated in Mosley, the procedure to be followed after an accused requests counsel is detailed in Miranda:

" 'If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the .attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
" 'This does not mean, as some have suggested, that each police station must have a "station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.’ ” Michigan v Mosley, supra, at 101, n 7, quoting Miranda v Arizona, supra, at 474.

See People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), People v Brannan, 64 Mich App 374; 236 NW2d 80, lv granted, 395 Mich 812 (1975), People v Lewis, 47 Mich App 450; 209 NW2d 450 (1973).

The difficult question presented in this case is whether a suspect who has asserted his right to counsel may later waive that right without having spoken to a lawyer. The courts which have considered this issue have reached different results.

The weight of authority holds that a subsequent waiver of a once-invoked right to counsel may be valid in certain circumstances. See, e.g., United States v Rodriguez-Gastelum, 569 F2d 482 (CA 9, 1978), United States v Massey, 550 F2d 300 (CA 5, 1977), United States v Pheaster, 544 F2d 353 (CA 9, 1976), United States v Womack, 542 F2d 1047 (CA 9, 1976), United States v Cavallino, 498 F2d 1200 (CA 5, 1974), United States v Lewis, 425 F Supp 1166 (D Conn, 1977), People v Sparks, 82 Mich App 44; 266 NW2d 661 (1978). These cases generally rely on language in Miranda permitting waiver of rights and Michigan v Mosley, supra, which allowed a subsequent waiver of the right to remain silent. While we find that Mosley expressly did not decide the issue in the case at bar, the rationale of Mosley militates against application of a per se exclusionary rule:

"[A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.” Michigan v Mosley, supra, at 102.

We hold that a person who has invoked his right to counsel may later waive that right without an attorney.

While we reject a per se rule in this case, we do recognize differences between a suspect’s assertion of a right to remain silent and his assertion of a right to counsel. A waiver made after assertion of a right to counsel should be viewed with skepticism; once an individual decides that he is incapable of communicating with authorities absent counsel, we should be very suspicious of a later, counselless waiver. See Michigan v Mosley, supra (White, J., concurring).

In light of this difference, a more careful scrutiny of the suspect’s waiver is required than for a waiver made prior to the assertion of right to counsel or after assertion of the right to remain silent. United States v Cavallino, supra, United States v Lewis, supra. In particular, police should not be allowed to ignore a suspect’s request for a lawyer; interrogation must cease until, at the least, a reasonable opportunity to obtain counsel has been afforded. The normal heavy burden which the prosecution bears in proving the validity of a waiver should be of a very high standard where waiver of a previously invoked right to counsel is involved.

In the case at bar, the prosecution has not borne its very heavy burden of proving a valid waiver. Even accepting Officer Cline’s version of the facts as true, there was less than a half-hour break in questioning after defendant requested a lawyer. Officer Cline was aware that defendant had been experiencing emotional and drug problems and had just been released from an institution. Finally, defendant testified that there was no break in interrogation at all.

We are left with a "definite and firm conviction” that the trial court erred in holding the confession admissible. See People v McGillen #1, supra. The prosecution failed to carry its very heavy burden of proof that defendant validly waived his right to counsel.

We also hold that the admission of defendant’s confession at trial cannot be deemed harmless error.

In view of our disposition of this case, we need not address the other issues raised by defendant.

Reversed and remanded for a new trial.

M. F. Cavanagh, P. J., concurred.

M. J. Kelly, J.

(dissenting). Since the only error alleged is in connection with the admission of defendant’s confession, we examine the entire record and independently determine voluntariness. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972); we reverse where we are left with a definite and firm conviction that a mistake was committed. People v McGillen, #1, 392 Mich 251, 257; 220 NW2d 677 (1974). See People v Sparks, 82 Mich App 44; 266 NW2d 661 (1978). On the record presented I am not left with a definite and firm conviction that a mistake was committed, and, therefore, dissent.

The trial court resolved the conflict of testimony between defendant and Officer Cline, noted by the majority, in favor of the testimony given by Officer Cline. The Fourth Circuit Court of Appeals, when confronted with a similar Miranda issue, noted:

"The trial court, which had the advantage of observing the witnesses and their demeanor, implicitly found that the investigating officer had acted in good faith, without guile or subterfuge, in conducting this inquiry, and such a finding is not to be lightly disturbed.” United States v Grant, 549 F2d 942, 947 (CA 4, 1977). See also United States v Pheaster, 544 F2d 353, 364 (CA 9, 1976), cert den, 429 US 1099; 97 S Ct 1118; 51 L Ed 2d 546 (1976), United States v Charlton, 565 F2d 86, 89 (CA 6, 1977).

I recognize that there are conflicting theories among the courts which have ruled upon the validity of a waiver of counsel after the suspect has made a request to be represented by counsel. One line of cases holds that a subsequent waiver without the presence of counsel is involuntary per se, while the prevailing view maintains that a subsequent waiver could be voluntary depending on the facts of the individual case. See Nash v Estelle, 560 F2d 652, 655 (CA 5, 1977), United States v Charlton, supra. See also Biddy v Diamond, 516 F2d 118, 122 (CA 5, 1975), United States v Womack, 542 F2d 1047, 1050 (CA 9, 1976), State v Greene, 91 NM 207; 572 P2d 935 (1977).

Where a suspect requests counsel during questioning, and the police ignore that request and continue the interrogation, a finding of a knowing and intelligent waiver of the right to counsel is impossible. Nash v Estelle, supra, at 656. If, however, the police terminate the interrogation, subsequent circumstances may provide a basis for a knowing and intelligent waiver of the right to counsel. Id. Another panel of this Court has recently stated:

"We therefore hold that, when a person asserts his right to counsel, the interrogation must cease until an attorney is present, or, after the lapse of a signiñcant period of time, the person knowingly and intelligently waives his counsel right. See, e.g., United States v Pheaster, 544 F2d 353, 367-368 (CA 9, 1976).” People v Sparks, supra, at 49-50. (Emphasis added.)

The facts of the instant case are unusual, and whether or not there was a lapse of a significant period of time between defendant’s request for counsel and his eventual waiver is not relevant to the disposition of the Miranda issue. Here we are dealing with a defendant who prior to his request for an attorney was advised that he was under arrest for possession of marijuana. Nothing in the record indicates that defendant was advised that he was a suspect for the instant crimes. After defendant requested an attorney, having been advised of his rights under the marijuana charge, the record establishes that there was absolutely no interrogation about the marijuana charge. Furthermore, a review of the testimony of both defendant and the interrogating officer reveals that there was no interrogation or reference made about the instant crimes prior to defendant’s waiver of counsel and subsequent confession. The court in United States v Grant, supra, at 946, noted:

"It does not follow, though, that Miranda erects an absolute per se bar on any conversation with the accused by the investigating officers after the former has requested counsel. It only inhibits investigative interrogation related to the specific crime itself.”

The reasoning of the Grant court is applicable in the present circumstances. Even though the interrogating officer had focused on the defendant as a prime suspect in the instant crimes, he had not related that information to the defendant. The deféndant was unaware of the fact that he was focused on in the instant crimes, but voluntarily made a statement confessing to them. Officer Cline asserted that defendant did so only after a subsequent waiver of the right to counsel, after again being read his Miranda rights. Defendant denies that the officer read the rights again prior to the initial confession. There was no investigative interrogation expressly inquiring into defendant’s involvement in the instant crimes.

Finally, my opinion is bolstered from the following passage in United States v Pheaster, supra, at 368, which involved a much closer Miranda question than the one present here. The court found a proper waiver of counsel based upon the following reasoning:

"Our examination of the record in this case has revealed that the decision regarding waiver was a close one; yet, on balance, we believe that the district court was correct in deciding that the Government had met its 'heavy burden’ in establishing Pheaster’s waiver. Because it was not possible for the F.B.I. agents who arrested Pheaster to provide him with an attorney at the moment that he demanded one, the key question is whether the failure of the agents to sit mute during the ride to county jail, where an attorney could be provided, mandates the exclusion of Pheaster’s statements. On the particular facts of this case, we are convinced that such exclusion was not. mandated. This conclusion would have been significantly easier had there been an express waiver of rights but the absence of such a waiver is not determinative, for this Court has held that in appropriate circumstances a waiver of Miranda rights can be implied rather than express. United States v. Hilliker, 436 F.2d 101, 103 (9 Cir.), cert denied, 401 U.S. 958; 91 S.Ct. 987; 28 L.Ed.2d 242 (1971); see also United States v. Vigo, 487 F.2d 295, 299 (2 Cir. 1973) (statement after defective Miranda warning held to be volunteered). Although this question is not specifically addressed in Mosley, the recitation of the facts indicates an implied, rather than an express, waiver by Mosley. 423 U.S. at 104, 96 S.Ct. 321 [46 L Ed 2d 313 (1975)]. We think that this is a case in which waiver can be implied. It is critical to focus on the fact that Pheaster agreed to cooperate with the agents after he had been in the car for only fifteen to twenty minutes— a point not challenged in his brief. Thus, although he was in the car for a longer period, his cooperation was not the result of lengthy incommunicado detention. This is not a case in which there was an intentional delay in providing an attorney in the hope that the suspect would yield to pressure and recant his demand for an attorney. It is also important to note that Pheaster’s statements came as a result of an objective, undistorted presentation of the extensive evidence against him, particularly the positive identification of his fingerprint on the ninth note. As in Hodge [487 F2d 945 (CA 5, 1973)] and Davis [527 F2d 1110 (CA 9, 1975)], the questioning did not really begin until Pheaster had clearly indicated his willingness to cooperate. Finally Pheaster was reminded early in the evening that he did not have to talk to the agents but he continued to talk because of his expressed desire to help them find Larry Adell. Under all the circumstances of this case, we conclude that waiver of the Miranda rights, including the earlier demand to see an attorney, was properly found.” (Footnote omitted.)

The preceding last quoted sentence reflects my disposition of this case. I find a valid waiver.

I would affirm.

       The record does not discloe who released the information.

         People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

       "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 US at 475.

        Mosley expressly distinguished the two issues, limiting its holding to the right to remain silent. 423 US at 101, n 7, 104, n 10.

       Justice White commented:
      "[Tjhe reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.” 423 US at 110, n 2.

       Although Officer Cline denied "interrogating” defendant, it appears that the "general conversation” was designed to elicit a confession. See Brewer v Williams, 430 US 387; 97 S Ct 1232; 51 L Ed 2d 424 (1977).


author: R. B. Burns, P. J. D. F. Walsh, J.

text:
    PEOPLE v McCURTIS
    Docket No. 31355.
    Submitted March 7, 1978, at Detroit.
    Decided July 5, 1978.
    Myron McCurtis was charged with first-degree criminal sexual conduct during the commission of armed robbery and with armed robbery. He was found not guilty of armed robbery but guilty of first-degree criminal sexual conduct during an armed robbery, in Recorder’s Court of Detroit, Michael J. Connor, J. Defendant appeals, claiming that the jury verdicts are inconsistent. Held:

    The verdicts are inconsistent. The crimes charged have to be proved beyond a reasonable doubt and failure of the jury to find that one- element of the crime of first-degree criminal sexual conduct (armed robbery in this case) had been proved beyond a reasonable doubt requires reversal of the conviction because there was not sufficient evidence to support the conviction of first-degree criminal sexual conduct.
    Reversed.
    D. F. Walsh, J., concurred, but would hold that retrial is barred by the double jeopardy clause in this case, not because the jury verdict amounted to a finding of insufficient evidence as the majority holds but because the jury’s verdict, which failed to find one of the elements of the offense charged (armed robbery), amounted to an acquittal. It is for this reason that the defendant may not be reprosecuted for the same offense.
    Opinion of the Court
    1. Criminal Law — Jury—Inconsistent Verdicts — Criminal Sexual Conduct — Robbery—Evidence.
    A defendant charged with first-degree criminal sexual conduct because it was committed during the commission of the felony of robbery armed cannot be found not guilty of robbery armed but guilty of the first-degree criminal sexual conduct because the verdicts are inconsistent.

      References for Points in Headnotes
    [1, 3] 67 Am Jur 2d, Robbery § 75.
    76 Am Jur 2d, Trial § 1155 et seq.

    Inconsistency of criminal verdicts between different counts of indictment or information. 18 ALR3d 259.
    [2] 5 Am Jur 2d, Appeal and Error § 963.
    21 Am Jur 2d, Criminal Law § 209.

      2. Criminal Law — Insufficient Evidence — Remand—Double Jeopardy — Appeal and Error.
    A criminal conviction which is reversed by an appellate court for insufficient evidence may not be remanded for retrial; a new trial under these circumstances would result in double jeopardy.
    Concurrence by D. F. Walsh, J.
    3. Criminal Law — Jury—-Inconsistent Verdicts — Acquittal—Re-prosecution.

      A jury verdict of not guilty of armed robbery but guilty of first-degree criminal sexual conduct during the commission of the armed robbery is inconsistent; a finding that one of the elements of the criminal sexual conduct had not been established amounts to an acquittal of that charge, and once acquitted a defendant may not be reprosecuted for the same offense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

      Gerald Brock, for defendant on appeal.
    Before: R. B. Burns, P. J., and Bronson and D. F. Walsh, JJ.
   R. B. Burns, P. J.

A jury found defendant not guilty of robbery armed, MCL 750.529; MSA 28.797, but guilty of criminal sexual conduct in the first degree, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). He appeals, arguing the verdicts are inconsistent. We agree.

The amended information in this case charged that defendant "did engage in sexual penetration, to wit: sexual intercourse, with the Complainant and the sexual penetration occurred under circumstances involving the commission of another felony, to wit: Robbery Armed”. The jury was instructed that an element of criminal sexual conduct in the first degree was the commission of a felony; specifically, armed robbery.

From the facts adduced at trial it is readily apparent how the jury arrived at its inconsistent verdicts. The complaining witness testified that she was grabbed by defendant from an apartment vestibule, forced into a nearby alley at knifepoint raped and robbed. However, on cross-examination she was asked:

"Let me, that means you really don’t know whether he took the money or not, it could have been lost, or anything could have happened to it, right?”

An objection was interposed, but the trial court allowed the question:

"Do you know if he took the money?
"No.”

The jury concluded that there was a reasonable doubt as to whether defendant committed robbery armed, but concluded he committed some felony. However, defendant was not charged with sexual penetration under circumstances involving the commission of just any felony, but specifically with robbery armed. The jury having found one element of the crime not to have been proven beyond reasonable doubt, there was not sufficient evidence to find guilt beyond reasonable doubt of the greater offense.

In accordance with Burks v United States, — US —; 98 S Ct 2141; 57 L Ed 2d 1 (1978), when an appellate court reverses a case for insufficient evidence, it would be double jeopardy to remand the case for a new trial. Therefore, the case must be reversed and the defendant discharged.

Bronson, J., concurred.

D. F. Walsh, J.

(concurring). I agree with Judge Burns that retrial is barred by the double jeopardy clause, but his reliance on Burks v United States, — US —; 98 S Ct 2141; 57 L Ed 2d 1 (1978), is misplaced.

The instant case was not reversed because of insufficient evidence but rather because the jury’s verdict amounted to an acquittal. When the jury found the defendant not guilty of armed robbery, it necessarily found that one of the elements of the offense charged had not been established. Once acquitted, a defendant may not be reprosecuted for the same offense. E.g. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).