author: D. C. Riley, P.J.

text:
    STAFFNEY v FIREMAN’S FUND INSURANCE COMPANY FESS v FIREMAN’S FUND INSURANCE COMPANY STORM v FIREMAN’S FUND INSURANCE COMPANY HORNEY v FIREMAN’S FUND INSURANCE COMPANY KIME v FIREMAN’S FUND INSURANCE COMPANY SCHUMANN v FIREMAN’S FUND INSURANCE COMPANY SHAFFER v FIREMAN’S FUND INSURANCE COMPANY NEUGENT v FIREMAN’S FUND INSURANCE COMPANY HERNANDEZ v FIREMAN’S FUND INSURANCE COMPANY
    Docket Nos. 78-1749-78-1766, 78-2698.
    Submitted May 7, 1979, at Lansing.
    Decided August 20, 1979.
    William T. Staffney, Larry A. Fess, Terry D. Shaffer, James E. Neugent, Sr., Joseph D. Hernandez and Russell I. Kime were injured and Jack R. Storn, Glenn R. Horney, and Clifford W. Schumann died as a result of an explosion at the Farm Bureau grain elevator located in Zilwaukee, Michigan. The explosion occurred when sparks from a cutting and welding operation ignited some of the grain dust in the plant. William T. and Williatte Staffney and others brought actions against Fireman’s Fund Insurance Company, New Hampshire Indemnity Company, Inc., Michigan Millers Mutual Insurance Company and Association of Mill and Elevator Mutual Insurance Companies (The Mill Mutuals) alleging that all four defendants either had a duty to inspect the grain elevator for potential fire or explosion hazards and/or assumed that duty by voluntarily undertaking safety inspections; that defendants knew or should have known of the dangerous conditions in the elevator which led to the explosion and should have warned Farm Bureau and its employees of the hazards. Fireman’s Fund moved for summary judgments on the grounds that the plaintiffs had failed to state causes of action because the suits were barred by an amendment to the Worker’s Disability Compensation Act which grants immunity to compensation carriers for liability arising out of the execution of safety inspections. Michigan Millers and Mill Mutuals moved for summary judgments on the basis that the plaintiffs had not stated legal causes of action against them. Motions granted, Saginaw Circuit Court, Joseph R. McDonald, J. Plaintiffs appeal. Cases consolidated on appeal. Held:

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 13.

       57 Am Jur 2d, Negligence §§ 1, 67, 68.

       57 Am Jur 2d, Negligence §§ 1, 67, 68, 120, 121.

       4 Am Jur 2d, Appeal and Error § 104.
    5 Am Jur 2d, Appeal and Error § 853.
    73 Am Jur 2d, Summary Judgment § 40.

       16 Am Jur 2d, Constitutional Law § 498.

       73 Am Jur 2d, Statutes §§ 130-132. '

       5 Am Jur 2d, Appeal and Error § 873.
    16 Am Jur 2d, Constitutional Law § 115.

      1. Fire insurers are not immune from liability for alleged negligence in the performance of safety inspections. Plaintiffs’ complaints maintain that defendants had a duty and/or voluntarily assumed a duty, when they undertook to inspect the grain elevator for fire and explosion hazards, to do so with reasonable care. A complaint properly alleges a legal cause of action where the Court of Appeals, taking factual allegations and reasonable inferences, is unable to conclude that a cause of action is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Plaintiffs’ complaints present such cases. The trial court erred in granting defendants’ motions for summary judgments on the ground that the plaintiffs failed to state causes of action.
    2. Defendants’ contention that they possessed no legal obligation or duty to Farm Bureau employees, whose benefit was not within the scope and purpose of their undertaking as fire insurers of building and property, is without merit. Liability is not circumscribed by what was injured (i.e., property or persons) but by how it was injured (whether the damage was caused by a hazard within the scope and purpose of the inspection). The trouble at the Farm Bureau elevator in Zilwaukee, Michigan, was arguably caused by a hazard within the scope and purpose of defendants’ inspection.
    3. Defendants’ arguments that they were under no duty to warn of any hazardous conditions which they may have uncovered because Farm Bureau was aware of the dangerous conditions are more properly subjects of trial defense and need not be considered on appeal once the Court of Appeals has concluded that the plaintiffs have stated cognizable causes of action under the law.
    4. Plaintiffs’ allegation that the statutory prohibition of an action against worker’s compensation carriers who furnish or fail to furnish safety inspections, while allowing them against other tortfeasors, violates equal protection, is unpersuasive because there is a rational basis for the legislation—the encouragement of safety inspections resulting in a safer working environment, and consequently, the reduction of industrial accidents.
    5. The constitution provides that no law shall embrace more than one object, which shall be expressed in its title. Plaintiffs claim that the 1972 amendments to the Worker’s Disability Compensation Act which grant immunity from liability to workmen’s compensation insurers for furnishing or failing to furnish safety inspections violates this constitutional mandate. Plaintiffs are in error. The purpose of the amendments is not to grant immunity but to encourage safety inspections which protect workers in the course of their employment. This is also the purpose of the parent act. The title of the amendatory legislation restates the title of the main act and states which sections are being amended. The title to an amendatory act is sufficient if the amendment would have been allowable under the title of the original law and if the amendment refers by section of the act amended and gives its title.
    6. The 1972 amendments to the compensation act grant immunity to compensation carriers in the performance of safety inspections. Defendants Michigan Miller and Mill Mutuals are excluded from immunity by the terms of the statute.
    Reversed and remanded in part; affirmed in part.
    1. Judgment — Summary Judgments — Failure to State Claim — Pleadings — Court Rules.
    A motion for summary judgment based upon failure to state a claim upon which relief can be granted is to be tested by the pleadings alone and tests the legal basis of the complaint, not whether it can be factually supported; the factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged; the motion should be denied unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover (GCR 1963, 117.2[1]).
    2. Negligence — Gratuitous Undertakings — Third Persons — Due Care — Reliance.
    A person who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (1) his failure to exercise reasonable care increases the risk of harm, (2) he has undertaken to perform a duty owed by the other to the third person, or (3) the harm is suffered because of reliance of the other or third person upon the undertaking.
    3. Insurance — Fire Insurance — Negligence — Safety Inspections — Liability.
    Fire insurers are not immune from liability for negligence in the performance of safety inspections.
    4. Insurance — Fire Insurance — Inspections — Due Care — Hazards — Damage.
    A fire insurer who undertakes to inspect a grain elevator for fire and explosion hazards must do so with reasonable care and may be liable for damages to persons or property where damage was caused by a hazard within the scope and purpose of the inspection.
    5. Appeal and Error — Summary Judgment — Irrelevant Allegations.
    The legitimacy or veracity of allegations which are more properly the subjects of trial defense become irrelevant once it has been concluded that a trial court’s grant of summary judgment should be reversed because a plaintiff has stated a cognizable cause of action under the law.
    6. Constitutional Law — Statutes — Equal Protection — Workmen’s Compensation — Rational Basis — Safety Inspections.
    A statute which grants immunity from third-party liability for furnishing or failing to furnish safety inspections to workmen’s compensation carriers but not to other tortfeasors does not violate equal protection of the laws where a rational basis, the encouragement of safety inspections resulting in a safer working environment and the reduction of industrial accidents, existed for the legislation; such legislative enactments challenged on constitutional grounds that they deny equal protection of the laws are to be examined by the rational basis approach under which the constitutionality of a statutory classification is to be upheld where any state of facts can reasonably sustain it.

      7. Statutes — Amendments — Title of Act — Title of Amendment — Constitutional Law.
    > The title to an amendatory act is sufficient if the amendment would have been allowable under the title of the original law and if the amendment refers by section to the act amended and gives its title.
    8. Appeal and Error — Constitutional Questions — Disposition.
    The Court of Appeals need not consider a constitutional question which is not essential to the disposition of the case on appeal.
    9. Workmen’s Compensation — Safety Inspections — Immunity From Liability — Property Insurers — Third-Party Actions — Negligence.
    Worker’s compensation carriers are immune from third-party liability resulting from safety inspections by the terms of a statute; property insurers, who carry on safety inspections, were not excluded from liability by the Legislature and are not protected from third-party liability in actions stemming from their allegedly negligent safety inspections.

      Cincinelli, Mossner, Majoros & Alexander, P.C., for plaintiffs.

      Joselyn, Rowe, Jamieson & Grinnan, P.C., for Fireman’s Fund Insurance Company.

      Chaklos, Jungerheld & Della Santina, P.C., for New Hampshire Indemnity Company, Inc.
    Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

       Former Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   D. C. Riley, P.J.

On January 19, 1977, plaintiffs William and Williatte Staffney filed a complaint alleging that William had been injured on January 22, 1976, due to an explosion at the Farm Bureau Services (hereinafter Farm Bureau) grain elevator exchange located in Zilwaukee, Michigan. The explosion resulted when sparks from cutting and welding operations ignited some of the accumulated grain dust in the plant.

The complaint alleged that defendant Fireman’s Fund was the worker’s compensation carrier for Farm Bureau as was defendant New Hampshire and that defendant Michigan Millers was responsible for the fire insurance on the grain elevator and defendant Mill Mutuals was the reinsurer of the fire insurance contract between Michigan Millers and Farm Bureau. Plaintiffs further alleged that all four defendants either had a duty to inspect the grain elevator for potential fire or explosion hazards and/or assumed that duty by voluntarily undertaking said safety inspections and that defendants either knew or should have known of the dangerous conditions in the elevator which led to the explosion, but failed to adequately warn both Farm Bureau and its employees of the hazards.

Fireman’s Fund moved for summary judgment pursuant to GCR 1963, 117.2(1), on the grounds that plaintiffs had failed to state a cause of action because the suit was barred by recent amendments to the Worker’s Disability Compensation Act which grant immunity to compensation carriers for liability arising out of the execution of safety inspections. Michigan Millers and Mill Mutuals similarly moved for summary judgment under the same court rule on the basis that plaintiffs had not stated a legal cause of action against them. Fireman’s Fund’s motion was granted, and pursuant to several amendments by plaintiffs to their complaint, the court also granted summary judgment in favor of Michigan Millers and Mill Mutuals.

Plaintiffs appeal by right, and first assail the lower court’s allowance of summary judgment in favor of defendant fire insurers. We review a grant of summary judgment due to the failure to state a claim upon which relief can be granted, GCR 1963, 117.2(1), against the criteria reiterated in Sullivan v The Thomas Organization, PC, 88 Mich App 77, 82; 276 NW2d 522 (1979):

" 'The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den, 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, * * * [42 Mich App 426; 202 NW2d 577 (1972)].’ Partrich v Muscat, * * *[84 Mich App 724,] at 729-730; 270 NW2d [506] at 509. [(1978)].”

Plaintiffs’ cause of action is premised upon 2 Restatement Torts, 2d, § 324A, p 142, which states that:

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
"(a) his failure to exercise reasonable care increases the risk of harm, or
"(b) he has undertaken to perform a duty owed by the other to the third person, or
"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

Plaintiffs’ suit emcompasses all three subparagraphs of the rule. As previously stated, their complaint, as amended, maintains that defendants had a duty and/or voluntarily assumed a duty, when they undertook to inspect the grain elevator for fire and explosion hazards, to do so with reasonable care. The inspections by Michigan Millers were set forth in great detail, as was the fact that Mill Mutuals received copies of all the inspection reports and further made inspections of its own.

The complaint alleges that before the date of the explosion, defendants knew, or in the exercise of reasonable care should have known, of the extremely dusty conditions within the grain elevator, knew that the dust collection and/or removal system was inadequate, and that this presented an extremely hazardous and dangerous potential for explosion and fire and that, pursuant thereto, defendants were under a duty to warn Farm Bureau and its employees of the dangerous conditions, and recommend safety procedures so that adequate steps could be taken to eliminate those risks. The complaint further alleges that having voluntarily undertaken to give warnings to the employees by means of placards, signs, reports, posters and verbal commands, the defendants, in fact, failed to adequately and fully warn the employees of the extreme hazards existing at the plant.

Paragraph 26 of plaintiffs’ amended complaint closely parallels the prerequisites to liability as set forth in the Restatement, supra. It alleges that by their voluntary undertaking, defendants increased the risk of injury by instituting and/or requiring a program of specific written permits for cutting and welding within the confines of the grain elevator, when they knew, or should have known, that cutting and welding procedures should have been prohibited under any circumstances, and where the maintenance procedures could have been accomplished by alternative means—thereby, as a result, markedly increasing the risk of ignition of combustible organic dust; that by continuing to stress other aspects of good housekeeping when they knew of the dangers of cutting and welding operations and the lack of ventilation and/or dust collection systems, defendants aggravated the existing danger. The complaint alleges that defendants assisted and assumed Farm Bureau’s duty to provide a safe place of work by instituting several safety programs including signs, slogans and safety demonstrations. Finally, the complaint states that the ensuing injuries resulted from the reliance placed by plaintiffs and Farm Bureau Services on defendants’ undertakings, especially since Farm Bureau had no safety department or staff and relied on the aforesaid safety inspections.

Taking the factual allegations, along with any reasonable inferences, as true, Gartside v YMCA, 87 Mich App 335, 337-338; 274 NW2d 58 (1978), we are unable to conclude that plaintiffs’ cause of action is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. We hold that the complaint properly alleges a legal cause of action under the above-quoted provisions of the Restatement.

The trial court’s decision that defendants owed no duty as a matter of law was rendered before this Court released its opinion in Sabraw v Michigan Millers Mutual Ins Co, 87 Mich App 568; 274 NW2d 838 (1978), which like the case at bar, was predicated on 2 Restatement Torts, 2d, § 324A. Sabraw arose from a 1969 explosion at the Zilwaukee feed mill. Verdicts returned in favor of plaintiffs and against Michigan Millers were set aside when the trial court entered a judgment notwithstanding the verdict. In overturning the lower court decision that insufficient evidence was presented from which to raise a question of fact for jury determination, this Court held that fire insurers were not immune from liability under the Restatement for alleged negligence in the performance of safety inspections.

Defendants, in an attempt to escape liability, proffer a bifurcated analytical framework. First, they maintain that, as fire insurers, their liability is circumscribed by contract so as to include protection against only building and property damage —not personal injury, and that the inspection of the grain elevator was limited solely to the protection of their investment. Defendants’ contention that they possessed no legal obligation or duty to Farm Bureau employees, whose benefit was not within the scope and purpose of the undertaking, or within the orbit of risk, was, we believe, properly rebutted by the Sabraw Court where it was stated:

"The instant defendant thus is correct in asserting that the scope of its inspection was limited, but it focuses on the wrong parameter. Liability is not circumscribed by what was injured (i.e., property or persons) but by how it was injured (whether the damage was caused by a hazard within the scope and purpose of the inspection).” (Emphasis in original.) 87 Mich App at 573, fn 3.

Here the damage was arguably caused by a hazard "within the scope and purpose of the inspection”. As such, defendants’ contention in this regard is without merit.

Defendants further argue, however, that they were under no duty to warn of any hazardous conditions they may have uncovered due to evidence indicating that Farm Bureau was aware of the dangerous conditions. The legitimacy or veracity of these allegations were more properly subjects of trial defense. As previously stated, under summary judgment pursuant to GCR 1963, 117.2(1), we consider only whether, taking their factual averments as true, plaintiffs have stated a cognizable cause of action under the law. Having so concluded, defendants’ advocation, in the procedural boundaries of the present case, is irrelevant.

With regard to Fireman’s Fund and New Hampshire, defendants’ worker’s compensation carriers, plaintiffs offer a tripartite constitutional attack against certain of the 1972 amendments to the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq.

As part of the act’s 1972 modifications, the definition of "employer” was changed to read as follows:

"The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.” MCL 418.131; MSA 17.237(131).

In addition, a new section to the statute was added providing that:

"The furnishing of, or failure to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance, or pursuant to a contract providing for safety inspections or safety advisory services between the employer and a self-insurance service organization or a union shall not subject the insurer, self-insured service organization or the accident fund, or their agents or employees, or the union, its members or the members of its safety committee, to third party liability for damages for injury, death or loss resulting therefrom.” MCL 418.827(8); MSA 17.237(827X8).

Plaintiffs allege that the prohibition of an action against worker’s compensation carriers, while allowing them against other tortfeasors, violates equal protection. Such an argument has been rebuffed by this Court on two occasions. Shwary v Cranetrol Corp, 88 Mich App 264, 267-269; 276 NW2d 882 (1979), Garrett v International Ins Co, 68 Mich App 418, 420-421; 242 NW2d 798 (1976). Contrary to plaintiffs’ contention that the determinative equal protection reviewing standard is the "substantial-relation-to-the-object” test set forth in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 669-670; 232 NW2d 636 (1975), these decisions held that the legislative enactments at issue were to be examined by the traditional "rational basis” approach, under which the classification is upheld where any state of facts can reasonably sustain it. Shwary, supra at 268, Garrett, supra, at 420-421. Both Courts agreed that, because a rational basis existed for the legislation—the encouragement of safety inspections resulting in a safer working environment, and consequently, the reduction of industrial accidents—the 1972 immunity provisions did not deny equal protection of the laws. Shwary, supra, at 268-269, Garrett, supra, at 421.

Plaintiffs next allege that the 1972 amendments contravene Const 1963, art 4, § 24 which provides in pertinent part that:

"No law shall embrace more than one object, which shall be expressed in its title.”

Specifically, they argue that the title to the amendments does not state that compensation carriers are granted immunity for inspections and that the law itself is at odds with the overall objective of the Worker’s Disability Compensation Act. Plaintiffs point out that the overall objective is protection from injuries in the course of employment, but that the object of the amendments is immunity for certain tortfeasors.

The title to 1972 PA 285 states as follows:

"An act to amend sections 131 and 827 of Act No. 317 of the Public Acts of 1969, entitled 'an act to revise and consolidate the laws relating to workmen’s compensation; and to repeal certain acts and parts of acts,’ being sections 418.131 and 418.827 of the Compiled Laws of 1948.”

The primary objective of the act, as plaintiffs recognize, is to protect workers in the course of their employment. Garrett, supra, at 421-422. Plaintiffs’ argument that the purpose of the amendment is to provide immunity to tortfeasors is incorrect, as this Court has recognized that the purposes of those amendments are to encourage safety inspections. Shwary, supra, at 269, Garrett, supra, at 421. Accordingly, the amendments have the same purpose as the parent act. Our Supreme Court has held that the title to an amendatory act is sufficient if the amendment would have been allowable under the title of the original law and if the amendment refers by section to the act amended, and gives its title. Fort-Street Union Depot Co v Comm’r of Railroads, 118 Mich 340, 345; 76 NW 631 (1898). See also, Benson v State Hospital Comm, 316 Mich 66, 76-77; 25 NW2d 112 (1946), Westgate v Twp of Adrian, 161 Mich 333, 335; 126 NW 422 (1910). Since the purpose of the 1972 amendments, promoting the safety of workers, coincides with the overall purpose of the Worker’s Disability Compensation Act, and as the amendments’ title both restates the title of the parent act and states which sections are being amended, we find no violation of the object-title clause of the Michigan Constitution. See Garrett, supra, at 421-422.

Plaintiffs’ final constitutional challenge is that the definition of "employer” in MCL 418.131; MSA 17.237(131) to include worker’s compensation insurance carriers is unduly broad, and thus should have been included in the amendatory title as well as the body of the statute. We need not consider this question, inasmuch as MCL 418.827(8); MSA 17.237(827X8) grants immunity to compensation carriers in the performance of safety inspections absent any reference to that term. See People v Vanderford, 77 Mich App 370, 373; 258 NW2d 502 (1977), Stanek v Secretary of State, 33 Mich App 527, 530; 190 NW2d 288 (1971).

Lastly, we reject the defendants Michigan Millers’ and Mill Mutuals’ claim that the 1972 amendments were intended to provide immunity to property insurers who carry on safety inspections, as well as worker’s compensation carriers. By the terms of the statute they are excluded from the immunity umbrella. Had the Legislature desired to grant property insurers immunity, it would have been a simple matter to do so.

Reversed and remanded in part; affirmed in part.

Costs of appeal to plaintiffs against defendants Michigan Millers and Mill Mutuals. Costs of appeal to defendants Fireman’s Fund and New Hampshire. See GCR 1963, 822.

       The other named plaintiffs have filed separate but similar causes of action, and all cases were subsequently consolidated for purposes of this appeal.

       New Hampshire, Fireman’s Funds’ successor, was also granted summary judgment.


source: Caselaw Access Project

author: D. E. Holbrook, Jr., J.

license: Public Domain

text:
    T W HAGER LUMBER COMPANY v SULLIVAN
    Docket No. 78-1778.
    Submitted May 3, 1979, at Grand Rapids.
    Decided August 20, 1979.
    Leave to appeal applied for.
    Defendant, Michael Sullivan, was employed as a salesman by plaintiff, T. W. Hager Lumber Company, from January of 1974 to January of 1977. Each year defendant was given an advance against future commissions. Out of this advance defendant was expected to pay his own expenses, income taxes and social security taxes. At the beginning of 1977, defendant received an annual advance of $27,500. Before the end of January, 1977, the' defendant terminated his employment with the plaintiff and went to work for another lumber company. There was no express agreement between the parties as to what would happen regarding advances in excess of earned commissions at the termination of the relationship. Upon leaving the plaintiff’s employment, the defendant signed a note agreeing to repay the plaintiff the amount by which the defendant’s annual advances exceeded his commissions earned. At that time the amount was in excess of $19,000. Subsequently, the plaintiff brought an action to recover the amount owing. By the time of trial, the amount had been reduced to $16,042.39, through credits to defendant’s account. A judgment for plaintiff was entered by the Kent Circuit Court, George R. Cook, J. The defendant appeals, alleging that an agent is not personally liable for advances made to him in excess of commissions earned, in the absence of an express agreement to the contrary. Held:

    An implied agreement is sufficient to make the defendant liable for repayment. In this case, convincing circumstances existed upon which the trial court based its finding that an implied agreement did exist.
    Affirmed.
    Master and Servant — Advances — Repayment of Excess Advances — Implied Agreement — Convincing Circumstances.
    An implied agreement between an employer and an employee is sufficient to render an employee personally liable to his employer at the time of the termination of the employment relationship for advances paid to the employee in excess of commissions earned; however, convincing circumstances are required to uphold a finding of an implied agreement.

      References for Points in Headnote
    53 Am Jur 2d, Master and Servant § 74.
    Personal liability of servant or agent for advances or withdrawals in excess of commissions earned, bonus, or share of profits. 32 ALR3d 802.

      Warner, Norcross & Judd (by Edward Malinzak and David W. Crooks), for plaintiff.

      Miller, Johnson, Snell & Cummisky (by Jon R. Muth and Carol J. Karr), for defendant.
    Before: Mackenzie, P.J., and D. E. Holbrook, Jr. and Cynar, JJ.
   D. E. Holbrook, Jr., J.

In January, 1974, defendant became a salesman for plaintiff. He had previously been an employee of plaintiff in a number of salaried positions. Defendant was given an advance of $27,500 per year. He also received commissions equal to 50 percent of gross profit on sales made by him. Out of the advance and the commissions he paid his own expenses, withholding taxes and social security taxes. Although the annual advance was agreed to by plaintiff, the defendant pretty much set the amount. There was no written contract between the parties and no discussion as to what would happen in the event of termination of the relationship because, as defendant stated, he never contemplated termination. In January of 1977, defendant left plaintiff and went to work for another lumber company. Upon leaving plaintiff the defendant signed a note agreeing to repay plaintiff the amount by which his annual advances exceeded his commissions earned, which at the time was $19,545.63. This amount was subsequently reduced to $16,042.39, through credits to defendant’s account, by the time of trial.

The trial court found an implied promise on the part of the defendant to repay plaintiff the amount by which defendant’s annual advances exceeded commissions earned. The trial court predicated its reasoning primarily upon the fact that defendant never reported any of his advances on his income tax returns and the note executed by defendant to plaintiff at the time that their association was terminated. Judgment was accordingly entered in favor of plaintiff in the amount of $16,042.39. It is from this judgment that defendant appeals as of right.

On appeal defendant claims that there must be an express agreement to repay before he can be held liable. He specifically asks this Court to adopt the Wisconsin view set forth in Shaler Umbrella Co v Blow, 199 Wis 489; 227 NW 1 (1929), wherein it was held that an agent is not personally liable for advances made to him in excess of commissions earned in the absence of an express agreement to the contrary.

The general rule throughout the country is set forth in 53 Am Jur 2d, Master and Servant, § 74, p 149, wherein it is stated:

"where the contract of employment provides for advances to the employee, which are to be charged to and deducted from the commissions agreed by the employer to be paid to the employee, as the same may accrue, the employer cannot, in the absence of an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover from the employee such excess.”

From the foregoing it is clear that under the majority view, which we adopt, an implied agreement is sufficient. Moreover, this view appears to have support in Michigan. SFA Studios, Inc v Docherty, 12 Mich App 170; 162 NW2d 670 (1968). Here the trial judge found that the defendant, himself, throughout the three years of the relationship, impliedly agreed to treat the advances as loans, rather than salary, since he never declared any of such advances as income, declaring only his earned commissions as income after having deducted his expenses therefrom. The trial court further found that defendant candidly admitted he signed the promissory note under his own free will. Accordingly an implied agreement to repay was found to exist.

While it is true that under the majority view, which we have adopted, convincing circumstances are required to uphold a finding of an implied agreement, 53 Am Jur 2d, Master and Servant, § 74, p 149, the trial court found such convincing circumstances to exist in the instant case. We will not disturb those findings unless clearly erroneous. Here the evidence was sufficient to support the trial court’s findings. They were not therefore clearly erroneous.

Affirmed. Costs to appellee.


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

text:
    PEOPLE v PLANTEFABER
    Docket No. 78-2022.
    Submitted June 13, 1979, at Grand Rapids.
    Decided August 20, 1979.
    Leave to appeal applied for.
    Defendant, Cornelius Plantefaber, was convicted in Kalamazoo Circuit Court, Donald T. Anderson, J., of possession of marijuana with intent to deliver. The Metropolitan Narcotics Squad of Tucson, Arizona, was conducting a general surveillance at the Tucson International Airport, watching for evidence of possible narcotics activity. Defendant was observed running to the TWA ticket counter after being told that an American Airlines flight he wanted was full. Defendant purchased a ticket for a flight scheduled to depart in 32 minutes and checked two suitcases with the ticket agent. Two officers engaged in smelling the baggage checked with the airlines detected the odors of marijuana and talcum powder on defendant’s baggage. Defendant matched the "profile” used by narcotics agents in detection of persons possibly involved in narcotics activities. The officers opened one suitcase and discovered 14 bricks of marijuana. They removed two bricks, retaining one and marking and returning the other. The edge of the other suitcase was pried open and marijuana bricks were observed inside, but, because of the scheduled departure of the plane, this suitcase was not opened. Both cases were replaced for loading on the plane. The Arizona police phoned the Kalamazoo police and gave them a description of defendant and his suitcases. The Kalamazoo police observed defendant retrieve the suitcases and get in a taxi. They stopped the cab, arrested defendant and opened one of the suitcases. Defendant sought at trial to suppress the evidence of the contents of the suitcases as the product of illegal searches and seizures, but the evidence was allowed to be admitted. Defendant appeals. Held:

    1. The Arizona officers had probable cause under exigent circumstances to search defendant’s luggage without first obtaining a warrant.

      References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 41, 43, 44.
    Lawfulness of nonconsensual search and seizure without warrant, prior to arrest. 89 ALR2d 715.

       68 Am Jur 2d, Searches and Seizures §§ 41, 43, 44.
    5 Am Jur 2d, Arrest § 44 et seq.

       5 Am Jur 2d, Appeal and Error § 776 et seq., 800.

      2. The seizure and search by the Kalamazoo police was not an unconstitutional "search” but merely a continuation of the police domination and control of the suitcases first exercised by the Arizona officers.
    3. A trial court did not commit reversible error where it incorrectly determined that a potential witness who was not endorsed by the prosecution and not produced at trial was not a res gestae witness but where it correctly determined that the witness’s testimony would be merely cumulative.
    Affirmed.
    1. Searches and Seizures — Constitutional Law — Warrantless Searches — Probable Cause — Exigent Circumstances.
    Police officers specially trained in narcotics investigation had probable cause under exigent circumstances to search suitcases without first obtaining a warrant where; the suitcases were checked with an airline by an individual matching the "profile” used by narcotics investigators in detection of persons possibly involved in narcotics activity, the officers detected the odor of marijuana in the suitcases and it was impractical to obtain a warrant before the plane was to take off with the luggage.
    2. Searches and Seizures — Constitutional Law — Evidence — Warrantless Searches.
    There was no unconstitutional warrantless search of a defendant’s luggage by police in Michigan where the luggage had been lawfully searched by police in an Arizona airport and found to contain marijuana, where the Michigan police were given the description of defendant and his luggage and informed of the results of the Arizona search and where the Michigan police, acting on the information, arrested defendant and searched his luggage; evidence obtained in such a search is admissible.
    3. Criminal Law — Res Gestae Witnesses — Cumulative Testimony.
    A trial court did not commit reversible error where it incorrectly determined that a potential witness who was not endorsed by the prosecution and not produced at trial was not a res gestae witness but where it correctly determined that the witness’s testimony would be merely cumulative.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Principal Appellate Attorney, for the people.

      Jerkins, Plaszczak, Hurley & Bauhof, for defendant.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Qppliger, JJ.

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

   D. F. Walsh, P.J.

Defendant was convicted in a bench trial of possession of marijuana with intent to deliver, MCL 335.341(l)(c); MSA 18.1070(41)(l)(c). He was sentenced to a three-year term of probation and was ordered to pay court costs in the amount of $500.

On July 26, 1973, police officers of the Metropolitan Narcotics Squad in Tucson, Arizona, were conducting a general surveillance at the Tucson International Airport. They were observing persons and baggage at the airport for possible narcotics activity. At 10:45 p.m. defendant was seen entering the airport terminal and running up to the TWA ticket counter after being told that an American Airlines flight he wanted was full. He bought a ticket for a flight to Kalamazoo, Michigan. The flight was scheduled to leave at 11:17 p.m. Defendant checked two suitcases with the airline agent. According to two officers who saw defendant, he fit the "profile” used by narcotics investigators in detection of persons possibly involved in narcotics activity. For example, defendant had arrived at the airport shortly before his departure, he was very nervous and did not let go of his bags until they were checked with the airline. Defendant’s age, dress and the apparent heaviness of his bags were also considered material factors. Two other officers were stationed in the lower level baggage area, to which a conveyor belt conveyed luggage which had been checked with the airline. They were in the process of smelling all of the bags and were told to pay particular attention to those of defendant. One of the officers testified that he smelled defendant’s suitcases and detected the odors of marijuana and talcum powder, which is commonly used to mask the odor of marijuana. Talcum powder was seen on the outside of one of the suitcases. One suitcase was opened and found to contain 14 bricks of marijuana. One brick was removed and retained by the officers. Another was removed, marked and returned to the suitcase. The suitcase was then closed and sealed. An edge of the other case was pried open; marijuana bricks were seen inside the case. Because of the plane’s departure, there wasn’t time to open this suitcase. The cases were each replaced on the conveyor belt for loading into the plane.

Lt. Michael Moshier of the Kalamazoo Police Department received a phone call from one of the Arizona officers in the early morning hours of July 27. The Arizona officers gave him a description of defendant and his suitcases and information concerning defendant’s arrival. This information was forwarded to Officer Wayne Loney, who went to the Kalamazoo airport and saw defendant disembark from the plane. He watched defendant claim the two suitcases which matched the descriptions relayed to him by Lt. Moshier. Defendant took the bags to a taxicab. As the taxicab drove away from the airport, it was stopped by the police. Defendant was arrested and the suitcases were removed from the taxicab. One of the cases was opened at that time. The other suitcase was opened at the jail to which defendant was taken.

Defendant unsuccessfully moved for suppression of the evidence relating to the contents of his suitcases, claiming that he had been the victim of two unconstitutional searches and seizures. With respect to the police activity in Arizona, the trial court found that defendant had matched the narcotics profile, that experienced officers had detected the odor of marijuana in defendant’s suitcases, and that there had not been time for the Arizona officers to obtain a search warrant before the departure of defendant’s plane. The court ruled that the existence of probable cause and exigent circumstances had made the warrantless Arizona search and seizure reasonable. We agree.

In determining if the Arizona officers had probable cause to search the suitcases, we must examine the facts, circumstances and information known to them at the time of the search. People v Rodriguez, 83 Mich App 606, 609; 269 NW2d 199 (1978).

The Arizona officers had observed defendant and had concluded that he matched a narcotics "profile”. The officers were specially trained in narcotics investigation and were experienced in detection of marijuana. They detected the odors of marijuana and talcum powder emanating from the suitcases. As observed by Justice Williams in People v Hilber, 403 Mich 312, 333; 269 NW2d 159 (1978) (dissenting opinion of Williams, J.), the United States Supreme Court has recognized "the evidentiary quality of odor”. See Johnson v United States, 333 US 10; 68 S Ct 367; 92 L Ed 436 (1948).

With respect to probable cause, the United States Supreme Court’s decision in United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), supports the trial court’s ruling. In that case the Supreme Court affirmed suppression of evidence because of the absence of the requisite exigency for a warrantless search and seizure. The Court, however, did not disturb the holding of the First Circuit Court of Appeals that there had been probable cause to search the defendants’ footlocker. Railroad officials in San Diego had noticed that the footlocker, which they saw being loaded onto a train bound for Boston, was unusually heavy and that it was leaking talcum powder. Because one of the defendants matched a profile used to spot drug traffickers, the officials notified Federal agents in San Diego, who relayed the information to Federal narcotics agents in Boston. When the train arrived in Boston, the footlocker was claimed by the defendants. The Federal agents released a police dog trained to detect marijuana near the footlocker. Without alerting the defendants, the dog signaled the presence of a controlled substance inside the footlocker. We agree with the First Circuit that there was probable cause to search the footlocker. We also see no significant distinction, regarding probable cause, between that case and the case at hand.

Defendant’s reliance on People v Hilber, supra, is misplaced. In that case, although some of the Justices acknowledged distinctions between the separate odors of unburned, burning and burned marijuana insofar as those odors might constitute probable cause for a search, there was no disagreement that the odor of unburned marijuana was indicative of the actual presence of marijuana.

Although we agree with the trial court’s determination that there was probable cause to search defendant’s suitcases in Arizona, our inquiry must go further to a determination of whether there was an adequate showing of some exigency to support the need for an immediate warrantless search. United States v Chadwick, supra, 15. We are guided by the standard of reasonableness, the cornerstone in Fourth Amendment analysis. United States v Chadwick, supra, 9. The test is not whether the police could have secured a search warrant but whether the search was reasonable. Cooper v California, 386 US 58, 62; 87 S Ct 788; 17 L Ed 2d 730 (1967).

Our review of the record convinces us that the Arizona officers were justified in conducting an immediate search of defendant’s suitcases. The circumstances at the time of the search were sufficiently exigent to make this course of action entirely reasonable. The suitcases had already been checked for passage to Kalamazoo. Both defendant and his luggage were scheduled to depart shortly. Only 32 minutes passed between the time defendant was seen entering the airport and the scheduled departure time of the plane.

This case is similar to the Maryland case of Waugh v State, 20 Md App 682; 318 A2d 204 (1974), rev’d on other grounds 275 Md 22; 338 A2d 268 (1975), where the Maryland Court of Special Appeals noted that it would have been impractical for the Arizona police to obtain a warrant for search of the defendant’s suitcases which were to leave shortly for Maryland. The Maryland court also rejected the notion that the police who opened the defendant’s suitcases in Arizona should have requested the airline to hold the luggage or should have relied on the police at the end of the flight to obtain search warrants. See also United States v Ford, 525 F2d 1308, 1313 (CA 10, 1975). We conclude that the trial court’s refusal to suppress evidence of the Arizona search was correct.

Defendant’s next challenge is to the admissibility of evidence obtained as a result of the opening of his suitcases by the police in Michigan. It is not disputed that no warrant had been obtained by the Michigan authorities and that defendant did not consent to any. search of his suitcases by the Kalamazoo police.

If we were to view the Michigan warrantless searches in isolation from the totality of circumstances, we would be perhaps constrained to find them constitutionally infirm on the basis of United States v Chadwick, supra. However, we decline to accept defendant’s apparent contention that the opening of his suitcases in Michigan must be viewed as separate and distinct from what occurred in Arizona.

In United States v DeBerry, 487 F2d 448 (CA 2, 1973), the defendants challenged the seizure in New York of a suitcase containing marijuana first discovered in a California search. The Second Circuit panel first found no infringement of Fourth Amendment rights in the inspection of the luggage by a Los Angeles air freight supervisor. The supervisor found 15 bricks of marijuana in the suitcase. He notified the Los Angeles police, who inspected the bag and relayed the information to New York authorities. The bag was placed under surveillance upon its arrival in New York. It was eventually seized when the defendants, who had picked it up at the New York airport, were arrested. Noting the 15-hour prearrival notice given by the Los Angeles police, the Court rejected the government’s contention that it would have been "unduly burdensome” for the New York authorities to obtain a search warrant. Id., 450-451, fn 3. Nevertheless, the Court ruled that the New York authorities need not have obtained a search warrant:

"It may be argued that the New York seizure was separate and distinct from the California search, and because there was ample opportunity for the New York officers to obtain a warrant for the suitcase’s seizure, its warrantless seizure violated the fourth amendment. See Coolidge v New Hampshire, 403 U.S. 443, 470-471, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). This, however, would ignore the facts and realities of the situation. The suitcase was seized initially in California by Sergeant Figelsky of the Los Angeles Police Department. That seizure although done without warrant was legal, because Emery’s legal inspection in effect put the marijuana in Figelsky’s plain view; he, therefore, could seize the contraband upon sight. Cf. United States v. Riggs, 474 F.2d 699 (2d Cir. 1973), cert. denied, 414 U.S. 820, 94 S. Ct. 115, 38 L. Ed. 2d 53 (1973). Figelsky made the seizure by removing one of the bricks of marijuana, marking all of the rest of the bricks with his initials, and finally marking the suitcase itself with his initials. He then authorized the suitcase to be shipped on. Even though the suitcase was then in transit, later in the luggage bin, and later still in the freight room, it remained legally "seized” just as much as if it were under the actual physical control of the police. In fact, except for the time that it was actually in the airplane’s belly, it was under the close surveillance of the police. Thus, when the agents and police in New York removed the bag from the back seat of the car appellants were in, they were not making an initial seizure, but rather were merely reasserting control of the suitcase which had already been seized for legal purposes and which was merely being used as bait. Accordingly, no warrant was required.” Id., 450-451. (Footnotes omitted, emphasis added.)

In accord is United States v Ford, supra, where the Court rejected the defendant’s assertion that an Oklahoma seizure was separate and distinct from a California search and further rejected the argument that, since there was time to obtain a warrant before the Oklahoma seizure, the failure to do so violated the Fourth Amendment. Finding that the defendant’s "analysis misapprehended] the facts and realities of the situation”, the Court stated:

"Realistically, the contraband was seized by the officers in California before it was ever shipped to Oklahoma. See United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973). The California officers marked the package and placed a business card inside it. Upon receiving assurances of cooperation from Oklahoma City officers, they authorized its shipment. This action constituted the initial act of control and dominion over the contraband, for without government authorization the airline officials could not have shipped the contraband. This official dominion continued unbroken because close surveillance followed the seized contraband, insuring that it remain within official possession. Actual physical control was in fact reasserted by the Oklahoma City police when the arrest process was completed. These material facts are indistinguishable from DeBerry, supra, and we adopt the analysis of that case in concluding that the official seizure of the contraband occurred in San Francisco when the government asserted dominion over it. The seizure must be judged against the Fourth Amendment as of that time and place.” 525 F2d 1308, 1312-1313.

Also see Waugh v State, supra, 20 Md App 682, 708-709, and State v Pohle, 160 NJ Super 576, 583; 390 A2d 692 (1978).

We conclude that the reopening of defendant’s suitcases in Michigan was not a prohibited "search”. The police, in effect, exercised continuous control over the suitcases from the time of the Arizona search until defendant’s arrest in Michigan. As discussed, supra, there was no constitutional violation in the Arizona search.

Defendant also argues on appeal that the trial court erred in denying his motion to dismiss on the grounds that the prosecution failed to endorse and produce one of the Arizona officers. Only three of the four Arizona officers were produced at trial. After hearing the parties’ arguments, the trial court ruled that the missing officer was not a res gestae witness and that, even if he were, his testimony would be merely cumulative.

We disagree with the trial court’s determination that the missing Arizona officer was not a res gestae witness. People v Abdo, 81 Mich App 635, 643; 265 NW2d 779 (1978). Defendant is entitled to a determination of whether nonproduction adversely affected his right to a fair trial. People v Pearson, 404 Mich 698; 273 NW2d 856 (1979).

Review of the record, however, reveals that such a determination has already been made and that no reversible error occurred. Compare People v Porter, 406 Mich 890 (1979). The record fully supports the trial court’s conclusion that the witness’s testimony would have been merely cumulative.

We have considered the remaining issue raised by defendant on appeal and find no reversible error with respect to that issue.

Affirmed.

       Defendant also cites cases involving the admissibility of tracking dog evidence. Attacking the reliability of the Arizona officers’ testimony concerning their detection of marijuana, he argues that "a human whose degree of smell is presumably inferior compared to a dog should not be allowed to validate his own experience by his own self-serving statements”. We find unpersuasive defendant’s analogy to tracking dog evidence. Such evidence is admissible only if it satisfies certain foundational requirements. People v Norwood, 70 Mich App 53; 245 NW2d 170 (1976), lv den 397 Mich 884 (1976), People v Harper, 43 Mich App 500; 204 NW2d 263 (1972), lv den 389 Mich 759 (1973). Tracking dog evidence standing alone, however, is insufficient to support a conviction. People v McPherson, 85 Mich App 341; 271 NW2d 228 (1978), People v Perryman, 89 Mich App 516; 280 NW2d 579 (1979). In McPherson, the Court examined the arguments against admission of tracking dog evidence and found therein several reasons for the necessity of corroborating evidence. Among the principal objections to the use of tracking dog evidence are the defendant’s inability to cross-examine the dog and the deprivation of the defendant’s right to confront his accusers. Also significant is the court’s inability to determine why the dogs act as they do. 85 Mich App 345-346, citing 18 ALR3d 1221, 1223-1224. These objections are not relevant to the testimony of humans who are available for cross-examination. McPherson implicitly recognizes that the corroborating evidence rule would not apply if tracking dogs were capable of understandingly taking an oath, describing their credentials and experience, and detailing the stages of their investigations. We are not persuaded that the sense of smell of humans cannot be used to establish probable cause or that the "self-serving” testimony of the person doing the smelling is inherently unreliable.

       In reversing the earlier decision in Waugh, the Maryland Court of Appeals found that the Arizona search was invalid because based on insufficiently verified informant information and that the Arizona officer had not smelled marijuana in the defendant’s suitcases but had only smelled talcum powder, in itself not an unusual item in a suitcase. The Arizona officers had not had even reasonable ground to search the suitcases.

       The Waugh court’s analysis was based on its holding that a warrantless search of a suitcase is constitutionally permissible whenever there is probable cause to believe it contains contraband or other evidence of crime and there are exigent circumstances requiring immediate search. 20 Md App 682, 699. Our analysis is like that of the Maryland court. In our view, United States v Chadwick, supra, confirmed the validity of this analysis. Although the Supreme Court declined to treat luggage in the same manner that automobiles are treated for Fourth. Amendment purposes, the Court repeatedly emphasized that, if some exigency exists, warrantless searches of luggage may be permissible. United States v Johnson, 588 F2d 147 (CA 5, 1979), is, we think, in accord with this interpretation of Chadwick.

      The United States Supreme Court has recently reaffirmed its Chadwick decision. In Arkansas v Sanders, 47 USLW 4783 (June 20, 1979), the Supreme Court declined to extend the warrant requirement’s "automobile exception” to all searches of luggage taken from automobiles stopped on the highway. The Court specifically recognized, however, that, "there may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase.” Id., 4786, fn 11. The state conceded in Sanders that no special exigencies had existed. Moreover, the Court noted the possibly significant circumstance of luggage about to be loaded into an airplane; the public safety may require warrantless searches of such luggage. Id., 4786, fn 12.
      Although "public safety” concerns were not necessarily involved in the instant case, we nonetheless are of the opinion that the requisite special exigencies have been established.

         Because of our disposition of the Michigan "search” issue, we need not discuss the retroactive applicability of Chadwick. Nor need we determine if, when viewed in isolation, the Michigan activity amounted to a Chadwick search. See, e.g., People v De Santis, 46 NY2d 82; 412 NYS2d 838; 385 NE2d 577 (1978). And finally, discussion of the relevance of the "automobile exception” in luggage cases is unnecessary to our disposition.


author: Beasley, P.J.

text:
    ST JOHN’S-ST LUKE EVANGELICAL CHURCH, UNITED CHURCH OF CHRIST v NATIONAL BANK OF DETROIT
    Docket No. 78-2178.
    Submitted April 11, 1979, at Detroit.
    Decided August 20, 1979.
    St. John’s Church was named the beneficiary of a trust created by William and Mary Pagel. The trust provided that 10% of the excess net income of the trust was to be paid to St. John's Church. National Bank of Detroit was the trustee of the trust. William died in 1947 and Mary died in 1964. From 1965 to 1970 the trustee made the designated payments. In 1971, the trustee ceased payments for the stated reasons that the church had only 200 members, the distribution would equal $60 per member and the moneys would be used substantially for maintenance of the church according to the then minister. St. John’s-St. Luke Evangelical Church, United Church of Christ, successor by merger to St. John’s Church, filed a complaint in Wayne Circuit Court alleging that it was entitled to 10% of the trust income by operation of the trust instrument and that the trustee had abused its discretion in discontinuing annual payments. The Attorney General was made a party to the suit. Defendants, trustee and Attorney General, denied that St. John’s was granted a definite interest in the trust income and because the trust agreement did not grant St. John’s a definite interest St. John’s did not have standing to sue. Defendants also contended that only the Attorney General could sue to enforce a charitable trust where the beneficiary was uncertain and indefinite and the issue of whether plaintiff had standing to sue had to be determined before trial on the merits. Wayne Circuit Court, Carl F. Ingraham, J., determined that the trustee had the sole power and discretion to dispose of the trust income and property and was not limited to the Specific recipients named and that the beneficiaries were uncertain and indefinite and, therefore, the Attorney General had exclusive authority to sue to enforce the charitable trust. The court concluded that plaintiff was not a proper party and lacked standing to obtain judicial determination of the validity of the trustee’s action. Plaintiffs case was dismissed with prejudice. Plaintiff appeals. Judge Ingraham’s dismissal is treated on appeal as a grant of summary judgment. The question presented is whether the trust instrument grants plaintiff a sufficient interest in the trust income so as to give it standing to sue to enforce the trust, Held:

      References for Points iñ Headnotes

       73 Am Jur 2d, Summary Judgment § 29.

       59 Am Jur 2d, Parties §§ 26-28.

      76 Am Jur 2d, Trusts § 135.

       15 Am Jur 2d, Charities §§ 143-145.

       15 Am Jur 2d, Charities § 6.

      1. Plaintiff has standing to sue for enforcement of the trust provision. The applicable rule is that beneficiaries must be certain and definite to maintain an action to enforce a trust. Plaintiff is a certain, definite and particular beneficiary having been named and identified in the trust instrument with a suggested specific amount of 10% of the excess income to be paid by the trustee.
    2. A trust beneficiary having a primary and special interest in trust income, with a claim that the trustee abused its discretion, is entitled to at least minimal judicial review concerning whether termination of payments by the trustee constituted an abuse of discretion under the trust instrument. The right to judicial review cannot be foreclosed by an argument that plaintiff has no standing to sue, and consequently to appeal, because its interest is uncertain and indefinite where the trustee has broad discretion to determine who will be the recipients of trust corpus and income.
    3. Generally, a suit may be maintained for enforcement of a charitable trust by the Attorney General where the beneficiaries are uncertain and indefinite or by a person who has a special interest. Therefore, the Attorney General is not the only party who can, in all situations, sue to enforce a charitable trust. Plaintiff has standing to sue to enforce the trust because it is named, identified and has a special interest in the trust property.
    4. Summary judgment for the defendants on the basis that plaintiff lacked standing to sue was erroneous. Plaintiff could sue to enforce the trust. Whether the exercise of discretion was in keeping with the purposes and intentions of Mr. and Mrs. Pagel and whether it constituted an abuse of discretion appears to be a question of fact for determination after a full trial on the merits.
    Reversed and remanded.

      1. Judgment — Summary Judgment — Review — Court Rules.
    The Court of Appeals should take a plaintiff’s well-pleaded allegations and any fair inferences therefrom as true for the purpose of measuring whether a grant of summary judgment because of the plaintiffs failure to state a claim upon which relief could be granted was proper (GCR 1963, 117.2[1]).
    2. Action — Substantial Interest — Standing to Sue.
    Only those who have a substantial interest have standing and will be allowed to come into court to complain.
    3. Trusts — Beneficiaries — Standing to Sue — Certain and Definite Identification.
    Beneficiaries under a trust must be certain and definite before they may be allowed to bring an action against a trustee for benefits; there is no lack of standing to sue where a plaintiff church is specifically named and identified in a trust instrument and where a trust provision suggests that a specific amount of excess trust income be paid to the church as a beneficiary of the trust.
    4. Trusts — Beneficiaries — Trustees — Discretion — Appeal and Error.
    A church, with a primary special interest in a trust and as á certain and definite beneficiary of the trust, is entitled to judicial review as to whether termination of payments to it by the trustee constituted an abuse of discretion under the trust instrument.
    5. Trusts — Charitable Trusts — Special Interests — Attorney General.
    Generally, a suit may be maintained for enforcement of a charitable trust by the Attorney General, or by a co-trustee, or by a person who has a special interest in the enforcement of the Charitable trust, but not by persons who have no special interest, or by the settlor, his heirs, personal representatives, or next of kin.
    6. Trusts — Charitable Trusts — Definitions —• Statutes.
    The Supervision of Trustees for Charitable Purposes Act defines a charitable trust to mean a relationship where a trustee holds property for a charitable purpose (MCL 14.252b; MSA 26.1200[2][b]).
    7. Trusts — Charitable Trusts — Attorney General — Beneficiaries —• Standing to Enforce — Special Interests — Statutes.
    The statutory provision directing the Attorney General to represent uncertain and indefinite beneficiaries in all charitable trusts does not preclude a beneficiary from suing to enforce a charitable trust where the beneficiary is named, identified and has a special interest in the trust property (MCL 14.254; MSA 26.1200[4]).
    8. Trusts — Charitable Trusts — Attorney General — Enforcement of Trust.
    The Attorney General is not the only party who can, in all situations, sue to enforce a charitable trust.

      Mclnally, Brucker, Newcombe, Wilke & DeBona, P.C. (by Chester C. Lawrence), for plaintiff.

      Beaumont, Smith & Harris (by James E. Beall), for National Bank of Detroit.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and J. Ronald Kaplansky, Assistant Attorney General, for the State of Michigan.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Beasley, P.J.

Plaintiff, St. John’s-St. Luke Evangelical Church, United Church of Christ, is the merged successor to St. John’s Church which was founded in Detroit in 1833 and is reputed to be the oldest German congregation in Detroit. The church has been located at Gratiot and Russell Avenues since 1874.

The church was named in a 1944 trust created by William Pagel and Mary E. Pagel and received payments from defendant, National Bank of Detroit, the trustee, from 1965 through 1970. After payments ceased, plaintiff church started an equitable action against the trustee in 1974, joining the Attorney General as a party defendant. Eventually, in 1978, a visiting judge granted the motion of defendant trustee for summary judgment under GCR 1963, 117.2(1), holding that plaintiff had no standing to bring suit. From that summary judgment, plaintiff appeals as of right.

The relevant provisions of the trust provide:

[Preamble:]
"WHEREAS, the Settlors desire to create a trust, to be known as the WILLIAM AND MARY PAGEL TRUST, the purposes of which are to provide income for the Settlors during their lives; to make provision for certain relatives and to provide support and maintenance for various religious and charitable institutions; and
[Section 5]
"5. After the death of Mary E. Pagel the Trustee shall pay all excess net income not required to be paid to individuals hereunder, to the religious and charitable institutions or organizations hereinafter named or referred to, as hereinafter provided.
"(a) Settlors have contributed to and have an especial interest in the religious and charitable organizations hereinafter named.
"The care, treatment and benefits given to crippled children, handicapped and aged persons, and also the religious teachings and influence of these and other similar organizations are worthy of encouragement and support in the opinion of Settlors.
"The Trustee shall have the sole and uncontrolled power and discretion with respect to the time, manner and amount of all payments or distributions both of any available net income hereunder or the trust property itself held by it, to and among the religious, charitable and benevolent organizations or uses provided for herein.
"Subject to the exercise by Trustee of its sole discretion, Settlors hereby suggest (unless and until any change therein is determined by the Trustee to be prudent or essential to the purposes and intentions of Settlors as expressed herein), that such available net income or the trust property held by it, be paid and distributed according to the percentages and among the organizations as follows:
"1. 25% to German Protestant Home for Orphans and Old People, of Detroit, Michigan.
"2. 25% to Hospitals for Crippled Children as established and maintained by the Imperial Council, Ancient Arabic Order of the Nobles of the Mystic Shrine of North America, and the Shriners’ Fund of Moslem Temple Association, a Michigan corporation, for the use and benefit of said hospitals.
"3. 10% to Grace Episcopal Church of Detroit, Michigan.
"4. 10% to St. John’s Evangelical and Reformed Church of Detroit, Michigan.
"5. 10% to Detroit Tuberculosis Society.
"6. 10% to Detroit League for the Handicapped, Inc., of Detroit, Michigan-particularly its work for the blind.
"7. 5% to Detroit Orthopedic Clinic.
"8. 5% to George William Graves Memorial Christmas Fund for the Masonic Home at Alma, Michigan.
[Section 6]
"6. After the death of all annuitants named herein the Trustee shall have the sole power and discretion to make payments or distributions of corpus to any religious or charitable institution organized for purposes similar to rather than those named herein or to maintain, improve, enlarge or replace the facilities or equipment of such others or of those named above.
[Section 8]
"8. This trust shall continue until the death of the last survivor among the nieces and nephews herein named of Mary E. Pagel, Settlor, and the last survivor among the nieces and nephew herein named of William M. Pagel, Settlor, when the right to receive income by any individual named herein shall cease, and thereafter it shall be and become a trust solely for religious, charitable and benevolent uses and continue as such in the hands of the Trustee or until terminated by the Trustee in accordance with the terms and conditions hereof.
"If and when this trust becomes one solely for religious, charitable and benevolent uses and purposes, the Trustee may and is hereby given authority in its sole discretion to incorporate the same by the formation of a perpetual Michigan non-profit corporation, the name of which shall be 'MARY E. PAGEL FUND,’ with not less than three members, three trustees and such officers as may be designated and elected by them to carry out the religious, charitable and benevolent purposes specified by this trust.” (Emphasis added.)

William Pagel died in 1947 and Mary Pagel died in 1964 at age 82. The record indicates defendant, National Bank of Detroit, as trustee under the William and Mary Pagel Trust, paid 10% of the net income of the trust to pláintiff, St. John’s Church, from 1965, the year following Mary Pa-gel’s death, through 1970.

In 1971, the trustee ceased paying any of the trust income to St. John’s for the following announced reasons: (1) the church had only 200 members; (2) the distribution would equal $60 per member; and (3) the moneys were to be used, as represented by the then minister of the church, substantially for maintenance of the church.

The following procedural events then ensued:

(1) In 1974, plaintiff filed a complaint alleging that it was entitled to 10% of the trust income by operation of the trust instrument and that the trustee had abused its discretion by discontinuing annual payments to the church. The Attorney General was made a party defendant to the suit pursuant to MCL 14.251 et seq.; MSA 26.1200(1) et seq.

(2) In answering the complaint, both defendants, the trustee and the Attorney General, denied that St. John’s was granted a definite interest in the trust income. The trustee filed an answer to plaintiffs order to show cause on the same day it filed its answer to the plaintiffs complaint. In this answer, the trustee specifically alleged that St. John’s did not have standing to sue for an accounting because the trust agreement did not grant St. John’s a definite interest.

(3) The defendant trustee filed a motion for summary judgment and brief in support of the motion, which alleged that St. John’s failed to state a claim. In the brief and motion, the trustee argued that the Attorney General was the only proper party to seek enforcement of the trust.

(4) Plaintiff amended its complaint pursuant to the court’s opinion of October 24, 1974, alleging abuse of discretion and/or bad faith on the part of defendant trustee. The trustee renewed its motion for summary judgment.

(5) The trustee’s renewed motion for summary judgment was denied in the court’s written opinion of April 17, 1975, stating that the sole issue to be litigated was whether or not the trustee had abused its discretion when it failed to distribute funds to St. John’s.

(6) After conclusion of the pretrial conference, the court again ruled that the only issue to be litigated was whether or not the trustee had abused its discretion. However, the pretrial summary stated that any properly pleaded defense was not waived.

(7) Trial was set for May 8, 1978, before a visiting judge assigned to hear the case. In their trial briefs, the trustee and the Attorney General argued that, pursuant to MCL 14.256; MSA 26.1200(6) and MCL 554.351; MSA 26.1191, only the Attorney General could sue to enforce the trust. On the day set for trial, defendant trustee argued, and the trial court agreed, that in light of the then recent ruling in Oleksy v Sisters of Mercy of Lansing, Michigan, the issue of whether plaintiff had standing to sue must be determined before trial on the merits as to whether or not the trustee had abused its discretion would be heard. In determining whether plaintiff had standing, the trial court heard testimony concerning the circumstances surrounding the creation of the trust which would be relevant to the settlors’ intentions. That evidence indicated that the Pagel family had been associated with St. John’s since the early 1900’s. In the early years, St. John’s was a prosperous church serving the German community. The minute books of St. John’s indicated that Mr. and Mrs. Pagel contributed generously to the church from 1936 to 1946. By World War II, much of the congregation moved away and the area surrounding the church became one of Detroit’s first slums. By 1946, the city had plans to redevelop the area, arid most of the land hear St. John’s was cleared. The last ameridmerit to the trüst, the ninth amendment, was made in 1956 by Mrs. Pagel, after Mr. Pagel’s death in Í947. When the ninth amendment was drafted, Mrs. Pagei was aware of the condition of the area Sürróuhding the church. As indicated, she died in 1964. The trustee paid part of the trust income to St. John’s in 1965 through 1970.

(8) The trial judge,- visiting Judge Ingraham, acknowledged that previously Judge Farmer had denied defendants’ motions for summary judgment which had been made partly on the basis that plaintiff lacked "standing” to sue the trüstee and that Judge Farmer had indicated he believed the "sole issue was whether the trustee abused its discretion in terminating payments to plaintiff’.

(9) It should be noted that the trial judge heard only testimony regarding the "standing” issue; there was no frill trial on the merits.

(10) Judge Ingraham then reviewed the trust instruments arid determined that the trustee had the sole power and discretion to dispose of the trust income arid property and was net limited to the "specific recipients” named. He concluded that the beneficiaries were uncertain and indefinite and that, therefore, under Oleksy, supra, the Attorney General had exclusive authority to sue to enforce the charitable trusts. Noting that the Attorney General had intervened and filed a brief supporting the trustee, which brief indicated defendant Attorney General did not believe defendant trustee had abused its discretion, the trial judge decided plaintiff was not a proper party Under the Oleksy case and lacked standing to obtain, a judicial determination of the validity of the trustee’s action in terminating payments to plaintiff church. Based on these findings, the trial court dismissed plaintiffs suit with prejudice.

In view of the posture of the record, we appear to have no procedural alternative other than to treat the dismissal as being a rehearing of defendant bank’s motion for summary judgment under GCR 1963, 117.2(1) and an award of summary judgment in the nature of a motion to dismiss. This means that we must take plaintiffs well-pleaded allegations and any fair inferences arising therefrom as true, for the purpose of measuring whether the grant of summary judgment was proper.

This ruling of the trial court forms the basis of the two issues plaintiff poses on appeal. First, under the procedural posture of this case, did the defendants waive their right to object to the plaintiff’s lack of standing to sue, and second, if they did npt, does the trust instrument grant St. John’s Church a sufficient interest in the trust income so as to vest them with standing to sue to enforce the trust? Because of our disposition of the second issue, resolution of the first becomes unnecessary.

The injection of the "standing to sue” concept is confusing in the context of the disposition by summary judgment on the facts of this case. However, the trial judge having chosen to grant the motion, our function is now to determine the correctness of the ruling that standing did not exist.

In White Lake Improvement Ass’n v City of Whitehall, this Court discussed the issue of standing and said:

"The purpose of the rules of law which limit the persons who may maintain an action for the abatement of a nuisance is similar to a purpose of standing requirements generally, namely, to insure that only those who have a substantial interest will be allowed to come into court to complain.” (Emphasis added; footnote omitted.)

In Flast v Cohen, the United States Supreme Court said:

"Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. Standing has been called one of 'the most amorphous [concepts] in the entire domain of public law.’ Some of the complexities peculiar to standing problems result because standing 'serves, on occasion, as a shorthand expression for all the various elements of justiciability.’ In addition, there are at work in the standing doctrine the many subtle pressures which tend to cause policy considerations to blend into constitutional limitations. * * *
"The 'gist of the question of standing’ is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ * * * In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” (Citation omitted.)

In Morse v Liquor Control Commission, the Supreme Court held that plaintiffs who were members of churches seeking to raise the 500-feet-from-a-liquor-establishment rule had sufficient standing to litigate the issue even though the plaintiffs themselves did not own property located within 500 feet of the churches.

In the Federal cases, when a party shows such a perspnal stake in a controversy so as to assure a "concrete adverseness” in which issues will be litigated, then standing attaches. The more recent cases seem to indicate that if the challenged action causes a plaintiff injury in fact, economic or otherwise, and the interests asserted by the plaintiff are "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question, then there is standing”.

Admittedly, most of the Federal cases seem to involve either challenges to administrative action or cases where taxpayers attempt to challenge Federal action. One of the justifications given by courts for the existence of standing is the prevention of suits that are collusive or friendly or merely seek advisory opinions. The tendency in the Federal courts has been to substantially liberalize the concept of standing so as to greatly reduce standing as a bar to litigation. Some commentators would carry this tendency so far as to assert that there is a presumption in favor of according standing to a plaintiff.

Consequently, applying these concepts of standing to sue to the within action, it seems evident that plaintiff church has standing to sue. In the first place, plaintiff church is specifically named and identified in the trust instrument. Therefore, in the sense that the "uncertain and indefinite” test means identification of a particular beneficiary, there could be no question but that plaintiff church would meet such a test. In addition, the trust instrument suggests a specific amount, namely, 10% of the excess income as payment to plaintiff church. It would seem reasonable to conclude that application of the "uncertain and indefinite” test does not reveal a lack of standing insofar as the amount to be paid this potential beneficiary is concerned.

The trustee argues that because it has a broad discretion to determine who will be recipients of trust corpus and trust income and how much the amount of such benefits will be, the interest of plaintiff church is uncertain and indefinite. The difficulty with this argument is that it deprives plaintiff church, the party with the primary, special interest, of judicial review of the claim that defendant trustee abused its discretion. We incline to believe that plaintiff church is entitled to some kind of minimal review as to whether termination of payments by the trustee constituted an abuse of discretion under the trust instrument.

However, while both the trial court and defendants, trustee and Attorney General, couch their arguments in the language of standing to sue, defendant trustee and defendant Attorney General also argue that the statute empowering the Attorney General with jurisdiction and control to represent uncertain or indefinite beneficiaries precludes the bringing of this suit by plaintiff church. The language of the statute does not support any such sweeping conclusion that the Attorney General is the exclusive repository of such power.

In general, a suit can be maintained for enforcement of a. charitable trust by the Attorney General, or by a co-trustee, or by a person who has a special interest in the enforcement of the charitable trust, but not by persons who have no special interest, or by the settlor, his heirs, personal representatives, or next of kin.

Section 2 of the 1961 Supervision of Trustees for Charitable Purposes Act defines a charitable trust to mean the relationship where a trustee holds property for a charitable purpose. We hold the Pagel trust to be a charitable trust under this statutory definition.

Section 4 of the above cited Supervision of Trustees for Charitable Purposes Act provides:

"The attorney general shall have jurisdiction and control and shall represent the people of the state and the uncertain or indefinite beneficiaries in all charitable trusts in this state, and may enforce such trusts by proper proceedings in the courts of this state.”

We find no inconsistency between the statutory provision directing the Attorney General to represent "uncertain and indefinite” beneficiaries and the general rule of law authorizing a person with a "special interest” to sue to enforce a charitable trust.

As indicated, in the within case, the trust instrument specifically named and identified St. John’s Church as a potential beneficiary and, in addition, spelled out the suggested amount, namely, 10% of "such available net income or trust property”.

Also, we are aware that the trust instrument vests in the trustee broad discretion "with respect to the time, manner and amount of all payments or distributions”. The trust instrument provides, among other things, that:

"Subject to the exercise by Trustee of its sole discretion, Settlors hereby suggest (unless and until any change therein is determined by the Trustee to be prudent or essential to the purposes and intentions of Settlors as expressed herein), that such available net income or the trust property held by it, be paid and distributed according to the percentages and among the organizations as follows: * * (Emphasis added.)

Whether exercise of discretion under the above quoted portion constitutes an abuse of discretion in this case appears to be a question of fact for determination after full trial on the merits. Determination of such an issue on a motion for summary judgment under GCR 1963, 117.2(1) would be inappropriate and erroneous.

Defendant bank also argues that as a result of MCL 14.254; MSA 26.1200(4), only the Attorney General can raise this issue. In the within case, defendant Attorney General has filed a brief, but did not join in the motion for summary judgment or make oral argument on appeal. In his brief on appeal, the Attorney General argues plaintiff has no standing to sue, plaintiff has no special interest, plaintiffs interest in the Pagel trust is uncertain and indefinite and that other trial court decisions affecting other possible charitable beneficiaries of the Pagel trust support these conclusions.

Since defendant Attorney General does not intend to seek judicial review of the trustee’s decision to terminate payments to plaintiff church, the effect of defendant Attorney General’s position is to deprive plaintiff church of any judicial review. As we have indicated, we do not believe that, under the facts of this case, the statutes were intended to be so interpreted.

The trial court based its grant of summary judgment on Oleksy v Sisters of Mercy of Lansing Michigan, supra. In Oleksy, a doctor brought suit on behalf of himself and other contributors to the building fund of Mercy Hospital to enjoin the sale of the hospital located in Jackson, Michigan, to another hospital, claiming that the second hospital would not be operated in a "Christian atmosphere under a pro-life philosophy”. The Jackson County prosecutor attempted to intervene, but his motion was denied. The case was then dismissed on the ground that plaintiffs lacked standing to bring the action. The prosecutor then brought his own action in quo warranto to enjoin the sale, which action was also dismissed on motion. On appeal, this Court held that the defendant, Sisters of Mercy, a nonprofit corporation, held the hospital in trust for the benefit of the people of Jackson who contributed time, talent, money and services. The Court concluded that, under these circumstances, in Michigan the Attorney General has exclusive authority to enforce a charitable trust. Further, the Court found that "the Attorney General, instead of local prosecuting attorney, must represent the beneficiaries of a trust” where they are uncertain or indefinite because the statute required it.

This case substantially differs from Oleksy. The doctor in Oleksy made a contribution to a hospital building fund and claimed he also gave of his time and talent. This is some distance removed from the situation of plaintiff church, which was named in the trust instrument, for which a suggested percentage share of income was stated in the trust instrument and which received a share of trust income for over five years.

The Oleksy Court said that the policy reason for their holding was that allowing litigation by private citizens in the context of that case would be vexatious and burdensome. Suit by plaintiff church in this case cannot be described as vexatious and burdensome in the Oleksy sense. On the contrary, as a named party in the trust instrument and as an over five-year beneficiary of the trust, plaintiff church’s effort to obtain judicial review of the correctness of the trustee’s action appears to be a reasonable endeavor to which plaintiff is entitled.

We do not read the statute as depriving all named trust beneficiaries from bringing suit regarding entitlement to benefits, meaning of trust language, or improper administration of trust properties. In short, we decline to hold that Oleksy controls here so as to deprive plaintiff church from bringing suit. Plaintiff’s remedy was not limited to a request to the Attorney General to seek interpretation of the meaning of the trust language and review of the trustee’s terminating payments to plaintiff church. The Attorney General is not the only party who can, in all situations, sue to enforce a charitable trust.

In summary, we set aside the judgment in favor of defendant and remand to the trial court for full trial on the merits. We do so because, on this record, it was erroneous to award summary judgment to defendants under GCR 1963, 117.2(1) on the basis that plaintiff lacked standing to sue. Our review indicates there may be ambiguities in the language of the trust instrument. If so, the parties should be given full opportunity to offer evidence regarding these conflicting meanings as well as an opportunity to advocate all possible theories regarding the settlors’ intentions. We express no opinion as to the eventual outcome after full trial.

Reversed and remanded.

       Ninth amendment of William and Mary Pagel Trust.

       Plaintiff prepared an "Order Directing Defendant National Bank of Detroit, As Trustee of the William and Mary Pagel Trust, To Show Cause Why It Should Not Make A Full and Complete Detailed Accounting Commencing The Year 1964 With Respect To Said Trust”.

       GCR 1963, 117.2(1). On October 24, 1974, the trial court (Judge Farmer) dénied this motion "without prejudice” in a written opinion which recited the trustee could not abuse its discretion. The subsequent opinion on renewed motion for summary judgment and the pretrial conference were also the work of Judge Farmer.

       74 Mich App 374; 253 NW2d 772 (1977).

       It is not altogether clear whether the trial judge believed he was rehearing defendant bank’s original motion for summary judgment under GCR 1963, 117.2(1) in the light of Oleksy v Sisters of Mercy of Lansing Michigan, supra, or whether he was hearing an oral motion for accelerated judgment, or whether he considered trial had commenced and that he was first hearing proofs regarding the "standing” issue. The fact that he called his disposition "dismissal with prejudice” when, in fact, there had been only a partial trial, seems to indicate a grant of the motion for summary judgment under GCR 1963, 117.2(1).

       22 Mich App 262, 273; 177 NW2d 473 (1970).

       392 US 83, 98-100; 88 S Ct 1942; 20 L Ed 2d 947 (1968).

       319 Mich 52; 29 NW2d 316 (1947).

        Ass’n of Data Processing Service Organizations, Inc v Camp, 397 US 150; 90 S Ct 827; 25 L Ed 2d 184 (1970), and Barlow v Collins, 397 US 159; 90 S Ct 832; 25 L Ed 2d 192 (1970). See, 69 Mich L Rev 540, 551 (1971), for discussion of Federal test for standing.

       Restatement Trusts 2d, § 391, pp 278-280, particularly, see "Person Having a Special Interest”.

       MCL 14.252(b); MSA 26.1200(2)(b).

       MCL 14.254; MSA 26.1200(4).

       See, In re Reeder Estate, 380 Mich 655; 158 NW2d 451 (1968), where the Court concluded that a settlement which left the residue of a trust to one party in a will contest where the other party was a charitable trust was valid in the absence of participation by the Attorney General. The Court found § 1 of the charitable trust statute applied the act only to a will or devise that did not name any person or corporation as donee.