author: Allen, P.J. M. J. Kelly, J.

text:
    DOZIER v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Docket No. 43537.
    Submitted November 19, 1979, at Detroit.
    Decided January 23, 1980.
    Leave to appeal applied for.
    On June 9, 1976, Isabell Dozier was riding a bicycle when she collided with a car driven by Michele Rebbe. As a result of the accident, Mrs. Dozier suffered personal injuries and incurred various medical expenses. At the time of the accident neither Mrs. Dozier nor any relative with Whom she was domiciled was covered by a no-fault automobile insurance policy. On June 25, 1976, Mrs. Dozier and her husband, William Dozier, through their attorney, sent a letter to State Farm Mutual Automobile Insurance Company, the insurer of the Rebbe automobile, regarding the accident. Receipt of this letter was acknowledged by State Farm on March 9, 1977, when one of its claims adjusters sent a letter in response to the letter from the Doziers’ attorney. On June 15, 1977, one year and six days after the date of the accident, Mr. and Mrs. Dozier brought an action against State Farm claiming personal protection benefits under Rebbe’s no-fault insurance policy for physical, mental and economic damages. The defendant answered by asserting that the plaintiffs’ claim was barred by their failure to comply with the one-year limitation period of the no-fault act for bringing actions for personal insurance protection benefits. The Macomb Circuit Court, George R. Denewith, J., determined that the letter of June 25, 1976, was not sufficient notice to extend the limitation period under the provision of the no-fault act which enables claimants to extend the period for recovery of personal protection insurance benefits an additional year by giving notice. Accordingly, the trial court held that the plaintiffs’ complaint was not timely filed and entered judgment for the defendant. The plaintiffs appeal. The sole issue on appeal is whether the letter sent to State Farm was sufficient to extend the limitations period. Held:

      References for Points in Headnotes
    [1] New topic service Am Jur 2d, No-Fault Insurance § 27.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.
    [2] 44 Am Jur 2d, Insurance § 1455.
    51 Am Jur 2d, Limitation of Actions § 17.
    [3] 43 Am Jur 2d, Insurance § 271.
    [4, 5] 44 Am Jur 2d, insurance § 1507.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.

      Generally speaking, provisions for the giving of notice of claims to an insurer will be liberally construed in favor of the insured and substantial compliance therewith will suffice. However, since the plaintiffs in their letter failed to indicate in ordinary language the place and nature of Mrs. Dozier’s injury, State Farm was denied knowledge of essential facts upon which its liability depends and the notice was inadequate. Nevertheless, in view of State Farm’s acknowledgment of plaintiffs’ letter and its adjuster’s request that the plaintiffs’ attorney forward all specials, the defendant waived its right to assert the insufficiency of the notice.
    Reversed and remanded.
    M. J. Kelly, J., concurred, but would not base his decision on a waiver analysis since it might encourage insurance companies to postpone acknowledgment of claims. He would hold that an insurance company which has notice of a given claim on a given policy, as evidenced by State Farm’s letter of acknowledgment, should not be able to disclaim notice for personal insurance protection benefits while negotiating, adjusting, reserving or denying benefits on the same policy arising out of the same accident for the same claimant for third-party benefits.
    Opinion of the Court
    1. Insurance — No-Fault Insurance — Personal Protection Benefits — Statute of Limitations — Statutes.
    A provision of the no-fault automobile insurance act which provides that certain actions for recovery of personal protection benefits for accidental bodily injury may not be commenced later than one year after the date of the accident causing the injury, unless written notice of the injury has been given to the insurer within one year after the accident, or unless the insurer has previously made a payment of personal protection insurance benefits for the injury, is a one-year statute of limitations with a provision enabling claimants to extend the period for up to one additional year by giving notice (MCL 500.3145[1]; MSA 24.13145[1]).
    2. Notice — Limitation of Actions — Statute of Limitations.
    Notice provisions have different objectives than statutes of limitation; notice provisions are designed, inter alia, to provide time to investigate and to appropriate funds for settlement purposes; statutes of limitation are intended to prevent stale claims and to put an end to fear of litigation.
    3. Insurance — Notice •— Statutory Construction.
    Statutory provisions for the giving of notice of claims to an insurer should be liberally construed in favor of the insured, and substantial compliance therewith will suffice.
    4. Insurance — No-Fault Insurance — Notice — Waiver of Notice — Statutes.
    The notice provision in a section of the no-fault automobile insurance act is for the benefit of the insurer; therefore, it follows that the insurer can waive the adequacy of notice (MCL 500.3145[1]; MSA 24.13145[1]).
    Concurrence by M. J. Kelly, J.
    5. Insurance — No-Fault Insurance — Notice — Personal Insurance Protection.

      An insurance company which has notice of a given claim on a given policy should not be able to disclaim notice of a claim for personal insurance protection benefits while negotiating, adjusting, reserving or denying benefits on the same policy arising out of the same accident for the same claimant for third-party beneñts.

      Law Offices of John J. Grech, P.C. (by Edward R. Bogden), for plaintiffs.

      Draugelis, Ashton & Scully, for defendant.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   Allen, P.J.

The sole issue on appeal is whether the letter of notification sent by plaintiffs to defendant State Farm Mutual Automobile Insurance Company was sufficient to extend the statute of limitation as provided under § 3145(1) of the no-fault insurance act. MCL 500.3145(1); MSA 24.13145(1).

On June 9, 1976, plaintiff Isabell Dozier was riding a bicycle when she collided with a car driven by Michele Rebbe. As a result of this accident, Mrs. Dozier suffered personal injury and incurred various medical expenses. At the time of the accident neither Mrs. Dozier nor any relative with whom she was domiciled was covered by a no-fault insurance policy.

On June 25, 1976, plaintiffs, through their attorney, sent the following letter to defendant, the insurer of Michele Rebbe’s car.

"RE: Accident of 6/9/76

Your insured: Michele Rebbe and/or Joseph Rebbe

Dear Sir:

Please be advised that I have been retained by Mr. and Mrs. William Dozier to represent them in regard to the injuries sustained by Mrs. Dozier in the accident of June 9th.

I hereby claim a lien on any and all settlements in regard to this accident. All future contacts will be made through my office. Please do not contact my clients directly.

Your cooperation would be appreciated.”

On March 9, 1977, defendant, through its claims adjuster, acknowledged receipt of this communique with the following letter:

"Re: Your Client: William Dozier Our Insured: Joseph Rebbe Our File No: 22 6263 142

Accident of: 6/9/76

Dear Mr. Havey

Please be advised that I am in receipt of your correspondence dated June 25, 1976 regarding the above-captioned loss.

Also please be advised that I am the adjuster handling this file and all future correspondence should be sent directly to my attention. Please forward all specials you have in your file regarding this loss.

I wish to thank you for your anticipated cooperation in this matter.”

On June 15, 1977, one year and six days after the accident of June 9, 1976, plaintiffs filed suit against defendant, claiming personal protection benefits under Rebbe’s no-fault insurance policy for physical, mental and economic damages pursuant to MCL 500.3105; MSA 24.13105. Defendant answered by asserting that plaintiffs’ suit was barred by their failure to comply with § 3145(1) of the no-fault act.

As the essential facts were undisputed, the trial court considered the matter after taking oral argument and written briefs on the matter. On August 9, 1978, the court held that plaintiffs’ letter of June 25, 1976, was defective under the statute because it failed to indicate "Mrs. Dozier’s full name, her address, the nature of her injuries or the place of the injuries”. Accordingly, the trial court held that plaintiffs’ complaint was not timely filed under § 3145(1).

Section 3145(1) states:

"An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.” MCL 500.3145(1); MSA 24.13145(1).

By now it is clear beyond peradventure that this section is a one-year statute of■ limitations, with a provision enabling claimants to extend the period for recovery of personal protection insurance benefits up to one additional year by giving notice. Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), lv den 406 Mich 862 (1979), Davis v Farmers Ins Group, 86 Mich App 45; 272 NW2d 334 (1978), lv den 406 Mich 868 (1979), Burns v Auto-Owners Ins Co, 88 Mich App 663; 279 NW2d 43 (1979), Keller v Losinski, 92 Mich App 468; 285 NW2d 334 (1979). Cf. Home Ins Co v Rosquin, 90 Mich App 682; 282 NW2d 446 (1979). This construction of the statute is not disputed by the parties to this appeal. Rather, the parties contest the sufficiency of notice required by the statute to extend the statutory period for an additional year. If the correspondence between the parties is deemed adequate notice under the statute, then the trial court erred by concluding that plaintiffs were precluded from proceeding with their action. In contrast, if, as the trial court concluded, the notice was not in compliance with § 3145(1), then plaintiffs are precluded from maintaining their suit because it was commenced one year and six days after the date of the accident, or, six days late.

The last portion of § 3145(1) provides that the written notice

"may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury”.

The "big query” as perceived by the trial judge "is how this type of statute should be construed”. The trial court properly rejected either a strict or a liberal construction of § 3145(1), choosing instead to construe the statute by the "plain meaning of the words”. Collins v Motorists Mutual Ins Co, 36 Mich App 424; 194 NW2d 148 (1971), lv den 388 Mich 812 (1972), Davis v Green Oak Twp, 65 Mich App 188; 237 NW2d 241 (1975). More particularly, the following statement is instructive in construing statutes of limitations:

"Statutes of limitations are entitled to be fairly construed, so as to advance the policy they are designed to promote, and should not be defeated by an overstrict construction.

"On the other hand, the judiciary must strictly adhere to such periods of limitation, and in construing such statutes, the court should consider the purpose thereof.” 20 Michigan Law & Practice, Statute of Limitations, § 2, pp 545-546. (Footnotes omitted.)

See generally, 16 Callaghan’s Michigan Civil Jurisprudence, Limitations of Actions, § 4.

The policy and purposes such statutes are intended to serve have been stated thus:

"Statutes of limitations are intended to 'compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend’; 'to relieve a court system from dealing with "stale” claims, where the facts in dispute occurred so long ago that evidence was either forgotten or manufactured’; and to protect 'potential defendants from protracted fear of litigation’.” Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974).

Notice provisions have different objectives than statutes of limitations:

"Notice provisions are designed, inter alia, to provide time to investigate and to appropriate funds for settlement purposes.” Davis v Farmers Ins, supra, at 47.

In light of these objectives, and the existence in a single statutory provision of both a notice provision and a limitation of action provision, we conclude that substantial compliance with the written notice provision which does in fact apprise the insurer of the need to investigate and to determine the amount of possible liability of the insurer’s fund, is sufficient compliance under § 3145(1).

As the Supreme Court stated in Carver v McKernan, 390 Mich 96, 99; 211 NW2d 24 (1973), "[w]e acquiesce in the enforcement of statutes of limitation when we are not persuaded that they unduly restrict” access to the courts. Although the Court in Carver strictly limited the notice provision in the statute before it, the Court did so because the notice requirement had the effect of shortening the period of time for bringing a claim set forth in the applicable statute of limitation. In contrast, the notice provision in § 3145(1) has the effect of lengthening the statute of limitation by one year. As such, a liberal construction of the notice provision therein is not mandated. That is, since the notice provision actually extends the period of time in which a suit can be commenced, it seems logical that the notice supplied by the claimant should strictly adhere to the statutory requirements. There is, however, authority to the contrary.

Generally speaking, provisions for the giving of notice of claims to an insurer will be liberally construed in favor of the insured and substantial compliance therewith will suffice. 44 Am Jur 2d, Insurance, § 1482.

"No matter what the form of a notice of loss may be, if it operates to bring the attention of the insurer to the loss or accident, sets forth the essential facts upon which the liability of the insurer depends, and appears credible, it is sufficient.” Id., p 350.

And see id., § 1491, 45 CJS, Insurance, §§ 982(5)(a), 987, 1057, 1088. 2 Callaghan’s Michigan Civil Jurisprudence, Automobiles and Motor Vehicles, §191.

Certainly, the plaintiffs’ letter operated to inform defendant of the accident out of which the alleged injuries arose. In addition, since the credibility of the letter is untainted, defendant is provided adequate warning so as to permit it to conduct an investigation of the matter. On the other hand, because plaintiffs failed to "indicate in ordinary language” the place and nature of Mrs. Dozier’s injury, defendant is denied knowledge of the essential facts upon which its liability depends and therefore cannot appropriate funds for settlement purposes. Compare, Richards v American Fellowship Ins Co, supra.

Nevertheless, in view of the defendant’s acknowledgment of plaintiffs’ letter (rather than denial of liability or a request for additional information) and its adjuster’s request to "forward all specials you have in your file regarding this loss” we are persuaded that defendant waives its right to assert the insufficiency of the notice. Since the notice provision is for the protection of the insurer, Exo v Detroit Automobile Inter-Insurance Exchange, 259 Mich 578; 244 NW 241 (1932), it follows that the insurer can waive the adequacy of the notice. Pastucha v Ross, 290 Mich 1; 287 NW 355 (1939), see Anno: Liability insurance: clause with respect to notice of accident or claim, etc., or~ with respect to forwarding suit papers, 18 ALR2d 443, 487. Defendant’s letter of March 9, 1977, appeared to acknowledge its liability, or at least did not dispute it. While we do not conclude that defendant must establish prejudice in order to require strict enforcement of the notice provision, compare, Wendel v Swanberg, 384 Mich 468; 185 NW2d 348 (1971), we note that all of the purposes for which statutory notice is intended have been either met or waived in the instant case.

Accordingly, the lower court’s judgment of no cause of action in favor of defendant should be reversed and plaintiffs’ complaint reinstated for a decision on the merits.

Reversed and remanded.

N. J. Lambros, J., concurred.

M. J. Kelly, J.

(concurring). I concur in the result reached by Judge Allen, but would prefer to limit our decision to the facts and address the rationale of the trial judge’s decision which found the plaintiff’s claim related to third-party benefits and not to no-fault personal injury protection benefits. I believe the rule should be that an insurance company which has notice of a given claim on a given policy, as evidenced by State Farm’s March 9, 1977, letter of acknowledgment, should not be able to disclaim notice for PIP benefits while negotiating, adjusting, reserving, or denying benefits on the same policy arising out of the same accident for the same claimant for third-party benefits.

I do not think that the rationale should be based on a waiver analysis because such might encourage the insurance companies to postpone acknowledgment of claims with the concomitant result of increased resort to the court with claims that should be adjusted without litigation.

       Because § 3145(1) and (2) specifically designate a one-year statute of limitations for personal protection benefits and property protection benefits payable under the no-fault act, respectively, it follows that actions brought under the residual liability insurance provision, MCL 500.3131; MSA 24.13131, or for tort liability remaining under the no-fault statute, MCL 500.3135; MSA 24.13135, are still subject to the traditional statutes of limitations for such actions. However, since plaintiffs claimed personal protection insurance benefits under § 3105, MCL 500.3105; MSA 24.13105, the applicable statute of limitation is found in § 3145 of the no-fault insurance act.


source: Caselaw Access Project

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

license: Public Domain

text:
    MALCOLM v SHAMIE
    Docket No. 43548.
    Submitted November 15, 1979, at Detroit.
    Decided January 23, 1980.
    Douglas R. and Yorna L. Malcolm, Frederick and Ethyl A. Hofmann, Victor F. and Angeline M. Decoster and Irwin R. and Fay Fedorko, owners of certain St. Clair Shores property subject to a deed restriction restricting the buildings on the lots to one single-family dwelling and a garage, filed suit against George and Tatinia Shamie, owners of other property subject to the same restriction, and John and Jeryl Wagner, lessees of the Shamie property, to enjoin the use of the property as an adult foster care facility for five mentally retarded adult women. The Macomb Circuit Court, Kenneth N. Sanborn, J., granted defendants’ motion for summary judgment. Plaintiffs appeal. Held:

    Five mentally retarded women permanently living with a foster parent in an environment therapeutically designed to emulate a more conventional- family environment should be considered a "family”, and such use of a property should be considered an appropriate family residential use.
    Affirmed.
    1. Mental Health — Public Policy — Care and Treatment op Mentally Handicapped.
    It is the settled public policy of Michigan to promote the development and maintenance of quality programs and facilities for the care and treatment of the mentally handicapped.
    2. Covenants — Building Restrictions — Property — Enforcement of Restrictive Covenants — Interpretation, of Restrictive Covenants.
    Restrictive covenants constitute valuable property rights, and it has been the policy of the judiciary to protect property owners who have complied with the restrictions from violations of the covenants by others.
    References for Points in Headnotes
    [1] 41 Am Jur 2d, Incompetent Persons § 31.
    [2] 20 Am Jur 2d, Covenants § 185 et seq.

    [3] 20 Am Jur 2d, Covenants §§ 196, 216.

      3. Words and Phrases — Family.
    The word "family” is one of great flexibility; five mentally retarded women permanently living with a foster parent in an environment therapeutically designed to emulate a more conventional family environment should be considered a "family”, and such use of a property should be considered an appropriate family residential use.

      Milmet, Vecchio, Kennedy & Carnago, P.C. (by Donald E. Schuster), for plaintiffs.

      Don R. Berchback (Michael J. Kiley and William J. Campbell, of counsel), for defendants.
    Before: R. B. Burns, P.J., and M. F. Cavanagh and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

Plaintiffs appeal as of right the trial court’s order granting defendants’ motion for summary judgment. In granting that motion, the court allowed five mentally retarded adult women to continue living in their supervised home in St. Clair Shores. This is not a half-way house, rather it is a permanent residence intended to allow these developmentally disabled women to lead fuller and more normalized lives in the community than would be possible in an institution.

Plaintiffs’ attempt to enjoin the establishment of the Foster Care Center is premised upon the following restrictive covenant:

"(1) No structures or buildings shall be erected, altered, placed or permitted to remain in any of the lots numbered 37 to 56 inclusive, 73 to 94 inclusive, 167 to 188 inclusive, and 203 to 224 inclusive, other than one detached single family dwelling not to exceed two stories in height and a private garage for not more than 2 cars.” The subject premises are included with the "73 to 94 inclusive” class.

Each of the parties have fundamentally relied upon a given, recent Court of Appeals decision involving a similar type situation in which a deed restriction was interpreted. Plaintiffs rely upon Jayno Heights Landowners Ass’n v Preston, 85 Mich App 443, 445; 271 NW2d 268 (1978). Defendants rely upon Bellarmine Hills Ass’n v The Residential Systems Co, 84 Mich App 554, 557, n 3; 269 NW2d 673 (1978). In distinguishing the two cases we must examine their restrictive covenants. In Bellarmine, supra, it reads:

"RESIDENTIAL LOTS. All lots in said subdivision shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential lot other than one single private family dwelling with attached private garage for not less than two (2) cars, except as herein otherwise provided.”

The restrictive covenant in Jayno Heights, supra, provides that:

"Jayno Heights Subdivision No. 1, shall be used for residential purposes exclusively, and no more than one single family dwelling house, with usual outbuilding for use in connection therewith, shall be erected or constructed on any lot in said subdivision and any residence so constructed shall be occupied by not more than one single family unit. ” (Emphasis supplied.)

A comparison of the three cited restrictive covenants discloses that the Bellarmine covenant and the covenant in the instant case are virtually indistinguishable. Conversely, the covenant in Jayno, supra, not only covered the type of dwelling, but it also regulated who could live in such a dwelling. The majority of the Jayno Court emphasized the distinction, particularly in light of the fact that the dwelling at issue, an adult foster care facility, was being used for commercial purposes. In the instant case, defendants operate within a nonprofit corporation, receiving some financial support from governmental sources.

Bellarmine, supra, recognized that cases of this nature present a confrontation between two basic public policies. First, restrictive covenants are valuable property rights subject to judicial protection against those who would violate them. Second, this state encourages the maintenance and development of quality programs and facilities for the care and treatment of the mentally handicapped. That Court held that four mentally retarded children and a foster parent living in the residence on a permanent basis were a family in the eyes of the law. Therefore, defendants, as in the instant case, were entitled to summary judgment as a matter of law.

Another illustrative case is Boston-Edison Protective Ass’n v The Paulist Fathers, 306 Mich 253, 259; 10 NW2d 847 (1943), in which a deed restriction provided that the lots were not to be used "except for a single-dwelling house and dwelling house purposes only”. The home was occupied by five priests and their two servants. The Court held it unreasonable to limit the use of a one-family dwelling to those who are members of a single family related within the degrees of consanguinity or affinity:

"The word 'family’ is one of great flexibility. In Carmichael v. Northwestern Mutual Benefít Ass’n, 51 Mich. 494 [1883], it was said by Chief Justice Graves, speaking for the court:

" 'Now this word "family,” contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the shakers.

" 'We discover nothing in the statute implying a narrow sense, and we should not be inclined to attribute one where the result would cause injustice.’ ”

Five mentally retarded women living with a foster parent in an environment therapeutically designed to emulate a more conventional family environment should also be considered a family, and such use of the property, an appropriate family residential use. The residents are more than a group of unrelated individuals sharing a common roof. They do not have natural families on which to rely, and, due to their unique circumstances, it is unlikely that these women will ever rejoin their parents or marry and form independent families. The substitute family provided by the group home allows the residents to lead more normal and meaningful lives within the community than would be feasible were they institutionalized. This Court weighed the importance of normalization through community based services for retarded individuals in Bellarmine, supra. The only difference between the two cases is that the residents in the instant case are adults. The public policy arguments of Bellarmine apply equally to all retarded individuals regardless of chronological age.

Proof that the Legislature intended to provide adequate, regulated and safe foster care facilities in residential neighborhoods is found in MCL 125.286a(2); MSA 5.2963(16a)(2), which states:

"In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.”

These women should be construed as a family for purposes of the restrictive covenant. Further support for this holding is found in Const 1963, art 8, § 8, which provides that:

"Institutions, programs and services for the care, treatment, education or rehabilitation of those inhabitants who are physically, mentally or otherwise seriously handicapped shall always be fostered and supported.”

It is most important to note that this decision is to be narrowly construed. The facts in the case at bar do not connote a temporary living arrangement. It is the firm understanding of this Court that the inhabitants of the foster care facility will live there on a permanent, year-round basis and will, other than a blood relationship, comprise all the elements of a family.

It has been the policy of our judiciary to protect property owners who have complied with the restrictions from violations of the covenants by others. Covenants of restriction, especially those pertaining to residential use, preserve not only monetary value, but aesthetic characteristics considered to be essential constituents of a family environment. Consequently failure to give complete effect to restricted covenants in accordance with their import can work a great injustice to the property owners. Wood v Blancke, 304 Mich 283, 287-288; 8 NW2d 67 (1943).

We find that the property in the instant case is restricted to single family use and that the trial court was correct in concluding that the women constitute a "family”, as perceived in the eyes of the law. In reaching this result, we emphasize that the balance between the competing policies in this case is extremely close. Our holding is limited to cases with the same or very similar factual situations.

Affirmed. No costs, a public question involved.


author: Beasley, J.

text:
    PEOPLE v GEMILL
    Docket No. 43688.
    Submitted December 4, 1979, at Lansing.
    Decided January 23, 1980.
    Dorothy J. Gemill was convicted, on her plea of guilty, of larceny in a building, Midland Circuit Court, David S. DeWitt, J. She was sentenced to a prison term of from 3 years to 4 years, to be served consecutively to an earlier sentence she received in Presque Isle County. Defendant appeals, alleging that because the Midland offense was not committed at a time when the disposition of the Presque Isle charge was pending the consecutive sentence is invalid. She also alleges that the sentence of 3 to 4 years violates the rule against a minimum sentence of more than two-thirds of the maximum. Held:

    1. The second offense was committed after the defendant had been sentenced in Presque Isle County for the earlier offense, but before she had begun serving that sentence. Therefore, the second offense was not committed while the disposition of the first charge was pending, and the statute permitting consecutive sentences does not apply.
    2. The sentence of 3 years to 4 years does violate the rule against a minimum sentence of more than two-thirds of the maximum.
    The sentence- is modified to a term of 32 months to 4 years, and is to be served concurrently with the Presque Isle Circuit Court sentence.
    Criminal Law — Sentencing — Subsequent Offenses — Statutes.
    An offense committed by a defendant, who has been sentenced for an earlier offense but who has not yet surrendered to authorities to begin serving that sentence, is not committed "pending the disposition of’ the earlier charge and is therefore not subject to the statute which allows consecutive sentences; the sentences for the two offenses must, therefore, run concurrently (MCL 768.7b; MSA 28.1030[2]).
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law § 547.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Doyle A. Rowland, Prosecuting Attorney, and David A. Potts, Chief Assistant Prosecuting Attorney, for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Beasley, J.

Defendant, Dorothy Jean Gemill, also known as Dorothy Jean Dzuiba, pled guilty to larceny in a building on November 17, 1978, in Midland County. Subsequently, on December 8, 1978, defendant was sentenced to not less than three years nor more than four years in prison, said sentence to be consecutive to a sentence imposed upon her in Presque Isle County of not less than 1-1/2 nor more than 10 years. Defendant appeals as of right.

The record indicates that on June 12, 1978, in Presque Isle County, defendant was convicted by a jury of larceny by false pretenses and, on July 12, 1978, she was sentenced to not less than 1-1/2 years nor more than 10 years in prison. The trial judge continued her bond for two days and permitted her to surrender herself to the sheriff for serving of her sentence two days after sentence was imposed. Defendant did not appear to serve the Presque Isle sentence.

The record indicates that the Midland County offense to which she has here pled guilty occurred some time between August 28 and September 27 of 1978. The Midland County plea was the result of a plea bargain in which the prosecution agreed to drop another charge of forgery concerning a non-sufficient funds check in the amount of $23.35 and not to file an habitual offender supplemental information. On appeal, defendant claims that the sentence imposed upon her in Midland County is invalid, asserting that a sentence may only be consecutively imposed where there is explicit statutory authorization. Defendant claims that the only relevant Michigan statute in this case is MCL 768.7b; MSA 28.1030(2), which provides:

"When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:

"(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively.

"(b) The sentences imposed for conviction of the prior charged offense and a subsequent offense which is a major controlled substance offense shall run consecutively.”

We agree with defendant that the subsequent offense, that is, the Midland County offense, was not committed "pending the disposition of the charge” as required under the statute which permits consecutive sentences.

Therefore, we hold that the Midland County sentence must run concurrently with the Presque Isle County sentence.

Defendant also claims that the sentence of not less than three years nor more than four years in prison violates the rule of People v Tanner.

Consequently, we amend the Midland County sentence imposed upon defendant to not less than 32 months nor more than four years in prison, which sentence, as we have previously indicated, will run concurrently with that imposed in Presque Isle County.

         People v Leal, 71 Mich App 319; 248 NW2d 252 (1976), In re Carey, 372 Mich 378; 126 NW2d 727 (1964), People v Sanders, 58 Mich App 512, 517-518; 228 NW2d 439 (1975).

       387 Mich 683; 199 NW2d 202 (1972).


author: Allen, J.

text:
    THE GRAND RAPIDS SCHOOL EMPLOYEES BENEFIT ASSOCIATION v BOARD OF EDUCATION OF THE CITY OF GRAND RAPIDS
    Docket No. 44037.
    Submitted December 5, 1979, at Grand Rapids.
    Decided January 23, 1980.
    The State Board of Education issued a rule which provided that a school district shall not employ any person as a school bus driver who has accumulated seven or more driving record points in a two-year period. Marcellene Cloud, a school bus driver in the Grand Rapids School System, had accumulated seven driving points while driving a private vehicle. Because of this record she was offered another position. She declined the new position and instead filed a grievance. Unable to settle the grievance satisfactorily, Cloud and the Grand Rapids School Employees Benefit Association filed suit in circuit court seeking equitable relief from the seven-point rule. Kent Circuit Court, Roman J. Snow, J., found that the seven-point rule was a reasonable and valid regulation which was authorized by statute. Plaintiffs’ complaint was dismissed. Plaintiffs appeal. The question on appeal is whether the State Board of Education has the authority to issue the seven-point regulation. Held:

    The State Board of Education has the statutory power to regulate school bus transportation. The board may adopt higher standards than provided by the legislation, as long as the rules and regulations are within reason. The continuous monitoring of drivers required by the seven-point rule and the Grand Rapids practice of checking drivers’ records whenever necessary is reasonably within the authority conferred by statute. It is a reasonable method of assuring the safety of children and the continued fitness of the school bus driver. The Legislature could have amended, but did not amend or change, the board’s seven-point rule, although the rule had been in effect four years and had been strongly contested. Such inaction demonstrates legislative acquiescence in the board’s interpretation of the Legislature’s intent and indicates that the board was acting within the authority granted by the Legislature. Where drivers’ records show that drivers with seven or more points pose a substantially higher accident risk, it cannot be said that a rule barring such drivers from transporting school children is arbitrary or capricious.

      References for Points in Headnotes
    [1] 1 Am Jur 2d, Administrative Law § 131.
    [2] 68 Am Jur 2d, Schools § 37.
    [3] 68 Am Jur 2d, Schools § 234 et seq.

    Nature and extent of transportation that must be furnished under statute requiring free transportation of school pupils. 52 ALR3d 1036.
    [4] 1 Am Jur 2d, Administrative Law §§ 113-122.
    [5] 2 Am Jur 2d, Administrative Law §§ 296, 303, 304.

      Affirmed,
    1. Administrative Law — Agency Rules — Validity.
    A rule promulgated by a governmental agency pursuant to statutory authority must be within the matter governed by the enabling statute.
    2. Constitutional Law — Schools and School Districts — State Board of Education — Supervision of Public Education.
    The constitution gives the State Board of Education leadership and general supervision over all public education (Const 1963, art 8, § 3).
    3. Schools and School Districts — State Board of Education — School Bus Regulation — Statutes.
    A statute empowers the State Board of Education to regulate school bus transportation (MCL 388.1010[b]; MSA 15.1203[10][b]).
    4. Administrative Law — Rules and Regulations — Implied Powers.
    An administrative board or agency may adopt higher standards than provided by legislation, as long as the standards are within reason.
    5. Administrative Law — Agency Rules — Validity — Arbitrary or Capricious Rules.
    A valid administrative agency rule or regulation cannot be arbitrary or capricious.

      Van Hattum & Hickman, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald F.

      Young and Richard P. Gartner, Assistants Attorney General, for the State Board of Education.

      Hillman, Baxter & Hammond (by William S. Farr), for defendant.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   Allen, J.

Is a rule, promulgated by the State Board of Education, mandating the discharge of all school bus drivers who accumulate seven or more driving record points within a two-year period, within the authority conferred upon the State Board of Education by § 305 of the Michigan Vehicle Code, MCL 257.305; MSA 9.2005? Following trial on this issue in October, 1978, the trial judge issued an opinion holding the seven-point rule was a reasonable and valid regulation and was within the authority conferred upon the state board. On February 14, 1979, plaintiffs’ complaint was ordered dismissed with prejudice. From this order, plaintiffs appeal as of right.

The basic facts are stipulated and are not in dispute. In April, 1976, the Michigan Department of Education notified defendant Board of Education of the City of Grand Rapids (Grand Rapids Board) that plaintiff Marcellene Cloud had accumulated seven driving points and, therefore, pursuant to § 305 of the statute, had failed to comply with the drivers competency test. All points were accumulated while Cloud was driving a private vehicle. Though offered another position which involved longer hours and less pay, she declined and filed a grievance procedure. Unable to settle the grievance satisfactorily, Cloud, along with the Grand Rapids School Employees Benefit Association (SEBA), filed suit in circuit court seeking equitable relief from the seven-point rule.

On May 27, 1976, the trial judge issued an opinion holding that issuance of the seven-point rule was within the authority vested by statute in the state board "provided there is a rational basis therefor”. Further proceedings on the question of rational basis were stayed pending completion of the contract grievance complaint through arbitration. In April, 1977, the arbitrator to whom the grievance procedure had been submitted held that the state board was without statutory authority to issue the seven-point rule. But on return of the matter to circuit court the trial court refused to enforce the arbitrator’s decision for the dual reasons that the "parties did not submit to the arbitrator the question of whether the seven-point rule is within the statutory authority of the State Board of Education” and because enforcement of the award would violate "a positive mandate of law * * On October 30, 1978, trial was held and testimony taken on the limited issue of whether there was a rational basis for the seven-point rule. On January 22, 1979, the trial judge issued an opinion incorporating by reference his earlier opinions of May 27, 1976, and June 2, 1977, and, in addition, finding that the seven-point rule was a reasonable and valid regulation which was authorized as part of the competency examination called for under § 305 of the statute. On February 14, 1979, an order, issued pursuant to said opinion, dismissed plaintiffs’ complaint with prejudice.

On appeal to us, plaintiffs do not contest that part of the trial court’s opinion issued June 2, 1977, holding that the arbitrator was without authority to determine whether the seven-point rule was within the authority of the state board. The sole question raised by plaintiffs on appeal is the authority of the state board to issue the regulation in question. The rule as issued by the state board and § 305 of the statute under which the rule was issued, read:

"A school district shall not employ after July 1,1974, any person as a school bus driver who has accumulated seven or more * * * points in the two years preceding his employment.”

"It shall be unlawful for any person, whether licensed under this act or not, who is under the age of 18 years to drive a motor vehicle while in use as a school bus for the transportation of pupils. Before driving a school bus a person shall pass annual physical and driver competence examinations as authorized by the superintendent of public instruction. Such tests shall be made available annually in each of the intermediate school districts. No person regularly employed as a school bus driver shall drive a motor vehicle while in use as a school bus without possessing a valid chauffeur’s license. No person shall operate a school bus or a passenger carrying motor vehicle with a manufacturer’s rated seating capacity of 12 or more persons unless he possesses a valid chauffeur’s license.” (Emphasis supplied.) MCL 257.305; MSA 9.2005.

Prior to 1972, the language emphasized above was not á part of § 305. It was added by 1972 PA 74. In 1974, the state board determined that "driver competence examinations”, as those words, were used in 1972 PA 74, would include four areas: (1) physical examination, (2) knowledge examination, (3) driving skill examination, and (4) driver’s record examination. At the trial on October 30, 1978, testimony was offered by the state on the procedure used to implement area (4), the driver’s record examination and the rationale for said restriction.

"Mr. O’Leary [Supervisor of Safety and Traffic Programs]: The Department sends out a form to the school districts, listing the bus drivers that the individuals have indicated were employed or were employed the year before and have hired in the interim. At that time they return the form to us, indicating changes, additions, deletions, name changes, whatever the case may be. We then furnish the information to the Secretary of State to put on their computer. The driving records of individuals with four, five, six, or seven points are then forwarded to our office, and we make the districts aware of this.”

"Mr. Devlin [Attorney for Grand Rapids Board of Education]: Can you compare the accident rates for those two classes that you have described?

"Mr. Lee [State Director of Research and Evaluation]: There’s no question that the drivers with seven or more points at a particular point in time are, as a group, very substantially more involved in accidents in a subsequent period than those who did not have as many points.

"Mr. Devlin: How many times more likely?

"Mr. Lee: Approximately two and one-half times, sir.”

A rule promulgated by a governmental agency pursuant to statutory authority must be "within the matter governed by the enabling statute”. Chesapeake & Ohio R Co v Public Service Comm, 59 Mich App 88, 98; 228 NW2d 843 (1975), lv den, 394 Mich 818 (1975). The arbitrator found, and plaintiffs agree, that the seven-point rule exceeds the authority given by the 1972 amendment because it ignores, in fact is inconsistent with, the affirmative requirement contained in the second sentence of the authority conferred that "[s]uch tests shall be made available annually in each of the intermediate school districts”. The accumulation of points is not, as is the driving skill examination and knowledge examination, a test which is submitted to the school districts. Being continuous in nature, the accumulation of points is likewise not "annual”. We are not persuaded for three reasons.

First, the argument assumes that the sole authority for the state board to issue such rule stems from the 1972 amendment to the Michigan Vehicle Code. But the state board has greater powers. Const 1963, art 8, § 3, gives the state board "leadership and general supervision over all public education”. By statute, the power of "regulation of school bus transportation” is conferred. MCL 388.1010(b); MSA 15.1023(10)(b).

Second, in Coffman v State Board of Examiners in Optometry, 331 Mich 582, 591; 50 NW2d 322 (1951), the Supreme Court held that as long as it is "within reason” an administrative board or agency might adopt higher standards than provided by legislation. Witness O’Leary testified he recommended adoption of the seven-point rule to the state board based on the California experience and because he felt that by mandating a continuing monitoring of driver points the safety of several million school children would be enhanced. The continuous monitoring of drivers’ licenses required by the seven-point rule and the Grand Rapids practice of checking drivers’- licenses "whenever necessary” is, in our opinion, "reasonably within” the authority conferred by 1972 PA 74. Clearly, it is a reasonable method of assuring the continuing fitness of the school bus driver.

Third, although the Legislature was well aware of the state board’s seven-point rule, which by 1978 had been in effect four years and had been strongly contested, the Legislature left unchanged the first sentence of § 305 as amended by 1972 PA 74. That is the exact wording which plaintiffs contend precludes driver record examinations. The fact that the Legislature amended § 305, supra, without any change in the language "driver competence examinations as authorized by the superintendent of public instruction”, as that language had been consistently. interpreted by the state board for four years, demonstrates legislative acquiescence in the state board’s interpretation. Magreta v Ambassador Steel Co, 380 Mich 513, 521-523; 158 NW2d 473 (1968), General Motors Corp v Dep’t of Civil Rights, 93 Mich App 366; 287 NW2d 240 (1979).

Plaintiffs also contend that the rule fails to conform to the Legislature’s intent because it sets a cutoff at seven points, while the motor vehicle code revokes a chauffeur’s license only when 12 or more points are accumulated. Prior to the 1972 amendment, plaintiffs’ claim would be well taken. But, as is manifest from the testimony given at trial, the Legislature in enacting 1972 PA 74 intended that school bus drivers meet a higher standard than a showing of good health and possession of a chauffeur’s license. Plaintiffs’ claim that the Legislature did not intend that a school bus driver’s right to drive could be terminated when seven or more points were accumulated in a two-year period, is contradicted by the failure of the Legislature to enact two bills which would have qualified the rule. In 1975, Senate Bill 153 and House Bill 5019 were introduced in the Legislature. Both bills proposed amending § 305 to make the seven-point restriction applicable only to points accumulated while driving a school bus. Neither bill was reported out of committee. The failure of the Legislature to amend the statute so that it would require no more of school bus drivers than is basically urged by plaintiffs in the instant case is a clear indication the state board acted within the authority granted it by the Legislature and was complying with legislative intent. Thomas Brothers, Inc v Secretary of State, 90 Mich App 179, 187; 282 NW2d 273 (1979).

In addition, we conclude that the challenged rule is not arbitrary or capricious under the standard set forth in Chesapeake & Ohio R Co v Public Service Comm, supra. Admittedly, the rule does penalize drivers who accumulate points while driving their own or other private vehicles. But according to the testimony of the state’s two expert witnesses driving records show that drivers with seven or more points pose a substantially higher accident risk. Given this fact, we cannot say that barring drivers who have that number of points from transporting school children is arbitrary or capricious. Thomas Brothers Inc, supra.

Affirmed, no costs, a public question being involved.

       Although plaintiffs frame the issue in three parts: (1) Is the seven-point rule within the matter covered by the enacting statute? (2) If so, does the rule comply with the underlying legislative intent? (3) Is the rule within the statutory authority of the State Board of Education? —we find that basically this is three different ways to state the same question, viz: Was the rule within the authority conferred upon the state board?

       Though the 1972 act referred to annual examinations, testimony at trial showed that the Grand Rapids Board of Education examined drivers’ records annually and "whenever necessary”.

       As early as 1975, an arbitrator held that in adopting the seven-point rule the state board "appears to have gone beyond the Act”. Bay City Public Schools and Steelworkers Local #7380, cited in the arbitrator’s opinion and award in the instant case.


author: Per Curiam.

text:
    PEOPLE v CLAY
    Docket No. 77-2726.
    Submitted November 6, 1979, at Lansing.
    Decided January 23, 1980.
    Leave to appeal denied, 409 Mich 857.
    Benny L. Clay was charged with first-degree murder and convicted of second-degree murder, Oakland Circuit Court, Richard D. Kuhn, J. The conviction was for the shooting death of a police officer who was assigned to guard defendant in a hospital room, where defendant was recovering from wounds suffered in a prior holdup attempt. The testimony presented established that two confederates entered the hospital room and overpowered the police officer on duty, took the officer’s service revolver, tied and gagged the officer and left the officer in an adjoining bathroom. A relief police officer entered the hospital room and gunfire was exchanged, with a total of 18 shots being fired, emptying each of the three guns involved, i.e., the overpowered officer’s gun, the gun the confederate brought and the relief officer’s gun. Defendant and one confederate escaped from the hospital, leaving their injured companion. The relief officer was struck by six bullets, at least one of which came from the gun taken from the other police officer, and died as a result of those wounds. The other patient 'in the hospital room testified that he saw Clay pick up the first officer’s gun and that at no time during the incident did anyone have more than one gun. Defendant appeals. Held:

    1. Defendant’s contention that the trial court erred in refusing to grant defendant’s motion for a directed verdict of acquittal is without merit. In reviewing the denial of a motion for a directed verdict of acquittal, the evidence is viewed in the light most favorable to the prosecution to determine whether that evidence, if credible and believed, would justify a reasonable person in concluding that all the elements of the crime charged were established beyond a reasonable doubt. While the prosecution must negate every reasonable theory of defendant’s innocence, the prosecution need not specifically negate a theory of innocence which would require the finder of fact to disregard eyewitness testimony. The weight to be accorded to such testimony was properly left to the jury, and it cannot be said that the jury erred in refusing to disregard the eyewitness testimony.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 849, 886.
    [2] 29 Am Jur 2d, Evidence § 266.
    30 Am Jur 2d, Evidence §§ 1091, 1125, 1172.
    [3] 29 Am Jur 2d, Evidence §§ 159, 165, 166.
    [4] 29 Am Jur 2d, Evidence §1170 et seq.

    [5] 77 Am Jur 2d, Venue § 84.
    [6] 77 Am Jur 2d, Venue §§ 83-85.
    [7] 29 Am Jur 2d, Evidence § 327.

      2. Defendant failed to establish on the record that the trial court abused its discretion in refusing to grant a change of venue. The trial court found that there was no strong and bitter prejudice against the defendant in the community. Prospective jurors who had been subjected to adverse publicity were excused for cause, and the defendant expressed no objection to the jury which was impaneled. Since there is nothing in the record to establish that the jury as impaneled was not impartial, it cannot be said that the trial court abused its discretion by denying the motion for a change of venue.
    3. Defendant’s motion to suppress any reference to his prior criminal record was addressed to the trial court’s discretion. The record establishes that the trial court recognized its discretionary power and considered the relevant factors. Upon the record established in the trial court, it cannot be said that the trial court abused its discretion in admitting for the purpose of impeachment evidence of defendant’s prior convictions for felonious assault, unarmed robbery and armed robbery.
    Affirmed.
    Mackenzie, J., concurred in the result only.
    1. Criminal Law — Appeal and Error — Motions — Directed Verdict of Acquittal — Reasonable.
    A reviewing court, in passing on a motion for a directed verdict of acquittal, must view the evidence in the light most favorable to the prosecution and determine whether the evidence, if credible and believed, would justify a reasonable person in concluding that all elements of the crime charged were established beyond a reasonable doubt.
    2. Criminal Law — Evidence — Circumstantial Evidence — Sufficiency of Evidence.
    A conviction on the basis of circumstantial evidence requires that the prosecution must not only establish facts which point to the defendant’s guilt, but also, must establish facts which negate any reasonable theory of innocence.
    3. Evidence — Inferences — Established Facts.
    An inference drawn from facts established by direct eyewitness testimony and not from speculative or uncertain facts does not constitute an impermissible building of an inference on an inference.
    4. Criminal Law — Evidence — Inferences — Trier of Fact.
    A conviction will not be disturbed on the basis that the prosecution failed to negate every reasonable theory consistent with a defendant’s innocence where the theory of innocence urged by the defendant would require the finder of fact to disregard eyewitness testimony.
    5. Venue — Criminal Law — Change of Venue — Discretion — Appeal and Error.
    A motion for a change in venue in a criminal case is addressed to the trial court’s discretion, and the trial court’s decision will be overturned on appeal only on a finding of an abuse of discretion.
    6. Venue — Criminal Law — Change of Venue — Pretrial Publicity — Impartial Jury.
    A motion for a change of venue was properly denied where there was no finding of a strong community feeling against, or a deep and bitter prejudice toward, the defendant, where the prospective jurors who had been subjected to adverse publicity were excused for cause and where the defendant expressed no objection to the jury which was impaneled, and there was nothing in the record to establish that the jury as impaneled was not impartial.
    7. Criminal Law — Evidence — Prior Convictions — Impeachment — Discretion — Abuse of Discretion.
    It was not error to permit the use of evidence of a defendant’s prior convictions for felonious assault, unarmed robbery and armed robbery for the purpose of impeachment at the defendant’s trial for murder where the trial court recognized that the question of the admission of such evidence was addressed to the court’s discretion and the court exercised the same, there being nothing in the record to establish an abuse of discretion.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson,
      Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

      Lynn V. Hooe, Jr., for defendant on appeal.
    Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey,  JJ.

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

   Per Curiam.

Defendant appeals as of right from his jury conviction of second-degree murder, contrary to MCL 750.317; MSA 28.549. He was sentenced to life imprisonment with credit given for 218 days previously served.

The defendant had been wounded in the arm after an attempted holdup of a liquor store in Pontiac and was admitted to Pontiac General Hospital as a police prisoner. The defendant was sharing a semi-private room with a patient named John Underwood. In the early morning hours on December 7, 1976, Officer Robert Hunter of the Pontiac Police Department was on duty in the hospital room to guard the defendant. Officer Hunter was due to be relieved by Officer Gerald Carpenter at approximately 5:30 a.m. The defendant was sleeping in his bed.

At about 5:30 a.m., Officer Hunter heard footsteps in the hallway and saw a man, later identified as Melvin Scott, enter the hospital room pointing a chrome or nickel plated revolver. Scott told Hunter not to move, took his .38-calibre service revolver, and ordered him into the bathroom. The officer saw a woman in a nurse’s uniform, later identified as Janice Love, standing in the doorway of the hospital room. She asked the defendant whether he was ready. Once Officer Hunter was in the bathroom, he was tied, gagged, and had a sheet placed over his head. A few moments later, Officer Hunter heard numerous gunshots. When he was able to free himself, he saw Officer Carpenter lying dead on the floor, close to the hall door. The defendant and Ms. Love were gone, and the hallway was empty. Melvin Scott was lying badly injured on the floor between defendant’s bed and the wall. Hunter retrieved his revolver, which was lying on defendant’s bed. He noted that the gun, which had been fully loaded, had no live rounds in it. Scott’s gun was lying under a nightstand which was positioned between the defendant’s bed and Underwood’s bed.

John Underwood, a 60-year old heart attack patient, testified that he was awakened by some noises at about 5:20 a.m. He saw a man pointing a gun at the police officer who had been guarding the defendant. The officer was escorted to the bathroom. A woman dressed like a nurse, later identified as Janice Love, came over to Underwood’s bed, disconnected his bell cord, and put her fingers to her lips, warning him to keep quiet. The defendant got out of bed, and put on Underwood’s robe and slippers because he had no clothes of his own. Ms. Love went to the door to keep a lookout and said that someone was coming. Scott hid behind the bathroom door, armed with his silver-colored pistol. Clay and Ms. Love hid behind the door to the hall. Clay was armed at that time with a black pistol. Underwood saw Clay pick up the black pistol from Clay’s bed shortly after Hunter was taken into the bathroom. The man outside the door paused, stepped back, drew his gun, and entered the room. Scott fired a shot with the silver-colored gun. More shots were fired, but Underwood could not see what was happening. Officer Carpenter fell down. Scott came out from behind the bathroom door, and he also fell on the floor. At this time, Clay and Ms. Love left the room. Moments later, Officer Hunter emerged from the bathroom, retrieved his gun and called for assistance. Mr. Underwood stated that at no time during the incident in question did he see anyone in the room with more than one gun.

Dr. Robert Sillery, the pathologist who performed an autopsy on Officer Carpenter, testified that there were 11 bullet wounds in the body, six entry wounds and five exit wounds. The cause of death was determined to be shock and hemorrhage due to multiple gunshot wounds.

Donald McLaughlin, a technician at the Oakland County Crime Laboratory, testified that he examined the bullets recovered from Officer Carpenter’s body, his clothing, the shell casings, and the firearms which were on the scene. Based on his comparison test shots, he concluded that at least one of the bullets in Carpenter’s body came from Officer Hunter’s gun. When recovered, all three of the guns were empty, having fired six rounds each.

Benny Clay testified on his own behalf. He stated that he knew Melvin Scott, but had had no contact with him prior to the escape and knew nothing about it beforehand. He saw Scott disarm Officer Hunter and take him into the bathroom, but did not see where Scott put the gun. Janice Love handed him Underwood’s robe and slippers. Scott went to the door and said that someone was coming. At that point, Clay hid behind the door with the slippers in his hand. He denied ever having a gun. Clay heard shooting and when he came out, saw a police officer lying on the floor. Mr. Clay left the room, went to the elevators, where he met Ms. Love, and they both left the hospital.

On appeal, the defendant claims that the trial court erred reversibly in refusing to direct a verdict for the defendant at the close of the people’s case, because the case was based entirely on circumstantial evidence which was not sufficient with which to go to the jury. He claims further that the prosecutor failed to negate every reasonable theory of innocence, namely, that Melvin Scott had used Officer Hunter’s gun to kill Officer Carpenter.

In reviewing the denial of a motion for a directed verdict, this Court considers the evidence presented at the time the motion is made in the light most favorable to the prosecution, and determines whether that evidence, if credible and believed, would justify a reasonable person in concluding that all elements of the crime charged were established beyond a reasonable doubt. People v Royal, 62 Mich App 756, 758; 233 NW2d 860 (1975), People v Samuel Smith, 85 Mich App 404, 409; 271 NW2d 252 (1978), rev’d on other grounds 406 Mich 945 (1979).

Under the rule promulgated in People v Davenport, 39 Mich App 252, 256; 197 NW2d 521 (1972), where the people’s case is based on circumstantial evidence, the prosecution has the burden of proving that there is no innocent theory possible which will, without violation of reason, accord with the facts. People v Millard, 53 Mich 63; 18 NW 562 (1884), People v Spann, 3 Mich App 444; 142 NW2d 887 (1966). In order to obtain a conviction on circumstantial evidence, the prosecutor must present evidence that not only points to the defendant’s guilt but also negates any reasonable theory of innocence. People v Wingfield, 62 Mich App 161; 233 NW2d 220 (1975), People v Talley, 67 Mich App 239; 240 NW2d 496 (1976), People v Samuel Smith, supra.

While a reasonable inference may be drawn from an established fact, inferences cannot be built on inferences. People v Atley, 392 Mich 298, 314-315; 220 NW2d 465 (1974). The pyramiding of inferences is impermissible because it deprives a defendant of the right to be proved guilty beyond a reasonable doubt. People v McGregor, 45 Mich App 397; 206 NW2d 218 (1973).

In the case at bar, an eyewitness testified that he saw the defendant pick up a dark gun, like Officer Hunter’s and hide behind the door. Many gunshots were heard. Officer Hunter. stated that the gun had been fully loaded. When Hunter came out of the bathroom, he retrieved his gun with all six bullets spent. A ballistics expert testified that at least one bullet recovered from Officer Carpenter’s body came from Hunter’s gun. The eyewitness said that at no time did anyone have two guns in his hand, and he saw Scott with the silver colored gun. Thus, the inference that it was indeed Clay who shot Carpenter with Hunter’s gun is based directly on eyewitness testimony, and is not based on any speculative or uncertain facts. The inference is therefore permissible. People v Eaves, 4 Mich App 457, 464; 145 NW2d 260 (1966), People v Belcher, 29 Mich App 341; 185 NW2d 440 (1971), People v Davidson, 88 Mich App 276; 276 NW2d 580 (1979).

The "reasonable” theory of innocence suggested by the defendant on appeal would require the trier of fact to disregard eyewitness testimony. If Scott had both guns, then Underwood was either mistaken or lying when he said that he saw defendant pick up a gun from his bed, and that no one in the room had two guns. It is for the trier of fact to determine if the prosecution has negated every reasonable theory consistent with defendant’s innocence. People v Fuller, 395 Mich 451, 455; 236 NW2d 58 (1975). Obviously, the jury did not wish to disregard Underwood’s testimony, and we decline to disturb the jury’s verdict.

The defendant’s second allegation is that the trial court abused its discretion in denying his motion for a change of venue due to pretrial publicity.

The grant or denial of a motion for a change of venue is within the trial court’s discretion, and its decision will be overturned on appeal only on a finding of abuse of discretion. People v Collins, 43 Mich 259, 262; 204 NW2d 290 (1972), People v Page, 83 Mich App 412, 420; 268 NW2d 666 (1978), People v Thomas, 86 Mich App 752; 273 NW2d 548 (1978).

The existence of pretrial publicity does not by itself require a change of venue. The movant must demonstrate that there is a pattern of strong community feeling or bitter prejudice against the defendant, and the publicity must be so extensive and inflammatory that jurors could not remain impartial when exposed to it. People v Dixon, 84 Mich App 675; 270 NW2d 488 (1978), People v Collins, supra.

In the case at bar, there was a seven-month gap between the commission of the crime arid the start of jury selection. Prospective jurors who indicated that they had signed a parole reform petition or who were aware of the parole reform petition were examined separately and excused for cause. The defendant expressed no objection to the jury which was finally impaneled. There was no finding of strong community feeling or of the existence of deep and bitter prejudice against the defendant. There was no indication of adverse publicity during the course of the trial itself. The record does not disclose that defendant had an unfair trial, or that the verdict of second-degree murder was based on evidence outside the record, where defendant had been charged with first-degree murder. Accordingly, we find no abuse of discretion in the trial court’s decision not to order a change of venue.

The defendant’s final issue on appeal challenges the trial court’s denial of defendant’s motion to exclude his prior felony convictions for the purpose of impeachment as being reversible error. We disagree.

The use of defendant’s prior felony convictions for the purpose of impeachment is within the discretion of the trial court. People v Jackson, 391 Mich 323, 335; 217 NW2d 22 (1974). It is erroneous for a trial court to fail to recognize that it has the discretion to exclude a defendant’s prior convictions. People v Jackson, supra. The factors to be considered by the trial court in deciding whether to permit impeachment by prior convictions were enumerated in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978): (1) the nature of the prior offense and its bearing on defendant’s credibility, (2) whether it is for substantially the same conduct for which defendant is on trial, with closely related offenses requiring close scrutiny due to the likelihood of prejudice, and (3) the effect on the decisional process if the defendant does not testify out of fear of impeachment.

In the case at bar, the trial judge stated on the record that he recognized his discretion to admit or exclude defendant’s prior felony convictions. The prior convictions were for felonious assault, unarmed robbery, and armed robbery. These crimes were not similar to the charge of first-degree murder, and the defendant did take the stand on his own behalf. We find no abuse of discretion in allowing defendant’s prior convictions to be used for impeachment.

Affirmed.

Mackenzie, J., concurs in the result only.


text:
    PEOPLE v TROUT
    Docket No. 78-936.
    Submitted October 2, 1979, at Grand Rapids.
    Decided January 23, 1980.
    Charles M. Trout was convicted of breaking and entering an occupied dwelling with intent to commit larceny therein, Calhoun Circuit Court, Paul Nicolich, J. Defendant appeals, alleging that the trial court should have instructed the jury on three lesser offenses in addition to the three lesser-included offenses upon which the court did instruct. Held:

    The jury was adequately instructed in light of the evidence presented. In addition, the defendant was found guilty of the principal offense with which he was charged, even though the jury had an opportunity to return a verdict on one of the other offenses upon which they were instructed. Failure to instruct on additional lesser offenses was not error.
    Affirmed.
    Criminal Law — Instructions to Jury — Lesser Included Offenses.
    A jury was properly instructed in a case in which the defendant was charged with breaking and entering an occupied dwelling with intent to commit larceny therein where the trial court instructed the jury on three of the possible lesser included offenses and the jury convicted the defendant on the principal charge; under the circumstances instructions on other possible lesser offenses were unnecessary.
    References for Points in Headnote
    75 Am Jur 2d, Trial § 875 et seq.

    Construction of statutes or rules making mandatory the use of pattern or uniform approval jury instructions. 49 ALR3d 128.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James D. Norlander, Prosecuting Attorney, and John H. Macfarlane, Assistant Prosecuting Attorney, for the people.

      James Krogsrud, Assistant State Appellate Defender, for defendant on appeal.
    Before: Cynar, P.J., and D. F. Walsh and L. B. Bebeau, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendant was charged with breaking and entering an occupied dwelling with the intent to commit the crime of larceny therein, in violation of MCL 750.110; MSA 28.305. The jury found him guilty as charged. He was sentenced to a prison term of 4 to 15 years and appeals as of right.

In addition to instructing the jury on breaking and entering an occupied dwelling with intent to commit the crime of larceny therein, the trial court also instructed the jury regarding three lesser-included offenses: (1) attempted breaking and entering an occupied dwelling with intent to commit larceny; (2) breaking and entering an unoccupied dwelling with intent to commit larceny; and (3) entering without breaking a dwelling house with intent to commit larceny. The defendant contends that the trial court should have given additional instructions to the jury on (1) attempted larceny in a building; (2) attempted breaking and entering an unoccupied dwelling with intent to commit larceny; and (3) attempted entering without breaking a dwelling home with intent to commit larceny. We disagree.

Briefly, the evidence indicated that the complainants left their home to go fishing on a day in May 1977. Although the house windows were open, the doors were closed and screens were in place over the open windows. They returned and found the home disarranged, with certain personal property and money missing. There were no eyewitnesses who could identify defendant Trout as having broken into the complainants’ house. However, fingerprints lifted from an inside window frame, the alleged point of entry, matched the test prints of the defendant. The theory of the defense was essentially that the latent fingerprints on that window sill had been left when defendant visited the complainants’ residence during a party about ten days prior to the alleged offense.

The facts submitted for the jury’s consideration are not complicated. Here, as in many other similar cases involving criminal charges, the complication commences when the trial court considers what instructions are to be given on lesser-included offenses. The judge’s decision is usually not easy considering the advocacy involved as well as the availability of time for a judge to make a ruling. Possible confusion is even greater for a jury which is instructed on multiple included offenses in addition to the principal charges. Often, after the instructions are given to the jury, a submission to the jury of the possible verdicts in writing, to be taken into the jury room, provides assistance to them, but this is not always so. We delude ourselves if we expect a jury, unless possessed of divine power, to remember and understand, at a moment’s notice, instructions not easily grasped and comprehended by many schooled in the law. Fairness and justice are best served when understandable as well as appropriate instructions are given to a jury in light of the evidence presented in a case.

As stated in People v Ross, 73 Mich App 588, 592; 252 NW2d 526 (1977), in language apposite to the case at bar:

"Reversal is not required, however * * * [T]he defendant was convicted of the charged offense even though instructions were given on the two lesser offenses of assault with intent to do great bodily harm less than murder and felonious assault. If the jury had doubts about defendant’s guilt of the charged offense but believed him to be guilty of some wrongdoing they could have found him guilty of one of the lesser offenses. They did not do so. We must conclude, therefore, that the jury had no reasonable doubt as to the defendant’s guilt of the charged offense.”

In accord with Ross are People v Flinnon, 78 Mich App 380; 260 NW2d 106 (1977), and People v Richardson, 77 Mich App 411; 258 NW2d 741 (1977).

The Ross case is particularly applicable to this matter where three lesser-included offenses were instructed upon and where defendant requested three additional instructions. Here, the jury had an opportunity to return one of a number of verdicts but returned a verdict of guilty on the principal charge. Appropriate instructions were given to the jury in view of the evidence presented in the case.

The other errors alleged by defendant are found to be without merit.

For these reasons, defendant’s conviction is affirmed.

Affirmed.


author: Per Curiam. Cynar, J.

text:
    GREENE v UNION OPTICAL CENTER, INC
    Docket No. 78-1364.
    Submitted November 15, 1979, at Lansing.
    Decided January 23, 1980.
    Leave to appeal applied for.
    Jimmy E. Greene purchased a pair of eyeglasses from Nu Vision Optical of Michigan, Inc. He subsequently made another purchase from Nu Vision. The nature of this purchase is in dispute, but testimony indicates that it was a replacement lens. A year later, he purchased a replacement lens from Union Optical Center, Inc. It is disputed whether this was a right or a left lens. Shortly thereafter, the right lens shattered and Greene’s eye was injured. Greene brought an action for damages against both Union Optical and Nu Vision. A judgment was entered in favor of the defendants by the Genesee Circuit Court, Philip C. Elliott, J., upon a jury verdict of no cause of action. Plaintiff appeals, alleging error in the jury instructions regarding the burden of proof and regarding contributory negligence. Held:

    1. Evidence at trial showed that both defendants failed to comply with a Federal record-keeping regulation regarding impact resistant lenses, therefore there was no record as to which of the defendants manufactured the allegedly defective lens. The plaintiff was unable to show which of the defendants was the source of the lens. The trial court’s instructions to the jury directed a verdict in favor of both defendants if the plaintiff failed to show which was negligent. This was erroneous. In this case the burden of proof should be shifted to the defendants to show which of them made the lens.
    2. The trial court’s instruction on contributory negligence was proper.
    Reversed and remanded.
    Cynar, J., concurred separately. He agrees that in this case the burden of proof of showing which defendant made the lens should be shifted to the defendants. He would hold that a new trial is warranted because the jury verdict was ambiguous as to whether it was based upon the incorrect jury instruction or upon a finding of no negligence.

      References for Points in Headnotes
    [1] 57 Am Jur 2d, Negligence §§ 4, 234.
    [2] 57 Am Jur 2d, Negligence § 186 et seq.

    [3] 57 Am Jur 2d, Negligence § 308 et seq.

    [4] 58 Am Jur 2d, New Trial §§ 125, 126.

      Opinion op the Court
    1. Negligence — Evidence — Regulations — Eyeglasses.
    Failure of a defendant dispenser of eyeglasses to comply with a Federal regulation requiring certain record-keeping in regard to the sale of impact resistant lenses constitutes evidence of negligence.
    2. Negligence — Burden of Proof — Multiple Dependants.
    A plaintiffs burden of proof may, in certain situations, be shifted to the defendants where more than one defendant has been negligent and the plaintiff is unable to prove which of the defendants’ actions were the proximate cause of his injury.
    3. Negligence — Contributory Negligence — Statutory Duty.
    The mere presence of a statutorily imposed duty on a defendant does not preclude consideration of contributory negligence on the part of an injured plaintiff.
    Concurrence by Cynar, J.
    4. Negligence ■— New Trial — Ambiguous Jury Verdict.

      A new trial is warranted in a negligence case where a jury verdict in favor of the defendants is ambiguous and could have been based either upon an incorrect jury instruction or a ñnding of no negligence.

      Bellairs, Dean, Cooley & Siler, for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Joseph V. Walker and Jeannette A. Paskin), for defendant Union Optical, Inc.

      Keil, Henneke, Ruhala & McKone, for defendant Nu Vision Optical of Michigan, Inc.
    Before: T. M. Burns, P.J., and Cynar and A. M. Bach, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

Plaintiff-appellant Jimmy E. Greene brings this appeal from a jury verdict in favor of the defendants-appellees Union Optical Center, Inc. and Nu Vision Optical of Michigan, Inc., both Michigan corporations. As a basis for his appeal, the plaintiff claims that the trial court committed reversible error in its jury instructions covering one aspect of the plaintiff’s burden of proof and the applicability of contributory negligence to defeat the original negligence claim.

The facts of this case indicate that one of the two defendants manufactured a lens for the plaintiff’s eyeglasses which shattered in a collision of the plaintiff and an opponent in a basketball game. On December 19, 1972, the plaintiff bought a pair of glasses from defendant Nu Vision. The glasses included a frame and two lenses. On May 14, 1973, the plaintiff made a second purchase from defendant Nu Vision. The nature of this purchase is in dispute. However, testimony indicates that the only merchandise available from Nu Vision at that time for the price paid was a replacement lens. Approximately one year later, on May 18, 1974, the plaintiff purchased another replacement lens for his glasses, this from defendant Union. There is a dispute between defendant Union and the plaintiff as to whether the lens was a right or left lens. On May 30, 1974, the right lens shattered, leaving the plaintiff with a substantial loss of vision in his right eye.

The trial court issued two instructions, now in dispute, regarding the plaintiff’s burden of proof and the applicability of contributory negligence as a defense. As to the burden of proof, the trial court instructed:

"As I have said, both of the defendants cannot be liable to the Plaintiff, and the Plaintiff has the burden of proof as to which of them is liable to him.”

"Moreover, if you cannot decide which defendant made and sold the lens that broke because evidence as to this is so evenly balanced or inadequate that it does not satisfy you as to which defendant was the manufacturer of that lens, then you cannot find against either defendant and, therefore, must return a verdict in favor of both defendants.”

Evidence was entered in the trial to show that both defendants failed to comply with the recording requirements of 21 CFR § 801.410 (1979), which provides in part:

"(e) Copies of invoice(s), shipping document(s), and records of sale or distribution of all impact resistant lenses, including finished eyeglasses and sunglasses, shall be kept and maintained for a period of 3 years; however, the names and addresses of individuals purchasing nonprescription eyeglasses and sunglasses at the retail level need not be kept and maintained by the retailer. The records kept in compliance with this paragraph shall be made available upon request at all reasonable hours by any officer or employee of the Food and Drug Administration or by any other officer or employee acting on behalf of the Secretary of Health, Education, and Welfare and such officer or employee shall be permitted to inspect and copy such records, to make such inventories of stock as he deems necessary, and otherwise to check the correctness of such inventories.

"(f) In addition, those persons conducting impact tests in accordance with paragraph (d) of this section, shall keep and maintain the results thereof for a period of 3 years. Such records and results shall be made available, upon request at all reasonable hours by any officer or employee acting on behalf of the Secretary of Health, Education, and Welfare and shall permit such officer or employee to inspect and copy such records, to make such inventories of stock as he deems necessary, and otherwise to check the correctness of such inventories.”

Failure to comply with this administrative regulation constitutes evidence of negligence. Douglas v Edgewater Park Co, 369 Mich 320; 119 NW2d 567 (1963). This evidence was not rebutted by either defendant.

In certain situations, a plaintiffs burden of proof may be shifted to the defendants where more than one defendant has been negligent and the plaintiff is unable to prove which of the two defendants proximately caused his injury. In this case, the trial court incorrectly instructed the jury that if the plaintiff failed to prove which of the two defendants manufactured the broken lens, it should return a verdict in favor of both defendants. This Court ruled in Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 718; 202 NW2d 727 (1972), that the question of shifting a burden of proof to multiple defendants was one of "policy and fairness based on experience in the different situations”. We believe that special circumstances did exist in this case, sufficient to shift to the defendants the burden of showing which of them manufactured the broken lens. The plaintiff was unable to show which defendant was the source of the assertedly defective lens. The defendants’ own negligence in failing to comply with applicable record keeping regulations should not be used as a basis for giving the plaintiff an unfair burden of proof. Therefore, we remand this case for a new trial, in which the defendants will bear the burden of proving which of them made the lens.

As to the claim that the trial court improperly instructed on the applicability of contributory negligence, the plaintiff’s reliance upon Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), is not valid. The regulation involved in this case differs substantially from that of Funk. In Funk, the disputed regulation imposed a duty to provide sufficiently safe working conditions and safety precautions for workers forced to engage in dangerous activities while on the job. Where the defendant employer failed to comply with the statutorily' imposed safety precautions, the Court found the contributory negligence of the plaintiff employee unavailable as a defense to the employer’s negligence. Contrary to the argument posed by the plaintiff herein, Funk does not stand for the proposition that the mere presence of a statutorily imposed duty precludes any consideration of contributory negligence. In this case, the jury could have found that the plaintiff’s own negligent conduct was the proximate cause of his injury, even if the manufacturing standards of 21 CFR § 801.410 were not met. Therefore, the trial court did not err in instructing on contributory negligence.

Accordingly, we hold that the trial court committed reversible error in failing to place upon the defendants the burden of proof as to which of them manufactured the broken lens. For reasons of policy and fairness, the trial court should place this burden on the defendants. Snider v Bob Thibodeau Ford, Inc, supra.

Reversed and remanded for a new trial in accordance with this opinion.

Cynar, J.

(concurring). While concurring with the majority opinion, I believe further comment is in order concerning burden of proof. The instructions on burden of proof were in error because special circumstances did exist in this case, sufficient to shift to the defendants the burden of showing which of them manufactured the broken lens. Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708; 202 NW2d 727 (1972). Here the jury may have rested its verdict on the trial court’s instruction that, in the absence of evidence indicating which of the two defendants was liable, the jury should return a verdict in favor of both defendants. Or the jury may have concluded that regardless of any violation of Federal record-keeping requirements under 21 CFR § 801.410, the lens in question was not defectively made. Where the jury verdict is ambiguous and could have been based upon an incorrect jury instruction, or a finding of no negligence, a new trial is warranted. Alston v Tye, 67 Mich App 138; 240 NW2d 472 (1976).