author: V. J. Brennan, P.J. G. E. Bowles, J.

text:
    MANSFIELD v ENTERPRISE BRASS WORKS CORPORATION
    Docket No. 78-5496.
    Submitted November 8, 1979, at Grand Rapids.
    Decided June 3, 1980.
    Meredith Mansfield sought worker’s compensation benefits alleging that he was disabled as of his last day of work at Enterprise Brass Works Corporation by reason of a work-related aggravation of his arthritic back condition. None of the medical experts could say with any degree of medical certainty that the arthritic back condition arose out of or was aggravated by plaintiffs work; however, there was medical testimony to the effect that plaintiffs work aggravated the symptomatology of the condition, i.e., work-related factors increased the pain associated with the arthritic back condition. Plaintiff testified that the pain associated with his back condition increased as a result of a work-related incident and that this increased pain eventually caused him to quit his employment because the pain made it difficult to do his work. The administrative law judge denied benefits. On appeal, the Worker’s Compensation Appeal Board affirmed the administrative law judge’s denial of benefits, finding that the record failed to establish by a preponderance of the evidence that the arthritic back condition arose out of or was aggravated by plaintiffs work. Plaintiff appeals. Held:

    1. Review by the Court of Appeals of a determination by the Worker’s Compensation Appeal Board is limited, in the absence of a showing of fraud, to ascertaining whether the board applied the correct legal standard.
    2. Plaintiff, in making his claim for worker’s disability compensation benefits, had the duty to show by a preponderance of the evidence a reasonable likelihood of cause and effect between his work and his arthritic back condition. Since the medical testimony was that there was only a conceivable or possible causal link between plaintiff’s work and his back condition, plaintiff failed to sustain his burden of proof by a preponderance of the evidence.

      References for Points in Headnotes
    [1, 5, 8] 82 Am Jur 2d, Workmen’s Compensation § 631.
    [2, 3, 6, 8, 10] 82 Am Jur 2d, Workmen’s Compensation § 534.
    [3, 6] 82 Am Jur 2d, Workmen’s Compensation § 240.
    [4, 6, 7, 10] 82 Am Jur 2d, Workmen’s Compensation § 638.
    [5] 82 Am Jur 2d, Workmen’s Compensation § 634.
    [6] 82 Am Jur 2d, Workmen’s Compensation § 639.
    [9, 10] 81 Am Jur 2d, Workmen’s Compensation § 223.
    Pleading aggravation of a pre-existing physicial condition in workmen’s compensation cases. 32 ALR2d 1459.

      3. The Worker’s Compensation Appeal Board’s review of the decision of the hearing officer is de novo in nature. The board must consider all the testimony, both expert and lay, and all the circumstances surrounding the disability or injury. The board is further obligated to provide the reviewing court with sufficient factual and legal support for its decision.
    4. Since findings of fact by the Worker’s Compensation Appeal Board must be affirmed by the Court of Appeals if there is any evidence in the record to support the board’s findings, and since there was expert testimony that there was no causal relationship between plaintiffs back condition and his work, the board’s factual determination that that there was no work-related injury must be affirmed.
    Affirmed.
    G. E. Bowles, J., dissented. He would hold that the Worker’s Compensation Appeal Board’s determination that there was no work-related injury is not binding on the Court of Appeals, since the board’s failure to consider the possibility that disability arose out of a work-related aggravation of the symptomatic conditions of the plaintiffs back constituted an error of law. He would reverse and remand to the board for consideration of whether plaintiffs work aggravated the symptomatology of the back condition and such aggravation caused a work-related disability, i.e., whether plaintiffs work caused him to have so much pain in his back that he was unable to continue with that work because of back pain arising out of a work-related incident.
    Opinion of the Court
    1. Workers’ Compensation — Appeal — Findings of Facts — Review.
    Review by the Court of Appeals of determinations of the Worker’s Compensation Appeal Board is limited, in the absence of fraud, to ascertaining whether the board applied the correct legal standard.
    2. Workers’ Compensation — Burden of Proof.
    A claimant in a worker’s compensation proceeding must prove he is entitled to benefits by a preponderance of the evidence.

      3. Workers’ Compensation — Burden of Proof — Work-Related Injury — Sufficiency of Evidence.
    A claimant seeking worker’s compensation benefits for an arthritic back condition must show by a preponderance of the evidence a reasonable likelihood of cause and effect between his work and the injury; where the most that medical experts could say was that there was a conceivable or possible link between the injury and the work, the causal link between the work and the injury is not sustained by evidence sufficient to satisfy the preponderance of the evidence test.
    4. Workers’ Compensation — Worker’s Compensation Appeal Board — De Novo Review — Findings of Fact and Law — Record on Appeal.
    The Worker’s Compensation Appeal Board is obliged to review de novo the decision of the hearing examiner, considering all the testimony, both expert and lay, and all the circumstances surrounding the disability or injury, and to provide the reviewing court with sufficient factual and legal support for its decision.
    5. Workers’ Compensation — Worker’s Compensation Appeal Board — Findings of Fact — Appeal.
    A finding of fact by the Worker’s Compensation Appeal Board of no work-related disability must be affirmed by the Court of Appeals if there is any evidence in the record to support the appeal board’s findings; expert medical testimony that there was no causal relationship between a claimant’s arthritic back condition and his work and that the back condition was part of the normal degenerative process which accompanies aging is more than sufficient evidence to support the appeal board’s determination that there was no work-related injury.
    Dissent by G. E. Bowles, J.
    6. Workers’ Compensation — Worker’s Compensation Appeal Board — Standard of Review — Burden of Proof — Sufficiency of Evidence.

      The standard of review to be used by the Worker’s Compensation Appeal Board is whether a work-related disability was established by a preponderance of the evidence; the claimant need only show a reasonable likelihood of cause and effect between the work and the injury and need not exclude beyond a reasonable doubt other possible or probable causes of the injury.

      7. Workers’ Compensation — Worker’s Compensation Appeal Board — Method op Review — Findings of Fact.

      The Worker’s Compensation Appeal Board must consider both the medical testimony and the factual background established by the claimant with respect to his claim of a work-related injury and must then make detailed ñndings of fact.

    8. Workers’ Compensation — Worker’s Compensation Appeal Board — Findings op Fact — Burden op Proof.

      The ñndings of fact of the Worker’s Compensation Appeal Board are binding absent proof of fraud where the appropriate legal standard has been applied and there is competent evidence in the record to support the ñndings; the board’s ñndings of fact are not binding where the board’s opinion indicates that it perceived that the claimant was required to prove the medical certainty of causation rather than to prove causation by a preponderance of the evidence.

    9. Workers’ Compensation — Words and Phrases — Disability — Aggravation op Symptomatology.

      Disability under the Worker’s Disability Compensation Act is deñned as the inability to perform the work the claimant was doing when injured; that definition is not limited to aggravation of pathological conditions but includes aggravation of symptomatic conditions, including the aggravation of pain which results in a work-related disability (MCL 418.401[aj; MSA 17.237[401][a]).

    10. Workers’ Compensation — Worker’s Compensation Appeal Board — Findings op Fact — Disability — Causation.

      The determination of the Worker’s Compensation Appeal Board must be set aside and the matter remanded to the board for further detailed ñndings of fact where the board based its determination that no disability existed solely upon consideration of the pathology of causation of the claimant’s arthritic back condition and failed to consider whether the claimant had a work-related disability arising out of aggravation of the symptomatology of that condition, i.e., whether the claimant had a disability caused by work-related aggravation of the pain associated with his arthritic back condition.

      Marcus, Ruck & Flynn, P.C. (by David M. Wells), for plaintiff.

      Smith, Haughey, Rice & Roegge (by Ellen J.

      Eggers), for Enterprise Brass Works Corporation and American Mutual Liability Company.

      Miller, Johnson, Snell & Cummiskey (by Bert J. Fortuna), for Enterprise Brass Works Corporation and Mutual Insurance Company of Grand Rapids.
    Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.

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

   V. J. Brennan, P.J.

In this case plaintiff appeals from a unanimous opinion of the Worker’s Compensation Appeal Board affirming the administrative law judge’s denial of compensation benefits. The essential facts in this case are not in dispute and are ably put forth in the dissent.

Initially plaintiff contends that the board applied an incorrect standard in determining whether plaintiff’s condition of disability was caused or aggravated by his employment.

In the absence of fraud, this Court’s review is limited to whether the board applied the correct legal standard, Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973), Barrett v Bohn Aluminum & Brass Co, 69 Mich App 636, 640; 245 NW2d 147 (1976). A claimant in a worker’s compensation proceeding must prove that he is entitled to benefits by a "preponderance of the evidence”. Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978).

In the instant case, the board specifically recognized and applied this standard. In its opinion, the board stated:

"Plaintiff’s proofs failed to show to these reviewers work-related disability and we find that Referee Mikko properly dismissed the case by applying the preponderance of evidence test enumerated in Aquilina v General Motors Corp, 403 Mich 206 (1978).”

Plaintiff acknowledges that the board properly recognized the correct standard but claims that in actuality the board applied the "beyond the shadow of a doubt” standard. We disagree.

The threshold fact question was whether plaintiffs arthritic back condition was the result of his employment or was caused by the natural aging process to which everyone is exposed. The evidence offered by plaintiff to prove that his back condition was work-related and not caused by other factors consisted of the deposition testimony of Dr. James Glessner and Dr. Burton Onofrio, as well as plaintiffs own testimony before the administrative law judge. Dr. August Aardema was called as a third expert witness on behalf of the defendant and was also deposed. When asked if he believed there to be any connection between plaintiffs disability and his employment, Dr. Glessner stated:

"I think probably the progression of the arthritis has been over a period of years based on just aging, hereditary manifestations and so on. It’s conceivable that the kind of work he did may have hastened it, but I can’t say that with any degree of certainty.”

Dr. Aardema’s testimony was essentially the same:

"Q [by Benjamin Marcus, attorney for the plaintiff] Would constant intermittent stress over the past few years before he left the employment be considered an aggravating factor?
"A What type of stress are you referring to?
"Q Such as we discussed before — the lifting, traveling. He was on the road constantly, he had to get in and out of the automobile, he had long rides — that sort of activity, doctor?
"A It’s possible, yes.
"Q Possible or probable. 'Possibly’ meaning—
"A I can’t say that it’s probable or not. Many people have back problems and have x-rays that look quite bad, and I don’t think are necessarily aggravated by this type of thing.”

To prevail plaintiff must show by a preponderance of the evidence a reasonable likelihood of cause and effect between the work and the injury. Although the board inartfully characterized the doctors as being unable to "positively” or "categorically” link plaintiffs disability to his employment, our review of the testimony indicates that the doctors were unable to find with any degree of certainty a link between work and the injury. The most the doctors were able to say was that such a link was "conceivable” or "possible”. This is not enough evidence of a causal link to sustain the preponderance of the evidence test.

The board’s reliance on Powell v City of Saginaw, 46 Mich App 751, 753; 208 NW2d 557 (1973), further persuades us that it applied the correct legal standard. Faced with essentially the same question as is present in the instant case, the Powell Court affirmed the board’s denial of compensation benefits and held:

"Plaintiff offered medical testimony that the arthritic condition could have been aggravated by the working conditions. Such testimony, asserting possible causal connection between the work situation and the claimed disability was not conclusive on the appeal board. The board was within the scope of its exclusive function as determiner of fact in ruling plaintiff had failed to meet his burden of proof in establishing that his arthritic disability was work-related.” (Emphasis in original.)

Plaintiffs reliance on Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979), as support for his argument that the board did not apply the proper standard in reaching its decision is misplaced. The board in this case rendered its decision on November 29, 1978, several months before the Supreme Court decided Kostamo in January of 1979. Notwithstanding this fact, Kostamo requires the appeal board to review de novo the hearing examiner’s decision. The board is obliged to consider the opinions of all medical experts as well as lay testimony and to examine the circumstances surrounding the disability and/ or injury in determining whether or not there is any causal link to the employment. In addition, the board must also provide the reviewing court with sufficient factual and legal support for its decision.

In the instant case, the board considered additional evidence beyond the medical decisions in reaching its decisions.

Since there are no allegations of fraud, and since it does not appear that the board applied an incorrect legal standard, we decline to reverse the board on this issue.

We also cannot agree with plaintiffs second assertion that the board’s finding of no work-related disability was not supported by the evidence. It is well established that this Court must affirm a decision of the board if there is any evidence of record to support its findings, since this Court is not a trier of fact in worker’s compensation cases but rather reviews the findings to determine whether there is evidence to support the giving or denial of an award. Moore v Gundelfinger, 56 Mich App 73; 223 NW2d 643 (1974). Epps v Mercy Hospital, 69 Mich App 1; 244 NW2d 340 (1976). Dixon v Coldwater State Home, 59 Mich App 701; 229 NW2d 893 (1975). Goodman v Bay Castings Division of Gulf & Western Industries, 49 Mich App 611; 212 NW2d 799 (1973).

An examination of the record supports defendants’ contention that there was evidence from which the board could have found that plaintiff’s injury was not work related. The board based its findings on the deposition testimony of Drs. Aardema and Glessner who stated that they could not find a causal relationship between plaintiff’s arthritic back and his work. The board also considered the deposition of Dr. Onofrio which was taken a year after the hearing before the administrative law judge and after the doctor had operated on plaintiff’s back. Dr. Onofrio testified as to the normal degenerative process which accompanies aging. This is more than sufficient evidence to support the "any evidence” standard described in Pastaleniec v The Great A & P Tea Co, Inc, 49 Mich App 702; 212 NW2d 734 (1973).

Affirmed.

Beasley, J. concurred.

G. E. Bowles, J.

(dissenting). Plaintiff appeals by leave granted from a unanimous opinion of the Worker’s Compensation Appeal Board (WCAB or board) affirming the decision of the administrative law judge denying him compensation benefits.

At the time of the hearing, plaintiff was a 67-year-old man living with his wife who was his only dependent. He began employment with the defendant in the fall of 1945 as an office manager in charge of purchasing. He held this position for approximately ten years when he was given the assignment of introducing new products to jobbers throughout the United States and Canada. This new assignment required extensive travel by both automobile and airplane.

While in the course of his employment in 1960, plaintiff was involved in an automobile accident and suffered a back injury. He lost "very little” time from work as a result of this injury. He soon returned to his normal activities, although it was necessary for him to receive medical treatment "early after the automobile accident”.

On January 9, 1974, plaintiff suffered another injury described as follows:

"As I came back hurriedly to answer my telephone, I hit this wet spot, my feet started to go out from under me. I would have fallen completely had it not been for Gokey. I was right behind him. I grabbed the back of his office chair, and I slid and twisted at full length— that’s what I should say — as far as I go. The only thing that kept me from falling completely, was hanging on to the chair. As I did that, I got a terrible pain in my back.”

Following this incident, plaintiff cleaned up his desk and left for the day. He was unable to return to work the next morning and saw Dr. Austin Aardema who prescribed treatment with "strict bed rest with bathroom and eating privileges only”. By January 22, 1974, claimant felt 100% better. Dr. Aardema told him that he could return to work at this time.

Plaintiff returned to work and continued his job until December 17, 1974, the date of his retirement. He testified that after the January incident he was in constant discomfort because of back pain and that he quit in December because it was so difficult for him to do his work. The previous December, however, plaintiff had written to defendant’s president expressing an intention to retire at the end of 1974. This letter further suggested the grooming of an assistant as a successor.

After retirement the claimant took a vacation to Arizona with his wife, but after four weeks he could not get out of bed because of back pain and eventually underwent a surgical procedure to relieve the pain on October 25, 1976.

Claimant’s contention is that the specific injury of January 9, 1974, activated his pre-existing back condition which was triggered by the 1960 automobile accident to the point of disablement and that the constant sitting for long periods of time during his travels contributed to and resulted in his disablement.

Referring to the depositions of Dr. Aardema and Dr. James R. Glessner, Jr., the board noted that neither doctor could attribute plaintiffs arthritic condition "with any degree of unequivocal medical certainty” to the previous work-related injuries. Dr. Aardema thought it might be possible that the injuries and condition were related while Dr. Glessner stated that he "couldn’t say for certain”.

The board further observed:

"As in Powell v City of Saginaw, 46 Mich App 751 (1973), plaintiff only introduced medical evidence showing that his arthritic condition could have been aggravated by the working condition. None of the medical experts in this case could positively and unqualifiedly link the arthritic condition with employment.”

The board held:

"The record is clear that throughout thirty years of employment the hardest part of which was sitting in airplanes or in automobiles, plaintiff received two minor injuries which did not result in any appreciable loss of work and was physically able to satisfactorily perform his job right up to the last day of work, coincidentally the beginning of a planned and well-deserved retirement in a warmer climate.
"At the time of his retirement plaintiff was physically capable to continue working. All the doctors testified he suffered from a degenerative arthritic back condition which worsens with the aging process and none of them could categorically attribute either causation or aggravation to either of the two injuries.
Plaintiff’s proofs fail to show to these reviewers work related disability and we find that Referee Mikko properly dismissed the case by applying the preponderance of evidence test enumerated in Aquilina v General Motors Corporation, 403 Mich 206 (1978).”

In reviewing the decision of the WCAB three issues are presented: whether the board applied the correct standard in determining that plaintiff failed to establish a compensable disability, whether the WCAB’s conclusion that there was no work-related disability is supported by the evidence, and whether pain alone can constitute a work-related disability under the Worker’s Disability Compensation Act.

I. The Legal Standard Applied by the WCAB.

As the majority notes, the WCAB recognized the proper standard for reviewing the evidence offered to establish work-related disability, namely, the preponderance of the evidence test. Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978), Galac v Chrysler Corp, 63 Mich App 414; 235 NW2d 359 (1975). However, it is equally apparent from the board’s opinion that it applied the test improperly. The WCAB’s determination that no work-related disability had been proven was based on its findings that "none of the medical experts in this case could positively and unqualifiedly link the arthritic condition with the employment” and that none of the doctors "could categorically attribute either causation or aggravation” to either the 1960 or 1974 injury.

Plaintiff need only show a reasonable likelihood of cause and effect between the work and the injury. He need not exclude beyond a doubt other possible or probable causes of the injury. Kepsel v McCready & Sons, 345 Mich 335, 343-344; 76 NW2d 30 (1956). In short, the correct legal standard was recognized by the WCAB but not applied.

The board failed to give due consideration to the testimony of plaintiff’s expert Dr. Onofrio, whose deposition included the following:

"So with his past history of low back pain and x-ray evidence in the past of degenerative changes we must conclude that this was an ongoing process and that whatever episode that he had in 1974 was an aggravation of a pre-existing illness, if any.”

Dr. Glessner also testified:

"I think basically he, the degenerative arthritis was an acquired variety coming on slowly over the years as one get older and I think that the degenerative arthritic was first manifested symptomatically, by the injury back in 1960 and from that point on he has continued to have difficulty of a degree or another with his back. This was going on a reasonably level basis with problems right along until the second injury in January 1974 and since then he has had an intensification of his problem which symptomatically has created more difficulty for him. * * *
"Q [by Benjamin Marcus, attorney for the defendant] But as far as the incident of January of '74, did that or did that not in your judgment increase his impairment?
"A Yes it did.
"Q [by Paul H. Reinhardt, attorney for defendants] Okay, but in any event it is reasonable to say that his present condition is the result of those two incidents, the automobile accident — those two incidents, at least, the automobile accident and the slip and fall in January ’74.
"A Yes I think these are the triggers which have created the symptoms. The degenerative arthritis is the thing basically that causes symptoms, but it may not have had it not been for these incidents.”

Had the board correctly applied the preponderance of the evidence test, it might have found sufficient proof of causation. I do not suggest that if the test were properly applied the WCAB would have found a work-related disability, only that it might have. The reasoning of the Michigan Supreme Court in Kostamo v Marquette Iron Co, 405 Mich 105, 120; 274 NW2d 411 (1979), is instructive on this point. The Court noted that:

"We know also that is not possible to determine medically whether particular stress caused a particular injury. Nevertheless compensation may be awarded based on an assessment of the probabilities in light of the background factual circumstances and any opinion testimony. Opinions tentatively expressed may not on that account be discounted. The certainty, or puffery, with which experts express their opinions may mask differing understandings of the factual background and views regarding causation. The answer is to be found in careful scrutiny of the factual background and not in terminology and emphasis. Nor may preclusive effect be given to medical testimony.”

The Court further stated that:

"Dr. English, Kostamo’s medical expert, stated that Kostamo’s work 'could have’, 'might have’, 'possibly’ precipitated or aggravated Kostamo’s heart attack. Dr. Rosenbaum, defendant’s expert, stated positively that Kostamo’s work 'did not play a role in the production of his attack, not in his subsequent death * * *’.
"In reviewing this testimony the WCAB apparently placed critical importance on the comparative certainty with which the doctors expressed themselves.
"Dr. English’s failure to state a medical opinion with certainty reflects the current status of scientific knowledge, not a lack of merit in the claimant’s position. 'The matter does not turn on the use of a particular form of words by the physicians in giving their testimony.’ ” Id. 136-137. (Footnotes and citations omitted.)

Under Kostamo the WCAB must relate the medical testimony and the factual background in detailed findings of fact. It is incumbent upon the WCAB to examine independently the facts offered by plaintiff in support of his claim of work-related injury, as well as the contrary evidence, and only then to arrive at a determination with respect to legal causation. Since this was not done in the case sub judice, I would remand to the WCAB so that the required detailed findings of fact can be made on the issue of whether plaintiff’s arthritic condition was or was not caused or aggravated by injuries arising out of and in the course of employment.

II. The Factual Findings of the WCAB.

The board’s findings of fact are binding absent proof of fraud where the appropriate legal standard has been applied and where there is competent evidence on the record to support the findings. DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 100-101; 214 NW2d 794 (1974), McClary v Wagoner, 16 Mich App 326, 327-328; 167 NW2d 800 (1969). The WCAB’s conclusion that plaintiffs disability was not caused by injuries sustained arising out of and in the course of his employment was based on the factual finding that none of the doctors could categorically attribute either causation or aggravation to the injuries. While the finding that no doctor could categorically attribute causation to the work-related injuries is correct, as noted in the first part of my dissent, plaintiff was not required to prove causation to a certainty but, rather, only by a preponderance of the evidence. The record does show that there was medical testimony from which the board could find by a preponderance of the evidence that plaintiff had suffered a work-related disability. Since in my opinion the correct legal standard was not applied, the board’s factual findings are not binding.

III. Pain as Constituting a Disability.

Plaintiff contends that the board distinguished between pathology, i.e., the underlying disease or condition, and symptomatology, i.e., the outward manifestation or indication of the underlying disease, in reaching the determination that plaintiff failed to prove work-related disability. The WCAB emphasized testimony casting doubt on whether plaintiffs degenerative process had been aggravated by his work-related accidents. It did not evaluate testimony confirming that plaintiffs symptoms, the episodes of severe back pain, were accelerated or aggravated by employment.

MCL 418.401(a); MSA 17.237(401)(a) defines disability as:

"the state of being disabled from earning full wages at the work in which the employee was last subject to the conditions resulting in disability.”

The Michigan Supreme Court defines disability as the " 'inability to perform the work claimant was doing when injured.’ ” Powell v Casco Nelmore Corp, 406 Mich 332, 350; 279 NW2d 769 (1979). Neither of these definitions indicate that a work-related disability is limited to the aggravation of pathological conditions to the exclusion of symptomatology.

In fact, the Michigan Supreme Court opinion in Dressler v Grand Rapids Die Casting Corp, 402 Mich 243; 262 NW2d 629 (1978), suggests that disability may be based on an aggravation of symptoms. In Dressier the Court ruled that a plaintiff is not disabled, despite the pain suffered in successive jobs, until the pain becomes so extreme to force his excessive absence from work and the termination of his employment. Case law from other jurisdictions also supports the proposition that a work-related disability can arise from the aggravation of symptoms caused by the employment. Johnson v Travelers Ins Co, 284 So 2d 888 (La, 1973), Shainberg v Dacus, 233 Ark 622; 346 SW2d 462 (1961), Schreven v Industrial Comm of Arizona, 96 Ariz 143; 393 P2d 150 (1964), Bolton v Catalytic Construction Co, 309 So 2d 167 (Miss, 1975), Perez v Pearl-Wick Corp, 56 App Div 2d 239; 392 NYS2d 496 (1977).

To the extent the board’s finding that "at the time of his retirement plaintiff was physically capable to continue working” was based on a consideration of pathology to the exclusion of symptomatology, I would hold that the finding was erroneous. Plaintiff testified that he was miserable and at the point of undergoing a back operation and that he terminated his employment because "it was so difficult to work” due to "discomfort in my back”. Of course, the WCAB is not required to accept, without close scrutiny, plaintiff’s contention of extreme pain. However, at a minimum the board must make a finding of fact showing that it at least considered this testimony and reached a factual conclusion on plaintiff’s contention.

The WCAB is required to determine, when raised, whether a plaintiff is unable to perform the activities required by his job at the time he left his employment and whether he is currently unable to perform the work he was doing at the time of his injury. In my judgment, the WCAB’s opinion in this cause lacks sufficiently detailed findings of fact on this critical issue.

I would remand for further proceedings.

      MCL 418.101 et seq.; MSA 17.237(101) et seq.

       The majority suggests that reliance on the Kostamo decision is misplaced because it was not announced until after the WCAB rendered its decision in the instant matter. I disagree. There is no retroactivity problem raised by the application of Kostamo to this case because Kostamo announced no new rule of law in respect to the plaintiffs burden of proof. As the Michigan Supreme Court noted in Kepsel, supra, 343-344: "The claimant must show a reasonable relation of cause and effect between work and injury. Other possible or probable causes of injury do not have to be excluded beyond doubt.”

       The majority states that the "board’s reliance on Powell v City of Saginaw, 46 Mich App 751; 208 NW2d 557 (1973), further persuades us that it applied the correct legal standard”. With all due respect to my learned brethren, in my opinion the majority has been blinded by a talismanic invocation of Powell. The WCAB must do more than recognize the correct legal standard, it must apply it. While the Powell Court stated that the WCAB was not bound to accept testimony asserting a possible causal connection between the employment and the alleged disability, it did not hold, as the WCAB seems to in this case, that it must be conclusively established that there was a causal relationship between the employment and the disability.

        Dressier, supra, 253.


source: Caselaw Access Project

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

license: Public Domain

text:
    IN RE BENKER ESTATE
    Docket No. 43369.
    Submitted December 17, 1979, at Detroit.
    Decided June 3, 1980.
    Charles Benker died intestate leaving a daughter by a previous marriage, Ruth Counts, and his wife of 13 years, Elizabeth Benker. Prior to the marriage Charles and Elizabeth Benker executed an antenuptial agreement whereby each waived any and all rights to inheritance from the other. Ruth Counts, as administratrix of the estate, petitioned the Wayne Probate Court to determine the validity of the agreement and instruct her as to the disposition of the estate. The court, Joseph J. Pernick, J., held the agreement invalid. Ruth Counts appealed and the Wayne Circuit Court, John M. Wise, J., affirmed. Ruth Counts appeals by leave granted. Held:

    Antenuptial agreements are, by statute, presumptively valid, and a person seeking to avoid the agreement claiming fraud or nondisclosure has the burden of proving such fraud or nondisclosure. The trial court erred in not placing on Mrs. Benker the burden of proving nondisclosure prior to the execution of the agreement.
    Reversed and remanded.
    Husband and Wife — Antenuptial Agreements — Statutes — Burden of Proof.
    Antenuptial agreements are, by statute, presumptively valid, and a person seeking to avoid the agreement claiming fraud or nondisclosure has the burden of proving such fraud or nondisclosure (MCL 557.5; MSA 26.164).
    Reference for Points in Headnote
    [1] 41 Am Jur 2d, Husband and Wife §§ 313, 314.

      Faintuck, Shwedel, Wolfram, McDonald & Zipser, for plaintiff.

      Leib & Leib, for defendant._

      Before: D. C. Riley, P.J., and R. B. Burns and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

Charles Benker died intestate on December 15, 1976, at the age of 84 years. He left as sole heirs his wife of 13 years, Elizabeth Benker, and his daughter by a previous marriage, Ruth Counts. Prior to their marriage Mr. and Mrs. Benker executed an antenuptial agreement by which each waived any and all rights to inheritance from the other. Mrs. Benker now contends that the agreement was void because the extent of her former husband’s estate had not been revealed to her. Ruth Counts appeals by leave a Wayne County Circuit Court order affirming the probate court order which invalidated the antenuptial agreement.

It is plaintiffs contention that the trial court erred by not correctly allocating the burden of proof to the party seeking to invalidate the ante-nuptial contract. We agree. The presumptive validity of antenuptial agreements is authorized by statute. MCL 557.5; MSA 26.164 provides: "All contracts made between persons in contemplation of marriage, shall remain in full force after marriage takes place”.

MCL 700.291; MSA 27.5291 (Revised Probate Code) provides:

"The rights of the surviving spouse to an estate and to dower, homestead allowance, election, exempt property, and family allowance or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of 'all rights’ in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separate maintenance or divorce is a waiver of all rights to dower, homestead allowance, election, exempt property, and family allowance by each spouse in the property of the other and an irrevocable renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.”

The above-quoted language requires a fair disclosure; however, it does not place the burden of proof on the party claiming nondisclosure. In determining the proper allocation of the burden of proof, we must go to existing case law. There is Michigan precedent which holds that the burden of proof should be allocated to the party claiming invalidity of the agreement based on nondisclosure. In Richard v Detroit Trust Co, 269 Mich 411, 416; 257 NW 725 (1934), it was held:

"A consideration of these authorities shows that the law of this State recognizes the existence of a confidential relationship requiring good faith, fair dealings, and open disclosure, but places upon the party charging fraud and a breach of confidence the burden of proof.”

The Richard Court made a distinction between fraud and nondisclosure; however, it is clear from the above-quoted language that the Court intended the burden of proof to be imposed upon the party claiming invalidity, whether under terms of "fraud” or "nondisclosure”. The terms fraud, nondisclosure, breach of confidence and misrepresentation are often used interchangeably. Nondisclosure is a failure to reveal facts and may be considered a form of fraud where there is a duty to reveal such facts. Fraud is defined as a false representation of a matter of fact, whether by words or by conduct, by false or misleading allocations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Black’s Law Dictionary (4th ed, 1968). Fraud includes acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence which cause injury to another or by which an undue and unconscientious advantage is taken of another. 1 Story, Equity Jurisdiction, § 267, pp 264-265.

There are some facts which might tend to support the widow’s allegation of nondisclosure. However, under Richard, supra, as she is the party asserting nondisclosure, it is incumbent upon her to carry the burden of proof.

Resolution of the foregoing being dispositive, it is unnecessary for us to comment on appellant’s remaining allegations of error.

Reversed and remanded.


author: Cynar, J.

text:
    HAYES v BOOTH NEWSPAPERS, INC
    Docket No. 43401.
    Submitted December 5, 1979, at Lansing.
    Decided June 3, 1980.
    Plaintiff, William J. Hayes, sued defendant Booth Newspapers, Inc., and defendants Glen Boissonneault, Rudy Palloto, Robert Martin, Richard Childs and Gary Taylor, employees of Booth Newspapers, for libel in the Genesee Circuit Court. The complaint alleged libel in two editorials appearing in the Flint Journal. Defendants moved for summary judgment on the first count. The motion did not specify the grounds upon which it was predicated, nor was it accompanied by supporting affidavits. The court, Ollie B. Bivins, J., granted the motion. A similar motion without supporting affidavits was filed with regard to count two. The court granted that motion, too. Plaintiff appeals by leave granted. Held:

    1. Failure to object to the absence of affidavits supporting a motion for summary judgment required by court rule precludes appellate review of the issue.
    2. The mere allegation of actual malice in a suit for libel of a public figure is not sufficient to defeat a motion for summary judgment for the reason that there exists no genuine issue of material fact. The party defending against such a motion for summary judgment must demonstrate facts which raise the issue of malice.
    Affirmed.
    1. Motions and Orders — Summary Judgment — Affidavits — Preserving Question — Court Rules.
    Failure to object to the absence of affidavits supporting a motion for summary judgment required by court rule precludes appellate review of the issue (GCR 1963, 117.2[3]).
    2. Motions and Orders — Summary Judgment — Genuine Issue of Material Fact — Malice.
    The mere allegations of actual malice in a suit for libel of a public figure is not sufficient to defeat a motion for summary judgment for the reason that there exists no genuine issue of material fact; the party defending against such a motion for summary judgment must demonstrate facts which raise the issue of malice.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 545, 553.
    [2] 73 Am Jur 2d, Summary Judgment § 23.

      Daniel D. Bremer, for plaintiff on appeal.

      O’Rourke, Goldstein, Joseph & Kelly, P.C., for defendants.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Cynar, J.

On June 15, 1972, plaintiff filed a two-count complaint for libel. Said complaint was in response to two articles published in the Flint Journal, one of the newspapers in the Booth chain. The articles related to the actions of plaintiff in conducting the defense of one Mandric Strodder, accused of the first-degree murder of a Flint woman in 1970. The opinions of then Chief Justice Kavanagh and of Justice Williams in the case of People v Strodder, 394 Mich 193; 229 NW2d 318 (1975), reh den 395 Mich 902 (1975), recount in part the tragic events which transpired during the course of that trial, presided over by Circuit Court Judge Philip C. Elliott. We note that the parties herein have stipulated that the trial transcript from that case is the only relevant transcript for purposes of this appeal. The stipulation provides as follows:

"NOW COME Plaintiff/Appellant and Defendants/ Appellees, by and through their attorneys, and stipulate and agree that this appeal may proceed without a transcript of the oral arguments made when Defendants/ Appellees Motions for Summary Judgment were heard. It is further stipulated and agreed that the only relevant transcript in this matter is the transcript of the trial People v Strodder Court of Appeals docket no. 13131.”

Count I of plaintiffs complaint addressed itself to an August 15, 1971, editorial appearing in the Flint Journal. Count II was based on an article printed in the February 26, 1972, issue of the paper. The article was directed at plaintiffs application for payment as Strodder’s court-appointed attorney, and contained the following paragraph:

"During the trial Elliott questioned whether Hayes was in possession of his sanity and subsequently a court-appointed psychiatrist said Hayes was mentally incompetent to continue the trial.” _

The following day, February 27, 1972, the Journal ran an article which stated that the previous day’s story had erroneously reported that plaintiff had been found to be "mentally incompetent”, rather than "mentally competent”, and that the error was regretted.

Defendants answered plaintiff’s complaint and raised the affirmative defenses of: (1) fair comment, under MCL 600.2911; MSA 27A.2911; (2) First Amendment rights of freedom of speech and of the press; (3) truth; and (4) lack ^ of actual malice.

Extensive discovery ensued through late 1974. On January 106 1975, defendants filed a motion for summary judgment as to Count I, which motion failed to state with specificity the grounds upon which it was predicated. No affidavit accompanied the motion. In his brief in support of his answer in opposition thereto, plaintiff conceded that he was a "public figure” under the New York Times standard, at least for purposes of this litigation.

On December 22, 1977, the trial court issued an opinion which held for defendants on the aforementioned motion, and entered summary judgment in favor of defendants on Count I on January 25, 1978.

On June 1, 1978, defendants filed a motion for summary judgment as to Count II of plaintiff’s complaint. As was the case with defendants’ earlier motion, no supporting affidavit was appended to this motion. Summary judgment for defendants on Count II was entered on August 18, 1978._

Plaintiffs application for delayed appeal as to both summary judgments was granted April 30, 1979, by order of this Court.

The Strodder trial was, as aptly , stated by plaintiff Hayes during its course, unique in the annals of Michigan law.

Before trial, Hayes interposed a defense of insanity to the charge of first-degree murder, although in the 109 days between his appointment and commencement of trial he had seen defendant only once, and that only a few minutes prior to trial. Defendant initially expressed his displeasure with Hayes, but at some later point the relationship between Hayes and defendant improved to the point where defendant indicated complete satisfaction with Hayes’s performance.

Toward the close of the prosecution’s case, Hayes demanded that B. James Wright be recalled as a witness to further testify. In response to the court’s request for an explanation, Mr. Hayes stated:

"Mr. B. James Wright strangled his wife. Will you get up and testify, sir?”

Hayes instructed the court to listen to him, demanded that Wright be placed under guard because he was dangerous, asked Wright whether he wanted to be advised of his constitutional right against self-incrimination, whether he wanted an attorney, and thereafter put Wright through a cross-examination which included allusions to Wright having murdered his wife. Wright denied the accusations. Hayes then asked to review the contents of the police file in the case. The prosecutor objected to this. People v Strodder records Hayes’s response and the colloquy that followed.

" 'The procedures are unimportant, I am asking that the whole record in this case be impounded, that no further prosecutions go on in this county, that this court and the prosecutor of this county be immediately suspended from office, and that Mr. Mandric Strodder immediately be set free. He is completely, absolutely innocent of this charge.’
"He refused to explain his actions further, but instead maintained:
"T ask that Mr. Strodder be reinstated on his bond. He is willing and has. authorized me to say he’s willing to compromise this case as follows:
" 'He’s willing to live in this society as a free man if the people of the State of Michigan are willing to pick up his expenses for the rest of his natural life. Is that right Mr. Strodder?’
"The Defendant: Yes sir.
"Shortly thereafter counsel announced that he did not want to participate 'any further in these proceedings’, and answered in the negative when the court asked 'are you going to continue with the defense of this matter?’
"'The Court: I’m going to order you to continue with the defense of this matter.
" ’Mr. Hayes: We have nothing further to say. Is that right, Mr. Strodder?
" ’The Defendant: Yes, sir, Mr. Hayes. * * *
" ’The Court: Am I correct Mr. Hayes that you’re telling me that you are refusing the order of the court to continue with the defense of this matter?
" ’Mr. Hayes (to the defendant): Don’t talk about the case any further.’ ” People v Strodder, supra, 205-206.

The next day, in order to proceed with trial, the court appointed co-counsel for defendant, and, after expressing his doubts as to Hayes’s sanity, the court ordered a psychiatrist to observe Hayes. Following a week’s continuance so that co-counsel could familiarize himself with the case, trial resumed. Thereafter, Hayes excoriated the court repeatedly, and barraged the prosecutor and many witnesses with a steady stream of vitriol and invective. The episodes in which Hayes made personal attacks on the court were many, although each cannot be recounted in detail.

A sampling of plaintiffs behavior indicates that, on at least three separate occasions, Hayes accused the court and the prosecutor of conferring and colluding on evidentiary rulings. He also charged the court with bias as to all such rulings. Plaintiff claimed that the court was only interested in convicting Mandric Strodder.

Hayes called the prosecutor to the stand as a defense witness. He next spoke to himself aloud while questioning witnesses and claimed that if he spoke loudly enough in doing this so that it could be recorded, the court would call him insane again. He threatened to investigate all participants in the trial and subpoena their criminal records in response to what he deemed traducement by the court of his investigator, Matthew Buder, a disbarred attorney.

Plaintiff later accused the court, the assistant prosecutor trying the case, the victim’s husband and the then Chief Genesee County Prosecutor of conspiring to obstruct justice in the Strodder case. He began referring to the judge as Mr. Elliott.

When the prosecutor attempted to object to a defense witness giving opinion testimony without being qualified as an expert, Hayes interrupted. The court remonstrated Hayes, stating:

"Mr. Hayes, when opposing counsel wants to be heard to make an objection, he has a right to be heard.”

Hayes responded:

"If he’s the Prosecutor.”

Hayes next began to insult the intelligence of the court, glibly intimating that the court was unable to follow argument regarding the admissibility of evidence.

Plaintiff then intentionally asked leading questions on direct examination and attempted to impeach his own witnesses. Shortly thereafter, he told the trial judge he was ashamed of him. He admonished the judge that he was not going to be able to pick and choose admissible evidence under "your” rules of evidence.

Hayes charged the court with deliberately attempting to ruin his plans to vacation on Mackinac Island and warned the court that he was leaving for vacation and that the court would have to "put chains on me” to prevent him from doing so.

As trial continued, repeatedly stalled by Hayes’s chastising of the court and the prosecutor, he began to refuse to call available witnesses, challenging the court to deny him his right to call witnesses in the order he desired. He did this knowing full well that some of these witnesses were not then available, but had been previously or would be shortly in the future. In one sequence, for four out of five days no defense witnesses were heard, although full days were reserved for trial.

Hayes responded to this charge of delay by stating:

"Mr. Hayes: That’s right. Look I’ve tried to cooperate with you, Mister Elliott, and you are—
"The Court: Judge Elliott.
"Mr. Hayes: Judge Elliott. That the electorate did, not me, I’ll tell you.
"The Court: That could be.
"Mr. Hayes: Never and I hope that electorate never makes the mistake again.
"But regardless, they can confer office, they can’t put wisdom on the bench.
"I want to tell you this: I will cooperate, and I have cooperated in every way. I have gone to the war in this case, and I’ll go to the war forever in this case. I want it — I do not ever wish you to judge me and my motives, and when you suggest that I would have been so dishonorable as to consider myself before I would consider that man, I want to tell you that it’s not true and it will never be true.”

Plaintiff continually subpoenaed witnesses for the defense, knowing that they had no possible relevant testimony to give. When certain of these subpoenas were quashed, Hayes had new ones issued and had Buder, his investigator, serve them at all hours of the day and night.

Hayes’s indecorous behavior continued when he accused the victim’s husband of "planning crimes” as a member of a crime commission in Genesee County. Plaintiff then commenced to refer to proceedings held in chambers by the court as "star chamber” proceedings. He accused the court of calling him a liar. He contended that the court was rushing the case, hurrying up the trial to railroad his client, even though trial began June 15, 1971, and did not end until August 5, 1971, with the court having been in session 29 days during that period. In addition, although the court made repeated entreaties to Hayes to present his witnesses or rest his case, plaintiff continued to appear in court sans witnesses.

Hayes later threatened to put the judge on the stand as a witness and cross-examine him with regard to his "prior record”. When the prosecutor moved to have the court give prior approval to any subpoenas issued by defense counsel before the witness would be required to appear, Hayes retorted:

"I’ll give you notice right now, Judge, if you grant that motion I will tell you I’m advising then Mr. Strodder and myself, we will not participate any further in the proceedings. If we can’t investigate and subpoena people, we shall not appear — I will not personally appear.”

Near the end of trial, plaintiff informed the judge that he had instituted proceedings in Federal court to remove the case from the trial court. The following day of trial, he told the court that he had filed an interlocutory appeal with this Court to take the case out of the trial court’s hands and that the court should delay further proceedings until a decision was reached. The court understandably refused this request.

Some 86 witnesses were called by defense counsel and did in fact testify. As the case drew to a close, Hayes claimed he had 26 more witnesses to subpoena but refused to divulge what, if any, relevant testimony any of these witnesses would give. Upon the prosecution’s motion therefor, the court ordered the proofs closed.

Also important is the fact that Hayes voluntarily appeared on television during the course of the Strodder trial and freely discussed the case. In his answers to interrogatories in the within case, as well as in his deposition testimony, Hayes admitted asserting on television that the victim’s husband committed the murder.

It should be noted Hayes apologized to the court on several occasions.

"And I’m truly sorry if I’ve hurt you personally, I never intended to do so, and that is my word for whatever that’s worth.”

Near the end of trial, Hayes again professed regret for his actions:

"Now a final point, I want to apologize to the Court for anything I have done, and I know I’ve done some things that have been personally offensive to the Court. I did anything and everything I did with my conscience to the best interest of my client as I saw it.
"I do not wish to exonerate myself of some of the misbehavior I know I engaged in; that is, on a number of occasions I was rude to the Court, I did yell and shout, I did say things that I shouldn’t have. I apologize to you personally; I really don’t mean to do that, and I’m really sorry.” People v Strodder, supra, 209.

The trial judge, in finding the defendant guilty as charged of first-degree murder, stated:

"I do not have the slightest doubt of his guilt of this murder in the first degree. There is not a speck of evidence in support of the transparent and inherently unbelievable fabrication he recently concocted at the invitation of his lawyer.” People v Strodder, supra, 209-210.

In its memorandum opinion of December 22, 1977, regarding defendants’ motion for summary judgment, the trial court in this case cited liberally from portions of the transcript of the Strodder trial, deciding that when William J. Hayes assumed the defense of Mandric Strodder, his conduct became the subject of fair comment and criticism, no matter how severe or caustic. Criticism goes with the acceptance of the spotlight. The court concluded that the article or publication must be viewed as a whole and, as such, was substantially true.

Plaintiff submits two questions to be determined on appeal, contending that summary judgment was not supported by affidavits as required by GCR 1963, 117.2(3) and that there is a genuine triable issue of fact as to whether or not the statements published in the Flint Journal were true and whether actual malice was present.

The basis for granting summary judgment under GCR 1963, 117.2(1) is the failure of the plaintiff to state a claim upon which relief can be granted. The basis for granting a summary judgment under GCR 1963, 117.2(3) is that the movant, here the defendants, is entitled to judgment as a matter of law because there is no genuine issue as to any material fact.

Plaintiff indicates in his brief that the orders granting summary judgment are both based upon a written opinion of the trial judge dated December 22, 1977, and that the opinion itself is based in large part upon the transcript of the criminal trial which gave rise to the articles in the Flint Journal. Plaintiff submits that his complaint sets forth a cause of action against defendants under the requirements established in New York Times v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), for alleging a cause of action by a public figure. Defendants did not contend in their motions for summary judgment that plaintiff failed to state a cause of action. Thus, it is evident that the motions for summary judgment were granted pursuant to GCR 1963, 117.2(3), even though the trial judge did not explicitly so state in either of his opinions or the orders. The defendants state in their brief that it was apparent at the time of the motions for summary judgment and is equally apparent now that the language complained of constituted commentary on the manner in which the defense in the Strodder trial was conducted by plaintiff'William Hayes. That is to say the comments were about events which were matters of record in the trial transcript of the case of People v Strodder. Accordingly it was and is defendants’ position that the merits of plaintiffs case would and should be decided with reference to the question of whether the transcript supported the commentaries made by the defendants, as described and underscored in Count I of plaintiffs complaint. Put another way, the question is whether the comments concerning the trial were: a) truthful; b) fair editorial comments; c) reporting of judicial proceedings; or, d) not published with "actual malice”, as defined in New York Times v Sullivan, supra, and its progeny.

Based on what has been submitted to this Court for consideration it can only be concluded the trial court granted the motions for summary judgment of dismissal under GCR 1963, 117.2(3).

Plaintiff, in one of the two questions submitted for this Court’s determination, argues that the summary judgments were improperly granted because the motions therefor were not supported by affidavits.

With respect to a motion for summary judgment made under GCR 1963, 117.2(3), GCR 1963, 117.3 provides in relevant portion:

".3 Motion and Proceedings Thereon. A motion based upon subrule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. The affidavits submitted by either party shall be governed by the provisions of subrules 116.4, 116.5, and 116.6. Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing.”

Neither the plaintiff, while acting initially pro se, nor, thereafter, retained counsel filed any objection to the motion for summary judgment as to Count I or to the motion for summary judgment as to Count II in the court below, or to first application for leave to appeal, on the basis that defendants’ motions for summary judgment were not supported by affidavits.

Summary judgment as to Count I was entered by the trial judge on January 25, 1978, and was approved as to form and content by plaintiff. The circuit judge stated that oral argument was had on the motion and that the granting of the summary judgment of dismissal was based on the court’s review of defendants’ motion and the briefs in support thereof, of plaintiff’s answer and supporting briefs and of the transcripts of various depositions and the Strodder trial.

The stipulation and agreement signed by the parties provides that this appeal may proceed without a transcript of the oral argument made at the hearing on the motions for summary judgment. Further, it also provides that the only relevant transcript in this matter is the trial transcript from People v Strodder.

Considering the recitation by the trial judge as to what he relied upon in granting summary judgment, the stipulation and agreement making the Strodder transcript the only relevant transcript in this proceeding, as well as the answers to proffered interrogatories in the within cause, it does not appear to us that the filing of affidavits did or would presently serve an essential function in the disposition of this matter on the merits.

In DeMare Brothers Construction Co, Inc v Teska, 49 Mich App 642; 212 NW2d 602 (1973), the Court held that it was reversible error to grant summary judgment pursuant to GCR 1963, 117.2(3) unless the motion for summary judgment was supported by affidavit. It is worth noting that Judge Adams in his concurring opinion in the DeMare Brothers case questioned the wisdom of a "per se reversible error” rule where the record on appeal demonstrates that the grant of summary judgment was justified although the successful movant failed to file an affidavit in support thereof. However, we need not confront this, for we conclude that plaintiffs failure to raise the affidavit issue at the trial level precludes appellate review of the claimed error. Hudson v Maher, 55 Mich App 90, 93; 222 NW2d 47 (1974).

In New York Times v Sullivan, supra, the United States Supreme Court held that a public official who sues a news media defendant for defamation must prove that, in publishing a defamatory statement, the defendant acted with "actual malice”, i.e., with knowledge of the falsity of the defamatory material or with a reckless disregard for its truth or falsity, before that official may recover damages. The same requirement is held to apply to "public figures” who sue in libel on the basis of alleged printed falsehoods. Curtis Publishing Co v Butts, 388 US 130; 87 S Ct 1975; 18 L Ed 2d 1094 (1967).

Where one has "projected himself into the arena of public policy, public controversy and pressing public concern”, he is precluded by the constitution from recovering for published nonmalicious defamatory statements of and concerning him. Pauling v Globe-Democrat Publishing Co, 362 F2d 188 (CA 8, 1966).

The plaintiff has conceded his status as a public figure for purposes of the instant action. In addition, conceded or not, the facts support a conclusion that plaintiff was a public figure. Hayes, by the manner in which he conducted himself in a public judicial proceeding, invited attention and comment, and did so as well by taking affirmative steps to attract attention when he consented to television as well as to newspaper interviews. Thereby, he thrust himself "to the forefront of [a] particular public controversy] in order to influence the resolution of the issues involved”. Gertz v Robert Welch, Inc, 418 US 323, 345; 94 S Ct 2997; 41 L Ed 2d 789 (1974), Time, Inc v Firestone, 424 US 448, 453; 96 S Ct 958; 47 L Ed 2d 154 (1976).

As a public figure in a defamation action where a qualified privilege exists, the First and Fourteenth Amendments preclude recovery absent proof that the defendant published damaging falsehoods with actual malice. Curtis Publishing Co v Butts, supra, Arber v Stahlin, 382 Mich 300; 170 NW2d 45 (1969). A qualified privilege to report on events affecting a judicial proceeding arises out of the public’s interest in the administration of justice. Peisner v Detroit Free Press, Inc, 82 Mich App 153; 266 NW2d 693 (1978).

"Actual malice” here means knowledge of the falsity of the published statements or reckless indifference as to whether they were true or false. Actual malice is to be distinguished from a bad or corrupt motive or some personal spite or desire to injure the plaintiff. Beckley Newspapers Corp v Hanks, 389 US 81, 82; 88 S Ct 197; 19 L Ed 2d 248 (1967).

While this Court has previously ruled that the mere allegation of malice is sufficient to state a cause of action for defamation, Parks v Johnson, 84 Mich App 162; 269 NW2d 514 (1978), lv den 405 Mich 820 (1979), Brunn v Weiss, 32 Mich App 428; 188 NW2d 904 (1971), Federal courts have held that a plaintiff seeking to recover for an alleged libel must make an affirmative showing of facts from which defendant’s probable knowledge of falsity can be constitutionally sustained. See, e.g., Cerrito v Time, Inc, 302 F Supp 1071, 1075 (ND Cal, 1969), aff'd 449 F2d 306 (CA 9, 1971).

In commenting on the use of the summary judgment mechanism in defamation actions, the court in Cerrito, supra, reasoned that:

"Summary judgment is an integral part of the constitutional protection afforded defendants in actions such as this. Plaintiff has purposely been given the heavy burden of proving actual malice * * *. When it has been established * * * that he cannot meet it, the First Amendment makes it incumbent upon the Court to grant defendant’s motion for summary judgment.” 302 F Supp 1071, 1075-1076.

Therefore, the mere allegation of actual malice is not, without more, sufficient to raise a material issue of fact, particularly where, as here, defenses of a constitutional dimension are raised.

In order for a public figure to establish actual malice, that class of plaintiff must prove that the defendant in fact entertained serious doubts as to the truth of his publication, at least absent proof of a knowing falsehood. This standard is but a reformulation of the "reckless disregard for truth” prong of the actual malice proof requirement. Herbert v Lando, 441 US 153; 99 S Ct 1635; 60 L Ed 2d 115 (1979). While Herbert v Lando, supra, was not decided until 1979, the case merely confirmed the discovery technique of inquiring into the editorial processes and the very state of mind of those responsible for the challenged publication, which practice has been utilized since the Supreme Court decided New York Times v Sullivan, supra, in 1964. From the date this action was filed, June 15, 1972, to January 10, 1975, the date the motion for summary judgment on Count I was filed, discovery was engaged in, which included interrogatories as well as depositions. This provided plaintiff with ample opportunity to delve into the editorial processes of defendants.

Plaintiff, when met with a motion for summary judgment, must demonstrate facts which raise an issue of malice. In Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965), our Supreme Court held that:

"When properly challenged, plaintiff must establish that he has a case on the law and that there are some evidentiary proofs to support his allegations as to any material fact.” Id., 638.

In Lawrence v Fox, 357 Mich 134; 97 NW2d 719 (1959), the Court held that a newspaper, when commenting upon the performance of duties by a public official, was invested with a qualified privilege. Id., 146.

"The showing of malice required for the forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff, and evidence of lack of malice (e.g., source and bases of information) may be introduced to sustain the privilege in the face of attack upon it, as well as in mitigation of damages should the privilege fall.” Id., 146-147.

Such rationale is equally applicable where the plaintiff is a public figure, especially when he is also an officer of the court.

Absent any proof of actual malice, as that term has meaning within the rubric of the First Amendment, defendant’s motion for summary judgment as to Count I was properly granted. Review of the trial transcript convinces us that the publication was fair comment on the judicial proceeding, substantially true and published without actual malice. The factual sufficiency of this count of plaintiffs complaint was tested and failed.

The analysis with respect to the summary judgment granted as to Count II is no different from that offered above. We reach the same conclusion thereon, since the required proof of malice was lacking.

Affirmed. Costs to defendants.

       That editorial, as it appeared in plaintiff’s complaint, read as follows:
      " 'BAR SHOULD FACE NEED TO POLICE MEMBERS’
      "Like our readers, we watched with dismay the progress of the trial of Mandric V. Strodder, 18, who was convicted of the rape-murder of a Flint woman.
      "It was not necessary to be a close student of courts and trials to realize that this was a travesty, a mocking of what our judicial system is designed to be.
      "Therefore, we are encouraged by the report that Circuit Judge Philip C. Elliott will cite the defense attorney, William J. Hayes, to the State Bar of Michigan.
      "Our concern is not merely with this case, as blatant an example as it is, but with the very grave problems it presents.
      "Of course, one of these serious problems must be the failure of the system to protect members of society from such tragic affairs as this offense. It is a sad commentary on our attempts to get 'bargain rates’ in our penal and mental health programs that this man despite his record and his continuing offenses, had been turned loose just weeks before he committed the crime of which he was convicted.
      "But the problem to which we address ourselves at this time is the assault on our judicial process and the need to remove the tarnish from its image.
      "The trial was a showcase of many of the ills in our courtrooms. It included the obvious attempts to involve innocent persons for the purposes of sensationalism; the attempts to muddy the waters by parading witness after witness to the stands when they had nothing relevant about which to testify; the repeated instances in which the defense was not prepared and did not have witnesses on hand.

        "The scarcely veiled attempts to discredit the court and to trespass beyond the rules of evidence were exceeded only by the obviously irregular activities of a disbarred attorney coaching Hayes and serving as "publicity director” for the defense.

        "Added to the other offenses was the attempt to use the news agencies to inñuence the case, including one instance in which Hayes most clearly violated the canons of the bar by appearing on a local television show during the trial and making wild charges about the case.

      "The people of Genesee County should be grateful that Judge Elliott met the challenge of this conduct with a steady restraint which can only do credit to the bench. Furthermore, it is gratifying to know that he recognizes the seriousness of these offenses and is not willing to sit back and be pleased that his tribulations are past.
      "One thing that becomes evident from this case is the need for a reformation of certain rules which will permit the removal from the case of attorneys or others whose disruptive tactics are degrading our courts without raising the question of double jeopardy or mistrial.
      "The only way to prevent the growth of such practices and to restore the necessary decorum to our courts is to make it completely —and quickly — unprofitable for attorneys to resort to such tactics in the name of 'defending’ the accused.
      "It is a myth and a distortion promulgated and advanced by those whose interests it serves to argue that the antics of such attorneys as William Kunstler are 'necessary’ to protect individuals from persecution by 'society.’
      "There are more than sufficient legal safeguards built into our judicial system to provide a far better defense than open defiance of the necessary rules for court procedure. Furthermore, there are more than enough competent defense attorneys who are not intent upon tearing down the judicial system so that those who are can be safely denied the opportunity.
      "Because it is essential to our society, it is certain that some methods of curbing this growing antiprofessionalism among some lawyers will be devised.
      "IT IS OUR opinion that the best avenue for arriving at solutions which can effectively end this threat while still doing as much as necessary to protect the rights of the individuals must be within the profession itself through its bar associations.
      "If the bar wishes to maintain its privileged position in our society, it bears a grave responsibility to police itself and assume its duties as 'officers of the court’.
      "It must overcome its obvious reluctance to correct the trespasses of its fellow members and to punish the trepassers [sic] without waiting for outside pressures to move it to act.
      "Any society has a strong will toward self-preservation. Therefore, if the bar does not keep order in its own house, society will feel threatened and will move to do the job in other ways. Most such options would be less satisfactory and all of them would be more dangerous.”
      The underscoring was done by plaintiff in his original complaint in this matter, the plaintiff contending that the underlined statements were untrue, unfair, and published with malice or a reckless disregard for the truth thereof and for plaintiffs rights, reputation and professional standing and, as such, were libelous per se.

        New York Times v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964).

       The delay of nearly three years between the filing of defendants’ motion and the issuance of the lower court’s opinion is unexplained in the record, other than a brief reference to the time required to review the trial transcript of People v Strodder.


author: P. C. Elliott, J.

text:
    PEOPLE v SMITH
    Docket No. 43594.
    Submitted December 12, 1979, at Detroit.
    Decided June 3, 1980.
    Kenneth Smith was convicted of receiving or aiding in the concealment of stolen property over the value of $100, Recorder’s Court of Detroit, Joseph A. Gillis, J. Defendant appeals, alleging that evidence of a prior similar offense was improperly admitted, that the prosecution was erroneously allowed to inquire of defendant’s character witness whether the witness had knowledge of the defendant’s prior crimes, and that the trial court erred by refusing to read the defendant’s theory of the case to the jury. Held:

    1. The evidence of the prior similar offense was properly admitted to refute the defendant’s claim of mistake.
    2. By calling a character witness the defendant put his character in issue. Asking the witness whether he had heard of previous acts of the defendant which were incompatible with the character trait for which the witness was vouching was proper cross-examination.
    3. The instructions given by the trial court fully covered the defendant’s theory. A trial court is not required to instruct the jury in the exact language submitted by the parties.
    4. The defendant’s sentence violated the rule that a minimum sentence may not be longer than two-thirds of the maximum. Accordingly, the minimum sentence is modified to conform to the rule.
    Affirmed, and sentence modified.
    1. Criminal Law — Evidence — Similar Acts — Absence op Mistake — Rules op Evidence.
    Inquiry at trial into a defendant’s prior conviction of an offense similar to that for which he is on trial is permissible to show the absence of mistake on the part of the defendant (MRE 404[b]).

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 323, 324.
    [2] 81 Am Jur 2d, Witnesses §§ 500-504.
    [3] 75 Am Jur 2d, Trial § 608.

      2. Witnesses — Criminal Law — Character Witnesses — Rules of Evidence.
    A character witness may properly be asked on cross-examination whether he has heard of previous acts of misconduct by the defendant that are incompatible with the character trait for which he is vouching; by calling a character witness, a defendant makes his character an issue (MRE 405, 608).
    3. Criminal Law — Trial — Theories of Parties — Instruction to Jury — Court Rules.
    A trial court must instruct the jury on the issues in the case and the theories of the parties; each party is to submit a statement of issues and its theory at the close of the evidence, but the trial court need not use the language submitted by the parties if the court’s instructions cover the material substance of the issues and theories (GCR 1963, 516.7).

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

      Bernstein, Rabinovitz & Weitzman, P.C., for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   P. C. Elliott, J.

Defendant was charged with (Count 1) breaking and entering a railroad boxcar, MCL 750.110; MSA 28.305, and (Count 2) receiving or aiding in the concealment of stolen property of value over $100, MCL 750.535; MSA 28.803. The jury found him guilty of the second count and he was sentenced to prison.

Because of a series of thefts, railroad detectives were watching from an empty boxcar when, between 3 and 4 a.m., they observed two men walking toward boxcars loaded with new tires. After hearing a boxcar seal broken and the door opened, the detectives followed the men as they walked and jogged away, each carrying two tires under each arm. They saw the men place the eight tires in bushes near a street and disappear in different directions. Two minutes later, defendant, wearing clothing like that seen on one of the thieves, drove his car to the tires and placed three of them in his trunk.

Defendant testified that he was driving from Ann Arbor to Detroit to visit a girlfriend and happened to see tires near the railroad tracks beside the road. He said he parked and watched the tires for half an hour, and, when no one came up to them, he backed up to them, placed two tires in his trunk and ran, due to fright, when the detectives approached.

The judge, exercising his discretion, denied a defense motion to suppress defendant’s admittedly bad record under MRE 609. On direct examination defendant answered "Yes” to his lawyer’s question: "Mr. Smith, have you ever been convicted of a felony?” Because the prosecutor did not cross-examine defendant about his record we need not consider the MRE 609(a) ruling.

Instead, the prosecutor brought out that the defendant had been arrested on another, earlier occasion for breaking into a railroad boxcar and stealing tires which resulted in a conviction. The court permitted this inquiry under MRE 404(b). That ruling was proper. The prior similar act of theft of tires from a boxcar made improbable defendant’s claims of mistake. Essentially his story was that he mistakenly thought the eight new tires had been discarded and that the detectives were wrong when they identified him as one of the men seen carrying away the tires from the opened boxcar. Moreover, the jury learned of that earlier similar crime later, during cross-examination of a character witness called by defendant.

The character witness testified that he knew defendant’s reputation for truth and veracity to be good. Before cross-examination of this witness, the prosecutor obtained the court’s permission to inquire into the witness’s knowledge of defendant’s prior crimes that had resulted in convictions. The previous crimes involved theft or use of a false name. Crimes of theft, dishonesty or false statement especially discredit the offender’s veracity. Conversely, when a person is accused of a crime involving theft, evidence that he has a reputation for truthfulness connotes a basic honesty that is inconsistent with the crime charged. The purpose of the character evidence is to persuade the jury of the truthfulness of defendant’s denial of theft or knowledge of theft by others. Asking a character witness whether he has heard of previous acts of misconduct that are incompatible with the character trait for which he is vouching is proper cross-examination. MRE 405 and MRE 608. By calling the character witness, the defendant has made his character an issue. See People v Fields, 93 Mich App 702; 287 NW2d 325 (1979). In Michelson v United States, 335 US 469, 479; 69 S Ct 213, 220; 93 L Ed 168, 175 (1948), Justice Jackson, for the majority, stated:

"The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.”

See also People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958).

In this case, the character witness was asked whether he had heard of the prior conduct resulting in criminal convictions. The questions were not groundless innuendo, nor was the prior conduct remote. The inquiry was relevant to the issue being tried. The court’s jury instructions included CJI 5:2:05, 06 and 08 which adequately covered the subject. These instructions would be misleading if a character witness for a defendant could not be challenged by asking him whether he knew of a long history of thievery, dishonesty and other misconduct pertinent to the reputation to which he attests.

Proof of defendant’s past thefts, including stealing other tires from a boxcar, was not admissible to prove propensity, but surely the jury was entitled to know the truth about a defendant who testified, contradicted eyewitnesses, claimed mistake and put his character on the line by calling a character witness.

Finally, we find no merit in the other claims of error presented. The instructions fully covered defendant’s theory although the judge refused to read the handwritten "theory” given to the court after the judge had completed his instructions. See the footnote to People v Van Wyck, 72 Mich App 101, 104; 249 NW2d 311, 313 (1976), and see also People v Fountain, 392 Mich 395, 401; 221 NW2d 375, 378 (1974). GCR 1963, 516.7 mandates that the court instruct on the issues and theories of the parties (the court did this), that each party must submit his statement of issues and theory at the close of the evidence (defense counsel did not do so), and that the court need not use the submitted language if the instructions cover the material substance of the issues and theories (which occurred^_

Defendant was sentenced to a term of 3-1/2 to 5 years. It is the law of this state that the minimum term could not be more than 3-1/3 years, two months less than the minimum term imposed. People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), and Brinson v Genesee Circuit Judge, 403 Mich 676; 272 NW2d 513 (1978). Although the error was not raised on appeal, we reduce his minimum sentence to 40 months. GCR 1963, 820.1(7).

Affirmed as modified.

       The jury was not instructed that it could not convict defendant on Count II unless they were satisfied that he did not steal or assist in the stealing of the property received or concealed. See People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Rather, the jury was instructed to choose between possible verdicts of not guilty or guilty of one or the other, but not both, counts. Defendant benefited by conviction of the lesser crime.

       The sentence transcript contains the following remarks of defense counsel: "We go through his back record, and we know he’s used a number of different names, and we know he’s had a bad record, no question about it * * It is difficult to ascertain his conviction record precisely from the transcripts and court file, but, apparently, he has been convicted three times of simple larceny and three times of receiving or aiding in the concealment of stolen property and once of attempted grand larceny and once of attempted receiving or concealing stolen property worth more than $100 and once for loitering on railroad property and once for possession of narcotics paraphernalia. At the time of the last mentioned conviction, at least, he used a false name. One of the simple larceny convictions resulted from plea-bargaining after arrest for breaking into a railroad boxcar and stealing tires.

        People v Major, 407 Mich 394, 398; 285 NW2d 660, 663 (1979), said:
      "The legitimacy of similar acts evidence generally is its tendency either to identify the defendant as the unknown actor in an alleged criminal act or to negate the suggestion, normally advanced by the defendant, that the act in question, although performed by him, was not criminal because it was unintended, accidental, a mistake or otherwise innocent.”

       In Gordon v United States, 127 US App DC 343, 347; 383 F2d 936, 940 (1967), Judge, now Chief Justice, Burger said:
      "In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.”

      "9 'The reason for exposing the defendant’s prior record is to attack his character, to call into question his reliability for truth-telling * ** (Citation omitted.)

       "Otherwise a defendant, secure from refutation, would have too clear a license unscrupulously to impose a false character upon the tribunal.” 1 Wigmore on Evidence (3d ed), § 58, p 458.


author: N. J. Kaufman, J.

text:
    PEOPLE v REESE
    Docket No. 43897.
    Submitted April 9, 1979, at Lansing.
    Decided June 3, 1980.
    Freddie L. Reese was convicted of breaking and entering an occupied dwelling with intent to commit larceny therein in Saginaw Circuit Court, Joseph R. McDonald, J. Subsequently, the prosecutor filed an information charging defendant as an habitual offender. Upon his plea of guilty to the habitual offender charge, the defendant was sentenced to 5 to 22-1/2 years imprisonment. The defendant appeals, alleging that the prosecutor erred in that a prosecutor with knowledge of a defendant’s prior felony record must proceed promptly, if at all, against the defendant as an habitual offender. Held:

    1. Habitual offender charges should be filed by a prosecuting attorney with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.
    2. The Court of Appeals will look to the following three factors in determining whether a new Supreme Court ruling should be applied retroactively or prospectively: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. The rule established by the Supreme Court in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), regarding a supplemental information charging a defendant as an habitual offender subsequent to conviction on a current charge should be applied to future cases and to all cases which were pending on appeal at the date of the Fountain decision.
    Reversed and remanded with instructions.
    1. Criminal Law — Courts — Rules of Law — Retroactive Application.
    The Court of Appeals will look to the following three factors in determining whether a new Supreme Court ruling should be applied retroactively or prospectively: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice.

      References for Points in Headnotes
    [1, 2] 4 Am Jur 2d, Appeal and Error § 300.
    5 Am Jur 2d, Appeal and Error § 729.
    [3] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 19.

      2. Criminal Law — Rules op Law — Retroactive Application — Habitual Offenders.
    The rule established by the Supreme Court in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), regarding prompt filing of a supplemental information charging a defendant as an habitual offender subsequent to conviction on a current charge should be applied to future cases and to all cases which were pending on appeal at the date of the Fountain decision.
    3. Criminal Law — Habitual Offenders — Notice — Filing.
    Habitual offender charges should be filed by the prosecuting attorney with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, Linda Berns Wright, Appellate Prosecuting Attorney, and Kay F. Pearson, Assistant Prosecuting Attorney, for the people.

      Ronald J. Bretz and Ronald G. Kirschenheiter, Assistant State Appellate Defenders, for defendant on appeal.
    Before: D. C. Riley, P. J., and R. B. Burns and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with the intent to commit larceny therein in violation of MCL 750.110; MSA 28.305. Subsequently, the prosecution filed an information charging defendant as an habitual felony offender under MCL 769.10; MSA 28.1082. Defendant pled guilty to this habitual offender charge and was sentenced to a term of 5 to 22-1/2 years imprisonment, with credit for 167 days served. Defendant appeals as of right under GCR 1963, 806.1.

Defendant raises only one allegation of error. In People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), the Supreme Court held that a prosecutor who knows a defendant has a prior felony record must proceed promptly, if at all, against the person as an habitual offender. We must consider whether Fountain is applicable to the present case and, if it is, whether the prosecutor’s actions herein satisfied the requirements of Fountain.

The issue as to whether a new rule of law should be applied retroactively or only prospectively is one which the courts have discussed in detail in numerous cases. See, e.g., Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965). In Linkletter, as in People v Gay, 407 Mich 681; 289 NW2d 651 (1980), People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), and People v Markham, 397 Mich 530; 245 NW2d 41 (1976), a three-pronged test was proposed to govern decisions on retroactive versus prospective applications. This tri-tiered analysis calls for an examination of "(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice”. Hampton, supra, 674.

Initially, we note that the Supreme Court has previously expressed approval of the prompt filing of charges against a defendant as an habitual offender when the prosecutor has knowledge of the defendant’s prior felony record, People v Hatt, 384 Mich 302; 181 NW2d 912 (1970). However, this procedure was not mandated until Fountain, supra.

There are a variety of ways this Fountain procedural mandate may be given effect. See Placek v City of Sterling Heights, 405 Mich 638, 662; 275 NW2d 511 (1979). A new rule of law may be made applicable, for example, to future cases and all pending cases or to future cases and the case at bar. In People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), the Court limited the application of the new rule of law therein to the case at bar and all cases tried after an arbitrarily selected date. A ruling which merely restates or clarifies existing law, on the other hand, must be applied to the broadest category of cases, as nothing new is required which was not already mandated.

After balancing these considerations we believe that the rule of Fountain should be applied to future cases and to all cases which were pending on appeal at the date of the Fountain decision. The present case should therefore be judged by the requirements of Fountain in the interest of the administration of justice.

In Fountain, the defendant was charged as a fourth offender after he filed an appeal on the underlying conviction. In People v Jones, a case decided with Fountain, the defendant was charged as a third offender before sentencing but after conviction on the principal charge. In both cases the filings fell short of the "promptness” mandate and the habitual offender sentences were vacated. Because each defendant had a prior felony record in the jurisdiction in which he was being charged, the Court presumed that the prosecutors had knowledge of these felony records. Consequently, the Court held that:

"The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.” 407 Mich 99. (Emphasis added.)

The defendant in the present case had a prior felony record in the jurisdiction in which the breaking and entering charge was brought. Under Fountain, we must presume that the prosecutor had knowledge of the defendant’s prior record. The prosecutor, however, did not charge the defendant as an habitual offender until after defendant was convicted on the breaking and entering charge. Under the circumstances of this case, we believe that the only way in which the prosecutor could have satisfied the requirements of Fountain would have been to charge the defendant as an habitual offender at the same time as the defendant was charged on the principal felony. Therefore, we vacate defendant’s habitual offender sentence and remand for sentencing upon defendant’s breaking and entering an occupied dwelling with intent to commit larceny conviction, MCL 750.110; MSA 28.305.