author: Beasley, J.

text:
    SIGNS v THE DETROIT EDISON COMPANY
    Docket No. 78-192.
    Submitted May 4, 1979, at Detroit.
    Decided November 19, 1979.
    Leave to appeal applied for.
    Plaintiffs decedent, Kenneth Signs, was an employee of R. L. Coolsaet & Sons, Inc. (Coolsaet). Defendant The Detroit Edison Company (Edison) contracted with defendant Consumers Power Company (Consumers) to construct additional gas facilities at one of Edison’s substations. Consumers contracted with Coolsaet to remove and replace old pipe and concrete, among other things. Ames, another Coolsaet employee, was operating a crane when it came in contact with or very close to some of Edison’s high voltage lines, resulting in the electrocution of Signs. Plaintiff, Linda Signs, widow of the deceased, collected worker’s compensation benefits from Coolsaet. Plaintiff then brought an action for damages against Edison in the Wayne Circuit Court alleging negligence resulting in decedent’s death. She later added Consumers and others as defendants. Plaintiff contended that Consumers was negligent in failing to provide for the safety of defendant and other Coolsaet employees by determining whether the overhead wires were hot and, if so, by taking steps to warn of them, have them de-energized or stop construction near them. Consumers claimed that it was insulated from liability to employees of its independent subcontractors. At trial it was disclosed that Coolsaet was the only subcontractor working on the project, that Consumers had a representative on the construction site who considered his job to be one of "inspector” and that Coolsaet was obligated to operate in a safe manner. At the close of plaintiffs proofs, the trial court, Patrick J. Duggan, J., granted Eidson’s motion for a directed verdict and denied one made by Consumers. The jury returned a verdict for plaintiff against Consumers and the court denied motions for a new trial and judgment notwithstanding the verdict. Consumers appealed and plaintiff cross-appealed. Held:

      References for Points in Headnotes
    [1, 2] 13 Am Jur 2d, Building and Construction Contracts § 135.
    General contractor’s liability for injuries to employees of other contractors on the project. 20 ALR2d 868.
    [3] 75 Am Jur 2d, Trial § 610.
    [4] 47 Am Jur 2d, Jury § 242.
    Number of peremptory challenges allowable in civil case where there are more than two parties involved. 32 ALR3d 747.

      1. A general contractor is generally insulated from liability for injuries to employees of an independent subcontractor. However, a contractor who retains control over any part of the work may come within an exception to the general rule and be liable. Consumers’ placing of an inspector at the site, part of whose function was to protect the safety and integrity of the electric and gas installations, constituted a sufficient degree of control over the project to give rise to a duty on the part of Consumers to exercise reasonable care for the safety of plaintiffs decedent.
    2. The trial court did not err in giving instructions taken from the Standard Jury Instructions and refusing to give certain requested instructions which were argumentative and slanted.
    3. The trial court did not err in submitting the issue of proximate cause to the jury because, even though Coolsaet’s employees were aware of the high voltage lines, reasonable persons could conclude that there were steps Consumers could have taken which would have prevented the accident.
    4. The trial court did not err in granting plaintiff six peremptory challenges where there were four defendants, since the court rules give the court discretion to grant up to three per defendant where the defendants have adverse interests.
    5. The trial court did not err in directing a verdict for Edison, the owner of the property, since nothing in the design or placement of the high voltage wires suggested that contact with a crane could be anticipated.
    Affirmed.
    1. Master and Servant — Negligence — General Contractor — Subcontractor.
    A general contractor is generally insulated from liability for injuries to employees of an independent subcontractor; however, a contractor who retains control over any part of the work may come within an exemption to the general rule and be liable.
    2. Master and Servant •— Independent Contractor — Negligence.
    A general contractor’s placing of an inspector at the jobsite constitutes a sufficient degree of control over the project to give rise to a duty on the contractor’s part to exercise reasonable care for the safety of employees of a subcontractor where part of the inspector’s function is to protect the safety and integrity of the installations on the site.
    3. Trial — Instructions to Jury — Standard Jury Instructions — Court Rules.
    The court rule providing that pertinent portions of Michigan Standard Jury Instructions (SJI) shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law requires that the SJI be used whenever they are applicable, accurate, and requested by a party (GCR 1963, 516.6[2]).
    4. Trial — Peremptory Challenges — Court Rules.
    A trial court did not err in granting a plaintiff six peremptory challenges where there were four defendants since the court rules give the court discretion to grant up to three per defendant where the defendants have adverse interests (GCR 1963, 511.5).

      Ripple, Chambers & Steiner, P.C. (by Darrell M. Amlin and Michael S. Mazur), for plaintiff

      W. E. Wisner, for defendant-appellant Consumers Power Company.
    Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

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

   Beasley, J.

Defendant, Consumers Power Company, appeals a $222,000 judgment on a jury verdict in favor of plaintiff for the wrongful death of plaintiffs husband, Kenneth Signs. Plaintiff cross-appeals a directed verdict in favor of defendant, The Detroit Edison Company, granted at the conclusion of plaintiffs proofs.

This death case arises out of the electrocution of Signs on July 14, 1972, at the Detroit Edison Hancock substation in Commerce Township, Oakland County. Signs was electrocuted by a fellow employee who inadvertently brought his crane into contact with one of many Edison high voltage lines located at the electric power substation.

At this substation, Edison has electricity generating facilities powered by gas. To meet increasing demands, Edison contracted with Consumers to construct additional gas facilities at the site, and specifically, install a new meter station to measure gas flow to the Edison facility. In connection with the project, Consumers contracted with R. L. Coolsaet & Sons, Inc., to remove and replace old pipe and concrete, among other things. Signs was an employee of Coolsaet, as was Charles Ames, the crane operator.

On the day of the accident, Ames was operating a boom truck to remove old gas pipe from the area. On top of the truck was a 37-1/2 foot crane used to lift the pipe off the ground and onto a tractor. At the immediate site, 13,200-volt electric lines were 29 feet above the ground. Signs was electrocuted when Ames’s crane came in contact with, or very close to, one of these Detroit Edison high voltage lines while Signs was pushing or otherwise in contact with the pipe held by the crane.

At the time of the accident, only Ames and Signs were in the immediate area, although Frank Dzuris, Jr., Consumers’ representative at the job site, was in the vicinity. Subsequently, plaintiff received worker’s compensation benefits from Coolsaet. Plaintiff then proceeded, on January 26, 1973, to bring suit against defendant Edison for damages. Two years later, on June 27, 1975, plaintiff added defendant Consumers and two others as parties defendant.

Plaintiff charged negligence against Consumers for failure to provide for the safety of Signs and other Coolsaet employees. She contended that defendant Consumers, although placing its representative in the field, did not take steps to insure the safe and workmanlike compliance with the contract, including determining whether the overhead electrical wires were energized and, if so, taking steps to de-energize them, warning of dangerous operation of a boom crane in close proximity to electrical wires, and suspending work as allegedly authorized by the contract.

Defendant countered that an employer of an independent contractor is insulated from liability for injuries to employees of the independent contractor and noted that there are exceptions to this general rule. Defendant claimed that none of these exceptions applied.

After plaintiff presented her case, defendant Consumers and defendant Edison each moved for a directed verdict. The trial court denied Consumers’ motion, but granted that of Edison. As indicated, plaintiff cross-appeals the grant of a directed verdict to Edison.

After the jury verdict in favor of plaintiff, defendant Consumers moved for judgment,, notwithstanding the verdict, or, in the alternative, for a new trial. The trial court filed a detailed, written opinion denying Consumers’ motion.

In reviewing denial of a directed verdict for defendant on completion of plaintiff’s proofs, this Court considers proofs and reasonable inferences therefrom in a light most favorable to the plaintiff. On appeal, we treat this issue together with Consumers’ other claim, on its motion for judgment notwithstanding the verdict, that there was no jury-submissible issue of negligence against Consumers.

At the outset, we note that this case does not necessarily fit into any of the well-recognized compartments that are usually used as bases for analysis.

Detroit Edison is the owner of the land that comprises the construction site, the power lines and the electricity. For some time, defendant Consumers has furnished gas to defendant Edison at this substation and, in order to meet Edison’s expanding need for gas, Edison contracted with Consumers to install new gas supply equipment. In order to avoid any interruption in the flow of natural gas during construction, Consumers constructed a bypass line. It then became necessary to remove and replace the old pipe. Consumers contracted with R. L. Coolsaet & Sons, Inc., to perform that work during which Signs was killed.

Thus, Coolsaet was a subcontractor of Consumers. At the time of the accident neither Consumers nor any other subcontractor was working on this project.

Since the contract between Consumers and Coolsaet is not in evidence, we are left with only the testimony of the construction people as to what they understood their responsibility to be, plus the stipulation that Coolsaet was obligated to operate in a safe manner, as a means of determining the extent, if any, of Consumers’ control over Coolsaet’s operations.

We recognize the general rule which shields a contractor (Consumers) from liability to the employee of an independent subcontractor. We also note the voluminous pages devoted to the topic both by this Court and by the Michigan Supreme Court. We recognize that the type of work involved and the surroundings in which a plaintiff works, as well as the relationship between the independent contractor and the employer, are critical to any analysis of the issue of liability.

The testimony indicates that, during the work performed by Coolsaet, Consumers had a representative on the construction site. The first representative, Richard Garnett, never saw the contract between Consumers and Coolsaet. His supervisor told him of the job and gave him a blueprint of the meter stand in connection with which Coolsaet was to remove and replace pipe and concrete. As he viewed his job, Garnett was to see that the construction proceeded according to the blueprints. Garnett considered himself an "inspector”.

The supervisor told Garnett to be careful about the electric lines at the construction site. At the site, Garnett had a meeting with Coolsaet concerning the construction. Garnett testified that he was concerned about safety because of the numerous electrical lines in the area. He thought that the power would not be shut off for the job because he did not believe it could be done. The Edison employees working on a nearby tower came by at one time and told him to watch out because the electric wires were energized. Garnett was never told that he had authority to shut down the job. He claimed his job was to read the blueprints, not to supervise Coolsaet employees. Garnett went on vacation several days before the accident.

Garnett was replaced by Frank Dzuris, Jr. According to the testimony of Dzuris, the supervisor gave him the blueprints and the assignment. The job assignment was that Dzuris "was to be there to represent Consumers Power”. Dzuris also knew nothing of the contract. He characterized his job as one to inspect, not to supervise. On his first day at work, he introduced himself to the Coolsaet employees. He did not feel he could reject the work without first referring the matter to his supervisor. No one at Consumers gave him any information concerning permissible distances from the power lines. He did not know that the lines overhead carried 13,200 volts, but, even if he had known that information, he would not have considered it his responsibility to warn anyone at the site. He was aware that work was to be performed in a safe manner. Had he been instructed to do so, he would have warned individuals concerning the unsafe conditions (presumably, meaning the presence of "live”, energized, high voltage lines close to where the crane was removing pipes).

The immediate, or direct, cause of the accident was the operation of the boom truck by Ames, the Coolsaet employee, in contact with, or near, the Edison high voltage line. While Ames operated the crane, Signs was on the ground attaching the pipe to the boom cable. Ames saw the wires directly overhead from where he parked the boom truck. He was aware of safety rules which required cranes to remain several feet from electric wires. In fact, he testified he was aware of the 6" X 6" warning sign clearly visible under the controls inside of the boom truck advising to stay eight feet to ten feet away from electrical lines. Ames claims he stopped the crane boom six feet short of the wires and was going to drop the boom when he told Signs to let go of the pipe. At that time, he heard a buzz but warned Signs too late. When Signs was electrocuted, Ames was looking at the ground at Signs, who was handling the pipe. He was not looking overhead at the top of the crane boom.

In the trial court and on appeal, plaintiff relies on Funk v General Motors Corp in which the Court concluded:

"We regard it to be part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen.”

We find Funk distinguishable from the instant case. The Court in Funk limited this holding to the case of a general contractor who is supervising a number of subcontractors on the site. The justification for the holding was that in such a situation the general contractor is in the best position to insure the safety of the job.

In Erickson v Pure Oil Corp this Court noted that Funk requires that two or more subcontractors will eventually work in the same area of the construction site. Two members of the panel found this requirement to be behind the term "common work area”.

We find Funk inapposite, as no evidence suggests that there was more than one subcontractor working at the site of this project. At the time, the only other crew working at Edison’s Hancock substation was some distance away and was erecting a tower unrelated to the gas distribution project. Therefore, if plsiintiff is to prevail, another theory supporting Consumers’ duty, other than that espoused in Funk, must exist. As the inherently dangerous activity theory was not pled by plaintiff, we need not discuss whether such theory would have given rise to a duty on defendant’s part.

The trial judge relied on Estate of Clark in denying a directed verdict and in denying a motion for judgment notwithstanding the verdict or a new trial. In Clark, plaintiff’s decedent, an employee of the general contractor, was killed at a construction project cave-in. There, the trial court held that the general contractor was responsible for the safety of the workers. Under the contract the defendant architect represented the owner and had authority to inspect the construction and to stop work, if necessary, to enforce safety requirements. Twenty percent of his fee was allocated to supervision of the project. Under those circumstances, this Court held that the plaintiffs decedent was within the zone of risk to whom defendant architect owed a duty. There was sufficient evidence for the jury to find that the architect had actual knowledge of the dangerous condition of the wall of the excavation and sufficient time and authority to correct the situation. In upholding the jury verdict against the architect, the Court found that the architect owed a duty to warn workers of danger and breached the duty and the breach was a proximate cause of the death. Clark is neither relevant nor controlling authority here, where the degree of control retained by Consumers is far less than that of the architect in Clark. In a sense, Clark is an architectural malpractice case involving architects who exercise supervisory control over contractors, including the general contractor.

The trial judge also relied on Summers v Crown Construction Co in establishing the duty of defendant to plaintiff. In Summers, plaintiff, an employee of Kent Steel Company, an independent subcontractor, was severely injured when a power crane with a defective clutch owned by Kent dropped a load of steel on him. Plaintiff successfully claimed damages from defendant, who was the owner and general contractor for a shopping center, on the theory that defendant failed to exercise the broad control over safety practices on the job entrusted to it. Although the general contractor and subcontractor executed no written agreement, the general contractor’s employees testified that they were under a duty to report "safety problems” caused by independent contractors. Defendant Crown’s supervisors had authority to require the subcontractors to fix unsafe conditions. The evidence indicated that the clutch had slipped on three previous occasions, the defendant’s superintendent knew of the defect and that, although he had ample time, he did nothing about it. Under these circumstances, the court held that, as a matter of law, the general contractor-defendant had a duty to plaintiff-employee of the subcontractor and was liable if he retained control over any part of the work. Defendant general contractor retained the right to prohibit the subcontractor from performing work in a dangerous manner. Thus, recovery for plaintiff was affirmed. The extent to which Crown is controlling authority here is diminished by the facts: (1) that Crown is a Federal case arising in and subject to Pennsylvania law; (2) that defendant is both landowner and general contractor; (3) the contract and the course of conduct extended greater control over safety practices of the independent contractor on the job with considerably more specificity than in the within case; and (4) defendant owner/general contractor had clear knowledge of an obviously defective, dangerous clutch in ample time to do something about it.

A case upon which the trial court did not rely, and which was not cited by the parties, is instructive regarding whether a duty is owed by defendant Consumers to plaintiff upon which liability might be predicated. In Misiulis v Milbrand Maintenance Corp, defendants Fastenberg, the owners of a shopping center which was managed for them by defendant Woodsmall, entered into a contract for roof repair with defendant Milbrand, an independent contractor. Plaintiff drove his motorcycle into a pile of gravel and debris which defendant Milbrand left in a shopping center roadway, in violation of a provision of the roof repair contract to clear away debris so as not to interfere with tenants or customers of the shopping center.

A jury verdict for plaintiff was affirmed on the basis that defendants, as lessors, were vicariously liable for negligence of defendant-independent contractor in making repairs on the leased premises which resulted in injury to foreseeable business invitees because they had a nondelegable duty to exercise reasonable care in making repairs. We distinguish Misiulis from the within case because it involves duties owed by owner-landlords to tenants and their business invitees which are determined nondelegable. While, for these reasons, Misiulis does not control here, the findings of law are relevant. In Misiulis, this Court observed that the general rule that a contractee is not vicariously liable for injuries to third persons sustained as the result of the negligence of an independent contractor employed by him is noted for its exceptions. The panel distinguished exceptions from the general rule and exclusions from the general rule. An employer may come within an exception to the rule and be vicariously liable. But, the employer may also be within an exclusion to the rule and be personally liable.

The Misiulis Court then went on to cite 2 Restatement Torts, 2d, § 414, p 387, for an exclusion from the general rule of nonliability:

"One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

In determining whether the employer is maintaining sufficient control over the project to subject it to liability, the Misiulis panel cited Comment C to § 414:

" 'It is not enough [to impose liability under this section] that he [the contractee] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right to supervision that the contractor is not entirely free to do the work in his own way.’ (Emphasis added.)” 52 Mich App 494, 500.

"Control” was further examined in McDonough v General Motors Corp:

"An owner contracting to have construction work done on his property cannot reserve to himself '[t]he administration, inspection, assistance and other actions’ which do or may authorize some measure of influence or dominion over the way the work is to be done, and yet maintain as a matter of law that such reservation 'shall not be construed’ as undertaking supervisory control of the work 'or the means and methods employed by the Contractor’.”

Thus, the dispositive issue is: was there enough evidence that Consumers retained sufficient "control” over the project to bring Consumers within the exclusion from the general rule of nonliability? If so, there was a negligence issue for the jury.

As indicated, for purposes of reviewing the denial of Consumers’ motion for directed verdict at the conclusion of plaintiffs proofs, we view the evidence and inferences therefrom in a favorable-to-plaintiff light. However, the appellate measure of the merits of Consumers’ motion for judgment notwithstanding the verdict or, in the alternative, for a new trial requires review of all the evidence on this issue.

The question of whether plaintiff has established that Consumers comes within the exclusion from the general rule of nonliability is one of law for the trial judge.

He reasoned that Consumers had a contract with Coolsaet which obligated Coolsaet "to operate in a safe manner”, that Consumers’ representatives at the site were there to see that Coolsaet performed the contract according to its terms, including the obligation "to operate in a safe manner”, that Consumers’ representative, Dzuris, knew or should have known that Coolsaet had contracted to operate in a safe manner, that Coolsaet was violating the safety rules by operating a crane within six feet of and under power lines that he had reason to believe were live, and that he, Dzuris, had the power and duty to correct this dangerous condition.

The trial judge further found that, in spite of this, Consumers’ representative did not warn the Coolsaet employees and did not shut down the job until the dangerous, unsafe condition was corrected. He concluded that, under these circumstances, Consumers owed a duty to Signs and that there was a fact issue regarding breach and proximate cause for the jury to determine.

In reviewing this issue, we start with the fact that Signs was killed by the active, direct negligence of the crane operator a coemployee of Coolsaet. As indicated, under these circumstances, Consumers, as a contractee of Coolsaet, is not liable unless plaintiff establishes that Consumers comes within an exclusion from the general rule of nonliability. As indicated, although plaintiff did not offer in evidence the contract between Consumers and Coolsaet, there was testimony regarding the construction of the contract which they gave to their relationship.

In this regard, the record demonstrates that Consumers always had a representative on the site. The first representative had been specifically cautioned concerning the electric lines in the area. We can fairly infer that Consumers was properly concerned with industrial safety. In spite of Dzuris’s testimony that he was not informed that he had a duty to watch Coolsaet employees for safe operation, at the time of the accident Dzuris was watching a bulldozer because he was concerned that unsafe operation of the bulldozer might precipitate a violent explosion of the gas main. The placing of a boom truck under the high voltage lines would appear to have been no less a proper subject for safety concerns.

On the other hand, both Consumers’ representatives testified they were not involved in supervision of Coolsaet employees but were concerned only with checking the construction for compliance with the blueprints and specifications. By itself, this limited type of inspection is usually not sufficient "control” to bring a general contractor wihtin the rule in Restatement Torts, 2d, § 414, Comment C.

Although this issue is close and difficult, we do not find the trial judge’s ruling was clearly erroneous when he concluded, as a matter of law, that placing an inspector at the site, part of whose function was to protect the safety and integrity of the electric and gas installations, constituted a sufficient degree of control over the project to give rise to a duty on Consumers’ part to exercise reasonable care for the safety of plaintiffs decedent. Consequently, we do not find that the trial judge’s denial of Consumers’ motion for directed verdict at the conclusion of plaintiffs proofs constituted error. Neither do we find that the trial judge’s denial of Consumers’ motion for judgment notwithstanding the verdict, or, in the alternative, a new trial, was clearly erroneous.

Once we conclude a duty existed, the issues become traditional fact questions of whether defendant Consumers breached the duty and, if so, whether the breach was the proximate cause of damage which, of course, were for the jury under a proper instruction from the judge.

Next, Consumers claims the trial court erred in failing to include in the charge to the jury its proposed instruction on negligence:

"When I use the word 'negligence’, with respect to defendant’s conduct, I mean the failure to do something which a reasonably careful person would do or the doing of something which a reasonably careful person would not do, under the circumstances which you find existed in this case. It is for you to decide what a reasonably careful person would do or not do under such circumstances.
"In this regard, Defendant Consumers Power Company is charged with negligence in failing to determine whether the electrical wires were energized or to take steps to de-energize them and Consumers Power Company is also charged with negligence in failing to give warning of a dangerous operation of a boom crane in close proximity to electrical wires which were observed by its employee in the field. I charge that if you find the employees of Coolsaet and Sons Inc. working on this jobsite the day of the accident knew of the dangers of the electric lines or knew to de-energize them, and the employees of Coolsaet and Sons, Inc. involved are accustomed to working around electric lines and when they knew of the presence of the electric lines in question could have requested that The Detroit Edison Company de-energize the electric lines and considered it necessary, and if you find that there was sufficient room in which the crane could safely work and if you find that members of the Coolsaet and Sons Inc. crew were accustomed to working in the vicinity of electric lines, knew of the dangers presented by electric lines, knew of the presence of the electric line in question and thought they had sufficient room in which to work and could have requested the Detroit Edison Company to de-energize the line if they considered it necessary, then you are instructed, if you find these facts to be true, that Defendant Consumers Power Company had no duty to warn Mr. Signs or other members of his crew of any danger presented by the electric line, that Defendant Consumers Power Company had no duty to take steps to de-energize the electric line, and that Defendant Consumers Power Company had no duty to determine whether the electric lines were energized. Williams v Detroit Edison, 63 Mich App 559 at 573 (1975).”

Instead of giving this instruction, the trial judge instructed according to Standard Jury Instructions 10.01, 10.02 and 10.03, and gave the following charge:

"When I use the words negligence with respect to defendant’s conduct, I mean the failure to do something which a reasonable and careful person would do or the doing of something that a reasonable person would not do under the circumstances which you find existed in this case. It is for you to decide what a reasonably careful person would do or not do under such circumstances.
"When I use the words ordinary care, I mean the care that a reasonably careful person would use under the circumstances which you find existed in this case. The law does not say what a reasonably careful person would do or would not do under such circumstances. That is for you to decide.
"It was the duty of the defendant in connection with this occurrence to use ordinary care for the safety of the plaintiff.”

Consumers’ proposed instruction was taken directly from an instruction approved of in Williams v The Detroit Edison Co. In Williams, the trial court gave the instruction requested by defendant, Detroit Edison; the jury found no cause of action, plaintiff appealed and this Court affirmed. In so doing, this Court concluded that, based on the holding in Koehler v Detroit Edison Co in which Detroit Edison was also the party defendant, the instruction there given was not clearly erroneous. The Williams Court also suggested that in that case an instruction on duty to warn is to be given in both of two contexts: (1) where plaintiff had knowledge or reason to know of the dangerous situation; and, (2) where plaintiff claims he did not. In Williams, the trial court had instructed in both contexts.

In the present case, defendant Consumers is not in the same position that The Detroit Edison Company was in Williams and Koehler, as in those cases Detroit Edison was owner of the instrumentality which caused the injury. In the instant case, beyond dispute, it was well known to the parties that at this electricity power station there were many live, energized, high voltage electricity lines. Their numbers and size were plainly to be seen. In addition, representatives of Consumers and Coolsaet met at the site prior to commencement of the work, and Consumers told Coolsaet to be careful of the electric lines. Consequently, in this case, when we allude to a duty to warn, it is not of a general duty to warn of the presence of high voltage lines. There can be little, if any, question but that Coolsaet’s crane operator was negligent in placing the boom truck under a high voltage line and in picking up pipe from that dangerous location, but, whether Consumers’ inspector (1) saw or should have seen the dangerous location of the crane and, if so, whether he should have done something about it, e.g., warned the crane operator of his obviously unsafe method of operation, (2) required Coolsaet to move the boom truck and to perform the work in a less dangerous fashion, (3) requested Edison to shut down the current, if that was possible, while the pipe and concrete were removed, picked up and replaced, (4) required insulation of the power lines, or (5) compelled some other less dangerous way of doing the work, were subjects concerning which relevant evidence could be offered and arguments of counsel could be had. The consideration by the jury rested within the framework afforded by the general definitions of duty, breach and proximate cause contained in the Standard Jury Instructions.

Consumers’ proposed instruction is argumentative and slanted in its favor. In part, this proposed instruction asks the court to give the jury Consumers’ version of part of plaintiffs theory of liability and Consumers’ version of facts, which alleged facts are pivotal. In addition, Consumers’ proposed instruction is specific with respect to the prongs of its argument that it wishes to emphasize. On the other hand, the Standard Jury Instructions are neutral and leave to the jury the opportunity to sift the evidence and to weigh the conflicting argument with a view to deciding whether Consumers breached its duty to exercise reasonable care. GCR 1963, 516.6(2) provides:

"Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this sub-rule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law.”

In Javis v Ypsilanti Board of Education, the Supreme Court held that use of the SJI is mandatory whenever they are applicable, accurate and requested by a party. We find that the use of SJI 10.01, 10.02 and 10.03 by the trial court was applicable, accurate and generally agreed to by plaintiff.

GCR 1963, 516.6(4) provides:

"This sub-rule does not limit the power of the court to give additional instructions on applicable law not covered by SJI. Additional instructions when given shall be modeled as nearly as practicable after the style of SJI, making them concise, understandable, conversational, unslanted and non-argumentative.”

Under the circumstances of this case, we hold that the trial court had discretion regarding whether or not to give the specific additional instruction requested by Consumers. This is not a case where the specific additional instruction requested by Consumers was required to be given. We find that there was not any abuse of discretion in denial by the trial court of Consumers’ request for the specific instruction.

Next, Consumers contends that there was no issue of proximate cause to send to the jury; that the failure to warn was not the proximate cause of decedent’s electrocution, as both decedent and the crane operator were aware of the energized overhead lines. As previously indicated, we find that reasonable persons could conclude that, even though Coolsaet employees were aware of the high voltage lines, there were steps that Consumers could have taken that would have prevented the electrocution of plaintiffs decedent. Thus, the trial judge did not err in sending the fact issue regarding proximate cause to the jury. We do not find the trial court’s instructions to the jury clearly erroneous.

The final issue regarding the judgment against Consumers that merits discussion is based on the claim that error occurred when the trial judge granted plaintiff six peremptory challenges. Consumers’ argument appears to be based more on the fact that the court chose an unusual formula for determining the number of challenges than that GCR 1963, 511.5 was violated.

GCR 1963, 511.5 gave the trial judge discretion to grant this plaintiff up to three peremptory challenges per defendant (here totalling 12 challenges) because the four defendants had adverse interests. The trial judge granted six because:

"The Court felt that to give Defendants more than twice the number of peremptory challenges allowed Plaintiff would be unfair to Plaintiff. The Court felt that Plaintiff could fairly and adequately represent Plaintiff’s interests with regard to the selection of the jury if Plaintiff had at least half as many peremptory challenges as Defendants. Such decision is and should continue to be strictly within the discretion of the trial court.”

We find this to be a proper exercise of discretion by the trial judge.

We now come to plaintiff’s cross-appeal. Plaintiff claims the trial court erred in directing a verdict for Detroit Edison.

In the trial judge’s opinion directing a verdict in favor of Edison the court found insufficient evidence to establish a duty or breach of duty by Edison. The court cited Koehler v Detroit Edison Co, supra, as controlling. In Koehler, defendant was unloading slabs of concrete from a building by crane. Edison had built an electric distribution line to the building site. The wires were 30 to 35 feet above the ground and uninsulated. Koehler was riding the sling of the crane from the truck bed to the roof and back. He had been warned of the danger of the wires. When his body came too close to the power line, an arc of electricity jumped to his body and killed him. The trial judge directed a verdict in favor of Edison. The Michigan Supreme Court, in upholding the directed verdict, concluded that there was no testimony from which the jury could find that operation of the crane was dangerous because of the distribution line. The mere fact that Edison knew a building was under construction near the power lines and that cranes would be used from time to time, standing alone, did not create a duty on the part of Edison to remove the charge, insulate the wires or warn the parties.

In the instant case, review of the evidence indicates that Edison was not in control of the construction in which Coolsaet employees were involved. It was merely the owner of the property. Although Edison had a representative on the site, he was there to inspect another project. Edison was aware that a gas system was being installed in the area. Nothing in the design or placement of the electric wires suggested that contact of the wires by a crane could be anticipated. In Wilhelm v The Detroit Edison Co, in which Edison had been involved in the planning, inspection and installation of electric wires to a shopping mall building, the court held that Edison was, or should have been, aware that trim below electric lines would need to be repainted frequently and yet made no provisions for preventing human contact with the wires. In the present case, the wires were 30 feet above the ground; in Wilhelm, the unguarded wires contacted the building in a position that Edison knew, or should have known, would create a danger to those who would work on the building. We find Wilhelm inapplicable.

We find the instant case is controlled by Koehler. There was not any evidence that Edison had sufficient control over the operation of Coolsaet employees and the project in general so that a duty to see that work was being done in a safe manner was imposed upon them.

Affirmed.

       There was some testimony that the electric current "arced”, and the parties stipulated that electricity cannot initially arc over one inch.

       The Coolsaet foreman, Dan Freppon, was also at the site, but he is now deceased.

       In 1972, plaintiffs maximum weekly worker compensation benefits, computed on the basis of two dependents, would have totalled around $72,000. The file indicates that counsel for Michigan Mutual Liability Insurance Company, the worker compensation insurance carrier for Coolsaet, filed an appearance as a "silent plaintiff’ and, presumably, would obtain reimbursement from any recovery for worker compensation benefits paid.

       Shortly before trial, plaintiff made modest settlements with the two other defendants, Universal Equipment Company and Prentiss Company.

       The contract between Consumers and Coolsaet was not placed in the record because plaintiffs counsel, during discovery proceedings, indicated that he would rely only on part of the contract. The following provision was read into the record and was considered by the trial judge, although not by the jury:
      "The Contractor [R. L. Coolsaet & Sons, Inc.] further agrees to do said work in a good, neat, safe, substantial workmen like and approved manner.”

       See, Prosser, Torts (4th ed), § 71, p 468; 2 Restatement Torts, 2d, § 409, p 370; 41 Am Jur 2d, Independent Contractors, § 24, p 774; 57 CJS, Master and Servant, § 584, p 353.

        Humenik v Sternberg, 371 Mich 667, 669; 124 NW2d 778 (1963).

       The record does not indicate that there were any other subcontractors of Consumers. However, L. E. Meyers, a subcontractor of Edison, was doing other work at the substation which was apparently unrelated to the Edison-Consumers contract.

       The Michigan Construction Safety Regulations require equipment to be kept more than six feet from electrical overhead lines. 1967 AACS R 408.2303.

       392 Mich 91; 220 NW2d 641 (1974).

       Id., 104.

       72 Mich App 330; 249 NW2d 411 (1976).

       Id., 337.

       33 Mich App 395; 190 NW2d 373 (1971), rev’d on other grounds and remanded for judgment on jury verdict, 388 Mich 637; 202 NW2d 300 (1972).

       453 F2d 998 (CA 4, 1972).

       52 Mich App 494; 218 NW2d 68 (1974).

       388 Mich 430; 201 NW2d 609 (1972).

        Id., p 444. While McDonough involved the liability of an owner, the issue of control is analogous with regard to the liability of a general contractor for the safety of an employee of a subcontractor.

        Porter v Iowa Power & Light Co, 217 NW2d 221 (Iowa, 1974); Prosser, Law of Torts (4th ed), § 37, p 206. We cite Porter only as authority on this limited issue. In general, we believe Porter departs from other Michigan precedents.

       63 Mich App 559; 234 NW2d 702 (1975).

       383 Mich 224; 174 NW2d 827 (1970). It should be noted that another reason for the Court’s ruling in Koehler was the failure of plaintiff to object in the trial court to the jury instruction.

        Williams, supra, 573-574.

       393 Mich 689; 227 NW2d 543 (1975).

         Miller v Detroit Cab Co, 392 Mich 480; 221 NW2d 342 (1974).

       Opinion of the court denying Consumers Power Company’s motion for judgment notwithstanding the verdict and/or new trial.

        Koehler, supra, 231.

       56 Mich App 116; 224 NW2d 289 (1974).


source: Caselaw Access Project

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

license: Public Domain

text:
    PENOKIE v MICHIGAN TECHNOLOGICAL UNIVERSITY
    Docket Nos. 78-532, 78-533.
    Submitted May 10, 1979, at Marquette.
    Decided November 19, 1979.
    Plaintiffs Kenneth Penokie, individually and as President of the Michigan Higher Education Student Association, and the Michigan Higher Education Student Association commenced an action in Houghton Circuit Court against Michigan Technological University and Raymond L. Smith, President of Michigan Technological University, to compel the defendants to provide the plaintiffs with the name and salary or wage of each of the persons employed by the university from 1970 to 1978, pursuant to the plaintiffs’ request for the information under the Michigan Freedom of Information Act. Gerald J. Caspary and other university employees intervened as defendants. Stephen D. Condon, J., ordered the defendants to provide the information requested. The defendants and the intervening defendants appeal. The plaintiffs cross-appeal from the refusal of the trial court to award attorneys’ fees, costs or disbursements to plaintiffs. Held:

    1. The Freedom of Information Act requires a public body to make available to all persons "full and complete information regarding the affairs of government”. There are several exemptions from the disclosure requirement. The defendants, on appeal, rely on the provision which exempts from disclosure as a public record "information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy”. The trial court was correct in applying the balancing test used by the Federal courts in their interpretation of the corresponding privacy provision of the Federal Freedom of Information Act.
    2. Exemptions such as the one relied on by the defendants are to be strictly construed and the government agency bears the burden of establishing that the denial of a request for disclosure is statutorily supported. The "privacy exemption” applies only to "clearly unwarranted” invasions of privacy. Disclosure of the names and salaries of employees of the defendant university is not a "clearly unwarranted” invasion of personal privacy. The defendants erred in denying plaintiffs’ request for disclosure of the information.

      References for Points in Headnotes
    [1, 3, 4] 66 Am Jur 2d, Records and Recording Laws §§ 32, 34, 36, 44-46.
    [2] 66 Am Jur 2d, Records anj Recording Laws § 40.
    [5] 20 Am Jur 2d, Costs § 1.

      3. The Freedom of Information Act expressly provides that a party who challenges a denial of disclosure and prevails is entitled to an award of reasonable attorneys’ fees, costs and disbursements. This is a statutory exception to the "public question-no costs” rule. The trial court entered judgment for the plaintiffs and was, therefore, obligated to make the requested award.
    The judgment requiring disclosure is affirmed and the matter is remanded for the limited purpose of a determination of plaintiffs’ reasonable attorneys’ fees, costs and disbursements.
    1. Administrative Law — Freedom of Information Act — Statutory Construction — Exemptions From Disclosure — Statutes.
    Federal courts have uniformly followed a policy of narrowly construing the disclosure exemptions in the Federal Freedom of Information Act; in Michigan also, the government agency bears the burden of establishing that denial of a request for disclosure under the state Freedom of Information Act is statutorily supported; claimed exemptions must be supported by substantial justification and explanation, not merely by conclusory assertions (5 USC 552[a][4][B], MCL 15.240[1]; MSA 4.1801[10][1]).
    2. Administrative Law — Freedom of Information Act — Exemptions From Disclosure — Personal Privacy — Statutes.
    The balancing test used by the Federal courts to interpret the provision of the Federal Freedom of Information Act which exempts from disclosure to the public "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” requires an initial determination of whether disclosure would constitute an invasion of privacy and, if so, how serious an invasion; determination as to whether an invasion of privacy is "clearly unwarranted” requires consideration of the public purpose of the party requesting the information, the possibility that the purpose could be accomplished without disclosure, the scope of the request and the availability of alternative sources for obtaining the information (5 USC 552[b][6]).

      3. Administrative Law — Freedom of Information Act — Exemptions From Disclosure — Judicial Interpretation — Personal Privacy — Statutes.
    Judicial interpretation of the privacy exemption of the Freedom of Information Act, in addition to being guided by the reason of the Federal and state decisions interpreting similar provisions, must reflect Michigan’s longstanding policy of citizen accessibility to public records (MCL 15.243[l][a]; MSA 4.1801[13][l][a]).
    4. Administrative Law — Freedom of Information Act — Exemptions From Disclosure — Confidentiality — State Universities — Attorney General Opinions.
    The boards of control of state universities may not be held to a different standard of accountability than other governmental units with regard to withholding information from the public concerning government salaries paid out of public money; while it must be recognized that, in some limited instances, the public interest may require confidentiality, the records of the names and compensation of employees of state universities are subject to public examination, inspection and copying for any lawful purpose (OAG 1973-1974, No 4794, p. 70 [August 7, 1973]).
    5. Administrative Law — Freedom of Information Act — Attorneys’ Fees — Statutes.
    A plaintiff who is successful in a challenge to a state agency’s denial of the plaintiffs request for disclosure of information under the Freedom of Information Act is statutorily entitled to an award of reasonable attorney’s fees, costs and disbursements (MCL 15.240[4]; MSA 4.1801[10][4]).

      Garfield W. Hood, for plaintiffs.

      Butzel, Long, Gust, Klein & VanZile (by Robert M. Vercruysse, Virginia F. Metz and Daniel G. Galant), for defendants.

      Vairo, Mechlin, Tomasi & Johnson, for intervening defendants.

      Amici Curiae: Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald F. Young, Paul J. Zimmer and Richard P. Gartner, Assistants Attorney General.

      Beier, Howlett, McConnell, Googasian & Mc-Cann, for Oakland University.
    Before: D. F. Walsh, P.J., and Bronson and T. M. Burns, JJ.
   D. F. Walsh, P. J.

Defendants, Michigan Technological University and its president Raymond L. Smith, and intervening defendants, certain employees of the university, appeal entry of judgment for plaintiffs by the Houghton County Circuit Court on January 20, 1978. Defendants were ordered to provide plaintiffs with the name and salary or wage of each of the persons employed by the university from 1970 to the present time, pursuant to plaintiffs’ request under the Michigan Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. (hereinafter referred to as the FOIA). Plaintiffs cross-appeal the refusal of the trial court to award them attorneys’ fees, costs or disbursements under MCL 15.240(4); MSA 4.1801(10X4).

The facts are not in dispute and were stipulated to be as follows:

"1. Pursuant to Section 10 of the Freedom of Information Act, MSA 4.1801(10), this Court has jurisdiction to hear this action.
"2. Plaintiff KENNETH PENOKIE is a citizen and taxpayer of the State of Michigan, and President of Plaintiff Michigan Higher Education Student Association, Inc., who resides in Lansing, Michigan.
"3. Plaintiff MICHIGAN HIGHER EDUCATION STUDENT ASSOCIATION, INC., is a Michigan nonprofit corporation with its principal place of business located at Box 16281, Lansing, Michigan, which is engaged in representing student bodies and/or student governments at various Michigan institutions of higher learning.
"4. Defendant MICHIGAN TECHNOLOGICAL UNIVERSITY is a public university and institution of higher education located in the City of Houghton, County of Houghton, and State of Michigan organized and existing by virtue of the Constitution and laws of the State of Michigan.
"5. Defendant RAYMOND L. SMITH is President of Michigan Technological University and is its chief-executive officer.
"6. Plaintiffs are 'persons’ within the definitions set forth in the Freedom of Information Act, MSA 4.1801(1) et seq.
"7. MICHIGAN TECHNOLOGICAL UNIVERSITY is a 'public body’ as defined within the aforesaid Freedom of Information Act.
"8. That by letter dated February 12, 1976, * * * and received by Defendants prior to the effective date of the Freedom of Information Act, Plaintiffs requested certain records from the Defendant, including '* * * a copy of the salaries for fiscal years 1971 through 1975 of every employee of Michigan Technological University’, and that by letter dated March 3, 1976, from the Chairman of the Board of Control of MICHIGAN TECHNOLOGICAL UNIVERSITY * * *, Defendants refused to provide the requested information.
"8A. That by letter dated April 12, 1977, * * * and received by Defendants after the effective date of the Freedom of Information Act, Plaintiffs requested certain public records from Defendants, including:
"A. The number of persons employed by Michigan Technological University;
"B. The names of all persons employed by Michigan Technological University;
"C. The salary or hourly wage of each such employee from 1970 to the present;
"D. Michigan Technological University’s average budget for fiscal years 1970 to present, setting forth those portions of each total yearly budget apportioned between teaching salaries, administrative salaries, and other similar classifications.
"E. With respect to administrative and teaching personnel, the educational qualifications of each employee; and
"F. Actual yearly expenditures in such categories if different than budgetary allocations.
"9. That by letter dated April 19, 1977, * * * Defendant MICHIGAN TECHNOLOGICAL UNIVERSITY, through its designated Freedom of Information Officer E. M. Reini, provided Plaintiffs with all requested information with the exception that Defendant refused to provide Plaintiffs with the salaries and/or hourly wages of each employee of Defendant MICHIGAN TECHNOLOGICAL UNIVERSITY from 1970 through the present.
"10. That on April 19, 1977, E. M. Reini, the designated Freedom of Information Act Officer, sent KENNETH PENOKIE, President of the Michigan Higher Education Student Association, Inc. a 'Notice of Denial of a Public Record’ * * * wherein it was asserted the University would not provide the salary or hourly wage rate of each employee from 1970 to the present for the reason that said public record was exempt from disclosure pursuant to Section 13(l)(a), MSA 4.1801(13)(l)(a), asserting that the said information is of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.
"11. In the Fall of 1976 issue of 'The Faculty Forum MTU’ the results of the Faculty Association’s Salary Publication Survey were published * * *. Of two hundred and thirty-nine (239) faculty polled, only seventy-nine (79) were in favor of disclosing their individual names and salaries while one hundred and fifty-five (155) were opposed to public disclosure of their names and individual salaries.
"12. Defendant MICHIGAN TECHNOLOGICAL UNIVERSITY presently publishes salary ranges, distribution and related statistical information, without revealing individual salaries, which is available for public review, however, that information was not requested by plaintiff.
"13. Defendant MICHIGAN TECHNOLOGICAL UNIVERSITY competes nationally with both public and private colleges, universities, industry and the government for the best qualified employees it can successfully recruit for its faculty and staff.
"14. Many of Defendant’s competitors for quality employees are under no obligation to make any information regarding names and salaries of its employees available for public scrutiny.
"15. House Bill No. 6085 as of December 1, 1976, * * * contained Section 12(a) which provided:
" 'Sec. 12. The following categories of writings are specifically made available to the public under this act if those writings exist and are not exempt under Section 13.
" '(a) The name, sex, ethnicity, salary, including overtime or overload and any other supplementary payments, title, job description, and dates of employment of an employee or officer of a public body unless the disclosure of the title or job description would endanger the life or physical safety of law enforcement personnel.’
"House Bill No. 6085 eventually was enacted as the Freedom of Information Act with this provision deleted on or after December 22, 1976.
"16. Intervening Defendants and a substantial number of University employees have asserted by letter to Defendant, Michigan Technological University, that any disclosure by the University of their salary and/or hourly wage rate or any information from the personnel files relating to their educational accomplishments and qualifications for the positions they hold at the University would be a violation of their constitutional right to privacy. Said Defendants and employees have further stated that they shall hold the University accountable for any breach of their claim to privacy.”

The trial court held, and defendants did not dispute, that the requested salary records are "public records” within the meaning of the FOIA and the common law. MCL 15.232(c); MSA 4.1801(2)(c). The court rejected plaintiffs’ contention that they had a right to disclosure of the salary information under the common law, finding that the FOIA preempts the common law. This ruling has not been challenged on appeal. With respect to the FOIA request, however, the court ordered disclosure of the information.

Defendants first argue that the Legislature’s intent to exempt salary information from public disclosure is evident from the fact that an express provision requiring such disclosure, which appeared in an earlier version of the proposed legislation, was deleted from the version finally enacted.

We agree with the trial court that a more reasonable explanation for the deletion is found in the Legislature’s desire to avoid the pitfalls of overspecification. Rather than specifying what records would be subject to disclosure the Legislature chose to provide that, unless expressly exempt under § 13 of the FOIA, all public records are subject to public disclosure. Deletion of language expressly providing for disclosure of specific information furthered the legislative purpose to make available to all persons "full and complete information regarding the affairs of government”. MCL 15.231(2); MSA 4.1801(1X2).

The primary argument advanced by defendants is that the requested information was exempt from disclosure under the provisions of § 13(l)(a) of the act which provides:

"Sec. 13. (1) A public body may exempt from disclosure as a public record under this act:
"(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.” MCL 15.243(l)(a); MSA 4.1801(13)(l)(a).

The trial court, adopting the balancing test developed by the Federal courts in their interpretation of the corresponding privacy provision of the Federal Freedom of Information Act, rejected this argument. We agree with the trial court and affirm.

In light of the absence of Michigan case law interpreting the quoted exemption, the trial court correctly turned to Federal decisions intepreting the similar provision found in the Federal act. 5 USC 552(b)(6) (hereinafter referred to as Exemption 6). Citizens for Better Care v Dep’t of Public Health, 51 Mich App 454; 215 NW2d 576 (1974), lv den 392 Mich 758 (1974), International Business Machines Corp v Dep’t of Treasury, 71 Mich App 526; 248 NW2d 605 (1976).

Under Exemption 6, Federal agencies are not obligated to disclose to the public "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”. It is this provision which most clearly parallels the Michigan statutory exemption.

Federal courts have uniformly followed a policy of narrowly construing the exemptions in the Federal act. Rural Housing Alliance v United States Dep’t of Agriculture, 162 US App DC 122; 498 F2d 73 (1974), Cox v United States Dep’t of Justice, 576 F2d 1302 (CA 8, 1978). As is the situation in Michigan, the government agency bears the burden of establishing that denial of a request for disclosure is statutorily supported, MCL 15.240(1); MSA 4.1801(10X1). 5 USC 552(a)(4)(B). Claimed exemptions must be supported by substantial justification and explanation, not merely by conclusory assertions. Gates v Schlesinger, 366 F Supp 797, 800 (DDC, 1973).

In interpreting Exemption 6, the Federal courts have generally adopted a test which balances the preservation of the public’s right to government information against the protection of the individual’s private affairs from unnecessary public scrutiny. Dep’t of the Air Force v Rose, 425 US 352; 96 S Ct 1592; 48 L Ed 2d 11 (1976). The exemption applies only to "clearly unwarranted” invasions of personal privacy. The inclusion of this qualification was a "considered and significant determination”. 425 US 378, fn 16. Contrast the wording of Exemption 7 of the Federal act. 5 USC 552(b)(7). Congressional News Syndicate v United States Dep’t of Justice, 438 F Supp 538 (DDC, 1977).

The Federal balancing test requires an initial determination of whether disclosure would constitute an invasion of privacy and, if so, how serious an invasion. Determination as to whether an invasion of privacy is "clearly unwarranted” requires consideration of the public purpose of the party requesting the information, the possibility that the purpose could be accomplished without disclosure, the scope of the request and the availability of alternative sources for obtaining the information. Getman v National Labor Relations Board, 146 US App DC 209, 213-216; 450 F2d 670 (1971). Also see Wine Hobby USA, Inc v United States Internal Revenue Service, 502 F2d 133 (CA 3, 1974).

In narrowly construing Exemption 6, the Federal courts have repeatedly emphasized the congressional intent to limit nondisclosure to "intimate details” of a "highly personal” nature. Getman v NLRB, supra, at 214, Rural Housing Alliance v USDA, supra, at 124, Fonda v Central Intelligence Agency, 434 F Supp 498 (DDC, 1977), Ferry v Central Intelligence Agency, 458 F Supp 664 (SD NY, 1978), Robles v Environmental Protection Agency, 484 F2d 843 (CA 4, 1973). Exemption 6 has been interpreted to protect individuals from embarrassing disclosures. Rural Housing Alliance v USDA, supra, at 124, Metropolitan Life Ins Co v Usery, 426 F Supp 150, 168 (DDC, 1976). Identified as possibly coming within the protection of Exemption 6 has been information concerning marital status, legitimacy of children, identity of children’s fathers, medical condition, welfare status, alcohol consumption, family fights, reputation, personal job preferences and goals, job evaluations, job promotion prospects, reasons for employment termination. Rural Housing Alliance v USDA, supra, at 124, Metropolitan Life Ins Co v Usery, supra, at 168, Ditlow v Schultz, 170 US App DC 352, 356; 517 F2d 166 (1975).

In a recent case the Washington Supreme Court was asked to interpret a privacy exemption in Washington’s FOIA. Hearst Corp v Hoppe, 90 Wash 2d 123; 580 P2d 246 (1978). The particular exemption deals with information required of a taxpayer if disclosure would constitute a violation of the taxpayer’s right to privacy. As is the case with the Michigan and Federal statutes, the Washington statute does not define the right to privacy. The Washington court turned to the common-law tort concept of the right to privacy and adopted the following Restatement definition and analysis in determining if disclosure of the requested information would violate the privacy provision:

"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
"(a) would be highly offensive to a reasonable person, and
"(b) is not of legitimate concern to the public.” Restatement Torts (2d), § 652D, at 383 (1977).
"Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.” Id., at 386.

The Washington court found no Federal cases adopting the Restatement definition of the right of privacy for FOIA purposes but, after reviewing Federal cases which have interpreted Exemption 6, concluded that the Federal standard (i.e., the balancing test with its "tilt” toward disclosure) reflects the same considerations expressed in the Restatement.

In Michigan, judicial interpretation of the FOIA’s privacy exemption, in addition to being guided by the reasoning of the Federal and state decisions interpreting similar provisions, must reflect Michigan’s longstanding policy of citizen accessibility to public records. Burton v Tuite, 78 Mich 363, 374; 44 NW 282 (1889), Nowack v Auditor General, 243 Mich 200, 203-204; 219 NW 749 (1928).

In 1973, before adoption of Michigan’s FOIA, the Michigan Attorney General was asked "whether any unit of government may withhold information of government salaries paid out of public money” and "whether the board of control of a university may withhold from the public information relative to personnel salaries”. OAG 1973-1974, No 4794, p 70 (August 7, 1973). The Attorney General rejected the notion that, with regard to the withholding of this information, the boards of control of state universities may be held to a different standard of accountability than other government units. Recognizing that, in some limited instances, the public interest may require confidentiality, the Attorney General concluded that the records of the names and compensation of employees of state universities are subject to public examination, inspection and copying for any lawful purpose. We think the Attorney General’s opinion is well-reasoned and correct.

The names and salaries of the employees of defendant university are not "intimate details” of a "highly personal” nature. Disclosure of this information would not thwart the apparent purpose of the exemption to protect against the highly offensive public scrutiny of totally private personal details. The precise manner of expenditure of public funds is simply not a private fact. The heavy burden of justifying nondisclosure has not been met by the conclusory allegations of "ill will, hard feelings, * * * prejudice among employees” and "chill[ing of] the applications of further persons for positions similar to” those of intervening defendants. Nor is there any support for the allegations of amicus curiae Oakland University that disclosure of the compensation of individual employees "would cause significant indignity, embarrassment, and humiliation and would disrupt existing relationships”.

While we are not persuaded that salary information about individual public employees is "private” information for FOIA purposes, even assuming that disclosure would constitute an invasion of personal privacy, that invasion would not be "clearly unwarranted”. The minor invasion occasioned by disclosure of information which a university employee might hitherto have considered private is outweighed by the public’s right to know precisely how its tax dollars are spent.

This important public purpose can best be accomplished only by disclosure of information such as that sought by plaintiffs. There has been no suggestion that disclosure would unduly burden defendant university.

The express purpose of the FOIA is to provide for public access to full and complete information regarding the affairs of the government so that citizens may participate fully in the democratic process.

"Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted.” Nowack v Auditor General, supra, at 204.

We hold that defendant Michigan Technological University erred in refusing disclosure of the names and salaries of its individual employees. Because no statutory provision clearly exempted this information from disclosure, the refusal was in violation of the FOIA. The trial court’s order of disclosure is, therefore, affirmed.

In its January 20, 1978, order, the trial court entered judgment for plaintiffs and issued a writ of mandamus directing defendant university to provide plaintiffs with the names and salaries or wages of each of the university’s employees since 1970. The order concluded, "No costs or attorney fees shall be awarded, a public question being involved.” Plaintiffs’ motion for reconsideration and modification of judgment, seeking an award of attorneys’ fees, costs and disbursements, was denied.

With regard to attorneys’ fees, costs and disbursements, the FOIA provides:

"(4) If a person asserting the right to inspect or to receive a copy of a public record or a portion thereof prevails in an action commenced pursuant to this section, the court shall award reasonable attorneys’ fees, costs, and disbursements. If the person prevails in part, the court may in its discretion award reasonable attorneys’ fees, costs, and disbursements or an appropriate portion thereof. The award shall be assessed against the public body liable for damages under subsection (5).” MCL 15.240(4); MSA 4.1801(10X4).

The denial of attorneys’ fees, costs and disbursements to plaintiffs was erroneous. In all cases brought under the FOIA a public question will necessarily be involved since the public’s right of access to public records will be at stake. The Legislature has enacted a statutory exception to the public question/no costs rule. The trial court entered judgment for plaintiffs and was, therefore, obligated to make the requested award. That the court rejected plaintiffs’ common-law theory did not transform plaintiffs’ victory into a partial one. Plaintiffs were granted their requested relief. Because they prevailed in their challenge to the university’s denial of their request, they were statutorily entitled to an award of reasonable attorneys’ fees, costs and disbursements.

Judgment for plaintiffs is affirmed. This cause is remanded for the limited purpose of a determination of plaintiffs’ reasonable attorneys’ fees, costs and disbursements. An award shall be made to plaintiffs pursuant to that determination.

We do not retain jurisdiction.

       Overspecificity in the statute might enable public bodies to use the doctrine of expressio unius est exclusio alterius in order to avoid disclosure of information not specified expressly in the statute.

       We do not deal separately with the constitutionally based arguments of those challenging the lower court’s ruling. Our discussion of the right to privacy under the statutory exemption from disclosure satisfactorily disposes of constitutional challenges. Review of the parties’ briefs reveals that they do not raise any constitutional arguments which are independent of the FOIA statutory argument.

       It should also be noted that the Michigan statute includes a separate provision exempting from the disclosure requirement "medical, counseling, or psychological facts or evaluations concerning an individual” if disclosure would reveal the individual’s identity. MCL 15.243(l)(m); MSA 4.1801(13)(l)(m).

         In Baker v Central Intelligence Agency, 188 US App DC 401; 580 F2d 664 (1978), it was held that documents revealing, among other things, the salaries of CIA personnel were not disclosable under the Federal FOIA. In that case, however, the CIA did not rely on, and the court did not discuss, the privacy exemption. Rather, nondisclosure was based on the exemption for matters "specifically exempted from disclosure by statute”. 5 USC 552(b)(3). See 50 USC 403g.
      Although the court in Campbell v United States Civil Service Comm, 539 F2d 58, 62 (1976), stated that an individual’s salary is "personal and capable of causing embarrassment”, it was not held that disclosure of salary information alone would constitute a clearly unwarranted invasion of personal privacy. At issue was disclosure of personnel records which listed employees who had been erroneously classified and the name of an employee who had been promoted contrary to the applicable regulations. The case, therefore, offers little guidance to this Court in deciding the issue before us here.

       Substantial reliance has been placed by those challenging the lower court’s ruling on Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465; 242 NW2d 3 (1976). In that case the Supreme Court discussed the constitutionality of Michigan’s political reform act, MCL 169.1 et seq.; MSA 4.1701(1) et seq. The act required the filing of certain financial information by potential candidates for public office. It did not discuss disclosure to the public of information concerning the salaries of individual public employees. We see no analogy between the instant case and the circumstances peculiar to political activity.

       Const 1963, art 9, § 23 reflects the primacy of the public’s right to know how its tax money is spent: "All financial records, accounting, audit reports and other reports of public moneys shall be public records and open to inspection.”
      We need not decide if the information requested by the instant plaintiffs constitutes "financial records”. See Grayson v Board of Accountancy, 27 Mich App 26, 33-34; 183 NW2d 424 (1970).

       Subsequent to our decision in this case but prior to the release date of this opinion, the Legislature enacted 1979 PA 130, effective October 26, 1979, which amended the FOIA by adding § 13a, MCL 15.243a; MSA 4.1801(13)(a). The new section reads as follows:
      "Notwithstanding section 13, an institution of higher education established under section 5, 6, or 7 of article 8 of the state constitution of 1963; a school district as defined in section 6 of Act No. 451 of the Public Acts of 1976, being section 380.6 of the Michigan Compiled Laws; an intermediate school district as defined in section 4 of Act No. 451 of the Public Acts of 1976, being section 380.4 of the Michigan Compiled Laws; or a community college established under Act No. 331 of the Public Acts of 1966, as amended, being sections 389.1 to 389.195 of the Michigan Compiled Laws shall upon request make available to the public the salary records of an employee or other official of the institution of higher education, school district, intermediate school district, or community college.”
      In our view the amendatory section, which is in accord with our holding, represents a clarification of, rather than a substantive change in, prior law.


author: H. R. Carroll, J.

text:
    PEOPLE v JOHNSON
    Docket No. 78-1172.
    Submitted June 8, 1979, at Lansing.
    Decided November 19, 1979.
    Ernest Johnson, III, was convicted of first-degree murder, Recorder’s Court of Detroit, Robert J. Columbo, J. Defendant appeals, alleging that certain of the trial court’s instructions to the jury were erroneous, that there was insufficient evidence to permit a finding of premeditation and deliberation, and that the magistrate at the preliminary examination abused his discretion in binding the defendant over for trial on first-degree murder. Held:

    1. The instructions to the jury, when viewed as a whole, properly instructed the jury on the elements of first-degree murder.
    2. Testimony by witnesses for the prosecution regarding two threats which defendant made to the decedent a few days prior to the killing was properly considered in determining the sufficiency of the evidence. The threats do not constitute confessions, but may be considered to be admissions or evidence of defendant’s state of mind at the times they were made. In either case, the testimony was properly considered. Additionally, even if the evidence of the threats were not to be considered, there was sufficient evidence presented from which the jury could infer premeditation and deliberation.
    3. Testimony presented at the preliminary examination was adequate to support a finding of probable cause as to each element of first-degree murder.
    Affirmed.
    References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 919 et seq.

    [2] 75 Am Jur 2d, Trial § 925.
    [3, 5] 40 Am Jur 2d, Homicide § 45.
    [4] 40 Am Jur 2d, Homicide § 284.
    [6] 40 Am Jur 2d, Homicide § 316.
    [7] 40 Am Jur 2d, Homicide § 439.
    [8] 21 Am Jur 2d, Criminal Law § 443.

      1. Criminal Law — Instructions to Jury — Erroneous Instructions.
    Generally, an erroneous jury instruction is not grounds for reversal of a defendant’s conviction, in the absence of there having been a request by counsel for a proper instruction, except upon a showing of manifest injustice; however, where an instruction pertains to the nature of the offense the trial court has an obligation to give a correct instruction whether or not a request is made.
    2. Trial — Instructions to Jury — Erroneous Instructions.
    Jury instructions must be read and considered as a whole in order to determine whether any instruction was erroneous.
    3. Homicide — First-Degree Murder — Specific Intent.
    First-degree murder, other than first-degree felony murder, is a specific intent crime requiring an intention to take a life.
    4. Homicide — First-Degree Murder — Corpus Delicti — Confessions.
    The corpus delicti of first-degree premeditated murder must be established by evidence independent of a defendant’s confession.
    5. Homicide — First-Degree Murder — Premeditation — Deliberation — Inferences.
    Premeditation and deliberation need not be established by direct evidence in a prosecution for first-degree murder; the requisite state of mind may be inferred from all the facts and circumstances as long as the inference has support in the record.
    6. Homicide — Evidence — Admissions — State of Mind.
    Testimony by witnesses for the prosecution that a defendant in a homicide case had threatened to kill a decedent on two occasions prior to her death was properly considered when determining the sufficiency of the evidence against the defendant; the threats constituted admissions, not confessions, and were indicative of the defendant’s state of mind at the time the threats were made.
    7. Homicide — Murder — Premeditation — Deliberation.
    Factors to be considered in making a determination of whether or not a defendant in a homicide case acted with premeditation and deliberation include: 1) the previous relationship of the defendant and the victim; 2) the defendant’s actions prior to the actual killing; 3) the circumstances of the killing itself; and 4) the defendant’s conduct after the killing.

      8. Criminal Law — Appeal and Error — Magistrates — Probable Cause.
    A magistrate’s determination of probable cause, for purposes of binding a defendant over for trial, will not be reversed by the Court of Appeals absent a showing of a clear abuse of discretion.

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

      Bernstein, Rabinovitz & Weitzman, P.C., for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   H. R. Carroll, J.

Defendant was charged with the murder of Alma Story, whom he had been living with. On November 8, 1977, defendant was found guilty by a jury of first-degree murder, contrary to MCL 750.316; MSA 28.548. He was sentenced to life imprisonment. Defendant appeals as of right.

On appeal defendant raises three issues for our consideration. Initially, he argues that the trial court improperly instructed the jury as to the elements of first-degree murder. However, defendant failed to object to the instructions at trial. It is the general rule that an erroneous instruction, absent a request by counsel, is not grounds for reversal except upon a showing of manifest injustice. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). However, where an instruction pertains to the nature of the offense, the trial court has an obligation to give a correct instruction whether or not a request is made. People v Miller, 35 Mich App 627; 192 NW2d 517 (1971). In order to determine whether error occurred, jury instructions must be read and assessed as a whole. People v Wilder, 82 Mich 358; 266 NW2d 847 (1978).

Defendant’s complaint centers upon the following instruction:

"Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the Defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or lessen the crime.
"First Degree and Second Degree Murder are the same crime, except that in First Degree Murder there are the additional elements of premeditation and deliberation; that is, the Defendant has premeditated and deliberated his intent to kill.
"You will be first instructed on Murder of the Second Degree. Keep in mind that all of the elements of Second Degree Murder are necessary to prove First Degree Murder.
"Fourth, for murder you must find that the Defendant consciously and knowingly performed the act which caused death. The Defendant must have either intended to kill; that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death. ” (Emphasis added.)

It is clear that first-degree murder, other than felony murder, is a specific intent crime requiring an intention to take a life. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). As this Court remarked in People v Milton, 81 Mich App 515, 518; 265 NW2d 397 (1978):

"Mere conscious indifference to the likelihood of death as a result of a person’s intentional act is not enough; to commit first-degree murder, a person must act with the purpose of causing death.”

Defendant relies heavily on Milton in arguing for reversal on this issue. It is not apparent from our reading of Milton whether the trial court in that case instructed the jury on specific intent. However, it is clear that the trial court in Milton failed to instruct on the elements of premeditation and deliberation. The court’s failure to define these elements independently of malice had the effect of abolishing the difference between first-degree murder and second-degree murder. Id.

In the instant case, the trial court, apart from its instruction on malice, also defined premeditation and deliberation. It prefaced its remarks in this regard with the following:

"For Murder of the First Degree, the Prosecution must prove beyond a reasonable doubt the four elements of Second Degree Murder which have been described to you. In addition, you must prove beyond a reasonable doubt the fifth element, which raises the crime to First Degree Murder; that is, that the death was the wilful result of a premeditated, deliberate intent to kill.”

In addition, the court mentioned that wilful means intentional and that "[f]or First Degree Murder, there must be such a lapse of time as would give the mind time to think about the purpose and intent of the killing”. (Emphasis supplied.) Finally the court noted that "[t]here can be no crime of Murder in the First Degree under our law where there is no intent to kill”. (Emphasis supplied.) Moreover, the court instructed the jury as to specific intent. All of these instructions, it is worth noting, appear to have been taken nearly verbatim from the Michigan Criminal Jury Instructions. CJI 16:1:14; 16:2:01; 3:1:16. Viewing the instructions as a whole, we find that the trial court properly instructed the jury on the elements of first-degree murder.

The defendant next contends that there was insufficient evidence aliunde his prior threats against the decedent to permit a finding of premeditation and deliberation as a matter of law. The well-established rule in Michigan is that the corpus delicti of first-degree premeditated murder must be established by evidence aliunde a defendant’s confession. People v Allen, 390 Mich 383; 212 NW2d 21 (1973), People v Wells, 87 Mich App 402; 274 NW2d 797 (1978), People v Densmore, 87 Mich App 434; 274 NW2d 811 (1978). It follows that the prosecution is required to establish all elements of the offense independent of a confession. People v Hawkins, 80 Mich App 481; 264 NW2d 33 (1978).

On appeal the defendant specifically claims that the prosecution failed to independently prove premeditation and deliberation. Neither premeditation nor deliberation need be established by direct evidence. People v Hoffmeister, 394 Mich 155; 229 NW2d 305 (1975). The requisite state of mind may be inferred from all the facts and circumstances. People v Hoffmeister, supra, People v Tilley, 405 Mich 38; 273 NW2d 471 (1979), People v O’Brien, 89 Mich App 704; 282 NW2d 190 (1979). The inference must have support in the record, however, and not be arrived at by mere speculation. People v O’Brien, supra.

At trial, there was testimony that defendant had threatened to kill the decedent on two occasions prior to the date of her death. Defendant insists that these are admissions. As such, it is argued that they may not be considered in determining sufficiency of the evidence. We disagree with defendant on several counts. Contrary to defendant’s contention, neither People v Hawkins, supra, or People v Wells, supra, hold that the rule enunciated in People v Allen, supra, extends to admissions of a defendant. In People v Porter, 269 Mich 284; 257 NW 705 (1934), it was held that the rule that proof of crime must be established without the confession was confined to confessions and did not include admissions. Id. at 289-290. If the fact admitted does not of itself show guilt but needs proof of other facts, which are not admitted by the accused, in order to show guilt, it is not a confession but an admission. Id. at 290. We conclude that the two threats made by the defendant were insufficient, by themselves, to constitute a confession of guilt under Porter. See People v Allen, 91 Mich App 63; 282 NW2d 836 (1979). Moreover, they are properly considered as indicative of defendant’s state of mind at the time they were made; the first some three weeks before the homicide and the second, three days before the decedent was murdered. People v Melvin, 70 Mich App 138; 245 NW2d 178 (1976). Whether viewed as admissions or as evidence of defendant’s state of mind, they are properly considered in determining sufficiency of the evidence on the question of premeditation and deliberation.

Furthermore, even if defendant’s statements are excluded, there was sufficient evidence for the jury to infer premeditation and deliberation. The factors to be considered in such a determination include: (1) the previous relationship of the parties; (2) defendant’s actions prior to the actual killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the homicide. People v Meadows, 80 Mich App 680; 263 NW2d 903 (1977), People v Berthiaume, 59 Mich App 451; 229 NW2d 497 (1975).

Concerning the first factor, it would appear that defendant’s relationship with the victim was coming to a rather stormy conclusion. Indeed, the decedent was preparing to have the defendant evicted.

Prior to the killing, the defendant repeatedly went to the front door of decedent’s home and looked only in the direction from which decedent would be walking. This arguably is an indicium of lying-in-wait or, at least, that defendant had already conceived of the plan to murder decedent. In addition, defendant sharpened a knife with an electric sharpener ostensibly because he intended to prepare a meal. However, the record indicates that defendant did not have many of the ingredients needed. Finally, the electric knife sharpener was found in the dining room, not the kitchen where it was ordinarily kept and operated.

With regard to the third factor, the decedent was stabbed repeatedly, including two wounds which punctured the heart, one which punctured the left lung and a wound to the neck which severed all the major blood vessels. It would be reasonable to infer that these wounds were the result of strategically administered blows based on cool deliberation; all the more so if the wounds to the neck were administered first, since the vocal cords were rendered useless thereby. Evidence supporting such a conclusion included a trail of blood at the scene of the murder and testimony by the assistant medical examiner that such a trail would be left if the wounds to the neck were administered first and the heart was still pumping blood.

Finally, defendant’s conduct following the murder is consistent with premeditation. He left decedent’s house by the back door carrying a duffel bag full of his clothing and walking fast. He removed pictures of himself and his daughter from decedent’s house. Later in the day he called the house and asked to speak to the decedent. Finally, he was arrested nine months later in San Bernardino, California, over 2,000 miles away.

On the basis of all this, we conclude that, even without defendant’s threats, the jury could properly infer premeditation and deliberation. Moreover, with the addition of the threats, the evidence of premeditation and deliberation is compelling, if not overwhelming.

We need not detain ourselves long with defendant’s final issue. He contends that the magistrate abused his discretion in binding him over on a first-degree murder charge. He argues that the magistrate erroneously found that there was probable cause to believe that the murder was premeditated.

Absent a showing of a clear abuse of discretion, this Court will not reverse a magistrate’s determination of probable cause. People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975). The corpus delicti of first-degree murder must be demonstrated at the preliminary examination. People v Juniel, supra.

Our review of the record fails to convince us that the magistrate in the instant case clearly abused his discretion. While the testimony at the preliminary examination was sparse, it was adequate to support a finding of probable cause as to each element of first-degree murder including premeditation and deliberation.

Defendant’s conviction is affirmed.


author: J. C. Daner,

text:
    HAGELSTEIN v CITY OF TROY
    Docket No. 78-1877.
    Submitted June 18, 1979, at Detroit.
    Decided November 19, 1979.
    David A. and Susan E. Hagelstein brought an action against the City of Troy alleging that the city’s zoning ordinance was unconstitutional as applied to the plaintiffs’ land and seeking an order to enjoin the city from interfering with the plaintiffs’ proposed use of the land. The Oakland Circuit Court, Frederick C. Ziem, J., found that the present zoning classification, single family dwellings, is confiscatory and therefore unconstitutional, but that the plaintiffs’ proposed use, multiple family residential, was not the only legitimate use for the land and refused to enjoin the city as plaintiffs requested. The trial court did, however, enjoin the city from enforcing the ordinance insofar as it restricts the plaintiffs to using the land for single family dwelling purposes. The city appeals and the plaintiffs cross-appeal. Held:

    The trial court was correct in its finding that the present zoning ordinance is unconstitutional and that there may be reasonable uses for the plaintiffs’ land other than that proposed by the plaintiffs. The matter is to be resubmitted to the Troy city counsel for enactment of an appropriate amendatory ordinance.
    Remanded.
    Zoning — Ordinances — Constitutional Law — Procedure Upon Remand — Equity.
    An appropriate procedure to be followed after a judicial declaration that a zoning ordinance is unconstitutional is to enjoin the enforcement of the disputed zoning ordinance and to remand the matter to the municipal zoning body to present, for the trial court’s consideration within a specified number of days of the judicial order declaring the unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to the plaintiffs parcel.
    Reference for Points in Headnote
    82 Am Jur 2d, Zoning and Planning § 361.

      Ginn, Kramer & Jacobson, P.C., for plaintiffs.

      William S. Wolanin, City Attorney, for defendant.
    Before: Bashara, P.J., and V. J. Brennan and J. C. Daner, JJ.

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

   J. C. Daner,

J. In this case, both parties have appealed from the opinion and judgment of the trial court. After a review of the record and the trial court’s opinion, we are persuaded that the case must be remanded for further consideration in light of Ed Zaagman, Inc v City of Kentwood, 406 Mich 137, 182-183; 277 NW2d 475 (1979).

We concur with Judge Ziem’s opinion that, as applied to the plaintiffs’ land, the Rl-B zoning by the defendant city is unconstitutional. We concur with his finding that there may be other uses besides that proposed by the plaintiffs which would be reasonable.

On remand, the matter is ordered to be resubmitted to the Troy city council for enactment of an amendatory ordinance which will allow an appropriate and constitutional use for the plaintiffs’ land within 60 days. If the defendant city comes back to the circuit court with a mutually acceptable ordinance, one agreed to by both the plaintiffs and defendant, the circuit court shall then enter an order for implementation of that ordinance forthwith.

However, if, after remand to the city council, the defendant city submits an amendatory ordinance which is not acceptable to the plaintiffs, but does embody a fair "midsatisfactory use” as determined by the trial judge after a meticulous balancing of all equitable considerations, then the trial court shall order implementation of such amendatory ordinance as proposed by the defendant city forthwith.

If the city’s proposed use in an amendatory ordinance does not satisfy the "midsatisfactory use” or equitable doctrine announced in Zaagman v City of Kentwood, supra, and the plaintiffs submit a proposed use which in the opinion of the trial court does do equity, then the trial court, after balancing the equities, must order the implementation of the plaintiffs’ proposed "midsatisfactory use” forthwith.

If, after remand to the defendant city council, neither party can agree upon the other’s amendatory ordinance or proposed use and the trial court thereafter determines that neither meets the equitable "midsatisfactory use” required by Zaagman, supra, then the trial court must order an appropriate use after a hearing in which both plaintiffs and defendant, as well as other affected parties, are adequately represented, requiring additional proofs to make an equitable determination as required by Zaagman, supra.

Finally, if the defendant city fails to submit an adopted amendatory ordinance to the trial judge for consideration within 60 days of this Court’s opinion and order, then the trial court is directed to conduct a hearing forthwith, supplemented by additional proofs which may be tendered by all affected parties, in the trial court’s discretion, and implement thereafter the most equitable or "mid-satisfactory use” to be made of the plaintiffs’ parcel.

Remanded.