author: J. H. Gillis, P. J.

text:
    PEOPLE v. SHAW.
    1. Constitutional Law — Searches and Seizures.
    Constitutional right that a search be founded on a warrant issued on probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized, may be waived by consent (US Const, Am 4).
    2. Same — Presumption Against Waiver.
    Courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights.
    3. Searches and Seizures — Consent—Courts.
    Determination of the sufficiency of a consent to a seareh as affected by the status of the consenter as in custody depends upon the particular faets and circumstances of each ease, and there are no hard rules by which the presence of a certain fact, in addition to custody, will bind the court to a particular decision.
    4. Same — Waiver—Consent—Coercion—Burden of Proof.
    The obtaining of a seareh warrant may be waived by an individual and he may give his consent to seareh and seizure, but such waiver or consent must be proved by clear and positive testimony and be shown to have been made without duress or coercion, actual or implied, and the prosecutor must show a eonsent that is unequivocal and specific, freely and intelligently given, a burden that is particularly heavy when the individual is under arrest (US Const, Am 4).

      Deferences for Points in Headnotes
    [1, 2] 16 Am Jur 2d, Constitutional Law § 131 et seq.; 28 Am Jur 2d, Evidence § 425 et seq.

    [3-5] 47 Am Jur, Searches and Seizures § 71.
    [6] 47 Am Jur, Searches and Seizures § 52 et seq.

    [7, 9] 29 Am Jur 2d, Evidence § 545 et seq.

    [8] 29 Am Jur 2d, Evidence § 320 et seq.

    [10] 4 Am Jur 2d, Appeal and Error §§ 539, 540.
    [11] 53 Am Jur, Trial § 74.

      5. Same — Consent—Arrest.
    Valid eonsent to a search may be given by the owner of property even though he is in detention following arrest.
    6. Same — Privacy—Self-Incrimination.
    The law of searches and seizures has the dual purpose of protecting the privacy of the individual and of protecting him against compulsory production of evidence to be used against him (US Const, Ams 4, 5).
    7. Criminal Law — Searches and Seizures — Questioning—Evidence —Assistance of Counsel.
    Consent of defendant, accused of murder, to search of his car which turned up .22-caliber cartridge easing with same marks as one found at scene of murder, showing they were fired from same gun, held, not freely given under the circumstances, where defendant, who had denied doing the murder, knew that the search was likely to uncover incriminating evidence and claimed that he had been awake for 30 hours and had been in custody under arrest for 5 to 7 hours, had been subjected to intense questioning, and claimed that he had asked to see a lawyer before answering questions but had been questioned at police headquarters without a lawyer present.
    8. Same — Notice—Prior Acts — Evidence—Burden of Proof.
    Evidence of prior acts of a criminal defendant may be relevant to a showing of motive for commission of the crime charged, but the burden is upon the prosecution to demonstrate to the trial judge the relevance of the proffered evidence, and it should be excluded, despite its relevaney, where probative value is outweighed by attendant prejudice to the defendant (CL 1948, § 768.27).
    9. Same — Statements to Officers — Assistance of Attorney.
    Statements by one accused of crime, made to officers after arrest and after request to consult attorneys had been made and denied, would be inadmissible at trial on the charge for which detention had been made.
    10. Appeal and Error — Judge’s Hostility to Defense Counsel— Prejudice.
    Allegation of error, that the trial judge conducted the proceedings in a manner hostile to defense counsel resulting in prejudice to the defendant, held, unsupported by the record.

      11. Trial — ’Control by Judge.
    Trial judge has a statutory duty to control all aspects of trials and where clear abuse of discretion in this matter is shown, convictions cannot stand (CL 1948, § 768.29).
    Appeal from Recorder’s Court of Detroit; Schemanske (Frank G.), J.
    Submitted Division 1 May 4, 1967, at Detroit.
    (Docket No. 1,414.)
    Decided March 20, 1968.
    Rehearing denied June 3, 1968.
    Leave to appeal granted August 1,1968.
    See 381 Mich 769.
    Ulyssese Grant Shaw was convicted of murder in the first degree. Defendant appeals.
    Conviction vacated and cause remanded for a new trial. .

      Frank J. Kelley, Attorney General, Robert A. Derengo ski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

      Milton R. Henry, for defendant.
   J. H. Gillis, P. J.

Charles Johnson was shot and killed on December 30, 1964, in the garage behind his home in the city of Detroit. Defendant Ulyssese Grant Shaw was arrested for Johnson’s murder later the same day in Pontiac and subsequently was delivered to Detroit police officers, who transported him to Detroit. An 11-day jury trial in August of 1965 culminated in a conviction for first-degree murder; from this conviction defendant appeals.

Defendant contends that reversible error was committed in several respects during this lengthy trial. We deal fully with only one of these, the search and seizure issue, which alone warrants a new trial.

Over an objection by defense counsel, the trial court admitted into evidence a shell casing and a live .22-caliber bullet found in defendant’s automobile on December 31, 1964, about 18 hours after defendant was arrested in Pontiac. A police laboratory officer later testified.that a comparison-microscope examination showed the markings on this casing and the one found at the scene of the crime to be identical; the officer further stated that identical markings are caused by firing both bullets from the same gun. The murder weapon itself was never found. It is therefore clear that the conviction cannot stand if it was error to admit into evidence the shell casing found in defendant’s car.

The prosecution contends that the shell casing was properly admitted because it was discovered during a search authorized by the defendant’s consent. Defendant is said to have given this consent, in the absence of counsel and during a period of interrogation, sometime between 10 p.m. December 30 and 1 a.m. December 31. According to the testimony of a police detective assigned to this case, defendant was asked in the course of the questioning, “Do you have any objections if our laboratory men look over your car?” The response was, “None at all. None whatsoever.” Defense counsel claims in this appeal that these words do not indicate the “free, intelligent, unequivocal and specific consent” required to support a search, not incident to an arrest, in the absence of a warrant.

If defendant consented to the search of his automobile, he waived his constitutional right that the search be founded on a warrant issued “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” US Const, Am 4. In the context of a right-to-counsel case the United States Supreme Court expressed itself on the subject of waiver of constitutional rights in the following manner:

“It has been pointed ont that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’” Johnson v. Zerbst (1938), 304 US 458, 464 (58 S Ct 1019, 1023, 82 L ed 1461, 1466, 146 ALR 357, 361, 362).

We believe that this states the proper approach to issues of waiver of any constitutional guaranty. The justification for such a view is not far to seek. It rests on the plain fact of human experience that rights easily waived are rights easily lost.

The problem of validation of searches and seizures through the alleged consent of a defendant was recently given exhaustive consideration in the annotation “Validity of Consent to Search Given By One In Custody of Officers,” 9 ALE 3d 858. It states at pp 864, 865:

“It cannot be emphasized too much that the determination of the sufficiency of a consent to a search as affected by the status of the consenter as in custody, depends upon the particular facts and circumstances of each case, and that there are no hard rules by which the presence of a certain fact (in addition to custody) will bind the court to a particular decision.”

It seems to be recognized generally that mere detention by the police will not prevent a sufficient consent. This is the accepted view in Michigan. People v. Bradley (1928), 243 Mich 609. What additional elements will render invalid an alleged consent to a search has been the subject of a spate of decisions. See cases cited in 9 ALE 3d 858, et seq., supra. In holding illegal a search and seizure based on alleged consent, the Supreme Court in People v. Kaigler (1962), 368 Mich 281, pointed out one consideration at p 294:

“It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony and there must he no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, freely and intelligently given. Karwicki v. United States (CA 4), 55 F2d 225; Kovach v. United States (CA 6), 53 F2d 639. The burden for the prosecution is particularly heavy where the individual is under arrest. Judd v. United States, 89 App DC 64 (190 F2d 649); Amos v. United States, 255 US 313 (41 S Ct 266, 65 L ed 654).”

Yet the Court has indicated that the addition of actual arrest to custodial detention does not per se prohibit valid consent to a search. In People v. Zeigler (1960), 358 Mich 355, the Court observed at pp 363, 364:

“This is not to say that under certain circumstances it may not be held that a person has waived his constitutional rights, while under lawful arrest, by voluntary giving of consent to what otherwise would be an unlawful search or seizure. As the court observed in Zap, however, the law of searches and seizures, as revealed in that Court’s decisions, is the product of the interplay of the 4th amendment’s guaranty against unreasonable search and seizure and the 5th amendment’s guaranty that no person shall be compelled in any criminal case to be a witness against himself, its dual purpose being to protect the privacy of the individual and to protect him against compulsory production of evidence to be used against him.”

The Court went on, by way of dictum, to say at pp 364, 365:

“Anri so, with respect to incriminating evidence, other than confessions, obtained by search and seizure, under a conceivable showing of facts, such as, inter alia, that the accused was first advised of his rights, informed that he need not submit to a search and that, if he did, the fruits thereof would be used in evidence against him, his consenting to the search and seizure may well, in the absence of contrary indications, be held to be voluntary, not an involuntary act secured under coercion, and, hence, a waiver of his constitutional rights, rendering such evidence admissible.” (Emphasis supplied.)

The following are the facts produced at the time of the hearing in the absence of the jury. Defendant had told the Detroit police he had not slept the night before; if true, this means that he had been awake for at least 30 consecutive hours before he allegedly gave his permission to search the car. In addition, he had been in custody and under arrest for approximately 5 to 7 hours, and had been subjected to progressively intense questioning since at least the ride to Detroit from Pontiac. There was testimony concerning an attempt by defendant to contact a lawyer and defendant claims he indicated a desire to see a lawyer before answering questions, yet no attorney was present during the interrogation in police headquarters. Defendant denied having given any consent to the search and denied having been informed of his constitutional rights. On the other hand, the police detective who conducted the questioning stated:

“I told him there was some information and evidence against a man named Grant Shaw; and if he was this man, he had a right not to answer my questions under the State and Federal Constitution. I also told him that if he was innocent of these charges, he would be given an opportunity to tell me where he was, if he was not involved in this matter, and I would work just as hard to see to it he got out of jail as I did to see to it that he got into jail. I believe that’s pretty close to my exact wording.”

See the language quoted from People v. Zeigler, supra.

Speaking of the prosecution’s burden of proving free, voluntary, intelligent, and specific consent, the United States Court of Appeals for the District of Columbia has said:

“This burden on the Government is particularly heavy in cases where the individual is under arrest. Nonresistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found. * * * In fact, the circumstances of the defendant’s plight may be such as to make any claim of actual consent ‘not in accordance with human experience’, and explainable only on the basis of ‘physical or moral compulsion’.” Judd v. United States, 89 App DC 64, 66 (190 F2d 649, 651).

We regard it as next to incredible that a man, while firmly denying he killed another, would freely consent to a search which he knows will be likely to. uncover evidence indicating his perpetration of the crime. This, together with the other circumstances we have recited above, leads us to conclude that there was no real consent to this search. Therefore, the articles seized thereby should not have been admitted into evidence. Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L ed 2d 1081, 84 ALR 2d 933). The conviction must be vacated and the case remanded for a new trial.

Defendant makes two other claims on this appeal which require attention, since the issues will very likely arise again on the new trial. Error is alleged in the admission of evidence of prior acts of the defendant and the admission of a statement made by defendant to Detroit police officers.

Evidence of prior acts of a criminal defendant may be relevant to a showing of motive for commission of the crime charged. The burden is upon the prosecution to demonstrate to the trial judge the relevance of the proffered evidence. People v. Askar (1967), 8 Mich App 95. Despite its relevancy it should be excluded where probative value is outweighed by attendant prejudice to the defendant. The assessment of the relative weight of these two factors is within the discretion of the court.

Where intent or motive is material and relevant, the mere fact that the prior act is itself a crime does not render the evidence inadmissible. People v. Allen (1958), 351 Mich 535. Proof of motive is highly relevant in a case such as this where there are no eyewitnesses and the prosecution’s case is necessarily a circumstantial one. Defendant’s interests must be weighed heavily, however, where the motive is evidenced by criminal acts. The problem is most acute and the inflammatory tendency of such evidence most pronounced where the act is an alleged rape of decedent’s wife by defendant. Such is the case here.

We are not now disposed to rule that it would be as a matter of law an abuse of discretion for the trial court to admit such evidence. However, “we perceive it to be incumbent upon the trial court, whether or not so requested by the defendant, to instruct the jury immediately that the evidence was admitted for a specific purpose and that they shall consider it only for that purpose.” People v. Askar, supra, at p 101. Anything less would be unnecessarily detrimental to the defense.

Defendant also contends that prejudicial error was committed in the admission of statements made to homicide bureau detectives during the night of December 30-31, 1964. Authority for such a position is found in Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L ed 2d 694, 10 ALR 3d 974). Miranda is inapplicable to trials held prior to the decisional date: June 13, 1966. Therefore, this issue is to be decided under the law applicable in August of 1965, i. e., Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L ed 2d 977).

The applicability of the Escobedo exclusionary rule depends upon a “request and denial” of consultation with an attorney. People v. Castelli (1967), 7 Mich App 1, and cases cited therein. We do not think that at the Walker hearing below the trial court adequately explored the possibility that defendant had, in effect or explicitly, requested the presence of his attorney, Milton Henry, and that the actions of the police detectives constituted a denial of that request. If further consideration should indicate that there was a request and denial here, defendant’s statements made thereafter might well be inadmissible under Escobedo.

A further allegation of error, namely that the trial judge conducted the proceedings in a manner hostile to the defense counsel, resulting in prejudice to the defendant, does not merit extended discussion here. We merely note the trial judge’s statutory duty to control all aspects of trials and that where clear abuse of discretion in this matter is shown, convictions cannot stand. Here, however, the record fails to support this allegation.

Conviction vacated; cause remanded for a new trial.

T. G-. Kavanagh and Weipert, JJ., concurred.

        Zap v. United States (1946), 328 US 624, 628 (66 S Ct 1277, 1279, 90 L ed 1477, 1481, 34821.

       CL 1948, § 768.27 (Stat Ana 1954 Rev § 28.1050).

        Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 Led 2d 882).

         People v. Walker (On Rehearing, 1965), 374 Mich 331.

       CL 1948, § 768.29 (Stat Ann 1954 Eev § 28.1052).


source: Caselaw Access Project

license: Public Domain

text:
    OAKWOOD VILLA APARTMENTS, INC., v. GULU.
    1. Contracts — Breach—Installation of Heating System.
    Recovery of damages from defendant heating contractor for breach of contract caused by leaky zone control valves in a heating system must depend upon defendant’s failure to install them properly and not upon his negligent selection of them, where there is no showing that valves were of bad design, badly manufactured, improperly manufactured, or faulty.
    2. Same — Breach—Damages.
    Damages for breaeh of contract are intended to compensate the injured party sufficiently to put him in as good a position as he would have occupied had the breaeh not occurred.
    3. Same — Standards—Design—-Breach.
    Contract by which defendant agreed to design a heating system to meet certain standards and to include certain particulars in the design is not breached when the design meets all of the requirements, and plaintiff cannot recover against defendant for cost of proposed changes of design, where faults of system result from installation.
    References for Points in Headnotes
    [1] 17 Am Jur 2d, Contracts § 425 et seq.

    [2-7] 22 Am Jur 2d, Damages §§ 12, 49 et seq.

    [8] 1 Am Jur 2d, Accord and Satisfaction § 33 et seq.

    [9] 5 Am Jur 2d, Appeal and Error § 1014.

      4. Same — Breach—Heating System — Repairs.
    Defendant who contracted to install heating system is liable for work improperly performed in the installation, and it is for' the trial court to make factual determinations whether leaks were attributable to defendant, and if so, which repairs were reasonable and necessary to put the system in the condition originally contemplated by the contract.
    5. Same — Performance.
    Injured party to a contract is only entitled to that to which he had a right under the contract.
    6. Same — Breach—Evidence—Replacement—Costs—Proration.
    Costs of valves in heating system which had to be replaced 2 or 3 years after installation because of failure where testimony indicated a life expectancy of 3 or 4 years must be prorated as to the unexpired portion of life which plaintiff building owner did not receive because of defendant heating contractor’s breach.
    7. Same — Breach—Replacement of Parts.
    Any method of computation based upon cost of replacement of components improperly installed in heating system by heating contractors, other than prorating unexpired portion of life, would permit injured party to obtain life expectancy of equipment beyond that contemplated by contract.
    8. Appeal and Error — Remand—Accord and Satisfaction.
    Determination as to whether credit on contract price was intended as an accord and satisfaction of the repairs necessitated by defendant’s claimed breach of contract for installation of heating system is ordered on remand.
    9. Costs — Neither Party Prevailing in Pull.
    No costs are allowed where judgment is remanded for further proceedings, neither party prevailing in full.
    Appeal from Wayne; Weideman (Carl M.) J.
    Submitted Division 1 May 4,1967, at Detroit.
    (Docket No. 2,282.)
    Decided March 20, 1968.
    Rebearing denied June 3,1968.
    Leave to appeal denied August 20,1968.
    See 381 Micb 772.
    Declaration by Oakwood Villa Apartments, Inc., a Michigan corporation, against Mike Gulu to recover damages resulting from defendant’s alleged breach of contract. Judgment for plaintiff. Defendant appeals.
    Reversed and remanded.

      J. Leonard Hyman (Philip Green, of counsel), for plaintiff.

      Earl D. Ross (Louis Rosensweig, of counsel), for defendant.
   J. H. Gillis, P. J.

Defendant Mike Gulu, doing business as Gulu Plumbing & Heating Company, is a beating contractor. On April 24, 1958, a contract was entered into by Gulu and Hampshire Home Builders, Inc., a general contractor, whereby Gulu was to design and install a heating system in an apartment complex owned by plaintiff, Oakwood Villa Apartments, Inc. Several problems arose in the heating system and plaintiff brought this action for damages alleging that Gulu breached his contract. Trial before the court resulted in a $9,000 judgment for plaintiff and defendant takes this appeal.

Defendant began work on the contract in 1958 and the system was partially tested during the 1958-59 heating season. Pursuant to an agreed contract modification, the system utilized gas fired boilers with attached pumps to force the heated water through the system. One boiler is located in each of the 8 individual apartment buildings, which contain 100 separate apartments. Each apartment has its own hot water supply and return from the radiator and is thermostatically controlled. The flow of hot water is controlled by a motorized zone control valve which, on signal from the thermostat, automatically opens to allow the flow of hot water or closes to stop the flow.

The first problem encountered with the system was during the 1958-1959 season when some of the control valves “froze” in the open position causing a runaway heat condition in some of the apartments. The excessive heat caused drywall damage and scorching of the walls behind the baseboard radiators requiring repairs and repainting which cost $2,239. Payments on the repair invoices were made on May 15, 1959 and July 9, 1959.

The cause of the problem was determined to be faulty zone control valves. White-Bodgers Company, the valve distributor, replaced all the valves in the system and gave Gulu an allowance for his labor in making the change. After the revalving was completed, to reassure the plaintiff and Federal Housing Administration, both the White-Rodgers Company and Gulu gave their warranties on the valves from January 1, 1960 to December 31, 1960.

Because of the subsequent valve problems, which we shall discnss, plaintiff also brought suit against White-Rodgers Company who in turn filed a third-party complaint against its own manufacturer-supplier, Eneo Products Corporation. Both of these actions were dismissed by the court at the close of plaintiffs proofs and no appeal has been taken from this dismissal.

After the valve problems developed, FHA, through William Stewart, its construction inspector, recommended withholding a portion of the contract price to insure funding of any further heating repairs and set up an escrow for this purpose. Mr. Stewart testified at trial that, based on the recommendations of PHA mechanical engineers who found that the system was functioning properly, the escrow was released in January, 1960. By this date Gulu had completed the installation.

On February 26, 1960, preparatory to the final contract payment, Gnln sent a letter to plaintiff in which he offered a $1,000 credit against his contract balance because of the repairs made necessary by the excess heat. The proposed credit was in fact accepted and deducted from the balance due. Gnln contends here, as he did at trial, that this credit constituted an accord and satisfaction of those damages. In its closing argument at trial, plaintiff included the drywall repairs and painting in its itemization of damages claiming that the credit was only for wasted fuel due to the excessive heat condition. Plaintiff’s president testified that he did not appreciate the full import of Gulu’s offer as made in the February 26 letter.

The system operated during the 1959-1960 and 1960-1961 heating seasons but testimony indicates that difficulties were experienced and complaints were received from some of the tenants. The main problems were leaky zone control valves and noise in the system.

In March, 1961, plaintiff retained Mr. E. G. Siegel, a consulting mechanical engineer, to inspect the system and make an evaluation and recommendation regarding any deficiencies. Mr. Siegel prepared 2 detailed reports in March and April, 1961, which were submitted to plaintiff. Plaintiff included in his damages Mr. Siegel’s consultation fee of $325.

Mr. Siegel made many recommendations for improving the heating system. He suggested that mounting the valves with the motor down caused any leaks to run into the motor and rust the mechanism, and that the valves should be mounted in the motor-up position. The report contained recommendations for expansion joints in the pipes to alleviate the noise caused by the pipes expanding on the inflow of hot water. Additionally, he made certain findings as to desirable modifications to boiler and water controls and suggested that the boiler pumps be rotated so as to push the water rather than pull it through the heating system.

On direct examination Mr. Siegel stated that the position of the boiler pumps did not make for a bad installation but that they are usually mounted to push the system. Some of the other items referred to were stated by Mr. Siegel to be recommended but not essential. He testified that although the contract called for type “L” copper tubing, be found that defendant had installed considerable amounts of type “M” which is a thinner-walled and less expensive tubing. He did state, however, that the type of tubing was only critical during the construction stage and that both types of tubing would be satisfactory in this type of system and under the pressures found in this system. When asked to express an opinion on whether Gulu had performed in a good and workmanlike manner, he declined to do so' stating only that he would have included some items omitted by Gulu.

On cross-examination Mr. Siegel indicated that his recommendations were a question of efficiency rather than functional operation; that at the time of his investigation the system was operating; and that most hot water systems make noise.

In October, 1962, plaintiff hired George Girk, doing business as Girk Engineering Company, to make certain repairs and modifications to the heating system. Armed with Mr. Siegel’s 1961 reports, Mr. Girk proceeded to change all 105 control valves, fix certain leaks which he attributed to faulty soldering on the installation, rewired certain transformers and thermostats, rotated the boiler pumps, and agreed further to service plaintiff’s system for a period from September 1, 1962, to April 30, 1963, for $40 per month.

Mr. Girk’s charges which were included in plaintiff’s itemization of damages were: 105 new control valves, $2,262.85; installation of the new valves, $480; labor to make other repairs on the system, $389; an item referred to as labor on zone control ($174.38) which according to the exhibits appears to consist of $100 balance due on zone controls, $65 for labor and material on transformers, and $9.38 to move a thermostat. On the $174.38 item, the $100 balance due appears to be repetitious of tbe cost and labor on the zone controls. Another $135 itemized by plaintiff included $105 for 5 new valves, which is already included in the cost for 105 valves listed above, and $30 for labor in repair of leaks.

White-Rodgers Company and Eneo Products Corporation moved for dismissal at the close of plaintiff’s proofs. The only evidence as to the fault of the valves was that they rusted, but there was no evidence as to why they rusted. As the court stated: “There is no showing that it is a bad design, bad manufacture, improper manufacture, or faulty valves.” The same finding is also applicable to Gulu in relation to plaintiff’s allegation that Gulu was negligent in selecting these particular valves and if Gulu is to be held liable for their replacement, it must depend on his failure to install them properly.

The other major item of damages was $7,575 which plaintiff contended was the cost to make all the additional corrections which Mr. Siegel recommended. At the time of trial, February 1966, these modifications had not yet been undertaken.

The trial judge in announcing his opinion, stated:

“Based on the testimony that the court has heard, the court believes that the plaintiff has established its case by a preponderance of the evidence, and the question now resolves itself into the amount of damages.
“The court is going to award a judgment in round figures, so to speak, as best it can, because the court believes there are some things that may not have to be done to put this installation in proper working order or to compensate for the repairs that have been made and the damages incurred as a result of the faulty installation of the system.
“This system was designed by the subcontractor. He had conversations with Mr. Scholnick. However, when the contract was reduced to writing, both sides were bound by the contract as written.
“The installation was complained of continually for a period of two years, at least. The work started in the heating’ season of ’58-59. The lawsuit was started May 10, 1962. The court finds that during that time there was no satisfactory heating system installed upon which a warranty should start. Complaints were continually made about the faulty operation and installation of the heating system.
“The court, after considering all the matters and all the proofs offered, and after hearing arguments of counsel, is of the opinion that the plaintiff has suffered damages for the amounts that he expended and some future amounts that he should put in and should be installed in the system to make it operate according to the contract, and the court therefore awards the plaintiff damages in the amount of $9,000, plus costs.”

In assessing damages at $9,000 the trial judge gave no indication of which items he allowed and which he disallowed. Normally in such a case we would simply remand to make the required findings, but in this case, based on the record made, we rule on certain items which are unallowable as a matter of law. Other items shall be referred back to the trial judge for factual determination.

The rule of damages for breach of contract is to compensate the injured party sufficiently to put him in as good a position as he would have occupied had the breach not occurred. Dierckx v. Vulcan Industries 1968, 10 Mich App 67. Therefore, it is necessary to determine what the parties bargained for and in which respects the performance fell short of expectations.

There are two distinct if not entirely separable provisions to this contract: to design the system and to install the system. Gulu designed this system and would be responsible for any defects in design, if they are found to render it deficient under the terms of the contract. The contract required Gulu to design a system which would meet latest I. B. R. methods, FHA requirements, and inspection requirements of the city of Royal Oak, and then enumerated certain particulars to he included in the design. There is no evidence that the system or design failed to meet any of the above requirements. The only evidence of variation from the express terms of the contract is the substitution of type “M” for type “L” tubing, but there is no testimony that this substitution constituted a defect in design.

The manifest injustice of going to a contractor to design an inexpensive system and then comparing it to one which an experienced professional engineer would have designed should be apparent on its face. All plaintiff was entitled to was a heating-system as specified in section 2 of the contract. Whether this is an optimum system or not, it is all plaintiff bargained for, and all he is entitled to receive. We find no evidence which would support a finding that plaintiff received less than that to which he is entitled and therefore we rule that the $7,575 item for proposed changes is without foundation in the record and not allowable.

Defendant, however, remains liable for work improperly performed in the installation of the system. There was testimony that certain pipes were improperly soldered causing leaks in the lines and in the valves. There should be a factual determination made by the trial judge as to whether the leaks were attributable to Gulu, and if so, which repairs were reasonable and necessary to correct the situation. The only items which we can find pertinent to correcting leaks are $30 and $389 billings from Girk.

We recognize that it was alleged that faulty soldering also led to the leaks which ultimately necessitated the replacement of the zone control valves. This is a question which should, on remand, be resolved by the trial judge.

Mr. Girk testified that when he began working at Oakwood Villa late in 1962 he found 35 of the valves inoperative but replaced the entire 105 to be on the safe side. We believe that in order to hold Gulu for this replacement it must first be determined whether this action by Girk was reasonable and necessary to put plaintiff’s system in the condition originally contemplated by the contract with Gulu. Moreover, as we pointed out in Dierckx, supra, the injured party to a contract is only entitled to that which he had a right to under the contract. Mr. Gulu testified that the normal life expectancy of a zone control valve is 3 or 4 years. By the time Girk replaced the valves, they had been in for 2 or 3 years. If, for instance, such valves have a 4-year life expectancy, the cost of the valves which it was necessary to replace should be prorated as to the unexpired portion of the life of the valves which was not available to plaintiff because of defendant’s breach. Any other method of computation based on the cost of replacement of certain components would permit the injured party to obtain life expectancy or quality of equipment beyond that contemplated by the contract.

As to the claim of accord and satisfaction on the drywall repairs, we remand for specific findings by the trial judge as to the intent of the parties and the construction of the February 26 letter with the subsequent $1,000 credit ag'ainst the contract. We further point out that in the present trial proceedings it does not appear that defendant was given credit for the $1,000 in computing damages. Since other questions are likewise being remanded for specific findings of fact, the trial judge should also make a determination on the record as to whether the parties intended an accord and satisfaction of the repainting and drywall repairs.

The judgment of the trial court is reversed and remanded for additional findings consistent with this opinion. No costs, neither party prevailing in full.

T. G. Kavanagh and Weipert, JJ., concurred.

       The terms of that contract insofar as they are material to this lawsuit provide:

        “A forced hot water heating system, base board radiation, and complete design and complete specifications for same to be furnished by the subcontractor to the general contractor to meet latest I. B. B. methods, F. H. A. requirements, and inspection requirements of the city of Boyal Oak, said system to conform to the drawings of the buildings as shown in drawings No. 5713. The subcontractor to provide the following:
      “Eaeh of 100 apartments shall be zoned with separate thermostat and motorized valves; pumps shall be sized to job and be Thrush, B. & G. or equal; radiation shall be General Automatic, Kritzer or equal with dampers thruout and cover to be from wall to wall; boiler to be sized larger than radiation figured at 200 degrees water and 80 degrees Fahrenheit difference in outdoor-indoor temperature; all apartments shall have 2" blanket insulation in wall and ceiling with fibre insulation in perimeter of outside walls; boiler shall bo National E. S. Badiator or equal;
      “AH' copper piping to be type “L”; all joints underground shall be silver soldered; riser from boiler to be insulated or any other place where pipe can be readily reached, insulation to be asbestos type; controls to be wired so when thermostats do not eaH for heat, temperature in boüer shall drop to give outdoor temperature control system; provide 2 tube scrapers for each boiler; no pipes to be exposed in ceUings of rooms in apartments; Subcontractor will wire aH controls and zone controls, General Contractor to furnish 110 wiring opening only where needed for subcontractor’s use; Subcontractor to provide eight 2000 gallon oil tanks, owner to furnish ground hole for each tank; owner to furnish oil for tanks; boilers to be No. 937-OW in apartments A, B, & G, and No. 737-OW in apartments C, D, E, & F for a total of 8 boilers, said boilers to have electronic controls thruout; Subcontractor to provide shut-off valve and individual drain for each apartment; system shall be test cheeked by the Subcontractor prior to the time owner takes over; Subcontractor shall warrant the system for one year and guarantees that boilers shall meet owner’s insurance requirements,”

       “It is further agreed and understood that Oakwood Villa Apartments, Ine., and Hampshire Home Builders, Inc. will baek-eharge against our contract price $1000.00 in connection with additional repairs and charges made to the building because of excessive heats resulting from the installation of faulty motorized valves.
      “We agree to this baek-eharge and have credited the account of Oakwood Villa Apartments, Inc. and Hampshire Home Builders, Ine. in the fuuopnt of $1,000,00,”

       Institute of Boiler and Radiator Manufacturers,


author: Lesinski, C. J. Baum, J.

text:
    BEATTY v. BROOKING.
    Opinion op the Couet.
    1. Couets — Probate Couets — Orders—Presumption op Validity.
    A presumption exists, when the validity of any order or deeree of a probate court is in question in any other suit or proceeding, that after 20 years everything which should have been done or proved to render the order or deeree valid, which might have been proved by parol at the time of making the order or deeree and was not required to be recorded, has been done or proved, unless the contrary appears on the same record (CL 1948, § 701.23).
    2. Same — Probate Court — Orders—Collateral Attack.
    Probate orders, properly entered and not appealed, are not subject to collateral attack.
    [1] 30A Am Jur, Judgments § 36.
    [2] 30A Am Jur, Judgments § 846.
    [3] 30A Am Jur, Judgments § 758.
    [4] 30A Am Jur, Judgments § 793 et seq.

    [5] 2 Am Jur 2d, Adoption § 76 et seq.

    [ 6, 9,11] 30A Am Jur, Judgments § 324 et seq.

    [7, 8] 41 Am Jur, Poor and Poor Laws § 9 et seq.

    [10] 30A Am Jur, Judgments § 382 et seq.

    [12,13] 39 Am Jur, New Trial § 156 et seq.

      3. Judgment — Equity—Probate Order — Fraud.
    Fraud which justifies equitable interference with a probate order must be positive fraud in obtaining the order and not merely constructive fraud.
    4. Same — Equity—Perjury.
    Falsification of statements in probate proceedings can be likened to perjury or false testimony, neither of which is sufficient ground for equitable relief against judgment resulting from it.
    5. Same — Adoption—Equity—Fraud.
    Alleged fraud perpetrated upon a court in petition for adoption by a woman who stated she was married to a certain man although there was no publie record of the marriage and no record of a divorce from her first husband held, not to warrant equitable interference with validity of a 45-year-old adoption proceeding (CL 1948, § 701.23).
    Separate Opinion.
    Baum, J.
    6. Judgment — Res Judicata.

      A final judgment on the merits, rendered by a court having jurisdiction over the subject matter and the parties, precludes them from relitigating the matters disposed of by the judgment.

    7. Courts — Probate Courts — Support op Poor Parents.

      The probate court has the power to order the children of any poor person to pay for his support if the child in question has the financial ability to do so (CL 1948, § 401.1 et seq., as amended by PA 1953, No 148).

      8. Same — Probate Courts — Support op Poor Parents — Jurisdiction.

      Statutory provision, empowering probate court to order a child of a poor person to pay his support, necessarily confers jurisdiction to determine any issue of filial status including the validity of an adoption order (GL 1948, § 401.1 et seq., as amended by PA 1953, No 148).

    9. Judgment — Res Judicata.

      A decision of a court having jurisdiction over the parties and the subject matter is res judicata not only of the issues which were actually litigated, but of those issues which could have been presented to the court.

      10. Same — Res Judicata — Matters of Defense.

      The principle of res judicata applies to matters of defense as well as to claims which plaintiff may make.

    11. Same — Courts—Jurisdiction—Res Judicata.

      An action in probate court to order payment of support of mother by adopted daughter, and an action in circuit court by the daughter against the mother to invalidate the adoption proceedings, are contests between the same parties with the same issues of filial and maternal status, and where the probate court had jurisdiction of the parties and the subject matter in the support proceeding its decision on the merits is final and is res judieata of the issue presented in the second action.

    12. New Trial — Newly Discovered Evidence — Collateral Attack.

      Remedy of a litigant who has newly discovered evidence is by

      moving to reopen the proceeding to which the evidence relates, not by instituting a new action attacking the first judgment collaterally.

      13. Same — Newly Discovered Evidence.

      No new trial will be granted on the basis of evidence which could have been produced in a prior proceeding by the exercise of ordinary diligence.

    Appeal from Oakland; Moore (Arthur E.), J.
    Submitted Division 2 June 8, 1967, at Lansing.
    (Docket No. 2,777.)
    Decided March 20, 1968.
    Complaint by Frances Beatty against Alice Brooking seeking invalidation of adoption proceedings. Oakland county intervened on behalf of defendant. Judgment for plaintiff. Defendant appeals.
    Reversed.

      Milton F. Cooney, for plaintiff.

      8. Jerome Bronson, Prosecuting Attorney, Robert W. Leutheuser, Chief Appellate Counsel, and Jack B. Baldwin, Special Assistant Prosecuting Attorney, for defendant.
   Lesinski, C. J.

The defendant herein appeals from a judgment of the circuit court for Oakland county determining an adoption proceeding to have been fraudulently obtained and hence void.

The record reveals that on September 26, 1908, Patrick McCan and Alice Delong were married in Howell, Michigan. Alice Delong and defendant Alice Brooking are one and the same.

The defendant contended that in October of 1910 she married Clifford Brooking in Milwaukee, Wisconsin. The Milwaukee health department and the director of vital statistics of the Wisconsin board of health, however, report no record of such marriage.

The plaintiff herein was born Frances Jane Higley in 1910, the daughter of John and Rosetta Higley. On February 21, 1919, John Higley, as the only living parent of Frances, signed a declaration of adoption in the probate court of Wayne county. On February 26, 1919, the court entered an order declaring the child to be the adoptive daughter of the defendant and Clifford Brooking, changing her name to Frances Jane Brooking. The plaintiff lived with her adoptive parents until she was married in 1929, her married name being Frances Jane Beatty.

On May 10, 1930, Alice McCan, being the same Alice Brooking, procured a decree of divorce from Patrick McCan in the circuit court of Kent county in Grand Rapids, Michigan.

In 1964, some 45 years after the adoption proceedings, the plaintiff brought an action in the circuit court for Oakland county to set aside the 1919 adoption order adjudging the defendant and Clifford Brooking her adoptive parents. The plaintiff alleged that the adoption order was void in that at the time of those proceedings, the defendant was still legally married to Patrick McCan,that the defendant wilfully and knowingly represented at the time of the adoption that she was the wife of Clifford Brooking; and that the defendant remained married to Patrick McCan until her divorce from him in 1930. Further, the plaintiff alleged that the defendant, because of the aforementioned allegations, was living either a bigamous or adulterous life at the time of the marriage and hence misled the court as to her worthiness to be an adoptive parent. The plaintiff contended that she first learned of the irregularities she herein alleges in February of 1964.

The trial court determined that the adoption of the plaintiff was fraudulently obtained and declared it void. It is from this decision that the defendant brings the present appeal, relying on CL 1948, § 701.23 (Stat Ann 1962 Rev § 27.3178-[23]) , in assignment of error in the determination made by the trial court.

The right to appeal from probate orders is presently limited by statute. At the time of the adoption proceedings in the instant case, appeals were limited by PA 1915, No 314, which was essentially the same as the present. The order of adoption in the instant case was not appealed. Probate orders, properly entered and not appealed, pursuant to the applicable statutes, are generally not subject to collateral attack. See Voigt v. Detroit Bank & Trust Company (1960), 360 Mich 442.

There are, however, cases that stand for the proposition that where the time for appeal has passed, equitable relief may be granted to set aside proceedings as fraudulent. Ewing v. Lamphere (1907), 147 Mich 659; Babcock v. Babcock (1907), 150 Mich 558; Grigg v. Hanna (1938), 283 Mich 443. In the aforementioned cases, attack upon the proceedings is not considered collateral but direct. The fraud which justifies equitable interference with a probate order must be fraud in obtaining the order and not merely constructive, but positive, fraud. Ombrello v. Duluth, S. S. & A. R. Co. (1930), 252 Mich 396.

In the instant case the plaintiff alleged that the defendant, by stating in the declaration of adoption that she was married to Clifford Brooking where no official record disclosed such marriage, perpetrated a fraud upon the probate court. Further, the plaintiff alleged the defendant “wilfully and knowingly” committed the alleged fraud. There is no evidence upon which the defendant’s action could so be characterized. At most, the defendant’s conduct could be labeled constructive fraud and that alone would not be sufficient to set aside the adoption proceedings. Ombrello v. Duluth, S.S. & A. R. Co., supra.

The falsification of statements in probate proceedings can be likened to perjury or false testimony. In both cases, if proved, a wrong has been committed. However, it has been stated that neither perjury nor forgery is sufficient ground for equitable relief in that the mischief that this approach would lead to would be far greater than the evil that is sought to be remedied. See Columbia Casualty Co. v. Klettke (1932), 259 Mich 564; Voigt v. Detroit Bank & Trust Company, supra. In adoption cases such as the present, the mischief becomes even greater in that the stability of the parent-child relationship would continually be under a threatening cloud. The door wonld be opened to fictitious claims made by natural children challenging the adoption proceeding involving their adoptive brothers and sisters. As with all court proceedings, there must be a stage of finality that can be relied on by the parties involved, otherwise there would be no end to litigation, and attacks on such proceeding could be made ad infinitum.

We find, based upon the record, that equitable interference was not warranted. We are compelled to follow the dictates of CL 1948, § 701.23, supra, giving validity to probate orders after 20 years and uphold the validity of the 1919 adoptive proceedings. Further, the relationship between the plaintiff and defendant has existed for some 45 years, the plaintiff enjoying the benefits of a home that it appears she wonld otherwise not have enjoyed. Any other holding by this Court would evade the clear policy of the statute and the hoped for permanence of probate orders.

Reversed. Costs awarded to the appellant.

Quinn, J., concurred with Lesinski, C. J.

Baum, J.

(concurring). I concur, on the ground that a judgment of the Oakland county probate court bars the plaintiff from questioning the defendant’s status as her mother.

Frances Beatty brought this lawsuit to establish that Alice Brooking is not her lawful mother. Apparently she did this to be relieved of any obligation to support Alice Brooking.

There is an order of the probate court of Wayne county, almost a half century old, by which it appears that Alice - Brooking and her husband, Clifford, adopted the plaintiff, Frances Beatty, when she was a child of tender years. But Frances Beatty contends that she was not lawfully adopted by the Brookings, because they were not husband and wife when the adoption order was entered in 1919. Frances Beatty seeks to have the adoption order set aside on the ground that it was procured by fraud, in that Alice Brooking misrepresented her marital status to the Wayne county probate court. Frances Beatty also insists that the adoption order of 1919 is void for lack of jurisdiction, because she was then a resident of Indiana and no guardian was appointed for her, despite her infancy.

The trouble with Mrs. Beatty’s claim is that she recently had an opportunity in another forum to litigate the very issue presented by this case: the issue of her filial relationship to Alice Brooking. The decision in that forum, adverse to her, is res judicata of the issue.

The proceeding referred to took place in the probate court of Oakland county, Judge Donald Adams presiding. The proceeding was a “poor law” action by the State of Michigan, pursuant to CL 1948, § 401.1 et seq., as amended by PA 1953, No 148 (Stat Ann 1960 Rev § 16.121 et seq.), to compel Frances Beatty to support Alice Brooking, as a dependent parent. It culminated in a judgment on January 16, 1964, ordering Frances Beatty to pay the State department of social welfare $24 a month for the support of her mother, Alice Brooking. Under the statute in question, the Oakland county probate court must have decided that Alice Brooking was Frances Beatty’s mother.

A final judgment on the merits, rendered by a court having jurisdiction over the subject matter and the parties, precludes them from relitigating the matter or matters disposed of by the judgment. Knowlton v. City of Port Huron (1959), 355 Mich 448.

There can he no question that the judgment of the Oakland county probate court was a final adjudication and was on the merits.

The probate court of Oakland county had jurisdiction over the person of Frances Beatty. She was named as a respondent in the “poor law” proceeding. An attorney appeared for her and contested the proceeding on the merits. By her own testimony she made five or six support payments pursuant to the support order of the probate court.

The parties in the instant suit and in the probate proceeding are the same. The “poor law” proceeding was entitled “In the matter of Alice Brooking.” Either Alice Brooking was a party to the “poor law” proceeding, or the State of Michigan was acting on her behalf, and as her privy. At the time of the “poor law” case the State was paying for Alice Brooking’s support and was subrogated to the right of support which Alice Brooking had against Frances Beatty. Thus the contest in the Oakland county probate court was between the same persons who are parties to the present case, or their privies. Weeks v. Downing (1874), 30 Mich 4; Mloodyanowski v. Raniak (1927), 238 Mich 296.

There is no doubt that the Oakland county probate court had jurisdiction of the subject matter. OL 1948, § 401.1 et seq., supra, empowers the probate court, upon notice and hearing, to order the “children of any poor person” to pay for such poor person’s support, if the child in question has the financial ability to do so. The statute necessarily confers jurisdiction to determine whether the respondent is a child of the pauper and, incidentally, to determine any issue of fact or law upon which, filial status may turn. This includes jurisdiction to determine the validity of the Wayne county probate court adoption order.

The matter before this Court is the same matter adjudicated in the Oakland county probate court. It is not clear from the record whether Mrs. Beatty presented evidence in the Oakland county probate court to prove that Alice Brooking was not her mother. But it really doesn’t matter, inasmuch as she had an opportunity to do so. Barris v. Emmons (1913), 173 Mich 590.

The decision of a court having jurisdiction over the parties and the subject matter is res judicata, not only of the issues which were actually litigated, but of those issues which could have been presented to the court. In Gursten v. Kenney (1965), 375 Mich 330, 335, the Michigan Supreme Court quotes with approval the following rule:

“ ‘ “The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” ’ ”

The principle of res judicata applies not only to claims which plaintiffs may make, but applies as well to matters of defense. Barris v. Emmons, supra, holds that a valid judgment for the plaintiff operates to bar not only the defenses interposed and adjudicated, but also those which might have been raised.

In summary, we observe that the “poor law” contest in the probate court was between the same parties as the instant suit, or their privies; the issue of filial and maternal status was the same; the probate court had jurisdiction of the parties and the subject matter; and its decision was final and on the merits. We conclude, therefore, that the decision of the Oakland probate court is res judicata of the issue presented in the case at bar.

We are not impressed with the argument that Frances Beatty did not know of the infirmity in the Brookings’ marital status during the pendency of the “poor law” proceeding.

In the first place, if some newly discovered evidence were to provide a basis for reopening the Oakland county probate proceeding, Frances Beatty’s remedy would be to make such a motion in the probate case and not to attack the Oakland county probate judgment, collaterally, in these proceedings.

In the second place, by Frances Beatty’s own testimony, she had notice, during the pendency of the Oakland county probate court proceedings, of a possible infirmity in the marital status of Alice and Clifford Brooking. She testified that she told her lawyer in the Oakland county probate proceeding what she knew concerning this infirmity.

This cuts the ground out from under any claim by Frances Beatty that she didn’t become aware of the invalidity of Alice Brooking’s 1910 marriage until after the conclusion of the support proceeding in the Oakland county probate court. When the Oakland county probate proceeding was. pending, Frances Beatty was bound to use due diligence to gather all her ammunition so that it might be used in that contest. She cannot have the benefit of a new trial on the basis of evidence which could have been produced in the “poor law” proceeding by the exercise of ordinary diligence. Grossman v. Langer (1934), 269 Mich 506.

Frances Beatty did not appeal the order of the Oakland county probate court. Instead she respected it and paid the support for a period of time. She started the instant action in the Oakland county circuit court after the time for appeal of the probate order had expired. Frances Beatty had her day in court. She is not entitled to a second day. She is barred by the judgment of the Oakland county probate court from questioning the status of Alice Brooking as her lawful mother.

For these reasons the judgment below should be reversed with costs to the appellant.

       “When the validity of any order or decree of a probate eourt shall be drawn in question in any other suit or proceeding, everything necessary to have been done or proved to render the order or decree valid, and which might have been proved by parol at the time of making the order or deeree, and was not required to be recorded, shall, after 20 years from such time, be presumed to have been done or proved, unless the contrary appears on the same record.”

       CL 1948, § 701.36 (Stat Ann 1962 Rev § 27.3178[36]) ; CL 1948, § 701.43 (Stat Ann 1962 Rev § 27.3178 [43]); CL 1948, § 701.44, as amended by PA 1966, No 181 (Stat Ann 1968 Cum Supp § 27.3178 [44]).

       Patently, the legislature has constitutional power to grant such jurisdiction to the probate eonrt. Const 1908, art 7, § 13; Const 1963, art 6, § 15.


author: J. H. Gillis, J.

text:
    References por Points in Headnotes

      DiGIOVANNI v. YACENICK.
    1. Limitation op Actions — Service op Complaint and Summons-Tolling Statute.
    Statutes of limitation are tolled for no longer than 90 days when the complaint is filed and a copy of the summons and complaint, in good faith, are placed in the hands of an officer for immediate service (CLS 1961, § 600.5856[3] ).
    Beperences por Points in Headnotes
    [1, 2] 34 Am Jur, Limitation of Actions § 258.
    Tolling of statute of limitations where process is not served before expiration of limitation period, as affected by statutes defining commencement of action, or expressly relating to interruption of running of limitations. 27 ALB2d 236.
    [3] 34 Am Jur, Limitation of Actions § 231.
    [4] 34 Am Jur, Limitation of Actions §§ 231, 234.
    '5] 34 Am Jur, Limitation of Actions §§ 230, 231, 234, 418, 420.
    '6] 34 Am Jur, Limitation of Actions §§ 411-413, 418.
    ’7] 34 Am Jur, Limitation of Actions §§ 230, 231, 234, 258, 411-413,

      2. Same — Service of Summons and Complaint — Officers—Tolling Statute.
    The failure to place summons and complaint in the hands of an officer who eould make a valid service of process preeludes application of statutory provision tolling the general statute of limitations for not more than 90 days (CLS 1961, §§ 600-.5805, 600.5856[3]).
    3. Same — Fraudulent Concealment.
    Fraudulent concealment by person liable for any claim of the existence of such claim or of the identity of any person who is liable for the claim, from knowledge of person entitled to sue on claim, extends the time for commencement of action so that it may be started any time within 2 years after the time the person who is entitled to bring the aetion discovers, or should have discovered, the existence of the claim or identity of the person who is liable for the claim, although aetion would otherwise be barred by period of limitations (CLS 1961, § 600.5855).
    4. Same — Tolling of Statute.
    Fraudulent concealment, suggest as used in statute extending time in which to commence an aetion, means employment of artifice planned to prevent inquiry or escape investigation and to mislead or hinder acquisition of information disclosing a right of aetion (CLS 1961, § 600.5855).
    5. Same — Fraudulent Concealment — Extension of Time.
    Eepresentations of defendant’s counsel as to prospects of settlement of aetion so that plaintiff’s action was dismissed for laek of progress because of his reliance on the representations held, not a fraudulent concealment entitling plaintiff to an extension of time within which to commence another aetion under statutory provision extending time by 2 years (CLS 1961, § 600.5855).
    6. Same — Estoppel—Evidence—Negotiation for Settlement.
    Statements and actions of counsel for defendant which contain no express or implied promise by the party charged to pay or settle the claim but only to negotiate for settlement held, insufficient to afford a basis for establishing an equitable estoppel to assert defense to statute of limitations (CLS 1961, § 600.5005).

      7. Same — Tolling oe Statute — Fraudulent Concealment — Estoppel.
    Grant of motion for accelerated judgment in second lawsuit for personal injuries started over 3 years after the accident occurred and when the first suit was dismissed for lack of progress held, proper, the statute of limitations not being tolled, where the record fails to disclose that the summons and complaint wore plaeed in hands of an officer for valid service of process, the statements that a settlement conference would be scheduled do not constitute fraudulent concealment, and the statements containing no express or implied promise by party charged to pay or settle but only a promise to negotiate for settlement are not sufficient to raise equitable estoppel (CLS 1961, §§ 600.5805, 600.5855, 600.5856[3]).
    Appeal from Common Pleas Court of Detroit; Pernick (Joseph J.), J.
    Submitted Division 1 June 9, 1967, at Lansing.
    (Docket No. 2,557.)
    Decided March 20, 1968.
    Declaration by Nick DiGiovanni against Fred Steve Yacenick for injuries sustained when the automobile he was driving was struck by defendant. Judgment for defendant.
    Affirmed.

      Metry, Metry, Sanom, Ashare S Goldman, for plaintiff.

      Eggenberger & Eggenberger, for defendant.
   J. H. Gillis, J.

Plaintiff Nick DiGiovanni, while driving an automobile on October 10, 1962, was struck in the rear by an automobile owned and operated by defendant, Fred Steve Yacenick. A chain collision resulted and plaintiff’s vehicle was forced into a vehicle owned by one Victor Nowinski.

In March of 1964 a subrogation action was commenced in common pleas court by Nowinski’s insurance carrier against both the plaintiff and the defendant herein, The following month DiGiovanni instituted an action against Yacenick in the common pleas court. Discussions and negotiations between the parties with the purpose of settling all pending litigation were then begun. Yacenick’s counsel during the negotiations contended that Montgomery Ward & Company had negligently repaired the brakes of his client’s vehicle. DiGiovanni took no further action on his suit commenced in April and it was dismissed for lack of progress. Thereafter DiGiovanni learned that the subrogation claimant and Yacenick had settled their differences and had dismissed their lawsuit. In the pleadings filed in DiGiovanni’s action of April 1964, Yacenick’s address was listed as Mt. Clemens, Macomb county, Michigan. No return of service was ever made. On November 9, 1965, DiGiovanni filed a new lawsuit against Yacenick in the common pleas court for the city of Detroit and service by alias summons was made on Yacenick on March 7, 1966. Yacenick then moved for accelerated judgment pursuant to GCE 1963, 116.1(5), which was granted on April 7, 1966, on the grounds that DiGiovanni’s action was barred by a 3-year statute of limitations applicable in personal injury actions.

The narrow issue presented on appeal is whether the statute of limitations applied to DiGiovanni’s second lawsuit, requiring the trial judge to grant the motion for accelerated judgment.

DiGiovanni contends that the statute of limitations was tolled for 3 reasons: (1) the first suit was filed and a copy of the summons and complaint in good faith were placed in the hands of an officer for immediate service, PA 1961, No 236, § 5856(3) (CLS 1961, § 600.5856 [3] [Stat Ann 1962 Eev § 27A.5856 (3)]); (2) Yacenick’s misrepresentation that a settlement was imminent constituted a fraudulent concealment of the existence of the claim, PA 1961, No 236, § 5855 (CLS 1961, § 600.5855 [Stat Ann 1962 Rev §27A.5855]); (3) the failure of Yacenick to give notice to DiGiovanni of the dismissal of the subrogation claimant’s lawsuit gave rise to an equitable estoppel barring the defense of the statute of limitations.

Good Faith Attempt at Service

In support of plaintiff’s first position he relies on CLS 1961, § 600.5856(3), supra, which reads:

“The statutes of limitations are tolled when * * *
“(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.”

He argues that pursuant to the above section the 3-year statute of limitations was tolled for 90 days after the first suit was instituted and that while the statute may have continued to run after this 90-day period, it would, at the very least, have extended the period within which a suit could be instituted to 3 years and 90 days after the date of the accident and therefore the second suit could have been commenced up to and until January 10,1966.

Defendant, in reply to this argument, contends that plaintiff’s argument is based on the fallacy that the summons and complaint in good faith were placed in the hands of an officer for immediate service. With this argument we agree. The record fails to disclose that the summons and complaint were placed in the hands of a Macomb county officer who could make a valid service of process in that county. The statute, therefore, was not tolled by the commencement in 1964 of the first lawsuit between the parties hereto.

Fraudulent Concealment

Plaintiff also contends that the statute of limitations is suspended in the instant case for fraudulent concealment on the part of defendant, and in support thereof relies on CLS 1961, § 600.5855, supra, which reads:

“If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.”

Plaintiff in effect argues that he was lulled into a false sense of security by the defendant’s counsel, who plaintiff contends stated that a “settlement can be arrived at with all the parties concerned” and that the attorneys for the defendant and the subrogation claimant agreed that a settlement conference would be scheduled in the future. Plaintiff contends that he allowed the first lawsuit to be dismissed because of his reliance on the representations of the defendant’s counsel. However, the fraud sought to be remedied by CLS 1961, § 600.5855, supra, consists of the concealment of the existence of a claim or the identity of a potential defendant. In Draws v. Levin (1952), 332 Mich 447, the Supreme Court reviewed some of the guidelines followed in determining whether or not a statute of limitations has been tolled by fraudulent concealment by the party charged with the concealment and stated at p 453:

“ ‘Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of the information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent.’ ” (Quoting DeHaan v. Winter [1932], 258 Mich 293, 296.)

Since the facts in the instant case do not fall within the above category, DiGiovanni cannot rely on OLS 1961, § 600.5855, supra, to bar the defense of statute of limitations.

Equitable Estoppel

DiGiovanni argues that Yaceniek’s conduct has estopped him from raising the defense of statute of limitations. Such an argument was considered by our Supreme Court in Yarger v. City of Hastings (1965), 375 Mich 413, which held that the facts alleged were not sufficient to raise an equitable estoppel. In this case, as in Yarger, supra, there is no express or implied promise by the party charged to pay or settle the claim but only to negotiate for settlement. Yaceniek never admitted liability in this case and, as early as 1963, by letter directed to DiGiovanni’s counsel denied liability. Yaceniek and his counsel did not attempt to conceal the existence of the claim or his identity or whereabouts. Further', as in Yarger, supra, the facts of the accident were not within the special knowledge of the party charged and there was no fiduciary relation between the parties. We therefore conclude under the facts of the instant case that there is no basis for equitable estoppel to bar a defense of the statute of limitations.

Affirmed. Costs to appellee.

Quinn, P. J., and McGregor, J., concurred.

       PA 1961, No 236, § 5805 (CLS 1961, § 600.5805 [Stat Ann 1962 Ecv § 27A.5805]).


author: J. H. G-illis, J.

text:
    SCHWIND v. YACENICK.
    This case is controlled by DiGiovanni v. Yacenick (1968), 9 Mich App 590.
    References for Points in Headnotes
    No references; see supra, p 590.
    Appeal from Common Pleas' Court of Detroit; Per nick (Joseph J.), J.
    Submitted Division 1 June 9, 1967, at Lansing.
    (Docket No. 2,558.)
    Decided March 20, 1968.
    Declaration by Helen Schwind against Fred Steve Yacenick for injuries sustained when automobile in which she was riding was struck by defendant. Judgment for defendant.
    Affirmed.

      Metry, Metry, Sanom, Ashare & Goldman, for plaintiff.

      Eggenberger & Eggenberger, for defendant.
   J. H. G-illis, J.

This case is controlled by DiGiovanni v. Yacenick (1968), 9 Mich App 590. The factual situation and all essential ingredients are the same in each case. In this case, however, the plaintiff was a passenger in the automobile operated by Nick DiGiovanni. The issues presented for our consideration are identical.

We, therefore, affirm the judgment. Costs to appellee.

Quinn, P. J., and McGregor, J., concurred.


author: T. Gr. Kavanagh, J.

text:
    MARTIN v. OHIO CASUALTY INSURANCE COMPANY.
    1. Insurance — Construction of Policy.
    An insurance policy is considered as a whole and should be construed liberally in favor of the insured.
    2. Same — Typed Provisions Which Modify Printed Provisions.
    Typed provisions in insurance poliey containing both typewritten and printed provisions are special conditions which modify the printed portions and the printed portions must yield to the typed ones.
    3. Same — Typed and Printed Provisions — Construction of Policy- — -Airplanes.
    Typed provision in airplane insurance policy whieh permits use of the aircraft for “commercial” use, including operation by persons under rental agreement providing remuneration to owner of airplane, and whieh modifies the printed provision that the term “insured” does not apply to a person operating the aircraft under the terms of a rental agreement providing remuneration to the owner of the aircraft, coupled with provision that insurance company will defend any suit against the insured alleging injury to or destruction of property caused by use of the aircraft and would pay all expenses of such defense, held, to extend coverage to plaintiffs who rented aircraft and damaged it while operating it, rendering the insurance company liable for expenses plaintiffs incurred in defending action brought by insurance company against them to recover damages to the plane.
    References for Points in Headnotes
    [1] 29 Am Jur, Insurance §§ 250, 258.
    [2, 3] 29 Am Jur, Insurance § 255.
    Appeal from Common Pleas Court of Detroit; Stanczyk: (Benjamin C.), J.
    Submitted Division 1 October 3, 1967.
    (Docket No. 3,131.)
    Decided March 20, 1967.
    Leave to appeal denied June 18, 1968.
    See 381 Mich 755.
    Action by Joseph Martin and William Deneen against the Ohio Casualty Insurance Company to recover expenses incurred in defending suit brought by defendant against them. Judgment for plaintiffs. Defendant appeals.
    Affirmed.

      John E. Young, for plaintiffs.

      Davidson, Ootshall, Kelly, Halsey & Kohl (Charles E. Randan, of counsel), for defendant.
   T. Gr. Kavanagh, J.

Defendant, Ohio Casualty Insurance Company, issued an aircraft liability insurance policy to the Finney Aviation company providing insurance coverage for property damage arising out of use of the insured aircraft. Plaintiffs rented a plane from Finney Aviation and while they were operating the plane, i.e., taxiing down a runway, it hit a curb, nosed over and was damaged. Pursuant to the insurance policy defendant paid Finney Aviation $2,179 for damages to the plane.

The defendant insurance company, as subrogee of Finney, sued plaintiffs, Martin and Deneen, for $2,179, on the theory that plaintiffs were liable for. damages to the plane caused by them.

The insurance policy issued to Finney Aviation' provided that defendant insurance company would defend any suit against the insured alleging injury to or destruction of property caused by accident and arising out of the ownership, maintenance or use of the aircraft and would pay all expenses of such defense. Plaintiffs, claiming that they were insured by definition under the policy, timely demanded that Ohio Casualty assume defense of that suit and pay the expenses thereof. The insurance company refused so to do. Martin and Deneen retained counsel at their own expense and judgment of no cause of action was entered in their favor on the ground that they had not been negligent in the operation of the plane.

Having successfully defended that action, plaintiffs commenced this action againt defendant for expenses incurred, in defending the prior suit. The lower court held that plaintiffs were insured under the policy and accordingly judgment in their favor was entered in the amount of $1,256 plus costs and attorney fees. Defendant appealed.

The sole issue before us is whether the lower court was correct in its ruling that plaintiffs were insured under the policy or whether, as defendant claims, plaintiffs are not covered under the policy because they were operating the plane under a rental agreement.

Two provisions of the insurance policy are pertinent to the question before us. Paragraph III of the “Insuring Agreements” defines “Insured” as follows:

“The unqualified word ‘Insured’ wherever used in this policy with respects to coverages A, B, C, and D, includes not only the named insured but also any person while using or riding in the aircraft and any person or organization legally responsible for its use, provided the actual use is with the permission of the named insured.
“The provisions of this paragraph do not apply: * * *
“(d) to any person operating the aircraft under the terms of any rental agreement or training program which provides any remuneration to the named insured for the use of said aircraft.”

Item 6 of the “Declarations” provides:

“The aircraft will be used only for the purposes indicated by ‘X’: * * *
“3(e) ‘Commercial’. The term ‘Commercial’ is defined as including all the uses permitted under (c) and (d) above.”

Item 6 (c) referred to in the above-quoted clause permits rental of aircraft to pilots.

The question before us is one of first impression in Michigan, and while cases involving such clauses as these in aircraft insurance policies are not numerous, there is a sufficient number from which to glean some general rules of construction. See Petro v. Ohio Casualty Ins. Co. (1950, SD Calif), 95 F Supp 59; Fireman’s Fund Insurance Company v. McDaniel (1960, ND Miss), 187 F Supp 614; Wzontek v. Zurich Insurance Company (1965), 418 Pa 30 (208 A2d 861); Roberts v. Underwriters at Lloyds London (1961, SD Idaho), 195 F Supp 168; Continental Casualty Company v. Warren (1953), 152 Tex 164 (254 SW2d 762). The policy is to be considered as a whole and should be construed liberally in favor of the insured. This is in line with the Michigan rule as to construction of insurance policies generally. See Allor v. Dubay (1947), 317 Mich 281. Where the policy contains both typewritten and printed provisions, the latter must yield to the former because of the rule that typed provisions are deemed special conditions modifying the printed portions. It was this latter rule that the trial court invoked, and properly so, in ruling that item 6 of the “declarations” modified the definition of “insured” and extended coverage to a renter pilot. An “X” was typed into the box in front of subsection (e) of item 6, and this is the provision that authorized the use of the insured aircraft for rental to pilots. We hold that the court correctly ruled that this provision modified the definition of “insured” and extended coverage to plaintiffs. “To hold otherwise would be to permit the * * * insurance company to ‘blow hot and cold’ in one breath, or, to give coverage in one part of the policy and take it away in another.” Fireman’s Fund Insurance Company v. McDaniel, supra, at page 618. The only reasonable construction of this policy is that the purpose of item 6 is to indicate the extent of the authorized use' of the aircraft and that protection is afforded for damages arising out of such authorized use. Since plaintiffs were insured under the policy defendant was obliged to pay the expenses of litigation incurred by plaintiffs, and plaintiffs were properly permitted to recover such expenses.

Affirmed, costs to appellees.

Lesinski, C. J., and J. H. Gillis, J., concurred.


author: Lesinski, C. J.

text:
    PEOPLE v. CLARK.
    I. Criminal Law — Continuance—Discretion op Court.
    A continuance in a criminal case is a matter of discretion with the trial court and an appellate court will not interfere unless there has been apparent or proof of at least probable prejudice to defendant (CL 1948, § 768.2).
    References for Points in Headnotes
    [1] 17 Am Jur 2d, Continuance §§ 3, 4.
    [2] 17 Am Jur 2d, Continuance § 37.
    Right to continuance because counsel i§ in attendance at another court. 112 ALR 593.
    [3] 21 Aw Jur 2d, Crinjjn^,} Lp,w § 309.

      2. Same — Continúanoe—Due Process.
    Denial by court of request for continuance of trial to enable criminal defendant counsel to conduct another case held, neither an abuse of discretion nor a denial of constitutional rights where defendant had 2-1/2 months to retain counsel, did not do so until the day of trial, and made no effort to obtain an adjournment before the day of trial.
    3. Same — Right to Counsel.
    The right to counsel must be exercised by a defendant within the framework of the judicial process and cannot be used as a device to delay trial.
    Appeal from Recorder’s Court of Detroit; Wood (Andrew C.), J.
    Submitted Division 1 October 5, 1967, at Detroit.
    (Docket No. 2,326.)
    Decided March 20, 1968.
    Elbert Clark was convicted of driving a motor vehicle without a driver’s license in his possession.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

      Tauber é Gar on, for defendant on appeal.
   Lesinski, C. J.

The defendant, Elbert Clark, appeals from his conviction and sentence on a charge of driving a motor vehicle without a driver’s license in his possession.

The defendant was arrested and arraigned on January 31, 1966, and trial was set for April 20, 1966. The attorney whom defendant asked to represent him, Edward L. Douglas, filed an appearance dated April 20,1966. According to the record, counsel was unable to appear on April 20, 1966, the day of trial, because of his attendance in another court. In his stead, retained counsel sent an associate to appear for the purpose of requesting an adjournment. The request for adjournment was denied, trial proceeded as scheduled, and the defendant was convicted as charged.

The defendant presents the following as his sole question on appeal: Was he denied his constitutional rights when the lower court refused to grant his attorney an adjournment and required the defendant to proceed without counsel?

In People v. O’Leary (1967), 6 Mich App 115, 122, this Court summarized the current law in this State relative to continuances, quoting from People v. Raider (1931), 256 Mich 131, 134, where the Court stated:

“ ‘Continuance was within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. Prejudice to defendant must be apparent or proved to have been at least probable.’ ”

See, also, People v. Knox (1961), 364 Mich 620.

In People v. Stinson (1967), 6 Mich App 648, this Court stated that the denial of a continuance in order to give the defendant sufficient time to engage an attorney “will in appropriate circumstances” constituté a denial of due process. In that case this Court, in affirming the defendant’s conviction, stated that there had been no denial of the defendant’s constitutional rights nor abuse of discretion by the trial court since the defendant had made no effort to obtain counsel after months of opportunity to do so.

In this ease defendant did not retain counsel until the day of trial, some 2-1/2 months after the trial date was set. The record on appeal does not disclose any effort on the part of the defendant to obtain an adjournment prior to the day the case was called for trial. At the trial, defendant stated he had not retained an attorney earlier because he did not have the money.

While the appellate courts of this land zealously guard the rights of defendants to counsel, they equally concern themselves with the need to dispose of litigation with proper diligence to avoid a breakdown of the judicial process which is threatened by long delays. Where, as here, the defendant fails to request an adjournment prior to the day of trial, particularly when he had some 2-1/2- months to obtain counsel, it is not an abuse of discretion oh the part of the trial judge to deny an adjournment.

Although in the instant case the witness was a police officer, who from time to time may be scheduled to appear in court, we cannot lose sight of the fact that under these circumstances an adjournment would be an unwarranted imposition upon his tune-as an individual and as one assigned to police work in the community. The situation only becomes more aggravated when witnesses are private persons.

Defendant on appeal relies on Gideon v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR 2d 733), and People v. Coates (1957), 347 Mich 626, which deal with the question of right to counsel. The cases cited, while they stand for the point that defendant is entitled to counsel, do not deal with the question before us which was defendant’s right to an adjournment.

The right to counsel 'must be exercised by a de-, fendant within the framework of the judicial process! and cannot be employed as a device to prevent bringing a defendant to justice.

The defendant has failed to establish an abuse of discretion on the part of the trial judge in denying the motion for an adjournment.

The conviction is affirmed.

J. H. Gillis and T. G. Kavanagh, JJ., concurred.

      CLS 1961, § 257.311 (Stat Ann 1960 Rev §9.2011),

       SOL 1948; § 768.2 (Stat Am 1954 Rev §28,1035),


author: Holbrook, J.

text:
    PEOPLE v. CRONK.
    1. Criminal Law — Evidence—Burden of Proof — Jury Verdict— Appeal and Error.
    Objection of defendant, who was convicted of assault with a dangerous weapon, that the jury’s verdict was contrary to the great weight of the evidence is not well taken, sinee the correct standard of proof in a criminal case is evidence sufficient to convince beyond a reasonable doubt (CL 1948, § 750-.82).
    2. Same — Arraignment—Plea of Not Guilty — Waiver—Information.
    Defendant who entered a plea of “not guilty” on arraignment on a charge of assault with intent to do great bodily harm less than murder, thereby waived irregularity, if any, of prior proceedings including a defective information (CL 1948, § 750.84).
    3. Appeal and Error — Jury Instruction — Criminal Law.
    Eailure to include, at the end of jury instruction on assault with intent to do great bodily harm less than murder, the words “when thus accompanied” held, not reversible error, where the import of the instruction could be understood without sueh words (CL 1948, § 750.84).

      Deferences for Points in Headnotes
    [1] 30 Am Jur 2d, Criminal Law § 1168.
    [2] 21 Am Jur 2d, Criminal Law §§ 446, 467.
    [3] 5 Am Jur 2d, Appeal and Error §§ 891, 893, 894.
    [4] 6 Am Jur 2d, Assault and Battery § 107; 53 Am Jur, Trial § 1056.
    [5] 5 Am Jur 2d, Appeal and Error § 623.
    [6] 6 Am Jur 2d, Assault and Battery §§ 97, 99.

      4. Criminal Law — Assault With a Deadly Weapon — Verdict Failing to Specify Person Assaulted.
    Jury’s general verdict, whieh resulted in conviction of assault with a dangerous weapon but failed to specify which of the 4 victims named in the information were assaulted, held, valid, as neither statute nor case law requires the jury to specify the person or persons assaulted (CL 1948, § 750.82).
    5. Same — Instructions—Failure to Object.
    Failure of trial eourt, in ease of assault with intent to do great bodily harm less than murder, to give instructions requiring specification as to intent to assault and actual assault toward eaeh of the victims named in the information held, not reversible error, where defense counsel did not raise objection, when given opportunity, to the trial court’s failure to give sueh instructions (CL 1948, § 750.84).
    6. Same — Intent—Assault—Previous Relations.
    Prosecution may show that the previous relations between the parties were not friendly or that they had difficulties with each other, and specific acts of that character may be given in evidence between defendant and a person assaulted or person intended to be assaulted where intent is essential to the offense of assault with intent to do great bodily harm less than the erime of murder (CL 1948, § 750.84).
    Appeal from Ionia; Bebeau (Leo B.), J.
    Submitted Division 3 November 7, 1967, at Grand Rapids.
    (Docket No. 3,360.)
    Decided March 20, 1968.
    Glenn Lewis Cronk was convicted of assault with a dangerous weapon. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Rerengoski, Solicitor General, Walter M. Marks, Prosecuting Attorney, for the people.

      Stuart J. Runnings, Jr., for defendant.
   Holbrook, J.

On April 18, 1966, at about 12:47 a.m., approximately 12 bullets (.22 caliber longs) were fired from a car at the residence of Leora Tate and her 5 children in the city of Ionia, Michigan. Thereafter, Glenn Lewis Oronk, defendant herein, was arrested and charged with committing assault with intent to do great bodily harm less than the crime of murder. He was found guilty by a jury of an included offense, assault with a deadly weapon, and sentenced to the term of 1-1/2 to 4 years. Defendant’s appeal to this Court arises from the trial court’s denial of his motion for a new trial.

The following pertinent facts appear in the trial record: Defendant kept company with Mrs. Tate on a fairly regular basis. Because of his unruliness, violence, and squabbling, Mrs. Tate broke off the relationship some time prior to April, 1966. Thereafter she avoided defendant. Leora Tate’s oldest son, Larry, testified to incidents indicating animosity between defendant and his mother, defendant and his brother, Gary, and defendant and himself.

On Sunday evening, April 17, 1966, while in the company of another man, Mrs. Tato encountered defendant in the Silver Dollar Tavern in Ionia sometime after 8 p.m. Shortly thereafter, Mrs. Tate and her companion left the Silver Dollar Tavern and went to another tavern in Greenville, Michigan, her whereabouts then unknown to defendant.

Having been barred from the Silver Dollar Tavern about the time of Mrs. Tate’s departure, defendant telephoned the tavern around 10:30 p.m. and asked his friend Richard Neilson to meet him at Renucci’s Tavern, located a few blocks away. After several drinks at Renucci’s, the 2 men went to the Riverview Tavern in Lowell, Michigan. These taverns are about 15 miles apart or 15 to 20 minutes driving time. They returned to Ionia “after 12” according to the testimony of Neilson, who dropped defendant off at Renucci’s Tavern where defendant had left his car. Jerry Albright, defense witness, testified that he had seen defendant at the Riverview Tavern in Lowell after 12 midnight but would not swear to any later than 12:10 a.m.

Larry Shattuck testified that “about 13 minutes to 1”, during the early morning of April 18, he heard 6 or 7 shots in rapid succession and on going to a window observed a car moving slowly along the street to the south of the Tate residence. While he was looking out the window an additional 4 or 5 shots were fired at the Tate residence from the car. At the time of the shooting, 3 of Mrs. Tate’s children and a friend of theirs were in a lighted room facing the street.

Defendant, according to Neilson, borrowed $3 and gave Neilson a rifle as security sometime between 1:30 and 2 a.m. the same morning in the parking lot of the Silver Dollar Tavern. The tavern is a mile or more from the Tate residence.

Officer Robert Cusack of the Ionia city police investigated the shooting at the Tate residence. While he was there, one of the children observed a car passing and identified it as “the car.” Officer Cusack followed “the car” and stopped a car which defendant was driving. While he was being questioned by the police officer, several empty shells fell from the car. At trial, a ballistics expert of the Michigan State police scientific crime detection laboratory testified that in his opinion, after examination and comparison, the empty shells and those found later near the Tate residence were fired from people’s exhibit No 4, a “.22-caliber Stevens-Savage semi-automatic rifle, model 87-D,” A telescopic sight was mounted on people’s exhibit No 4, the rifle, which Neilson obtained as security for his loan to defendant. The ballistics expert also testified that in his positive opinion a slug found in the Tate house had been fired from people’s exhibit No 4.

Two of the questions presented by defendant can bo disposed of summarily in the following manner: (1) our statement in People v. Fred W. Thomas (1967), 7 Mich App 519, at p 539, is quoted here in answer to defendant’s contention that the jury’s verdict was contrary to the great weight of the evidence.

“In People v. Washington (1966), 4 Mich App 453, p 456, this Court stated:
“ ‘The last assignment of error reiterates an incorrect standard of proof, asserting the verdict is against the great weight of evidence. The correct standard in a criminal appeal is evidence sufficient to convince beyond a reasonable doubt. People v. Williams (1962), 368 Mich 494.’”

Our review of the instant record clearly indicates sufficient evidence present, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. (2) Defendant entered a plea of “not guilty” on arraignment, thereby waiving irregularity, if any, of prior proceedings, and therefore, the trial court did not lack jurisdiction because of a claimed defective information. People v. Jury (1930), 252 Mich 488; People v. Gant (1966), 4 Mich App 671, 674.

Defendant asserts error because the words “when thus accompanied” were not given at the end of the following instruction:

“It is the intent with which the injury is attempted that constitutes the material element of assault with the intent to do great bodily harm less than murder. And when the intent is shown that which would only be an assault unaccompanied with a felonious intent, would be an assault with an intent to do great bodily harm, less than the crime of murder.” See, People v. Troy (1893), 96 Mich 530, 536.

In this instance, we do not find the omission of these words to constitute reversible error since the import of the instruction can be understood without them. Furthermore, the trial judge later spelled out in detail the essential element of intent with regard to the crime of assault with intent to do great bodily harm less than the crime of murder, as follows:

“Now, with regard to this intent, I said the prosecutor had to prove this assault, plus an intention on the part of the person accused to commit an act which would result in serious bodily harm, less than murder * * *
“Both the commission of the act, that’s the assault, and the criminal intent with which it is committed must unite to constitute the offense. You’ve got to have the assault; you’ve got to have, on the other hand, the intent to commit this offense, and both combined constitute the offense. Both must be proven in such cases.”

In citing the case of People v. Durham, (1912), 170 Mich 598, defendant argues that the jury’s general verdict is void because it fails to specify which of the 4 named victims were assaulted. He also asserts as error the trial court’s failure to give instructions requiring specification as to an intent to assault and actual assault towards each of the named victims.

The evidence indicates that defendant intended to harm Leora Tate. However, although defendant thought she was present, she was not within the house at the time of the shooting and therefore could not have been assaulted. The jury was aware of this fact. The uncontradicted testimony of Larry Tate was that he, his brother and sister, and a friend were in the house at the time of the shooting. Thus, the question of the crime as charged still remained in the case, i.e., Larry Tate and the other children were within the house at the time of the shooting and animosity had existed at one time or another between them and defendant. The return of the general verdict of guilty went to an included offense committed and was based on everything well charged in the information. 23A CJS, Criminal Law, § 1393, p 1055. We do not read the Durham Case as requiring specification as to the person or persons assaulted even though the jury in that case chose to do so. In any event, no case law or statute mandating the procedure has been presented to us.

No proposed instructions setting forth the specification now desired were given the trial judge. Nor did defense counsel raise objection, when given opportunity, to the trial court’s failure to give such instructions. We find that the instructions given were eminently fair and proper, and stated the elements of the offense charged and the included offenses correctly.

In a final issue of merit, defendant claims error in the admission of testimony of “previous assaults” of defendant towards Leora Tate. The position of the prosecution was that defendant believed Leora Tate to have been in the house at the time of the shooting and even though in fact she was not, it was permissible to show a specific intent on the part of defendant. We agree. People v. Deitz (1891), 86 Mich 419, 425 stands for the unchanged principle that the prosecution may show “that the previous relations between the parties were not friendly, or that they had had difficulties with each other, and specific acts of that character may be given in evidence between the defendant and the person assaulted [or person intended to be assaulted] * * * where intent is essential to the offense charged”. In any event, no harm resulted to defendant from the admission of such testimony for it had to do with the proofs concerning the main charge for which defendant was not convicted.

Affirmed.

Lesinski, C. J., and Burns, J., concurred.

       CL 1948, § 750.84 (Stat Ann 1962 11ev § 28.279).

       CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277).

       The children’s names were not mentioned in the complaint and warrant hut were added in the information.

       Apparently the instructions -were understood by the jury, i.e., it did not find the specific intent charged but did find the general intent to do harm from defendant’s act.

       Michigan, unlike California (see People v. Plumlee [1960], 177 Cal App 2d 224, 2 Cal Rptr 84), does not take the view that “with respect to crimes against persons, including an assault, although there is but a single aet or intent, there are as many crimes as there are persons affeeted as victims.” 6 Am Jur 2d, Assault & Battery, § 56, p 53. In this connection, see People v. Ochotski (1898), 115 Mich 601, 610.

       CL 1948, § 750.84 (Stat Ann 1962 Eev § 28.279) states that “any person who shall assault another with intent to do great bodily harm, less than the crime of murder, shall be guilty of a felony.” (Emphasis supplied.) This portion of the statute was read and explained to the jury by the trial court in the charge.

         Giving as support People v. Reycraft (1909), 156 Mich 451; 6 CJS, Assault & Battery, § 116, states at p 979, that “as a general rule, evidence of the fact of former difficulties and of ill feeling between accused and the [intended] victim of the assault is admissible as hearing on the question of intent.”