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

text:
    HILL v CLARK EQUIPMENT COMPANY
    Docket No. 27085.
    Submitted June 17, 1977, at Grand Rapids.
    Decided August 7, 1978.
    Leave to appeal denied, 405 Mich __.
    Plaintiff Listeon Hill was injured in Alabama while driving a forklift truck manufactured by defendant Clark Equipment Company. Plaintiff sued defendant alleging, among other things, strict liability in tort. The Berrien Circuit Court, Julian E. Hughes, J., granted accelerated and summary judgment dismissing plaintiff’s complaint. Plaintiff appealed to this Court and this Court reversed and remanded for trial, 42 Mich App 405 (1972), lv den, 388 Mich 801 (1972). Judge Hughes dismissed the strict liability theory without submission to the jury and, after trial, entered judgment on a verdict of no cause of action. Plaintiff appealed alleging that the lex loci delicti rule required application of Michigan rather than Alabama law and that the Alabama law should not be applied in any case because it contravened Michigan public policy. The Court of Appeals held in a heretofore unpublished opinion that the lex loci delicti rule meant that the applicable substantive law was the law of the place of the injury and that the fact that the law of Alabama differed from the law in Michigan did not mean that Alabama law contravened Michigan public policy. Plaintiff moved for rehearing alleging that the Alabama Supreme Court had ruled, after the ruling of the Court of Appeals, that strict liability in tort is a viable action in Alabama and is retroactive to all cases where it was pleaded and that, inasmuch as that issue was raised but not decided by the Court of Appeals, the issue requires determination. Held:

    Strict liability in tort is a viable theory of recovery in Alabama and should have been submitted to the jury.
    Reversed and remanded.
    References for Points in Headnotes
    [1] 63 Am Jur 2d, Products Liability § 214.
    Products liability: strict liability in tort. 13 ALR3d 1057.
    [1, 2] 16 Am Jur 2d, Conflict of Laws § 71.
    [2] Modern status of rule that substantive rights of parties to a tort action are governed by the law of the place of the wrong. 29 ALR3d 603.

      1. Torts — Strict Liability — Conflict of Laws — Alabama Law.
    Under Alabama law, a complaint alleging strict liability in tort as a basis of recovery is a viable cause of action.
    2. Torts — Products Liability — Conflicts of Law — Substantive Law — Lex Loci Delicti — Public Policy.
    Michigan, in tort liability generally and in products liability specifically, follows the rule that the governing substantive law is the law of the place of the wrong, which in Michigan means the place of the injury, and the mere fact that the law of the place of the injury differs from the law in Michigan does not mean that the law of the place of the injury contravenes the public policy of Michigan; before a Michigan court is justified in refusing to enforce a right of action accruing under the laws of a foreign jurisdiction it must appear that such a right is against good morals or natural justice or that for some other reason an enforcement of it would be prejudicial to the general interests of the citizens of Michigan.

      Cicinelli, Mossner, Majoros & Alexander, P. C., for plaintiff.

      Cholette, Perkins & Buchanan (by Kenneth L. Block), for defendant.
    Before: M. J. Kelly, P. J., and M. F. Cavanagh and J. R. Rood, JJ.

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

   M. J. Kelly, P. J.

Pursuant to a grant of rehearing dated March 15, 1978, we are persuaded, albeit reluctantly, that, adhering to our previous decisions that Alabama law applies in this case, we must reverse and remand for trial on Count IV of plaintiff’s complaint alleging strict liability in tort under 2 Restatement Torts, 2d, § 402A, pp 347-348, because that issue has been properly preserved by plaintiff’s presentation and representation of same both to the lower court and to this Court.

We reiterate the finding expressed in our order of March 15, 1978, that under the Alabama cases of Casrell v Altec Industries, Inc, 335 So 2d 128 (Ala, 1976), and Trimble v Bramco Products, Inc, 351 So 2d 1357 (Ala, 1977), the Alabama Supreme Court has ruled that the cause of action outlined at Count IV of plaintiff’s complaint designated "Strict Liability in Tort” under 2 Restatement Torts, 2d, § 402A, pp 347-348, is a viable cause of action in Alabama and is retroactive to all cases in which the doctrine was pleaded prior to its adoption. The issue before us then is whether the doctrine of "law of the case” bars this Court from ruling at this time that the trial court erred in ordering Count IV stricken from plaintiff’s complaint. The matter was presented to this Court in its prior decisions in this case at 42 Mich App 405; 202 NW2d 530 (1972), and in the recent unreported decision of December 9, 1977.

We hold that this Court has not ruled on the issue of the viability of the strict liability theory in Alabama at any time and that said issue has been properly preserved and if this issue were to be decided by an Alabama court vested with proper jurisdiction, that court would be required to rule that the issue of strict liability under the Restatement of Torts, 2d, § 402A, being retroactive to all cases in which properly pleaded, should have been submitted to the jury.

The references to the strict liability theory at 42 Mich App 405, 413, 414, are strictly dicta and we are now "better informed”.

Because of the impact on the conflict of laws issue of lex loci delicti raised by the Supreme Court’s decision in Sweeney v Sweeney, 402 Mich 234; 262 NW2d 625 (1978), vis-a-vis its reversal of our Court on that finding, we attach herewith as an appendix for publication with this decision, our heretofore unpublished decision in this matter on the lex loci delicti issue decided December 9, 1977, as the merits thereof are preserved for appeal to the Supreme Court along with the retroactivity of the strict liability issue and the law of the case issue decided instanter.

Reversed and remanded for trial on the strict liability of tort issue as interpreted by the Alabama Supreme Court.

Appendix

Per Curiam. In this products liability case, plaintiff appeals as of right a lower court judgment, dated December 18, 1975, on a jury verdict of no cause for action against plaintiff following a six-day jury trial.

The basis for the litigation occurred on October 4, 1963, in Mobile, Alabama. On that date, while operating a forklift manufactured by defendant, plaintiff was severely injured and subsequently rendered a quadriplegic by virtue of injuries which he received when a 300-pound bale of cardboard boxes fell upon him while in the employ of the International Paper Company. As his primary claim of error, plaintiff here argues that he should be granted a new trial for the reason that the lower court impermissibly determined that the substantive rights and liabilities of the respective parties should be governed by the application of Alabama law. In so claiming, plaintiff asserts two arguments: First: that the lex loci delicti of a products liability claim on the theory of negligent design is the state in which the injury-causing product is manufactured, and second: that, in any event, the application of Alabama law in the instant case impermissibly contravenes the public policy of this state.

Under his conflicts argument, plaintiff initially asserts that the well-established lex loci delicti rule does not necessarily mandate that Alabama law be applied. Plaintiff asserts that the "wrong” (i.e., the manufacture of the instant forklift) in the instant case occurred in Michigan. In the area of tort liability generally, and product liability particularly, most jurisdictions have answered "choice-of-law problems by ruling that the governing substantive law is the law of the place of the wrong, the lex loci delicti”. 2 Hursh & Bailey, American Law of Products Liability 2d, § 15.5, p 621. See also 3 Frumer & Friedman, Products Liability, § 37.03, pp 11-10 to 11-21; Anno: What law governs liability of manufacturer or seller for injury caused by product sold, 76 ALR2d 130; and Anno: Modern status of rule that substantive rights of parties to a tort action are governed by the law of the place of the wrong, 29 ALR3d 603. Michigan is one such jurisdiction. Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969), Bostrom v Jennings, 326 Mich 146; 40 NW2d 97 (1949), Summar v Besser Mfg Co, 310 Mich 347; 17 NW2d 209 (1945), Kaiser v North, 292 Mich 49; 289 NW 325 (1939), Hazard v Great Central Transport Corp, 270 Mich 60; 258 NW 210 (1935), Sweeney v Sweeney, 71 Mich App 428; 248 NW2d 571 (1976), Pusquilian v Cedar Point, Inc, 41 Mich App 399; 200 NW2d 489 (1972), lv den, 388 Mich 776 (1972). In applying the lex loci rule to products cases, problems have arisen in the application of the term "place of the wrong” where the product complained of is manufactured in a state other than the one in which injury occurred. Many litigants, including plaintiff herein, have argued

that the "place of the wrong” in products cases is the place where the product was defectively manufactured. In discussing the treatment which most jurisdictions have given to that problem, the authors in 2 Hursh & Bailey, American Law of Products Liability 2d, § 15:6, p 624, state:

”In most instances, in applying the rule that the substantive law of the place of the wrong governs the liability for negligence of the manufacturer or seller of an injury-causing product, the place of the wrong has been considered to be the place where the injury for which recovery is sought is sustained. This is the rule of the Restatement of Conflict of Laws, and there is considerable decisional authority in accord.” (Emphasis supplied, footnotes omitted.)

As defendant properly notes, Michigan is one such jurisdiction which acknowledges that the "place of the wrong” is the place of the injury. Abendschein v Farrell, supra, Kaiser v North, supra, Sweeney v Sweeney, supra, Pusquilian v Cedar Point, Inc, supra. In so stating, the Pusquilian Court concluded:

"Michigan law is well settled. Liability for an alleged tort is governed by the substantive law of the place of injury.” 41 Mich App at 401.

We find no error.

Plaintiff next urges that Alabama law should not be applied because it contravenes the public policy of this state. Most jurisdictions, including Michigan, recognize the rule that the lex loci principle will not be applied in those instances where the application and enforcement of such foreign laws would entail the contravention of established forum public policy to the contrary, Lieberthal v Glens Falls Indemnity Co, 316 Mich 37; 24 NW2d 547 (1946), Kaiser v North, supra, Kircher v Kircher, 288 Mich 669; 286 NW 120 (1939), Eskovitz v Berger, 276 Mich 536; 268 NW 883 (1936). In Eskovitz v Berger, supra, the Court provided a standard for determining what will constitute a contravention of the forum state’s public policy:

"[B]efore the court of any State is justified in refusing to enforce a right of action accruing under the laws of any other State or country, it must appear that such right is against good morals or natural justice, or that for some other reason an enforcement of it would be prejudicial to the general interest of the citizens of the State of the forum, and that it does not follow that, because the statute differs from the law of the forum, it is contrary to the public policy of the State, within the meaning of this rule.” 276 Mich at 541.

For an extended discussion of the "public policy” limitation which some courts have used to avoid the application of foreign jurisdictions’ laws, see Goodrich & Scoles, Conflict of Laws (4th ed), § 11, p 14 et seq., 16 Am Jur 2d, Conflict of Laws, § 74, p 118 et seq., 15A CJS, Conflict of Laws, § 4(4), p 393 et seq., and 29 ALR3d 603, § 4(a), p 617 et seq.

Plaintiff argues that Michigan has a public policy of protecting "all who buy or use products manufactured and sold in Michigan”. Plaintiff herein was neither a resident of Michigan nor was he injured in this state. We are not persuaded that Michigan public policy requires such an expansive interpretation. We see little Michigan interest in securing tort damage awards to persons so situated. Absent a legitimate government interest to support it, there is no reason to presume the existence of a policy compelling application of Michigan law. Because we find no foundation for the policy advanced by plaintiff, we conclude that this policy does not support application of Michigan law in this case.

Affirmed.


source: Caselaw Access Project

author: D. E. Holbrook, P. J. M. J. Kelly, J.

license: Public Domain

text:
    PEOPLE v GERALD HUGHES
    Docket No. 29408.
    Submitted June 15, 1978, at Lansing.
    Decided August 7, 1978.
    Leave to appeal applied for.
    Gerald W. Hughes was convicted of first-degree felony murder in the Washtenaw Circuit Court, William F. Ager, J. Defendant appeals. Held:

    The trial court did not err in refusing to instruct the jury on manslaughter since there was no evidence brought forth at trial of the existence of mitigating factors which would reduce the oifense of first-degree felony murder to common-law manslaughter. Manslaughter is not a necessarily included oifense within the crime of murder but it may be an included oifense if the evidence adduced at trial would support a verdict of guilty of manslaughter. If the evidence is sufficient to support such a verdict, it is reversible error for the trial court to refuse a requested instruction on manslaughter. The defendant did not object to the instructions given, therefore, the issue regarding misstatement of the felony-murder doctrine was not preserved for review. A trial court’s decisions regarding motions for a change of venue or to excuse prospective jurors for cause will be reversed only if the Court of Appeals finds a clear abuse of discretion. The fact that some jurors had read or seen media accounts of the crime charged is not sufficient grounds for a change of venue, absent some showing of potential prejudice. The burden of proof is on the defendant to show that jurors, sought to be excused for cause, were potentially biased. A juror’s expressed lack of prejudice and ability to render an impartial verdict are all that is required to uphold selection of the juror.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide §§ 530, 531.
    [2, 3] 5 Am Jur 2d, Appeal and Error § 553.
    40 Am Jur 2d, Homicide §§ 72, 483, 484.
    75 Am Jur 2d, Trial § 906.
    [3] 75 Am Jur 2d, Trial §§ 919-922.
    [4] 21 Am Jur 2d, Criminal Law §§ 409, 426-428.
    40 Am Jur 2d, Homicide § 204.
    [5] 47 Am Jur 2d, Jury § 221.
    [6] 40 Am Jur 2d, Homicide § 500.

      Affirmed.
    M. J. Kelly, J., concurred in the holding that an instruction on malice is not necessary in a prosecution for felony murder.
    Opinion of the Court
    1. Appeal and Error — Homicide—Felony Murder — Jury Instructions — Manslaughter—Evidence—Mitigating Factors — Included Offenses — Reversible Error.
    A trial court did not commit reversible error in a trial for first-degree felony murder where it refused to instruct the jury on the offense of manslaughter where there was no evidence of the existence of mitigating factors which would reduce the offense to common law manslaughter; manslaughter is not a necessarily included offense within the crime of murder but it may be an included offense if the evidence adduced at trial would support a verdict of guilty of manslaughter, and it is reversible error to refuse such a requested instruction if the evidence would have been sufficient to support such a verdict.
    2. Appeal and Error — Preserving Error — Misstatements—Homicide — Felony Murder — Objection to Instructions — Failure to Object.
    Objections to misstatements of the felony murder doctrine by the trial court and counsel for both parties, wherein felony murder was defined as participating in the commission of a robbery during which a killing occurs, were not preserved for review in a trial for felony murder where the defendant did not object to the instructions given.
    3. Appeal and Error — Harmless Error — Homicide—Felony Murder — Proper Instructions.
    Misstatements of the felony murder doctrine by the trial court and counsel for both parties in a trial for felony murder, wherein the felony murder was defined as participating in the commission of a robbery during which a killing occurs, was harmless error where any defects resulting from such loose phraseology were cured by the court’s proper statement of the rule in its instructions.
    4. Appeal and Error — Venue—Change of Venue — Criminal Law —Discretion—Media—Felony Murder — Prejudice.
    A trial court’s decision regarding a motion for a change of venue will be reversed on appeal only where the Court of Appeals finds a clear abuse of discretion; the fact that some jurors had read or seen media accounts of the incident charged in a trial for felony murder is not sufficient grounds for a change of venue absent some showing of potential prejudice.
    5. Appeal and Error — Jury—Disqualification of Juror — Abuse of Discretion — Burden of Proof — Bias.
    A trial court’s determination regarding a defense counsel’s challenge for cause of prospective jurors will be reversed on appeal only where the Court of Appeals finds a clear abuse of discretion; the burden of proof is on the' defendant to show the challenged jurors were potentially biased, and a juror’s expressed lack of prejudice and ability to render an impartial verdict are all that is required to uphold selection of the juror.
    Concurrence by M. J. Kelly, J.
    6. Homicide — Felony Murder — Jury Instructions — Malice.

      An instruction on malice is not necessary in a prosecution for felony murder.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Senior Assistant Prosecuting Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, P. J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   D. E. Holbrook, P. J.

The defendant-appellant and two other persons were charged with first-degree felony murder, under MCL 750.316; MSA 28.548, for the shooting death of an Ypsilanti police officer during the armed robbery of a branch of the National Bank of Ypsilanti on July 11, 1975. Defendant was arraigned on July 14, 1975, and trial began April 19, 1976. Defendant submitted a pretrial motion for change of venue, alleging adverse pretrial publicity, and after denial pending voir dire, renewed this motion orally in court after voir dire examination of potential jurors. The trial court postponed decision on defendant’s motion pending the voir dire, in order to determine whether or not an impartial jury could be impaneled.

Thirteen jurors were eventually excused for cause. The court denied three challenges for cause asserted by defense counsel. Defense counsel then utilized peremptory challenges to excuse each of the challenged jurors; abuse of discretion is alleged with respect to the court’s failure to excuse two of these jurors for cause. After the voir dire, the court considered the jury selected to be impartial and defendant’s request was denied.

Following the presentation of evidence, but before final argument, defense counsel requested that the court include in its instructions to the jury an instruction on manslaughter. This request, later renewed, was also denied.

While instructing the jury on the people’s theory of the case, the court suggested that first-degree felony murder would lie if the prosecutor were to show that a "killing” occurred during the course of a robbery. This same mistaken phraseology was used infrequently by the prosecutor and defendant throughout the trial. The court did affirmatively instruct the jury on the necessity of a showing of malice: it did not instruct the jury that they could impute malice from the defendant’s participation in the robbery. Defense counsel did not object to the instructions given by the court.

The jury returned a verdict of guilty of first-degree murder and defendant was sentenced to life imprisonment. He appeals as of right, alleging four separate errors.

The defendant first alleges reversible error in the court’s refusal to instruct the jury on the offense of manslaughter. It was argued by defendant that manslaughter is necessarily a lesser included offense when murder is charged. The controversy in this regard was recently resolved by the Supreme Court in People v Van Wyck, 402 Mich 266, 268, 269-270; 262 NW2d 638 (1978). The Court stated:

"We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.
"The absence of mitigating circumstances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said that voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter.
"It remains to be decided in these cases, however, whether the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter. If the evidence would have been sufficient to support such a verdict, it was reversible error for the trial court, on request, to refuse the requested instruction.” (Emphasis added.)

The evidence placed before the jury in the instant case would not support a verdict of common-law manslaughter. No evidence was presented tending to show that the police officer was shot accidentally or in the heat of passion. Van Wyck, supra, at 269. Since no evidence of the existence of mitigating factors which would reduce the offense to common-law manslaughter was brought forth at trial, it was unnecessary for the court to instruct the jury on that offense.

Under MCL 750.329; MSA 28.561, a separate offense of manslaughter is statutorily defined as causing death by the intentional discharge of a firearm without malice. Since the jury was twice instructed that it must find malice in order to convict the defendant of felony murder, and since the jury did find the defendant guilty of felony murder, it is clear that the charge of manslaughter would not lie under this section. Therefore, it was not error for the court to refuse to instruct the jury on manslaughter.

Next, defendant alleges that repeated misstatements of the felony-murder doctrine by the court and by both counsel "removed the essential element of malice from the jury’s consideration” under the authority of People v Fountain, 71 Mich App 491, 506; 248 NW2d 589 (1976). Regardless of whether Fountain or People v Till, 80 Mich App 16; 263 NW2d 586 (1977), correctly states the Michigan law of felony murder, the trial court’s instructions to the jury met even the more stringent requirements. The misstatements to which the defendant refers consisted of defining felony murder as participating in the commission of a robbery during which a "killing” occurs.

Since the defendant did not object to the instructions given, this issue was not preserved for review under People v Hall, 396 Mich 650, 657; 242 NW2d 377 (1976). Nevertheless, we wish to add that at most, this loose phraseology bandied about the courtroom was merely harmless error. It appears that it was used primarily to characterize the people’s theory of the case, and all parties carefully instructed the jury that counsels’ statements did not constitute fact or law. Furthermore, the court gave the jury the Standard Michigan Criminal Jury Instructions on felony murder, including the instruction requiring a finding of malice. At the jury’s request, these particular instructions were repeated. Any defects resulting from the fact that during the course of the trial the parties tended to paraphrase this rule were cured by the court’s proper statement of the rule in its instructions.

The defendant also alleges error in the trial court’s denial of defendant’s motion for a change of venue, arguing that pretrial publicity precluded a fair and impartial trial in Washtenaw County. MCL 762.7; MSA 28.850 provides for a change of venue under such circumstances in the discretion of the trial court. The court’s decision on such a question will be reversed only if this Court finds a clear abuse of such discretion. People v Swift, 172 Mich 473; 138 NW 662 (1912), People v Kochan, 55 Mich App 326; 222 NW2d 317 (1974).

In reliance on Swift, supra, the trial court delayed decision on this matter pending voir dire examination of prospective jurors. The jury finally impaneled consisted of three persons who had heard no media accounts of the case, two persons who had probably heard something but could remember no details, and seven other persons who vaguely remembered the media accounts of the crime but who remembered few, if any, details. All stated unequivocally that their verdict would be unaffected by any matter extraneous to the evidence adduced at trial. That some jurors had read or seen media accounts of the incident is not sufficient grounds for a change of venue, absent some showing of potential prejudice. See Murphy v Florida, 421 US 794; 95 S Ct 2031; 44 L Ed 2d 589 (1975), People v Ranes, 63 Mich App 498, 503-504; 234 NW2d 673 (1975), People v Collins, 43 Mich App 259; 204 NW2d 290 (1972), lv den, 391 Mich 798 (1974), cert den 419 US 866; 95 S Ct 121; 42 L Ed 2d 103 (1974), habeas corpus den 539 F2d 597 (CA 6, 1976). As noted above, only 13 jurors were excused for cause, three such challenges having been denied. Three of the jurors excused for cause were excused for reasons other than potential bias against the defendant.

The defendant’s contention was litigated extensively in Collins, supra, and the facts of that case, as set forth in Mr. Justice Levin’s discussion of Collins’ petition for leave, 391 Mich 798, 806-807 (1974), are illuminating. In Collins, all 126 potential jurors had heard about the case. Sixty prospective jurors admitted they could not give the defendant the benefit of the presumption of innocence. The defense exercised 19 peremptory challenges.

The Court of Appeals’ opinion in Collins, 43 Mich App at 262-267, indicated that the following factors were relevant to denial of his motion for change of venue:

1) Several months elapsed between the preponderance of media coverage and jury selection.

2) The voir dire was conducted "meticulously” with individual questioning. At its conclusion defense counsel stated "We have a jury”.

3) Adverse publicity did not continue up to and through the actual trial.

4) The trial court found no "strong community feeling” or "pattern of deep and bitter prejudice against defendant”.

5) The record did not indicate that the jury was biased or that the defendant was convicted on extrinsic evidence.

Each of these factors applies equally to the case at bar, with the exception of Collins’ counsel’s expression of satisfaction with the jury selected, with three peremptory challenges remaining unused. Mr. Justice Levin’s discussion, noted above, suggested that counsel’s remark did not constitute a waiver of his prior objections, 391 Mich at 806; therefore, these two cases may be compared on an equal basis. If anything, the transcript of the proceedings in this case, when compared with Collins, indicates that pretrial publicity was less extensive in the instant case than it was in Collins. Fewer of the prospective jurors examined were familiar with the case prior to trial and fewer considered themselves incapable of rendering an impartial verdict. Most importantly, in a case of this nature, each juror finally selected indicated an ability to render a fair and impartial verdict based upon the evidence. See People v Wyskochil, 76 Mich App 468; 257 NW2d 126 (1977), People v Moore, 51 Mich App 48; 214 NW2d 548 (1974), People v O’Guin, 26 Mich App 305; 182 NW2d 103 (1970), People v Bloom, 15 Mich App 463; 166 NW2d 691 (1969), MCL 768.10; MSA 28.1033. We find no abuse of discretion in the court’s denial of defendant’s motion for a change of venue. Taken as a whole, especially in light of Collins, we cannot say that the trial court was clearly wrong in finding no "reasonable likelihood” of deep-seated community prejudice.

Finally, the defendant claims that the court abused its discretion in denying defense counsel’s challenge for cause of two prospective jurors, since defendant was thereby required to utilize peremptory challenges to remove these jurors from the panel. Defendant used his final peremptory challenge to excuse a third juror, but does not allege error with regard to the court’s denial of defendant’s challenge of this juror for cause.

GCR 1963, 511.4 sets forth the permissible grounds upon which a challenge for cause may rest. Among these are:

"(3) that the person is biased for or against a party or attorney;
"(4) that the person shows a state of mind which will prevent him from rendering a just verdict, or has formed a positive opinion on the facts of the case or as to what the outcome should be.”

One of the veniremen whom defendant claims should have been excused for cause under these provisions was only marginally acquainted with the facts of the crime. He stated that he knew that a shooting had occurred following a bank robbery. He had read "no more than two” articles relating to the crime and remembered no details at the time of trial, more than eight months later. Counsel for the defendant was more concerned over the fact that the juror had two sons serving as deputy sheriffs in Washtenaw County.

The second prospective juror whom defendant claims should have been excused had driven by the scene of the crime a few moments after it occurred, seeing only a crowd. He apparently followed subsequent events closely in the paper and thought that he recognized the defendant’s name. He was acquainted with an assistant prosecutor (who would not be involved in the case), and may also have known two of the witnesses who were listed on the prosecutor’s information.

Each of these gentlemen was questioned closely. Voir dire of the first juror ran ten pages in the trial transcript, of the second, 16 pages. Each juror professed to be capable of rendering an impartial verdict based upon the evidence and the law alone.

Once again, the trial court’s determination of this matter will be reversed only where this Court finds a clear abuse of discretion. Rice v Winkelman Brothers Apparel, Inc, 13 Mich App 281, 287; 164 NW2d 417 (1968). The burden of proof is on defendant to show that these jurors were potentially biased, and a juror’s expressed lack of prejudice and ability to render an impartial verdict are all that is required to uphold selection of the juror. People v Moore, supra. As noted above, each of these jurors felt they could render an impartial verdict.

With respect to the first venireman, we find the trial court’s denial of challenge for cause clearly not to have been an abuse of discretion. Cf. United States v Caldwell, 178 US App DC 20; 543 F2d 1333 (1974). Refusal to excuse the second juror seems to be within the court’s discretion under GCR 1963, 511 and MCL 768.10; MSA 28.1033. Although no Michigan court has considered this issue, the Federal court system holds that even a juror’s friendship with the attorney prosecuting the case need not necessarily disqualify him. Lane v United States, 321 F2d 573 (CA 5,1963), cert den 381 US 920; 85 S Ct 1551; 14 L Ed 2d 440 (1965). Similarly, other courts have considered friendship with a witness not to be sufficient to disqualify a juror. State v Dodson, 551 SW2d 932 (Mo App, 1977). Given the fact that this juror was not certain that these witnesses were his acquaintances, and that his complete testimony during voir dire does not suggest bias, we decide to allow the trial court’s decision to stand.

Affirmed.

P. J. Marutiak, J., concurred.

M. J. Kelly, J.

(concurring). I concur in affirmance and take this opportunity to again suggest that an instruction on malice ought not to be necessary in a prosecution for felony murder. I take this, my first opportunity to endorse the dissenting opinion of my learned brother, Judge Nathan J. Kaufman, in the case of People v Wilson, 84 Mich App 636; 270 NW2d 473 (1978).


author: D. C. Riley, J. M. F. Cavanagh, J.

text:
    SAM v BALARDO
    Docket No. 30138.
    Submitted January 18, 1978, at Detroit.
    Decided August 7, 1978.
    Leave to appeal applied for.
    Plaintiff Willie J. Sam sued defendant Marilynn J. Balardo alleging legal malpractice. The Wayne Circuit Court, William L. Cahalan, J., entered a judgment of no cause of action pursuant to a jury verdict. Plaintiff appeals alleging error in the jury instruction on a two-year statute of limitations. Held:

    The applicable statute of limitations in actions alleging legal malpractice is two years.
    Affirmed.
    M. F. Cavanagh, J., dissents. He would hold that the "malpractice” statute of limitations applies only to medical malpractice and that the general three-year statute limiting "actions to recover damages for injuries to persons and property” applies to actions for legal malpractice.
    Opinion of the Court
    1. Limitation of Actions — Statutes—Malpractice—Legal Malpractice.
    The statute limiting actions "charging malpractice” to two years applies to legal as well as medical malpractice (MCL 600.5805[3]; MSA 27A.5805[3]).
    Dissent by M. F. Cavanagh, J.
    2. Limitation of Actions — Statutes—Malpractice—Medical Malpractice — Legal Malpractice.

      The statute limiting actions "charging malpractice” to two years

      applies only to medical malpractice; actions for legal malpractice are limited by the statute providing for a three-year limit for "all other actions to recover damages for injuries to persons and property” (MCL 600.5803[3], 600.5805[7]; MSA 27A.5805[3], 27A.5805[7j).

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d, Attorneys at Law §§ 184,185.
    61 Am Jur 2d, Physicians and Surgeons § 181.
    What statute of limitations governs damage action against attorney for negligence in performance of professional services. 49 ALR2d 1216.
    Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 320.

      Myron F. Poe, for plaintiff.

      M. J. Balardo, in propria persona.

    Before: T. M. Burns, P. J., and M. F. Cavanagh and D. C. Riley, JJ.
   D. C. Riley, J.

This matter involves the applicable statute of limitations for an action alleging legal malpractice. Plaintiff appeals from the jury’s verdict of no cause of action, arguing that the trial court erred in instructing the jury on a two-year statute of limitations.

The dissent quite comprehensively states the legal rationale in favor of a holding that the two-year limit of MCL 600.5805(3); MSA 27A.5805(3), applies both to medical and legal malpractice. In fact, we will not try to improve upon the dissent’s discussion of the statutory evolution and the accompanying case law, and in particular the reasoning with which the dissent analyzes the Supreme Court’s decision in Kambas v St Joseph’s Mercy Hospital of Detroit, 389 Mich 249; 205 NW2d 431 (1973).

The dissent, however, somewhat abruptly changes direction and concludes, based upon a Committee Comment to the Revised Judicature Act and Judge (now Justice) Levin’s dissent in this Court’s Kambas decision, that the two-year statute of limitations applies only to medical malpractice, leaving legal malpractice under the general tort limitation of three years.

We cannot agree with this conclusion for a number of reasons. First, we find it relevant (although Judge Levin would disagree) that the term "malpractice of physicians, surgeons or dentists” in 1915 CL 12323(3), was altered in MCL 600.5805(3); MSA 27A.5805(3), to read merely "malpractice”.

Second, the case law, as pointed out by the dissent, uniformly employs the two-year statute of limitations for legal malpractice.

Third, as Judge Levin pointed out in his Kambas dissent, states such as New York and Ohio, which have laws similar to Michigan’s in that the term "malpractice” is used but never specifically defined, include both legal and medical malpractice under their "malpractice” statutes of limitations. Kambas v St Joseph’s Mercy Hospital of Detroit, 33 Mich App 127, 138-139; 189 NW2d 879 (1971).

Finally, and most importantly, we do not agree with the dissent that the Committee Comment is an "explicit” statement of legislative intent. The Comment merely states that "[ejxisting time periods have been used”. There are two possible interpretations of this phrase. The dissent asserts that the Comment means that every cause of action existing prior to the Revised Judicature Act retains the same applicable statute of limitations subsequent to the new law. We read the Comment to refer solely to the fact that, for example, the "malpractice” statutory period remains at two years. We do not find that the Comment precludes a concurrent finding that the Legislature expanded the set of causes of action that constitute "malpractice”.

The result reached by the dissent, while reasonably supported by its reading of the Committee Comment, is inconsistent with plain common sense. To, on one hand, define an action against an attorney for his or her breach of professional standards as malpractice, while, on the other hand, exempt such an action from a statute of limitations expressly applicable to "actions charging malpractice”, does little but add confusion, uncertainty, and a sense of absurdity about the law to both the legal community and the general public. This problem is even more apparent now that the Legislature, in response to the Supreme Court’s Kambas decision, has amended MCL 600.5838; MSA 27A.5838, to allow for "malpractice” actions against nurses, physical therapists, and various other occupations. We find it untenable that legal malpractice, a cause of action long-recognized in Michigan, does not have the same statute of limitations as applied to these recently created malpractice actions.

Affirmed. No costs.

T. M. Burns, P. J., concurred.

M. F. Cavanagh, J.

(dissenting). Plaintiff sued defendant for legal malpractice. The jury returned a verdict of no cause of action, and plaintiff appeals, assigning error in the court’s instructions.

Plaintiff contends that the court erred by instructing the jury to apply a two-year statute of limitations to plaintiff’s claim. Plaintiff asserts that the proper period of limitations is three years. The statutes in question are these:

"Sec. 5805. No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
"(3) The period of limitations is 2 years for actions charging malpractice.
"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.” MCLA 600.5805; MSA 27A.5805.

Defendant argues that the two-year statute "for actions charging malpractice” is clearly appropriate for an action based on legal malpractice.

At least three decisions from this Court have assumed that the limitations period on a claim for legal malpractice is two years. See Biberstine v Woodworth, 81 Mich App 705; 265 NW2d 797 (1978), Berry v Zisman, 70 Mich App 376, 378; 245 NW2d 758, 759 (1976), Corley v Logan, 35 Mich App 199, 202; 192 NW2d 319, 321 (1971). One case may be read as so holding. Basic Food Industries, Inc v Travis, Warren, Nayer & Burgoyne, 60 Mich App 492, 495; 231 NW2d 466, 467 (1975).

The assumption is plausible, in light of the statute’s plain wording. Moreover, construing the statute to hold a meaning more limited than its language would seem to run afoul of the rule that,

"A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.” City of Lansing v Twp of Lansing, 356 Mich 641, 649; 97 NW2d 804, 809 (1959). (Citation omitted.)

The legislative history of malpractice actions also lends some support to the conclusion that the two-year limitations period applies.

The common law permitted actions for legal malpractice as well as for medical malpractice. The Legislature very early provided that these actions could be initiated by civil arrest on the writ of capias ad respondendum. The statute of limitations on these actions was six years.

These limitation periods were modified by the Judicature Act of 1915. That act provided a three-year period for "[a]ctions to recover damages for injuries to person or property”. 1915 CL 12323(2). A shorter, two-year period was provided for malpractice, but it was limited to the "malpractice of physicians, surgeons or dentists”. 1915 CL 12323(3).

These provisions remained unchanged until passage of the Revised Judicature Act in 1961. That act, quoted at the outset of this opinion, dropped the language limiting the malpractice statute to physicians, surgeons or dentists. The general three-year statute for injuries to persons or property remained unchanged.

The act, and parallel court rule revisions, also rewrote the procedures for initiation of malpractice suits. The writ of capias ad respondendum was abolished, all suits were to be commenced by filing a complaint, and summons succeeded capias as the process to be served on the defendant. The statute authorizing use of capias for initiation of a malpractice suit was repealed with abolition of the writ, leaving the common law as the exclusive source for rights of action for legal and medical malpractice.

Viewing these several revisions as an interrelated whole, it might reasonably be inferred that the abolition of the special procedures for malpractice suits, and the apparent broadening of the medical malpractice statute of limitations, were parts of a general plan for simplification and consolidation of the laws relating to the malpractice of both professions. This interpretation is strengthened by the simultaneous revision of the statute authorizing malpractice actions against charlatans, which was extended to include actions "against any person professing or holding himself out to be a member of a state licensed profession”.

However, plaintiff contends that this construction is untenable in light of the Supreme Court’s decision in Kambas v St Joseph’s Mercy Hospital of Detroit, 389 Mich 249; 205 NW2d 431 (1973). In Kambas the Supreme Court held that the malpractice statute of limitations did not apply to an action charging negligence of registered nurses in the performance of their duties. The Court followed two related lines of analysis to this conclusion.

The Court first rejected the argument that § 2912 of the Revised Judicature Act had created a malpractice action against nurses. Noting that nurses could not previously be sued for malpractice, the Court concluded that there was no present authority for such a suit, and hence the malpractice statute of limitations was inapplicable.

The Court’s analysis then focused on the malpractice statute of limitations itself. Quoting extensively from a decision by the Ohio Supreme Court which had construed the similar Ohio statute, the Court found no indication of legislative intent to alter the common law definition of malpractice, and therefore presumed that the Legislature had intended the statute to protect only those groups traditionally associated with malpractice. The Court found that nurses were not such a group. The Court then stated that a professional such as a physician is required to exercise his independent judgment on such matters as diagnosis and prescription, and that these areas present the greatest risk of unwarranted claims. The Court concluded that this distinction made it reasonable to enact a shorter statute of limitations for physicians than for nurses. Finding the presumed intent reasonable, the Court construed the malpractice statute of limitations in accord therewith, i.e., as excluding nurses, and declared:

"The defendant’s suggestion that the action of the Legislature in enacting §§ 2912 and 5838, using the words 'a member of a state licensed profession,’ indicated an intent to extend the benefit of the short malpractice limitation of § 5805 to additional professions other than those originally encompassed by the Judicature Act of 1915 is unfounded.” 389 Mich, at 254; 205 NW2d, at 434.

Plaintiff cites this language as establishing that legal malpractice, which was not within the purview of the 1915 malpractice statute, is likewise outside its successor. There are, however, several reasons to question plaintiff’s reading of Kambas.

First, the issue before the Court in Kambas was whether the statute applied to nurses, not whether it applied to attorneys. Therefore the quoted language cannot be taken as a holding that attorneys are without the statute. Although the Court did address itself to legislative history and the purpose behind the Judicature Act’s revisions, it might well have used less sweeping language had it considered the history of legal malpractice actions and their place in the revised statutory scheme.

Second, the Kambas analysis which produced the conclusion that nurses are not covered by the short malpractice statute yields a different result when applied to attorneys. Unlike nurses, attorneys were and continue to be liable at common law for their malpractice. Like physicians, attorneys are required to exercise independent judgment as to what course of action will best serve their clients’ interests.

Finally, Ohio, whose approach to the Kambas issue our Supreme Court found so "persuasively appropriate”, applies its short malpractice statute to actions against attorneys. Galloway v Hood, 69 Ohio App 278; 43 NE2d 631 (1941).

These points give us serious pause to doubt plaintiff’s interpretation of Kambas. However, plaintiff buttresses his argument by reference to Judge (now Justice) Levin’s dissenting opinion in this Court’s decision of the Kambas case. Kambas v St Joseph’s Mercy Hospital of Detroit, 33 Mich App 127; 189 NW2d 879 (1971). In that case the majority of this Court held that the two-year statute did apply to an action charging negligence of a registered nurse in the performance of her duties. On the basis of a Committee Comment by the limitations statute’s draftsmen, the dissent made an argument most relevant to the instant case:

"The Revised Judicature Act was drafted by the Joint Committee on Michigan Procedural Revision appointed pursuant to resolutions of the Supreme Court, the Legislature, and the State Bar of Michigan. The committee’s final report was transmitted on November 15, 1959; the committee note for § 5805 comments as follows:
" 'Section [5805] is a compilation of the limitations of the general tort remedies. Existing time periods have been used. ’ (Emphasis supplied.)
"The 'existing time period’ (under the Judicature Act of 1915) for malpractice actions against persons other than physicians, surgeons, or dentists was three years. We should therefore ascribe to the word 'malpractice,’ as used in RJA § 5805, a meaning consistent with the representation of the draftsmen to the Supreme Court, the Legislature, and the profession, namely, that 'malpractice,’ as used in § 5805, means actions charging malpractice against physicians, surgeons, or dentists.” 33 Mich App, at 134; 189 NW2d, at 882.

If it was truly the Legislature’s intent to use existing time periods, and we have here an explicit statement that it was, then it must follow that legal malpractice is not encompassed by the two-year malpractice statute of limitations. Though I can well understand how the trial court in the case at bar came to a contrary conclusion, I am of the opinion that this was error. Accordingly, I vote to reverse the judgment of the lower court and remand this case for retrial. I will consider the majority’s reasons for disagreement in their order of presentation.

The majority would find it relevant that the term "malpractice of physicians, surgeons or dentists” in the Judicature Act of 1915 became simply "malpractice” in the Revised Judicature Act. Presumably its relevance is support for an inference of legislative intent. The inference strikes me as weak, in light of the direct statement to the contrary in the Committee Comment to the Revised Act.

As the majority notes, the cases have "uniformly employed]” the two-year statute. The majority omits to mention that none of those cases has given a reasoned explanation for this employment. I do not believe that the past, erroneous assumptions of this Court are reason to abdicate our duty to give effect to the Legislature’s intent.

Further, that Ohio and New York include legal malpractice within their "malpractice” statutes of limitation does not aid us in giving effect to the differing intent of the Michigan Legislature.

Finally, though concededly "reasonably supported”, the majority finds the result I would reach "inconsistent with plain common sense”, and productive of "confusion, uncertainty, and a sense of absurdity”. The majority finds it "untenable” that a veteran cause of action like legal malpractice should not enjoy the same early retirement as newcomers like nurses’ malpractice. The Legislature, however, when it drafted the Judicature Act of 1915, did not find it untenable to create a statute of limitations for medical malpractice which was shorter than that for legal malpractice, and the Revised Act’s draftsmen tell us that nothing has changed. Apparently "common sense”, in the view of our Legislature, did not compel a reduction in attorneys’ liability for their mistakes. That we might find a different view preferable creates no license in us to thwart the Legislature’s determination.

       33 Mich App 127; 189 NW2d 879 (1971).

       The word "malpractice” has long been used to describe an attorney’s misfeasance or nonfeasance of professional duty. This was ordinary usage at common law. See National Savings Bank v Ward, 100 US 195, 198; 25 L Ed 621, 622 (1879). Our statutes have likewise long employed this term (See, e.g., 1857 CL 4016 ["Any Attorney, Solicitor or Counsellor, may be removed or suspended, who shall be guilty of any deceit, malpractice, crime or misdemeanor * * * ”]), as have the decisions of our Supreme Court. See In the Matter of Mills, an Attorney, 1 Mich 392, 393-394; (1850).

        See National Savings Bank v Ward, supra, n 1.

         Leslie v Mollica, 236 Mich 610, 614; 211 NW 267 (1926). 61 Am Jur 2d, Physicians, Surgeons, and Other Healers, § 106, pp 224-226.

         1857 CL 4119:
      "Sec. 13. Personal actions arising upon contract, express or implied, may be commenced by capias ad respondendum only to recover damages for ** * * misconduct or neglect * * * in any professional employment * * * .”

        Capias ad respondendum was one of two original writs then available, the other being summons. 1857 CL 4112. A writ of capias was served by the sheriffs arresting the defendant. 1857 CL 4118. A defendant so arrested was to be held until he executed a bond with sufficient sureties. 1857 CL 4118, 4123. Capias was to issue only where plaintiff made and attached to the writ an affidavit that he had a claim for damages in excess of one hundred dollars on the cause of action stated in the writ. 1857 CL 4119. Where the affidavit was found insufficient, the plaintiff was held entitled to proceed on the summons clause of the writ. H J Cheney Co v Allgeo, 165 Mich 384; 130 NW 593 (1911).

       1857 CL 5361.

       1961 PA 236.

       MCL 600.1815; MSA 27A.1815.

       MCL 600.1901; MSA 27A.1901. See also GCR 1963,101.

       MCL 600.1905; MSA 27A.1905. See also GCR 1963,102.

       MCL 600.2912; MSA 27A.2912 has been construed to apply only to the empiric. Kambas v St Joseph’s Mercy Hospital of Detroit, 389 Mich 249, 253; 205 NW2d 431, 434 (1973), Leslie v Mollica, supra, n 3.

       MCL 600.2912; MSA 27A.2912. The predecessor of this statute, as codified at 1871 CL 6198, applied only to a person "professing or holding himself out to be a physician or surgeon”.

        Ibid.

        Richardson v Good Samaritan Hospital, 176 Ohio St 370; 199 NE2d 878 (1964).

       MCL 600.5838; MSA 27A.5838 provides:
      "A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.”

       389 Mich at 254; 205 NW2d at 434.

      "4 Reprinted as an annotation to MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805).”


author: Bronson, J. M. F. Cavanagh, P. J.

text:
    PEOPLE v RICKY SMITH
    Docket No. 30524.
    Submitted October 6, 1977, at Grand Rapids.
    Decided August 7, 1978.
    Defendant Ricky D. Smith was convicted, on his plea of guilty, of armed robbery, Grand Traverse Circuit Court, William R. Brown, J.
    Prior to the defendant’s arrest, the police departments in Flint and Traverse City were investigating numerous armed robberies in those two cities. Suspicion centered on the defendant and one Jack Lown, an escapee from the Michigan prison system. At that time, in early 1976, defendant and Lown were staying with Lown’s sister at her residence in Flint, and the Flint police on March 31, 1976, had the house under surveillance. The Traverse City police sent copies of latent fingerprints taken from the premises of one of the robberies in question to a fingerprint evidence expert for comparison with the known fingerprints of the defendant and Lown. The expert reported that the latent prints matched those of both suspects. On the basis of this and other information, the Traverse City police obtained an arrest warrant for Lown and the defendant.
    On March 31, 1976, the Traverse City police informed the Flint police that they were on their way to Flint with the arrest warrants. The Flint police who had the house under surveillance saw both men drive away from the house and head for the city limits. The officers followed the suspects and stopped the car as it reached the city limits. Upon approaching the car the officers observed a revolver lying on the floor of the car and what they believed to be a small safe on the back seat, partially covered by a blanket. Both suspects were arrested for armed robberies in both Flint and Traverse City, the items in the car were seized and the suspects taken to the Flint police station.

      References for Points in Headnotes
    [1, 7] 21 Am Jur 2d, Criminal Law § 493.
    [2] 5 Am Jur 2d, Arrest §§ 7, 43, 44, 46.
    68 Am Jur 2d, Searches and Seizures §§ 23, 88.
    What constitutes probable cause for arrest — Supreme Court cases. 28 L Ed 2d 978.
    Search and seizure: Observation of objects in "plain view” — Supreme Court cases. 28 L Ed 2d 978.
    [3] 5 Am Jur 2d, Arrest §§ 76, 77.
    21 Am Jur 2d, Criminal Law § 440.
    [4] 5 Am Jur 2d, Appeal and Error §§ 772, 774.
    68 Am Jur 2d, Searches and Seizures §§ 100, 101.
    [5] 29 Am Jur 2d, Evidence §§ 571, 572.
    Admissibility of confession as affected by its inducement through artifice, deception, trickery, or fraud. 99 ALR2d 772.
    [6] 16 Am Jur 2d, Constitutional Law § 113.

      At the Flint police station the defendant was advised of his Miranda rights after which he indicated knowledge of Lown’s criminal activity in Traverse City, but made no incriminating statements concerning himself.
    A search of the Flint residence was undertaken after the defendant and Vicky Cooper, the defendant’s girlfriend and Lown’s sister, signed consent forms. In the search some evidence of the Traverse City crimes was turned over to the police by the defendant.
    At about 10 p.m. on the night of the defendant’s arrest, Detective Bobier of the Traverse City Police arrived in Flint with arrest warrants. The defendant was again advised of his rights and made several confessions to Detective Bobier as to his involvement in the Traverse City cases. On the following day, April 1, Detective Bobier obtained a signed confession as to one of the Traverse City offenses.
    The defendant was not transferred to Traverse City until April 3. The delay was allegedly for the purpose of allowing the Flint authorities to decide whether they would press any charges against the defendant for the offenses occurring in Flint.
    On April 4, Detective Bobier obtained a number of typed confessions concerning the Traverse City offenses. The defendant was arraigned on April 5, on four counts of armed robbery.
    Subsequent to his arraignment, the defendant moved to suppress his confessions and the evidence obtained in the search of the Flint residence. The trial court, on June 14, ruled that the confessions were admissible and that the consent search was valid.
    On June 15, 1976, the defendant pled guilty in Traverse City to one count of armed robbery. As consideration for the plea, the prosecution agreed to dismiss and/or stop prosecution on the three other Traverse City charges.
    Some time after June 16, 1976, it became known that the fingerprint expert involved in the case had been falsifying evidence in recent cases and that he had lied about the matching of the defendant’s prints to those found at the scene of the Traverse City robbery.
    The defendant then filed a second motion to suppress his confessions and a motion to withdraw his plea and the court again ruled that the confessions were admissible but granted the motion to withdraw the plea.
    On August 6, 1976, the defendant again pled guilty to one count of armed robbery and again the prosecution agreed not to pursue the other charges, and in addition, agreed that the defendant could raise on appeal the denial of his motion to suppress his confessions and the evidence obtained in the search. The defendant appeals. Held:

    1. Qualified pleas are enforceable and the defendant, therefore, may appeal the denial of his motion to suppress his confession. The arrest of the defendant was valid, despite the use of the false fingerprint information in obtaining the arrest warrant, because the arresting officers had adequate cause to stop the car containing the suspects and after the legal stop the plain view discovery of the gun and safe together with other information known by the police authorized the arrest of the suspects.
    2. The trial court’s decision that the consent search was valid was not clearly erroneous.
    3. The falsified fingerprint evidence did not coerce the defendant’s confession because the fingerprint information was mentioned only after the defendant had already confessed.
    Affirmed.
    Bronson, J., would hold that qualified pleas are not authorized in Michigan and are not enforceable. However, he would not apply the rule to this defendant since in the interest of judicial economy the case at bar should be reviewed on its merits.
    Opinion op Bronson, J.
    1. Criminal Law — Pleas op Guilty — Qualified Pleas.
    Qualified guilty pleas should not be enforced in the absence of court rules or statutes authorizing such pleas.

    2. Arrest — Validity op Arrest — Arrest Warrant — Arrest Without Warrant — Plain View.
    The arrest of a defendant on an armed robbery charge was valid, regardless of the validity of a warrant for the defendant’s arrest, where the arresting officers had adequate cause to stop the car in which the defendant and another suspect were riding and where, after the legal stop of the vehicle, the plain view discovery of incriminating evidence together with other information known by the police authorized the arrest of the defendant and the other occupant of the car.
    3. Criminal Law — Arrest—Arraignment—Delay—Evidence—Confessions — Unreasonable Delay — Exclusion of Evidence— Statutes.
    The statutes governing the arrest-arraignment process provide that after a defendant has been arrested on felony charges he shall be taken before a magistrate for arraignment without unnecessary delay; this does not require the exclusion of every admission or confession obtained during a period of unreasonable delay; only when the delay has been employed as a tool to extract a statement has an exclusionary rule been imposed under these statutes (MCL 764.13, 764.26; MSA 28.871[1], 28.885).
    4. Searches and Seizures — Consent Search — Totality of Circumstances — Appeal and Error.
    A trial court is to review the totality of circumstances in determining the validity of a consent search; the Court of Appeals will reverse only if the trial court’s decision was clearly erroneous.
    5. Criminal Law — Confessions—Voluntariness of Confession— Evidence — -Fingerprints—Falsified Fingerprint Report.
    A defendant’s confession was not coerced by a falsified fingerprint report where the fingerprint evidence was mentioned only after he had confessed.
    Opinion of M. F. Cavanagh, P. J.
    6. Constitutional Law — Decision on Nonconstitutional Ground— Criminal Procedure — Order of Deciding Issues.
    A court should avoid decision of a constitutional issue if a case can be resolved on a nonconstitutional ground; however, this is only a rule for determining which of the issues raised before the court should be decided, it is not a rule to keep cases from coming before the court; this law does not support or imply a rule of criminal procedure which makes it difficult for defendants to present a constitutional issue where that is the sole dispositive issue in the case.

      7. Criminal Law — Pleas of Guilty — Qualified Guilty Pleas — Enforcing Qualified Pleas.
    A uniform policy should be established either by court rule or by a decision of the Michigan Supreme Court on the enforcing of qualified pleas of guilty; however, the Court of Appeals, in the interim, should not create by judicial opinion a uniform policy of not enforcing qualified pleas; qualified pleas should be enforced.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John D. Foresman, Prosecuting Attorney, and Dennis LaBelle, Assistant Prosecuting Attorney, for the people.

      David S. Brady, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   Bronson, J.

Defendant Ricky Dale Smith was convicted, upon his plea of guilty, of one count of armed robbery, MCL 750.529; MSA 28.797. He appeals as of right. A detailed statement of facts is necessary to our disposition of this case.

In the first months of 1976 the police departments in Flint and Traverse City began investigations of numerous armed robberies in those two cities. Suspicion centered on two people, one Jack Lown, an escapee from Michigan’s prison system, and defendant. Both police departments discovered that Lown and defendant were staying at the Flint residence of Lown’s sister.

On March 31, 1976, Flint police had the house in question under constant surveillance. The Traverse City police, in order to solidify their investigation, sent copies of latent fingerprints taken from the premises of one of the robberies in question to a Detective Dale Rose, a fingerprint evidence expert, for comparison with the known fingerprints of Lown and defendant. Detective Rose reported that the fingerprints taken from the crime scene matched those of both suspects. On the basis of all of the information obtained by the Traverse City police, including the fingerprint identification, an arrest warrant was obtained for Lown and Smith by the Traverse City police.

On March 31, the Traverse City police informed the Flint police of the existence of the warrants and that they were on their way to Flint to arrest Lown and Smith. While the Traverse City police were en route to Flint, the Flint police on surveillance duty at the house saw two men drive away from the house. The police followed the car and stopped it as it reached the city limits. When the police approached the car they observed a revolver lying on the floor of the car and what they believed to be a small safe on the back seat, partially covered by a blanket. Smith and Lown were arrested for armed robberies in both Flint and Traverse City, the items in the car were seized, and the prisoners taken to the Flint police station.

At the police station, defendant, after being advised of his Miranda rights, was questioned by Sergeant Albritton of the Flint police beginning about 7:30 p.m. At this time defendant made no incriminating statements concerning himself, but did indicate knowledge of Lown’s criminal activities in Traverse City.

Defendant also indicated that he would consent to a search of the Flint residence and would turn over evidence of some of the crimes. The search was undertaken, with defendant and Vicky Cooper, defendant’s girlfriend and Lown’s sister, signing consent forms. In the search some evidence of the Traverse City crimes, including a police radio and part of a coin collection, was turned over to the police by defendant.

At about 10 p.m. on the night of the defendant’s arrest Detective Bobier of the Traverse City police arrived in Flint with the arrest warrants. After being advised of his rights defendant was questioned by Detective Bobier and made several confessions as to his involvement in the Traverse City cases. Detective Bobier also talked to defendant on the following day, April 1, and obtained a signed confession as to one of the Traverse City offenses.

Defendant remained in the Flint jail. On April 3, the Traverse City police returned to Flint and transferred defendant to Traverse City. The delay was alleged to have been for the purpose of allowing the Flint authorities to decide whether they would press any charges against defendant for offenses occurring in Flint.

On April 4, Detective Bobier spent several hours with defendant and obtained a number of typed confessions concerning the Traverse City offenses. Detective Bobier admitted that he sought to obtain these statements on April 4 because he knew that his chances of getting them after defendant was arraigned and provided with an attorney were minimal. Defendant was arraigned the next day, April 5, on four counts of armed robbery.

Subsequent to his arraignment defendant moved to suppress his confessions and the evidence obtained in the search. The court heard both motions on June 14, 1976. The court ruled that the confessions were admissible and that the consent search was valid.

On June 15, 1976, defendant pled guilty in Traverse City to one count of armed robbery, in connection with the robbery of the Tanz Haus restaurant on March 13, 1976. As consideration for his plea the prosecution agreed to dismiss and/or stop prosecution on the three other Traverse City charges.

Sometime after June 16, 1976, the Traverse City police became aware that Detective Rose, the fingerprint expert involved in the present case, had been intentionally falsifying evidence in recent cases. The fingerprint evidence concerning defendant was rechecked with the Michigan State Police, resulting in a finding that Detective Rose had lied about the matching of defendant’s prints to those found at the scene of the Traverse City robbery.

After being made aware of this information, defendant filed a second motion to suppress his confessions and a motion to withdraw his plea. The court heard these motions on August 4, 1976. The court held that the confessions were still admissible, but granted the motion to withdraw the plea.

On August 6, 1976, defendant again pled guilty in connection with the Tanz Haus robbery. As consideration for this plea the prosecution again agreed not to pursue the other charges, and in addition agreed that defendant could raise on appeal the denials of his motions to suppress his confessions and the evidence obtained in the search.

I.

The first issue which confronts us is one of first impression in Michigan — whether a plea agreement by which a defendant reserves the right to appeal nonjurisdictional issues is valid and enforceable. Cases from other jurisdictions are split on this issue.

In United States v Cox, 464 F2d 937 (CA 6, 1972) , the Sixth Circuit Court of Appeals held that qualified pleas were not valid and enforceable, even though consented to by the prosecutor and the trial court. The Court stated:

"The procedure employed in the case at bar is at variance with the general, well-settled rule that a guilty plea 'normally rests on the defendant’s own admission in open court that he has committed the acts with which he is charged’. * * * When made by the accused, knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all non-jurisdictional defects.” (Citations omitted.) 464 F2d at 940.

After discussing the exception to the plea-waiver rule where the defendant raises a constitutional challenge to the statute underlying the conviction, as outlined in Haynes v United States, 390 US 85; 88 S Ct 722; 19 L Ed 2d 923 (1968), the Cox Court held:

"It would appear, therefore, that the Haynes rule is of limited applicability and is constricted to a narrow class of constitutional questions. It is applicable only where the jurisdiction of the trial court to proceed on the criminal charges is directly placed in question. The Haynes rule does not apply in cases where a guilty plea has been entered despite the presence of non-jurisdictional constitutional questions, usually arising out of the Fourth and Fifth amendments.
"This is not to say that there is not substantial support for extending the Haynes rule to most guilty plea situations. However, despite the existence of that respectable authority, we decline to adopt as a rule in the Sixth Circuit the procedure allowed by the district court in the instant case.
"To the extent this procedure allows a defendant to plead guilty, contingent on his right to appeal on nonjurisdictional grounds from his own plea, it is not logically consistent and is against the trend of recent case authority. There is a fundamental and basic inconsistency between knowingly and intelligently entering a voluntary plea of guilty, and then appealing from the judgment entered on the basis of that plea.” (Footnote omitted.) 464 F2d at 941-942.

The Cox Court went on to discuss the dilemma faced by a criminal defendant who, having lost on a motion to suppress evidence that will in all probability lead to his conviction, has to decide whether to go to trial or accept a plea bargain. The Court reasoned, quite correctly, that in light of the plea waiver doctrine one of the critical factors in this decision is the likelihood that following the trial the decision on the motion to suppress will be overturned on appeal. The defendant, and his counsel, must weigh the chances of a reversal on appeal with the benefit to be gained from a possible charge or sentence plea bargain.

Contrasting this common situation to the case at bar, the Court stated:

"However, the district court allowed defendants the best of two worlds. They were allowed to plead guilty to reduced charges, while reserving their right to appeal as if they had maintained their innocence through trial. They therefore obtained from a no doubt harried prosecutor, in consideration of their plea, an advantage they may not have received had they gone to trial on their pleas of guilty to charges of armed robbery. Under Santobello [404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971)], * * * the defendants have the right to hold the prosecutor to his side of the bargain. It strains logical consistency and legal definition to allow appeal from such situations. The defendants clearly want to have their cake while preserving their rights to eat it at some future date.” 464 F2d at 944.

The Cox Court also argued that review of often complex constitutional and evidentiary issues following a guilty plea may often be difficult given the sometimes limited record provided by a plea. The Court reasoned that without a full record, as is provided where there has been an adversarial trial, it is more difficult not only to review the claim of error but also, if error is shown, to review the effect of the error on the remainder of the case. 494 F2d at 944-945.

The rationale of this argument is that all of the evidence available and admissible against the defendant may not be evident from the record of a motion to suppress only a part of that evidence. In that situation it is possible either that the challenged evidence would never have been used at a trial or that the use of the invalid evidence would have been harmless in the context of a full trial. A decision on either of these two possibilities is very difficult where a plea has been entered, foreclosing knowledge of what would have occurred at the trial.

In the situation where all of the evidence is subject to a motion to suppress, the Cox Court still found no reason to allow an appeal of the denial of suppression following a plea:

"Even in such a situation, we can see no reason to allow the defendant to plead guilty following an unfavorable ruling on a motion to suppress and reserve his right to appeal. A trial of such limited evidence would be short and relatively easy to try. We can think of no compelling policy ground for altering generally accepted notions of the meaning and significance of guilty pleas for this rather limited category of cases.” 464 F2d at 945.

In conclusion, the Cox Court outlined the balancing decision it had made before deciding to disallow the use of qualified pleas:

"In sum, while we can see that the proposed procedure may ease the docket pressures confronting many district courts, we believe the disadvantages in terms of the internal consistency of our criminal process, the accuracy of appellate review, and conflict with the hoary doctrine of avoiding constitutional questions if possible, far outweight the putative gains. Therefore the procedure of allowing appeal on non-jurisdictional grounds following intelligent and voluntary pleas of guilty will not be countenanced in the future in this Circuit.” 464 F2d at 945.

Similarly, the Fifth Circuit, en banc, strongly disapproved the procedure of allowing a defendant to plead guilty and retain the right to raise nonjurisdictional issues on appeal in United States v Sepe, 486 F2d 1044 (CA 5, 1973). See, also, United States v Mizell, 488 F2d 97 (CA 5, 1973), developing precedent and some of the reasons supporting Sepe.

In State v Turcotte, 164 Mont 426; 524 P2d 787 (1974), the Montana Supreme Court refused to enforce qualified pleas absent an authorizing statute. See, also, People v Green, 21 Ill App 3d 1072; 316 NE2d 530 (1974).

There is authority, however, indicating that qualified pleas are valid and enforceable. See, e.g., United States v Doyle, 348 F2d 715 (CA 2, 1965) (dictum), Cooksey v State, 524 P2d 1251 (Alas, 1974), Jackson v State, 294 So 2d 114 (Fla App, 1974), State v Crosby, 338 So 2d 584 (La, 1976). Three state legislatures have enacted statutes authorizing this procedure. See California Penal Code, § 1538.5(m); NY Crim Pro Code § 710.70(2); Wise Stat Ann § 971.31(10). Also, some commentators have endorsed the adoption of rules or statutes authorizing qualified pleas. See, e.g., ABA Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals, § 1.3(a)(iii), Comment (c), (Approved Draft 1970); Comment, Appellate Review of Constitutional Inñrmities Notwithstanding a Plea of Guilty, 9 Houston L Rev 305 (1971).

The basic reason cited in favor of enforcing qualified pleas is that otherwise a defendant is forced to go through a costly and futile trial in order to preserve for appeal an issue based on the denial of a pretrial motion to suppress evidence.

We believe there are meritorious arguments on both sides of this issue. However, we are persuaded by the reasons cited in Cox that it is contrary to sound policy to allow the litigants to force the courts to consider constitutional issues and to foreclose courts from finding that in a given case any erroneous denial of a suppression motion is harmless error. The benefit gained by preventing trials necessitated solely by a desire to preserve nonjurisdictional issues is outweighed by these adverse effects on the administration of justice.

Even if we were to find the reasons for enforcing qualified pleas more compelling than those for not enforcing such pleas, we would hesitate to enforce qualified pleas absent an authorizing court rule or statute. The commentators cited above who support the enforcement of qualified pleas recommend that authorization be by court rule or statute. Three of the states allowing qualified pleas have done so by legislation. Also, other state courts have declined to enforce iiiese pleas absent a rule or statute. See State v Turcotte, supra, People v Green, supra.

Dealing with qualified pleas by rule or statute rather than judicially is desirable from the standpoint of uniformity. Plea-taking procedures are already regulated in great detail by court rule. See GCR 1963, 785.7. Any addition to established procedures should also be so regulated. Finally, until there is a definitive rule or statute, trial courts must guess whether a conditional plea will be enforced in that particular case before deciding whether to accept the plea.

Therefore, we will decline to enforce qualified pleas in the future. However, in the interest of judicial economy, we will decide the case at bar on the merits. See United States v Cox, supra.

II.

Defendant first contends that the use of false fingerprint evidence invalidates the arrest warrant in the case at bar, rendering the stop and arrest of defendant illegal.

We hold that the arrest of defendant was valid. Police had adequate cause to stop the car containing Lown and defendant under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). See People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). After a legal stop, the plain view discovery of the safe and gun in the car, together with other information known by police, authorized the arrest of Lown and defendant. Therefore, the arrest was valid regardless of the validity of the arrest warrant.

III.

The second issue raised by defendant concerns the effect of delay between arrest and arraignment on a confession obtained during the delay. The applicable law was recently summarized in People v White, 392 Mich 404, 424; 221 NW2d 357 (1974):

"The statutes governing the arrest-arraignment process provide that after a defendant has been arrested on felony charges he shall be taken before a magistrate for arraignment 'without unnecessary delay.’ MCLA 764.13, 764.26; MSA 28.871(1), 28.885. These sections, while straightforward in their command to the police, have not been interpreted by this Court or require the exclusion of every admission or confession obtained during a period of unreasonable delay. Only when the delay has been employed as a tool to extract a statement has an exclusionary rule been imposed under these sections. People v Hamilton, 359 Mich 410; 102 NW2d 738 (1960); People v Harper, 365 Mich 494; 113 NW2d 808 (1962); People v Farmer, 380 Mich 198; 156 NW2d 504 (1968).”

In the case at bar, defendant confessed, on the night of his arrest, to his involvement in several Traverse City robberies including the one robbery to which he pled guilty. Over the next four days, during which defendant was detained in Flint and Traverse City, police obtained written confessions to those robberies.

The prosecutor asserts that the five-day delay in arraignment was reasonable, as Flint police needed time to investigate numerous potential charges and decide whether to charge defendant. We need not discuss this issue, however, as we hold that even if the delay was unreasonable, it was not used by police to extract a statement. See People v White, supra. Defendant had confessed on the night of his arrest after freely waiving his Miranda rights. He has failed to show that the delay in arraignment was used to coerce subsequent written statements covering the same subject matter as his original confession.

IV.

Defendant’s third contention is that his consent to search his house was invalid, requiring suppression of the evidence seized in that search.

The trial court is to review the "totality of circumstances” in determining the validity of a consent search. People v Chism, 390 Mich 104; 211 NW2d 193 (1973). On appeal, we will reverse only if the trial court’s decision was clearly erroneous. Id. On reviewing the record, we do not find that the trial court’s decision was clearly erroneous.

V.

Finally, defendant contends that his confession must be suppressed because it was coerced by tainted evidence — the falsified fingerprint report from Detective Rose. The trial court found that the fingerprint evidence was mentioned to defendant only after he had confessed. If so, the confession could not have been coerced by the tainted evidence. Even assuming that Detective Bobier mentioned fingerprint evidence to defendant before he confessed, we do not find after a review of the "totality of circumstances”, that the confession was thereby rendered involuntary and inadmissible. See Frazier v Cupp, 394 US 731; 89 S Ct 1420; 22 L Ed 2d 684 (1969), Anno: Admissibility of confession as affected by its inducement through artiñce, deception, trickery, or fraud, 99 ALR2d 772, 791-796.

Affirmed.

M. F. Cavanagh, P. J.

(concurring in part; dissenting in part). With the exception of his remarks concerning qualified (or conditional) pleas, I concur in my Brother Bronson’s opinion. I write separately only because I am unpersuaded by the arguments made in behalf of a refusal to enforce such pleas.

Among those arguments is the contention that conditional pleas are contrary to sound policy because they force the courts to consider constitutional issues. It is fundamental law that a court will avoid decision of a constitutional issue if a case can be resolved on a nonconstitutional ground. Neese v Southern R Co, 350 US 77; 76 S Ct 131; 100 L Ed 60 (1955). However, this is only a rule for determining which of the issues raised by a case before the court should be decided. It is not a rule to keep cases from coming before the court. This law does not support or imply a rule of criminal procedure which makes it difficult for. defendants to present a constitutional issue where that is the sole dispositive issue in the case.

Moreover, the trial court will have been "forced” to decide the question anyway. A qualified plea simply expedites the appeal of this decision by saving a possibly needless, expensive and time-consuming trial.

A second argument made against qualified pleas is that they prevent this Court from finding harmless error in the denial of a motion to suppress. This argument merits careful analysis.

When this Court makes a finding of harmless error in the admission of evidence at trial it second-guesses the trier of fact to determine how the trier would have decided the case without the admission of the challenged evidence. In a qualified plea situation, if the lower court’s ruling on thé suppression motion is found to be error and the case remanded for further proceedings, it will ultimately be the trier of fact itself who determines whether the prosecution’s case, without the suppressed evidence, proves defendant’s guilt beyond a reasonable doubt. I find it preferable that this decision be made by the trier of fact, who sees the witnesses first-hand, rather than by an appellate court, which sees only the record and exhibits. I also think it more consistent with the right to trial by jury that the factfinder make the ultimate finding on the weight of the properly admitted evidence. I therefore see no disadvantage in eliminating the appellate court’s power to find harmless error here.

A third objection raised to conditional pleas is the seeming illogic and inconsistency in admitting one’s guilt with a plea of guilty and at the same time reserving a right to appeal, which is equated with an assertion of innocence. However, a conditional plea is not quite the same thing as a guilty plea. A conditional plea expresses the defendant’s qualified will to plead guilty only if a ruling adverse to him is affirmed on appeal. In such a choice there is more pragmatism and realism than illogic and inconsistency.

The probable result of allowing qualified pleas is an increase in appeals raising constitutional issues, and a decrease in trials where the prosecution builds an apparently overwhelming case in part on evidence of questioned admissibility. If so, then a rule allowing qualified pleas portends a trade-off in the workload of trial and appellate courts. If we as a Court elect not to make this trade, it should be, at least in part, because of its poor economies, and not on the grounds presently advanced by the rule’s critics. For the proof of these economies we should look, not to presumptions and suppositions, but to the experience of our sister states who recognize qualified pleas.

We should, in addition, look closely at what is proposed to be traded. Where the defendant must go to trial to preserve an issue for appeal, and does so for this purpose only, the trial itself resolves no genuinely contested questions. It is wasted work on nonissues, with the real issue to be decided only on the subsequent appeal. There will, however, be some defendants who plead guilty and waive the only arguably meritorious question in the case in order to secure the benefits of a favorable plea bargain. These pleas save the appellate courts work. In short, the system saves the appellate courts work on the real questions at the cost of favorable plea bargains for defendants and pointless work for trial courts.

Where a conditional plea is taken the work and expense of trying nonissues is saved. However, the appellate courts will have the added work of deciding the issues which defendants do contest and on the outcome of which their pleas are conditioned.

To this writer, there is something preferable in an adjudicatory system which allocates its energies to the decision of contested questions rather than formal exercises.

I agree that a uniform policy should be made either by court rule or Supreme Court decision. However, I do not agree that this Court, in the interim, should create by judicial opinion a uniform policy of not enforcing qualified pleas. Where the defendant and the prosecutor enter into a qualified plea, Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), would seem to forbid our ignoring the qualification and treating the alleged errors as waived. The only other alternative to enforcing the plea and considering the issues would be to set the plea aside and remand for taking an unqualified plea, or for trial, in the parties’ option. However, for the same considerations of judicial economy which move my Brother Bkonson to reach the merits here, I would prefer to enforce qualified pleas.

M. J. Kelly, J., concurs with M. F. Cavanagh, P. J.

       The issue was raised but not decided in People v Alvin Johnson, 396 Mich 424, 440, n 15; 240 NW2d 729 (1976). In a footnote, Justice Williams’ opinion for the Court noted that Federal courts were split over the validity of a qualified plea which allows a defendant to raise nonjurisdictional issues on appeal, citing United States v Cox, 464 F2d 937 (CA 6, 1972), and United States v Caraway, 474 F2d 25 (CA 5, 1973) , opinion vacated as moot, 483 F2d 215 (CA 5, 1973).

       We use this term to refer to guilty pleas made pursuant to a plea agreement that nonjurisdictional issues may be raised by defendant on appeal.

       Prior to the en banc decision in Sepe, a panel had enforced a qualified plea in United States v Caraway, 474 F2d 25 (CA 5, 1973), vacated as moot, 483 F2d 215 (CA 5, 1973).

       If the plea bargain cannot be enforced, defendant must be allowed to withdraw his plea. Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971).

       Detective Bobier did not know at that time that the fingerprint report was false.


author: S. Everett, J.

text:
    ERICKSEN v TAWAS AREA SCHOOL DISTRICT
    Docket No. 31054.
    Submitted March 8, 1978, at Lansing.
    Decided August 7, 1978.
    Robert H. Ericksen and two other teachers brought this class action on behalf of the members of the Tawas Education Association against the Tawas Area School District and Board of Education in Iosco Circuit Court to recover two and one-half days salary which had been deducted from their final paychecks pursuant to a strike settlement agreement between the parties. In the trial court, plaintiffs argued that the language of the agreement, "The scheduled time missed will be prorated and deducted from salary (2-1/2 days deduction)”, was ambiguous and called a witness to resolve any ambiguities through parol evidence. Defendants’ objection was sustained by Allan C. Miller, J., on the ground that there was nothing ambiguous in the language of the contract. Judge Miller found, at the end of plaintiffs’ proofs, that no cause of action had been made out and dismissed the case. Plaintiffs’ appeal hinges on their argument that Judge Miller erroneously excluded the proffered parol evidence. Held:

    The language of the strike settlement agreement is clear and unambiguous because the agreement specifies exactly what is meant by "scheduled time missed” by stating "2-1/2 days”. Parol evidence would not tend to show that ambiguity existed nor that ambiguity may exist; therefore, the proffered evidence was inadmissible.
    Affirmed.
    1. Evidence — Extrinsic Evidence — Contracts—Ambiguity—Intent —Construction.
    Extrinsic evidence is admissible to prove the existence of ambiguity or to indicate the actual intent of the parties where ambiguity may exist in a contract; when ambiguity exists in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties as an aid in the construction of the contract.

      References for Points in Headnotes
    [1-4] 30 Am Jur 2d, Evidence §§ 1069-1074.
    The parole evidence rule and admissibility of extrinsic evidence to establish and clarify ambiguity in written contract. 40 ALR3d 1384.
    Modern status of rules governing legal effect of failure to object to admission of extrinsic evidence violative of parol evidence rule. 81 ALR3d 249.

      2. Contracts — Language—Ambiguity.
    Ambiguity cannot exist where the language of a contract is clear and specifies exactly what is meant.
    3. Evidence — Parol Evidence — Contracts—Ambiguity—Admissibility.
    Proffered parol evidence is inadmissible where it would not tend to show that any ambiguity existed in a contract nor that ambiguity may exist.
    4. Evidence — Parol Evidence — Contracts—Ambiguity—Admissibility.
    Parol evidence may be admissible even though no ambiguity exists in a contract where there is no inconsistency between the proffered parol evidence and the written contract language; however, this rule is inapplicable where the proffered evidence is inconsistent with and contrary to the written language.

      Foster, Swift & Collins, P. C. (by Karen Bush Schneider), for plaintiffs.

      Thrun, Matsch & Nordberg (by Harry J. Zeliff), for defendants.
    Before: D. E. Holbrook, Jr., P. J., and Allen and S. Everett, JJ.

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

   S. Everett, J.

Plaintiffs brought this class action breach of contract suit on behalf of the members of the Tawas Education Association who were employed by defendants as teachers during the 1972-1973 school year. Plaintiffs sought to recover two and one-half days’ salary which had been deducted from their final paychecks. The trial court, sitting without a jury, found, at the end of plaintiffs’ proofs, that no cause of action had been made out and dismissed the case. Plaintiffs appeal by right.

Plaintiffs’ appeal hinges on their argument that the trial court erroneously excluded parol evidence.

The complained of salary deductions were purportedly made pursuant to a strike settlement agreement between the parties which reads as follows:

"It is mutually agreed that neither party will take or initiate any disciplinary action of any kind because of any action or non-action by an individual or group during the period from September 1, 1972, to September 6, 1972. The scheduled time missed will be prorated and deducted from salary (2-1/2 days deduction). One of the scheduled one-half student days each semester will become full student days, in each case the Thursday. The Fridays in each case would remain one-day for students, all day for teachers.” (Emphasis added.)

At trial, plaintiffs called as a witness Albert Hoffman who had been the teachers’ chief spokesman when the strike settlement agreement was made. During questioning by plaintiffs’ counsel, Mr. Hoffman was asked in regard to the agreement: "What was your intention when you entered into that language?” Defense counsel objected to allowing an answer as "inadmissible on the basis of the parol evidence rule”. Argument on the objection included the following by plaintiffs’ counsel:

"Mr. Raven: Your Honor, it’s my position that the contractual language is ambiguous. The agreement that scheduled time missed would be deducted was, as the evidence will show, and I argued it in my opening statement, that if there was time missed by the end of the year, maybe there would be a deduction. That’s ambiguous, because it’s not clear when we’re talking about the time being missed, your Honor, * * * the language is ambiguous as to when that time is to be measured, and I think that, accordingly, you must have, first of all, the admission of some parol evidence to explain when the parties intended that to be measured, * * * when that parol evidence is admitted, assuming it is, it will show that the intent of the parties was that there would not be any money deducted.”

The trial court sustained the objection stating in part, "I see nothing ambiguous in the language that’s stated in the contract and, so, the objection is sustained”. Plaintiffs now argue that this ruling was erroneous as a matter of law because the language of the strike settlement agreement contains one or more latent ambiguities. We believe that the instant case is controlled by Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974), and Union Oil Company of California v Newton, 397 Mich 486; 245 NW2d 11 (1976).

Applying Goodwin, supra, we find that the trial court committed no error. The Goodwin opinion, pp 209-210, sets out three rules:

"1) Where ambiguity may exist in a contract, extrinsic evidence is admissible to prove the existence of ambiguity.
"2) Where ambiguity may exist in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties.
"3) Where ambiguity exists in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties as an aid in the construction of the contract.”

The language of the strike settlement agreement is clear and unambiguous. Plaintiffs’ brief argues in part that "The ambiguity presents itself in the present case in the phrase 'scheduled time missed’ as it appears in the strike settlement provision of the collective bargaining agreement”. No ambiguity can exist in this case, however, because the agreement specifies exactly what is meant by "scheduled time missed” by stating "2-1/2 days”. The proffered evidence is inadmissible because it would not tend to show that any ambiguity existed nor that ambiguity "may exist”.

In Newton, supra, the Court held that, even though no ambiguity exists, if there is no inconsistency between the proffered parol evidence and the written contract language, the parol evidence is admissible. While it is conceivable that witness Hoffman might have given evidence consistent with the written language, the content of the proffered evidence as articulated by plaintiffs’ counsel at trial was inconsistent with and contrary to the written language. We note that the plaintiffs’ trial counsel did not argue for admission of the testimony under any of the exceptions identified in Bob v Holmes, 78 Mich App 205, 213-214; 259 NW2d 427 (1977), and Bennett v Wright, 79 Mich App 566, 571-572; 263 NW2d 17 (1977). Therefore, the proffered evidence was inadmissible under Newton. Vermeylen v Knight Investment Corp, 73 Mich App 632, 644; 252 NW2d 574 (1977) (partial concurrence by Allen, J.).

The other portions of plaintiffs’ appeal are so clearly meritless as to require no discussion.

Affirmed. Costs to defendants.