author: E. A. Quinnell, J.

text:
    BELIN v JAX KAR WASH NO 5, INC
    Docket No. 77-1414.
    Submitted November 14, 1979, at Detroit.
    Decided February 20, 1980.
    Lucius Belin was a passenger in a van owned by Jax Kar Wash No. 5, Inc. He was injured when the van was involved in an accident with vehicles owned and/or operated by Francis Dawson and Russell Hoover. Belin brought an action for damages against Jax, Dawson and Hoover in Wayne Circuit Court. Lysle G. Hall, J., directed a verdict in favor of defendant Jax on the strength of the automobile guest passenger statute. Hoover was found not liable and Dawson was assessed $75,000 by the jury. Belin appealed and the Court of Appeals reversed and remanded for a new trial as to Jax, 52 Mich App 670 (1974). Jax appealed to the Supreme Court. The Supreme Court issued an order remanding the case to the Wayne Circuit Court for trial because of a change in the law regarding guest passenger-owner liability, Belin v Dawson, 395 Mich 793 (1975). The second trial resulted in a jury verdict against Jax in the amount of $146,594. The trial court granted a remittitur of $35,000, Wayne Circuit Court, Michael L. Stacey, J. The court also directed that a new trial would be held unless plaintiff accepted the remittitur. Jax appeals alleging that the trial court erred in permitting plaintiffs counsel to read the deposition of Francis Dawson to the jury during the second trial. According to the deposition she and the driver of the van got out of their cars and she asked him why he was driving so fast and hit her and he answered "I didn’t even see you lady”. Jax also claims that the trial court erred in allowing a verdict to stand which was in excess of a verdict assessed at an earlier trial and that the court erred in admitting certain expert medical testimony. Plaintiff cross-appeals claiming that the trial court abused its discretion in its order of remittitur. Held:

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 600, 617, 708, 712.
    [2] 5 Am Jur 2d, Appeal and Error § 797.
    [3] 74 Am Jur 2d, Torts § 78.
    Propriety and effect of jury’s apportionment of damages as between tortfeasors jointly and severally liable. 46 ALR3d 801.
    [4] 74 Am Jur 2d, Torts § 71 et seq.

    [5] 5 Am Jur 2d, Appeal and Error § 546.
    [6] 5 Am Jur 2d, Appeal and Error § 977.
    [7, 8] 22 Am Jur 2d, Damages §§ 366, 367.
    [9] 22 Am Jur 2d, Damages §§ 366, 367.

      1. Testimony concerning the van driver’s statement, "I didn’t even see you lady”, was admissible as an exception to the hearsay rule because it was a declaration against interest, an admission by a party opponent or an excited utterance. Furthermore, the witness who had made the deposition was present in court and both parties had an opportunity to have the witness fully explain the statement. Under these circumstances the error, if any, would be harmless.
    2. A verdict against one of two or more tortfeasors in a prior trial will not affect a higher verdict in a subsequent trial involving another of the tortfeasors.
    3. A portion of the record of the medical testimony was lost and the parties could not agree on a settled record regarding that testimony before appeal. There was nothing wrong with the procedure employed by the trial court in admitting that testimony.
    4. A trial judge must assign legally recognized reasons to support his decision to reduce a jury verdict. The trial judge did not state why he found $146,594 to be excessive or why he found that a remittitur of $35,000 would remedy the excessive award. There is an indication that the court considered the statutory interest rate as a major consideration in its ruling. Statutory interest legally belongs to a plaintiff. This is not a sufficient reason for reducing the jury’s verdict and using this reduction as a basis for the granting or denial of a new trial. There was an abuse of discretion.
    Remanded for reinstatement of the jury verdict.
    1. Evidence — Hearsay — Declarations Against Interest — Party Opponent — Excited Utterances — Rules of Evidence.
    The statement of a witness is admissible as an exception to the hearsay rule where it is a declaration against interest, an admission by a party-opponent, or an excited utterance (MRE 801[d][2], 803[2], 804[b][3]).
    2. Evidence — Hearsay — Admission of Hearsay — Harmless Error — Court Rules.
    Generally, a new trial will not be ordered on the basis of the admission or exclusion of a hearsay statement where the witness was present in court and both parties had an opportunity to have the witness fully explain the statement; the error, if any, should be considered harmless (GCR 1963, 529.1).
    3. Judgment — Joint Tortfeasors — Damages — Subsequent Actions.
    The rendition of a judgment in an action against one of two or more persons liable for a tort does not affect the claim against another tortfeasor; therefore, an award of a small amount as damages in an action against one of a number of joint tortfeasors does not necessarily prevent the obtaining of a judgment for a larger amount in a subsequent action against another of the tortfeasors.
    4. Judgment — Joint Tortfeasors — Damages — Subsequent Actions — Collateral Estoppel.
    A verdict against one of two or more tortfeasors in a prior trial will not affect a higher verdict in a subsequent trial involving another of the tortfeasors where the posture of the defendant throughout the second trial was that he was not bound by the first jury determination; there is an absence of mutuality as to the binding effect of the determination of damages in the first trial; where the defendant was not hound by that determination, neither was plaintiff.
    5. Appeal and Error — Theory of Case.
    A case will not be reviewed on appeal on a theory different from that on which it was tried.
    6. Evidence — Torts — Medical Testimony — Lost Record — Silent Record — Appeal and Error — Presumptions.
    An appellate court will not presume error from a silent record; therefore, a claim of error based on the alleged erroneous admission of medical testimony in a tort action is unpersuasive where the portion of the record containing the testimony was lost and the parties could not agree on a settled record but at the time of trial the judge heard the testimony, admitted an exhibit, instructed the jury on proximate cause and the jury heard the testimony, considered the exhibit, heard the instructions and reached its verdict.
    7. Damages — Verdict — Excessive Verdicts — Burden of Proof.
    A party claiming that a verdict is excessive has the burden of making an affirmative showing that it is excessive.

      8. Damages — Pain and Suffering — Verdict — Improper Meth-
    ods — Prejudice — Sympathy — Clearly Excessive Verdicts. The amount allowed for pain and suffering rests in the sound judgment of the trier of the facts and a trial court cannot substitute its judgment on that question unless a verdict has been secured by improper methods, prejudice or sympathy or is so clearly excessive as to shock the judicial conscience.
    9. Judgment — Remittitur — Excessive Verdict — Judge’s Discretion.
    A trial judge has discretion in determining whether a verdict is excessive and if he orders a remittitur on the basis of an unreasonable verdict his discretion will be upheld as long as he assigns legally recognized reasons to support his decision.

      Paul B. Newman, for plaintiff.

      Collins & Einhorn, P.C., for defendant.
    Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   E. A. Quinnell, J.

Plaintiff was injured on January 6, 1969, when a van owned by defendant Jax Kar Wash No. 5 ("Jax”), and in which he was a passenger, was involved in an accident with vehicles owned and/or operated by Francis Dawson and Russell Hoover. He brought suit against Jax, Dawson and Hoover. On December 12, 1972, the trial court directed a verdict in favor of defendant Jax on the strength of the automobile guest passenger statute, MCL 257.401; MSA 9.2101. The jury found Hoover not liable, and returned a verdict in favor of plaintiff and against Dawson in the sum of $75,000. That judgment has not been satisfied.

The case was subsequently remanded for trial as to Jax by the Michigan Supreme Court pursuant to Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975).

The second trial in February of 1977 resulted in a jury verdict in favor of plaintiff and against Jax in the amount of $146,594. The trial court granted a remittitur in the amount of $35,000 and directed that a new trial be held unless plaintiff accepted the remittitur within 10 days from the date of the order, being April 7, 1977. Jax appeals, alleging various errors in the trial proceedings. Plaintiff cross-appeals claiming that the granting of a remittitur was erroneous. We find that defendant’s claims of error are without merit and that the trial court erred in granting remittitur and remand the case to the trial court for entry of judgment on the jury verdict.

I. Defendant claims that the trial court erred in permitting plaintiff’s counsel to read the deposition of Francis Dawson to the jury during the second trial. During oral argument in this Court counsel for defendant conceded that no harm was done by the reading of the deposition, with one notable exception. In her deposition Mrs. Dawson stated that shortly after the accident she and the driver of the van got out of their cars, and she asked him why he was driving so fast and hit her. The driver purportedly responded "I didn’t even see you lady”.

Any error under GCR 1963, 302.4, in the procedure used to admit this téstimony from Mrs. Dawson was clearly harmless. The declaration of the driver — the hearsay within hearsay — was itself admissible. The statement was admissible as a declaration against interest on the part of the driver if the driver were unavailable. MRE 804(b)(3). Even if the driver were available at the second trial, the statement attributed to him would be admissible as a party admission, MRE 801(d)(2), or as an excited utterance. MRE 803(2). The present Michigan Rules of Evidence embody the case law in Michigan in effect at the time of the trial in 1977. Mrs. Dawson was present in court, and in fact was called by defendant as a witness. Counsel for both parties had full opportunity at trial to have her retract, reaffirm, or modify the statement she made during her deposition. While it would have been better practice for plaintiff’s counsel to call Mrs. Dawson and elicit the statement from her directly, using the deposition only to refresh her recollection or for impeachment depending upon her response, we will not order a new trial when both parties had the opportunity to have the witness fully explain the statement. Dowdell v Crittenton Hospital, 75 Mich App 299, 304-305; 254 NW2d 876 (1977), GCR 1963, 529.1.

II. Defendant states its next argument as follows:

"The trial court erred in allowing a verdict to stand which was in excess of a verdict assessed at an earlier trial.”

We do not agree.

The negligent acts of Mrs. Dawson and of Jax were concurrent, resulting in the imposition of joint and several liability. Cases cited by defendant in support of its claim of error involved derivative or vicarious liability.

The correct rule as to persons jointly and severally liable is found in the American Law Institute’s Restatement of Judgments, § 94, p 467:

"Except as stated in §§ 96-99, the rendition of a judgment in an action against one of two or more persons liable for a tort, breach of contract, or other breach of duty, does not affect the claim against the other.”

Sections 97-99 of the Restatement contain no exception which would apply in the present case. The comments to § 94 of the Restatement state in part:

"b. Merger, bar, collateral estoppel. A judgment against one of several persons each of whom is liable for the entire cause of action does not discharge any of the others unless the liability is alternative (see § 100) or the claim is not severable (see § 101). Thus, a person is entitled to separate judgments for the full amount of his harm against any number of tortfeasors whose conduct contributes to the tort or who otherwise are responsible for it. * * *

"Further, subject to the limitations stated in §§ 96-99, the plaintiff can obtain judgments against the defendants for varying amounts. Thus, if he is awarded a small amount as damages in an action against one of a number of joint tortfeasors, he is not necessarily prevented from obtaining a judgment for a larger amount in a subsequent action against another of the tortfeasors. The matter of damages is not res judicata except under the circumstances stated in §§ 96-99.

"For the same reasons that a judgment against one of two persons liable for a single breach of duty does not merge the claim against the other, and with the same exceptions, a judgment for such person does not bar the claim against the other; nor do the rules of collateral estoppel make the determination of fact in one action decisive in a later action.”

Defendant’s claim further suffers from the absence of mutuality of the binding effect of the jury determination of damages in the first trial. The posture of the defendant throughout the second trial, and indeed in this Court, has been that it is not bound by that determination. Defendant vigorously contested the medical proofs and other proofs of damage submitted by plaintiff. Since defendant was not bound by that determination, neither was plaintiff. Braxton v Litchalk, 55 Mich App 708; 223 NW2d 316 (1974). See also the discussion on this point in Darin & Armstrong v Ben Agree Co, 88 Mich App 128; 276 NW2d 869 (1979).

Defendant further argues that the first verdict must establish an upper limit on liability because of the effect of the disparate judgments on the right of contribution from the other tortfeasor. The claim is that contribution from the defendant in the first trial would be limited to one-half of the verdict against that defendant, leaving defendant Jax to satisfy a disproportionate share of the total recovery. This argument, however, cuts both ways. If a verdict of less than $75,000 had been returned against Jax, then contribution from Jax would be limited according to that verdict, creating an inequity converse from the one noted by Jax. The only answer to defendant’s policy arguments would be a rule that fixes — rather than limits— damages to those found by the first jury. Since this rule would be wholly inconsistent with the position taken by defendant at trial, we need not consider it on appeal. See Ford v Howard, 59 Mich App 548, 551-553; 229 NW2d 841 (1975), Thompson v City of Ecorse, 7 Mich App 492, 495-496; 152 NW2d 51 (1967).

III. Defendant further claims that the trial court erred by admitting medical testimony that plaintiff suffered a tear of the medial meniscus ligament of the right knee after the accident. Defendant argues that this evidence was irrelevant and prejudicial since there was no foundation to show that the cartilage tear resulted from the accident. The portion of the record containing the testimony of Dr. Claude Oster, the treating physician, has been lost and the parties have been unable to agree to a settled record concerning his testimony on this point. Plaintiffs version of Dr. Oster’s testimony is that while the torn ligament was not an immediate result of the accident it was a secondary result of the original injuries to plaintiff’s leg. The trial judge heard the testimony, admitted the questioned exhibit, and allowed the jury to consider the issue. The jury heard the testimony, had the exhibit for consideration, was properly instructed on the subject of proximate cause, and reached its verdict. Questions of cause and effect typically are resolved as questions of fact. We will not presume error from a silent record on appeal.

Defendant’s other contentions are wholly wanting in merit.

IV. Plaintiff cross-appeals, claiming the trial court abused its discretion by conditioning denial of a new trial upon plaintiff’s acceptance of a remittitur reducing the verdict by $35,000.

In order to justify the granting of a new trial on the grounds that the amount of the verdict is excessive, the burden is upon the party so claiming to show affirmatively that the verdict is excessive. It has been repeatedly recognized in Michigan that the awarding of damages for such items as pain and suffering rests in the sound judgment of the trier of fact, and a trial court cannot substitute its judgment on that question unless a verdict has been secured by improper methods, prejudice or sympathy. Bennett v Hill, 342 Mich 754, 763-764; 71 NW2d 220 (1955), GCR 1963, 527.1(3). Alternatively, a remittitur or new trial may be granted if the verdict is so clearly excessive as to shock the judicial conscience. GCR 1963, 527.1(4), Stevens v Edward C Levy Co, 376 Mich 1; 135 NW2d 414 (1965), Pippen v Denison Division of ABEX Corp, 66 Mich App 664, 673-677; 239 NW2d 704 (1976). Nothing in the record suggests that any improper methods were used or that the verdict reflected any prejudice against the defendant or sympathy for the plaintiff. Defendant suggests that the only difference in the two trials was the fact that defendant Jax was a corporation whereas defendant Dawson was a chambermaid. The record, however, does not indicate any impropriety. It is common knowledge that different juries, viewing the same facts, frequently arrive at different results both as to liability and as to damages. Considering the length of time between the two trials, we find the different verdicts unsurprising.

Once a trial court has denied a new trial if plaintiff will accept a remittitur but granted a new trial if plaintiff will not, the trial court’s action will not be disturbed in the absence of an abuse of discretion. Pippen v Denison Division of ABEX Corp, supra. If the reasons assigned by the trial judge for his action are legally recognized and the reasons are supported by any reasonable interpretation of the record, he acted within his discretion. Willett v Ford Motor Co, 400 Mich 65; 253 NW2d 111 (1977), Kailimai v Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976). See also Kailimai v Firestone Tire & Rubber Co (On Remand), 87 Mich App 144; 273 NW2d 906 (1978).

The trial court did not state why it found $146,-594 to be excessive or why it found that a reduction of $35,000 would remedy the excessive award. The trial court did strongly suggest that the statutory interest rate of six percent, which would be added to the judgment from the date the complaint was filed, was a major consideration in its ruling. The statutory interest, however, legitimately belonged to plaintiff and the trial court had no basis for reducing the verdict by the amount plaintiff would receive in interest. The trial court suggested no other reason for its action. The "reasons” as stated by the trial judge do not meet the test of Willett and Kailimai. The order directing plaintiff to agree to a remittitur or face a new trial constituted an abuse of discretion. See Stevens v Edward C Levy Co, supra, Majewski v Nowicki, 364 Mich 698; 111 NW2d 887 (1961), Pippen v Denison Division of ABEX Corp, supra.

The jury verdict is reinstated, and the case remanded to the trial court for entry of judgment on that verdict.

Affirmed as modified.


source: Caselaw Access Project

author: N. J. Kaufman, J.

license: Public Domain

text:
    VINCENT v ALLEN BRADLEY COMPANY
    Docket No. 78-2147.
    Submitted January 3, 1980, at Detroit.
    Decided February 20, 1980.
    Leave to appeal applied for.
    Frances Vincent was injured while attempting to remove a piece of scrap metal from a power press. She and her husband Edward Vincent brought an action for damages against Allen Bradley Company, the manufacturer of a foot switch which activated the press, Federal Press Company, the manufacturer of the press, and Robert F. Brown Machinery, Inc., the seller of the press. The matter was tried on the theory of breach of implied warranty. A judgment of no cause of action was entered by the Wayne Circuit Court, Andrew DiMaggio, J. Plaintiffs appeal, alleging, among other things, that the trial court erroneously instructed the jury regarding misuse of the machine. Held:

    The instructions given by the trial court in effect presented the theory of contributory negligence rather than misuse. While misuse of a product is a defense to a products liability claim based upon breach of implied warranty, contributory negligence is not available as a defense to such an action. The instructions were erroneous because they allowed the jury to interpret them as denying recovery if they found Mrs. Vincent to have been negligent.
    Reversed and remanded.
    1. Products Liability — Breach of Warranty — Contributory Negligence.
    Contributory negligence is not a defense to a products liability suit based on breach of warranty.
    2. Products Liability — Breach of Warranty — Defenses — Misuse of Product.
    A cause of action for breach of implied warranty is established upon proof of injury caused by a defect in a product that made it not reasonably fit for its intended or reasonably foreseeable use, and although contributory negligence is not a defense, misuse of the product is.

      References for Points in Headnotes
    [1] 63 Am Jur 2d, Products Liability § 97.
    Contributing negligence or assumption of risk as defense to action for personal injury, death, or property damage resulting from alleged breach or implied warranty. 4 ALR3d 501.
    [2] 63 Am Jur 2d, Products Liability § 101.

      Cicinelli, Mossner, Majoros & Alexander, P.C. (by Eugene D. Mossner and William S. Pearson), for plaintiffs.

      Harvey, Kruse & Westen, P.C. (by Dennis M. Goebel), for Allen Bradley Company.

      Kerr, Russell & Weber (by C. Kenneth Perry, Jr.), for Federal Press Company.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Plaintiffs appeal as of right from a verdict of no cause of action entered by a Wayne County Circuit Court jury in their products liability suit.

Plaintiff Frances Vincent was injured while op- . erating a power press used to stamp out sheet metal parts. The accident occurred when Frances left her position as press operator, walked to the back of the machine and attempted to remove a piece of scrap from the die. The press ram activated while her hand was in the die area, mutilating her fingers.

In their complaint, plaintiffs averred negligent design and breach of implied warranty against defendant Federal Press Company, the manufacturer of the press, defendant Allen Bradley Company, the manufacturer of the foot switch used to activate the press, and defendant Robert F. Brown Machinery, Inc., the seller of the press. Defendants’ answers denied negligence or breach of implied warranty. Defendant Bradley asserted, as special and affirmative defenses, the alleged contributory negligence and misuse of the product by plaintiff Frances Vincent and the intervening negligence of others. Plaintiffs then moved to dismiss the negligence count and to preclude reference to contributory negligence. This motion was granted without objection.

At trial, plaintiffs offered testimony to show that the foot pedal that activated the press was ultra-sensitive, insufficiently guarded, and could be triggered by slight lateral pressure, whereas Federal safety standards mandated activation through downward pressure only. Plaintiffs’ expert also testified that the press was deficient in that it lacked a barrier guard, a device which would surround the die space.

Defendants took the position that the press and footswitch were safe if not misused. To this end, defendant introduced testimony that Frances Vincent was acting against plant policy in reaching into the press and that tongs were provided for this very purpose. Furthermore, defendants introduced expert testimony to the effect that it was the employer’s responsibility to provide barrier guards for the die space. Defendants’ theory, then, was that the press, as manufactured, was reasonably fit for its intended purposes but unsafe as set up by the employer and as operated by plaintiff Frances Vincent.

The trial court gave the following instruction on misuse of the press:

"The Defendants have claimed misuse of the press by Mrs. Vincent and her employer in this case. In the absence of a special reason to expect otherwise, the maker is entitled to assume that this product will be put to a normal use for which the product is intended and he is not subject to liability when it is safe for all such uses and harm results only because it is mishandled in a way which he has no reason to expect or has been used in some unusual or unforseeable [sic] manner.

"Now, in order to prove misuse, the Defendant must prove that Mrs. Vincent used the press for a purpose that was not reasonably forseeable [sic] to the manufacturer or in a manner that was not reasonably forseeable [sic] to the manufacturer, that the misuse by Mrs. Vincent concurred with the defective condition of the press in order to cause the injury and that Mrs. Vincent voluntarily and unreasonably proceeded to encounter a risk which was known to her at the time.”

As stated, the jury found no cause of action against any of the defendants.

Plaintiffs present three allegations of error in this appeal, only one of which we find warrants reversal. Plaintiffs claim that, in the instant factual context, the aforestated trial court instruction on misuse was erroneous. We agree.

Plaintiffs grounded their action solely on breach of implied warranty. Contributory negligence is not a defense to a products liability suit based on breach of warranty. Kujawski v Cohen, 56 Mich App 533, 542; 224 NW2d 908 (1974), lv den 394 Mich 772 (1975), Dooms v Stewart Bolling & Co, 68 Mich App 5, 16-17; 241 NW2d 738 (1976), lv den 397 Mich 862 (1976). A cause of action for breach of implied warranty is established upon proof of injury caused by a defect in the product that made it not reasonably fit for its intended or reasonably foreseeable use. Elsasser v American Motors Corp, 81 Mich App 379; 265 NW2d 339 (1978). Although contributory negligence is not a defense, misuse of the product is. Barefield v LaSalle Coca-Cola Bottling Co, 370 Mich 1; 120 NW2d 786 (1963), Parsonson v Construction Equipment Co, 386 Mich 61; 191 NW2d 465 (1971).

Defendants assert that plaintiff Frances Vincent’s conduct, in reaching into the die area of the punch press to take out a piece of scrap metal, constituted a misuse of the product, thereby shielding them from liability. The trial court’s instructions echo this theory. We find that this theory, and the instructions presenting it, are more closely aligned with the defense of contributory negligence than they are with the defense of misuse. Clearly, it was negligent for Frances Vincent to place her hand in the die space, but this is not to say that it was a misuse of the product. In fact, the product was designed with just such a use foreseen, which accounts for the necessity of the foot switch and die barrier guards.

We find this cause to be controlled by the recent Supreme Court decision in Tulkku v Mackworth Rees Div of Avis Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979). In that case, Tulkku also injured his hand reaching into a power press to dislodge a piece of metal stuck in the die space. He brought a products liability action, claiming that defendants had negligently provided an inadequate safety device. The trial court instructed on contributory negligence and this Court affirmed the jury’s finding of no cause of action, 76 Mich App 472; 257 NW2d 128 (1978). The Supreme Court reversed.

Expanding upon its holding in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), the Court held that there could be no defense of contributory negligence to a claim that the defendant provided inadequate safety devices. The Court explained, 406 Mich at 622-623:

"To allow defendants in this case to invoke the protection of the contributory negligence doctrine would be tantamount to subverting the very safety concerns that the Koenig [v Patrick Construction Corp, 298 NY 313; 83 NE2d 133 (1948)] and Funk courts extolled as of paramount importance. Such a position might allow a manufacturer to escape its duty of due care, as the New Jersey Supreme Court has noted:

" 'It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against. We hold that under the facts presented to us in this case the defense of contributory negligence is unavailable.’ Bexiga v Havir Manufacturing Corp, 60 NJ 402, 412; 290 A2d 281 (1972). (Citations omitted.)”

We find the same logic in order herein. The instant plaintiffs’ claim was based on the inadequacy of the safety devices guarding the foot pedal and the absence of safety devices guarding the die space. Though this claim was couched in warranty language, defendants countered with essentially a contributory negligence defense. Thus, the anomalous situation spoken to in Tulkku would still present itself in the instant factual situation.

The only feature distinguishing Tulkku and the case at bar is that the former involved a negligence-products liability complaint, whereas this case represents a warranty-products liability complaint. This difference is insubstantial. Products liability based on negligence or on warranty are very similar concepts. In the context of adequacy of warning, the Supreme Court has called the two theories identical. Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88-90; 273 NW2d 476 (1979). In fact, MCL 600.2945; MSA 27A.2945, which became effective on December 31, 1978, abandons the dual concept in favor of a unitary cause of action labeled simply "products liability”.

The issue raised herein has become the topic of a series of magazine and law review articles as of late. In one such law review article, Dean Aaron Twerski suggests:

"In attempting to delineate the appropriate role for the affirmative defenses which arise from plaintiffs interaction with the product, it is first necessary to focus on the defendant’s duty in manufacturing a reasonably safe product. The duty of producing a non-defective product under strict liability has been placed on the manufacturer.”

Thus, where the harm that has befallen a plaintiff is directly within the risk of the defect against which the manufacturer has a duty to guard, as here, the plaintiff should not be denied recovery due to his own negligence. See Timmerman v Universal Corrugated Box Machinery Corp, 93 Mich App 680; 287 NW2d 316 (1979). Because the trial court’s instructions on misuse have allowed for just such a jury interpretation, we reject them as erroneous.

Reversed and remanded for a new trial.

       In pertinent part, defendants averred: that plaintiff Frances Vincent had operated this particular press in the past and had asked for a die-set man’s assistance when similar problems had occurred on prior occasions; that she knew that company policy required the use of tongs to clear the die-space area; and that a co-employee was in an area near the foot pedal when the accident occurred and might have negligently activated the switch to operate the press while Frances Vincent was clearing the die space.

       Woods, The Quickening March of Comparative Fault, Trial Magazine, Vol 15, No 11, p 26, 28-29, November, 1979; Products Liability Task Force, a Bar-Related Annual Report, 58 Mich Bar Journal 524-525 (1979).

       Twerski, From Defect to Cause to Comparative Fault — Rethinking Some Product Liability Concepts, 60 Marquette L Rev 297 (1977).


author: M. J. Kelly, J.

text:
    PEOPLE v RICHARDS
    Docket Nos. 78-2775, 78-2776, 78-2777.
    Submitted November 20, 1979, at Detroit.
    Decided February 20, 1980.
    Charles Richards was charged with assault with intent to rob being armed, armed robbery, receiving and concealing stolen property over the value of $100 and unlawfully taking possession of and driving away a motor vehicle. A plea agreement was reached wherein the defendant would plead guilty to the charges of armed robbery and assault with intent to rob being armed in exchange for dismissal of the other two charges. The defendant also entered into a sentence agreement with the Recorder’s Court of Detroit, Patricia J. Boyle, J., under which it was agreed that in exchange for pleading guilty the defendant’s minimum sentence would be limited to five years. The defendant entered the agreed-upon pleas and the court took them under advisement pending the receipt of the defendant’s presentence report. At that time the defendant informed the court that he was not on parole and had no criminal record. The presentence report revealed that the defendant’s true name was Emanuel Moduck and that the defendant was on parole and had a prior criminal record. Because of this information the trial court informed the defendant that the sentence agreement was being withdrawn and gave him an opportunity to withdraw his guilty pleas. The defendant declined the opportunity to withdraw his pleas and entered an additional plea of guilty to the charge of receiving and concealing stolen property over the value of $100. The trial court dismissed the charge of unlawfully driving away a motor vehicle. The defendant appeals, alleging 1) that his convictions for the crimes of assault with intent to rob being armed and armed robbery must be set aside because the trial court failed to fulfill its sentence agreement, 2) that his guilty pleas to the charges of armed robbery and assault with intent to rob being armed were wrongfully induced by his attorney’s representations that he would receive concurrent sentences which were less than those received, 3) that the trial court failed to provide him with a reasonable opportunity to address the court prior to sentencing, and 4) that the trial court erred in accepting his guilty plea on the charge of receiving and concealing stolen property. Held:

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 491.5, 505.
    Right to withdraw guilty plea in state criminal proceedings where court refuses to grant concession contemplated by plea bargain. 66 ALR3d 902.
    [2] 66 Am Jur 2d, Receiving and Transporting Stolen Property § 11.

      1. It is well-settled that a defendant is entitled to relief if his plea of guilty is induced by an unkept promise. However, the record fails to demonstrate that such was the situation in the instant case. The defendant was advised that his pleas would be taken under advisement pending the receipt of the presentence report and the defendant was adequately informed that all aspects of the plea agreement were being withdrawn. The pleas of guilty were not induced by an unfulfilled sentencing agreement.
    2. The record fails to disclose any representations by the defendant’s attorney as to any agreement on concurrent sentences of 7-1/2 to 15 years if the defendant were to plead guilty to the assault with intent to rob being armed and armed robbery charges. Further, the defendant does not allege that his counsel represented that the court or the prosecution made any promises in this regard.
    3. The record discloses that the defendant had several opportunities to advise the court of any extenuating circumstances relevant to the sentencing procedure and that the trial court observed that the defendant had a right to speak before the court. That the defendant failed to exercise this right is not grounds for reversal.
    4. The defendant’s conviction for receiving and concealing stolen property in excess of $100 is vacated. A thief cannot be convicted of buying, receiving or aiding in the concealment of property which he stole.
    Affirmed in part and reversed in part.
    1. Criminal Law — Plea of Guilty — Unkept Promises.
    A defendant who has entered a plea of guilty in response to a plea bargain is entitled to relief if the plea was induced by an unkept promise.
    2. Criminal Law — Receiving Stolen Property — Plea of Guilty — Lesser Included Offenses.
    A thief may not be convicted of buying, receiving or aiding in the concealment of property which he stole; not only is the offense of receiving and concealing stolen goods inapplicable to the thief himself, but it is reversible error to accept a thief s plea of guilty to the offense of receiving and concealing stolen property over $100 as a lesser offense to a charge of robbery where, in entering the plea, the thief admits stealing the property.

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

      Jack Jaffee (Howard Hertz, of counsel), for defendant on appeal.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   M. J. Kelly, J.

Defendant was charged with the crimes of assault with intent to rob being armed, MCL 750.89; MSA 28.284, armed robbery, MCL 750.529; MSA 28.797, receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803, and unlawfully taking possession of and driving away a motor vehicle, MCL 750.413; MSA 28.645. The defendant entered into an agreement with the prosecutor under which the defendant would plead guilty to the charges of armed robbery and assault with intent to rob in exchange for the prosecutor’s agreement to dismiss the charges of receiving and concealing stolen property and unlawfully driving away a motor vehicle. The defendant also entered into a sentence agreement with the court under which it was agreed that in exchange for pleading guilty the defendant’s minimum sentence would be limited to five years. The defendant entered these pleas May 5, 1978, and the court took them under advisement pending the receipt of defendant’s presentence report. At that time the defendant informed the court that he was not on parole and had no criminal record.

On May 15, 1978, the defendant appeared before the court for sentencing. The presentence report revealed that the defendant’s true name was not Charles Richards, but was in fact, Emanuel Mo-duck. It additionally revealed that the defendant had a prior record and that he was on parole at that time. Because of thsi information the court informed the defendant that the sentence agreement was being withdrawn and gave him an opportunity to withdraw his plea. The defendant declined this opportunity and entered an additional plea of guilty to the charge of receiving and concealing stolen property over the value of $100. The court dismissed the charge of unlawfully driving away a motor vehicle and sentenced the defendnat on the other charges as follows: 7-1/2 to 15 years for the crime of assault with intent to rob, 10 to 20 years for the crime of armed robbery and 40 to 60 months for the crime of receiving and concealing stolen property over the value of $100. The defendant now appeals these convictions as of right.

Initially, the defendant contends that his convictions for the crimes of assault with intent to rob being armed and armed robbery must be set aside because of the court’s failure to fulfill its sentence agreement. Particularly the defendant argues that, while the court made it clear at the sentence hearing that the prosecutor’s plea bargain was being withdrawn, it never indicated that it was also withdrawing the sentence agreement.

It is well-settled that a defendant is entitled to relief if his plea of guilty is induced by an unkept promise. In re Valle, 364 Mich 471; 110 NW2d 673 (1961), People v Johnson, 386 Mich 305; 192 NW2d 482 (1971), People v Baker, 46 Mich App 495; 208 NW2d 220 (1973), People v Davis, 74 Mich App 624; 254 NW2d 335 (1977). However, the record in the instant case fails to demonstrate that such was the situation here.

The guilty plea hearing was held on May 5, 1978. At that time the court informed the defendant that his pleas would be taken under advisement pending the receipt of his presentence report and that if the court could not stand by its sentence agreement he would be given an opportunity to withdraw his pleas. Thereafter, at the sentence hearing, the court informed the defendant that the plea agreement was being withdrawn because of the misrepresentations revealed in the presentence report. At this proceeding the following colloquy took place between the defendant and the court:

"The Court: You understand also that part of the original agreement when you offered your pleas was that the prosecutor’s office, in exchange for acceptance of the plea would dismiss the receiving and concealing stolen property charge.

"The Defendant: Yes.

"The Court: That offer has been withdrawn, too, you understand that?

"The Defendant: Yes.” (Emphasis added.)

From this exchange we conclude that the defendant was adequately informed that all aspects of the plea agreement, including the sentence bargain were being withdrawn. Accordingly his claim that his guilty plea was induced by an unfulfilled sentence agreement is without merit.

Defendant next argues that his pleas to the charges of armed robbery and assault with intent to rob being armed were wrongfully induced by his attorney’s representations that he would receive concurrent sentences of 7-1/2 to 15 years upon pleading guilty. He contends that because this promise was unfulfilled he should be permitted to withdraw his guilty pleas.

This claim is without merit. A review of the record fails to disclose that any statements were made concerning such a promise. Further, the defendant does not allege that his counsel represented that the court or the prosecutor made any promises in this regard. Accordingly defendant’s reliance on People v Brooks, 396 Mich 118; 240 NW2d 1 (1976), is misplaced.

The defendant also contends that the court erred in failing to provide him with a reasonable opportunity to address the court prior to sentencing as required under GCR 1963, 785.8(2). We disagree.

The record in this case discloses that the defendant had several opportunities to advise the court of any extenuating circumstances relevant to the sentencing procedure. Further, at the sentence hearing the trial judge twice observed that the defendant had a right to speak before the court. That the defendant failed to exercise this right is not a ground for reversal. People v Schaefer, 69 Mich App 353; 244 NW2d 479 (1976).

Finally, the defendant argues that the court erred in accepting his guilty plea to the crime of receiving and concealing stolen property. Particularly the defendant contends that his statement to the court failed to provide an adequate factual basis to support such a conviction. We are forced to agree. We thought that a defendant who admitted a greater offense in pleading guilty to a lesser offense extinguished any meritorious basis for appeal as part of the plea bargaining process. We so held in an unpublished per curiam opinion entitled People v Ashford (docket No. 77-3548, decided January 4, 1979), in which we relied primarily on People v Mauch, 397 Mich 646, 667; 247 NW2d 5 (1976), where the Court concluded:

"The issue of factual basis does not relate to guilt or innocence, but to whether there is evidence on which the trier of fact might have convicted the defendant at trial. A defendant can protest his innocence and yet plead guilty if his plea, under all the circumstances, is an informed, understanding choice of the alternatives that confront him.” (Emphasis added.)

We were incorrect because the Supreme Court on September 24, 1979, peremptorily reversed us. People v Ashford, 407 Mich 870 (1979):

"Pursuant to GCR 1963, 853.2(4), we vacate the plea-based conviction for receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803. The thief cannot be convicted of buying, receiving or aiding in the concealment of property which he stole. People v Kyllonen, 402 Mich 135 [262 NW2d 2] (1978).”

Therefore, the Michigan Supreme Court has not only held that the receiving and concealing statute is inapplicable to the thief himself, People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), see also People v Newby, 82 Mich App 489; 266 NW2d 492 (1978), but that the thief who admits stealing the property on plea of guilty to a lesser offense of receiving and concealing stolen property over $100 has effectively created reversible error.

Accordingly, defendant’s conviction on this ground is vacated.

In so holding we do not bar the prosecutor from reinstating the charge of unlawfully taking possession of and driving away a motor vehicle. People v Schuster, 86 Mich App 601; 272 NW2d 352 (1978).

Affirmed in part and reversed in part.


author: R. B. Burns, P.J. M. F. Cavanagh, J.

text:
    PEOPLE v MARIA WILSON
    Docket No. 78-2903.
    Submitted November 15, 1979, at Detroit.
    Decided February 20, 1980.
    Defendant, Maria Wilson, was charged with indecent exposure, in the Recorder’s Court of Detroit, for massaging her pubic region with her fingers and spreading her buttocks, exposing anus and vulva, all while dancing nude at a theatre. Defendant moved to quash the complaint, maintaining that the statute was an invalid infringement on her First Amendment rights, that the statute failed to adequately describe the conduct proscribed and that audience consent nullified the charge. The court, Justin C. Ravitz, J., granted the motion and dismissed the charge, holding that the term "obscenity” was vague, that the state had no legitimate interest in barring harmless exhibitions of the human body among consenting adults and that the law was being selectively enforced in violation of defendant’s rights, since worse conduct was not prosecuted. The people appeal. Held:

    1. The state has valid interests which it can seek to protect through the regulation of commercialized obscenity by prohibiting exhibitions of the human body among consenting adults. Audience consent does not bar a prosecution for indecent exposure.
    2. The indecent exposure statute prohibits expressive conduct, not pure speech, and is not unconstitutionally overbroad.
    Reversed.
    M. F. Cavanagh, J., dissented, noting that the "common sense of the community” approach to obscenity was insufficient and that the statute has been interpreted inconsistently with regard to what conduct is and what conduct is not a violation. He would hold the statute to be overbroad until some clarification of that issue is forthcoming from the Michigan Supreme Court. He would affirm.
    References for Points in Headnotes
    [1, 3, 4] 50 Am Jur 2d, Lewdness, Indecency, and Obscenity §§ 17, 18.
    [2-4] 16A Am Jur 2d, Constitutional Law §§ 460-463.
    Supreme Court’s views as to overbreadth of legislation in connection with First Amendment rights. 45 L Ed 2d 725.

      Opinion of the Court
    1. Obscenity — Exhibition of the Body — Consenting Audience — Police Power — Indecent Exposure.
    The state has valid interests which it can seek to protect through the regulation of commercialized obscenity by prohibiting exhibitions of the human body among consenting adults; audience consent does not bar a prosecution for indecent exposure.
    2. Constitutional Law — Overbreadth — Standing.
    A person whose conduct can constitutionally be regulated by a statute does not have standing to challenge the facial constitutionality of that statute except where the statute’s overbreadth infringes upon the protection of the First Amendment.
    3. Obscenity — Indecent Exposure — Overbreadth — Statutes.
    The indecent exposure statute prohibits expressive conduct, not pure speech, and is not unconstitutionally overbroad (MCL 750.335a; MSA 28.567[1]).
    Dissent by M. F. Cavanagh, J.
    4. Obscenity — Indecent Exposure — Overbreadth — Statutes.

      The indecent exposure statute should be held to be unconstitutionally overbroad until a clariñcation is made as to what does and what does not constitute a violation (MCL 750.335a; MSA 28.567[1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

      Gabriel Glantz, for defendant.
    Before: R. B. Burns, P.J., and M. F. Cavanagh and D. E. Holbrook, Jr., JJ.
   R. B. Burns, P.J.

The people appeal from the dismissal of this action upon defendant’s motion to quash. Defendant was charged with indecent exposure, MCL 750.335a; MSA 28.567(1). It was alleged that while dancing nude on stage at the Frisco Theatre in the City of Detroit, defendant massaged her pubic region with her fingers and spread her buttocks, exposing anus and vulva to the view of the patrons present. A warrant was issued on the complaint of a member of the Detroit Vice Section Northern District Strike Force, who was a nonconsenting member of the audience.

In her motion to quash, defendant maintained that the indecent exposure statute is an invalid infringement on her First Amendment rights, that the statute fails to adequately describe the conduct which is proscribed, that the statute fails to give fair notice and that audience consent nullifies the indecent exposure charge.

At the hearing held on the motion to quash, plaintiff stated that the charge was brought not for nude dancing but rather for the on-stage act of masturbation. In reply to defendant’s motion, the people argued that the First Amendment does not protect nonsymbolic, nonverbal conduct which has no speech element and that defendant’s conduct was clearly "hardcore” sexual conduct and hence not entitled to any First Amendment protection. Finally, the people contended that the statute does not require that the conduct occur in a public place or that none of the audience consent.

The lower court held that the term "obscenity” was vague and ambiguous. The court also held that the state does not have a legitimate interest in barring harmless exhibitions of the human body among consenting adults and that since worse conduct was not being prosecuted the law was being selectively enforced in violation of defendant’s right to equal protection of the law.

MCL 750.335a; MSA 28.567(1), provides in part:

"Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor * *

Defendant asserted, and the lower court agreed, that defendant could not be charged with a violation of MCL 750.335a; MSA 28.567(1), for acts which occurred in the presence of a consenting audience. The lower court held that the state has no legitimate interest in prohibiting exhibitions of the human body among consenting adults. We disagree.

A prosecution for indecent exposure is not beyond the scope of MCL 750.335a; MSA 28.567(1), simply because the charged conduct is performed before a theater audience which is comprised primarily or even totally of consenting adults. The state has valid interests which it can seek to protect by the regulation of commercialized obscenity.

"Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State’s broad power to regulate commerce and protect the public environment.” Paris Adult Theatre I v Slaton, 413 US 49, 68-69; 93 S Ct 2628; 37 L Ed 2d 446 (1973).

"In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. * * * These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.” Id., 57-58.

We conclude, therefore, that the defendant’s claim of audience consent does not operate to bar this prosecution.

Defendant’s other challenges to MCL 750.335a; MSA 28.567(1), are related to whether the statute is unconstitutional on its face. Generally, a person whose conduct can constitutionally be regulated by a statute does not have standing to contest the facial constitutionality of that statute.

"Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v Oklahoma, 413 US 601, 610; 93 S Ct 2908; 37 L Ed 2d 830 (1973).

Under this traditional analysis the defendant is without standing to challenge the facial constitutionality of the indecent exposure statute. The alleged conduct of the defendant in this case is "hardcore” sexual conduct which can constitutionally be prohibited by the state. We therefore find that the lower court should not have heard defendant’s claims of the statute’s facial unconstitutionality unless an exception to the general standing rules is applicable.

An exception to the general rules of standing has been carved out by the United States Supreme Court to allow challenges to a statute whose over-breadth infringes upon the protections of the First Amendment. Broadrick, supra. The application of the overbreadth doctrine is employed "sparingly and only as a last resort”. Id., 613. Recently, this Court in People v Blauvelt, 91 Mich App 380; 283 NW2d 745 (1979), permitted a challenge under this First Amendment exception and affirmed a finding that MCL 430.53; MSA 18.663, is unconstitutional on its face. MCL 430.53; MSA 18.663, made the display of an emblem of any organization on a motor vehicle unlawful unless the vehicle’s owner was a member of that organization. The Court found that because pure speech was being prohibited and the statute could have a "chilling” effect on the speech of others, the defendant could challenge the statute even if his own conduct could have been regulated under a more narrowly drawn statute.

In the present case, the statute is not designed to prohibit speech. Expressive conduct, not pure speech, is regulated and the statute’s application to conduct protected by the First Amendment is, at most, minimal. We believe that there are a substantial number of situations to which the statute can validly be applied and that there is no substantial overbreadth. Broadrick, supra, 615. Accordingly, we find that the lower court incorrectly granted defendant’s motion to quash and we reverse.

D. E. Holbrook, Jr., J., concurred.

M. F. Cavanagh, J.

(dissenting). While I recognize that the state has valid authority to "stem the tide of commercialized obscenity”, Paris Adult Theatre I v Slaton, 413 US 49, 57-58; 93 S Ct 2628; 37 L Ed 2d 446 (1973), I must agree with the trial court that the indecent exposure statute is unconstitutional on its face. MCL 750.335a; MSA 28.567(1).

The majority may be correct in stating that the statute can properly be applied to a substantial number of situations, but it does not automatically follow that there is no substantial overbreadth. Broadrick v Oklahoma, 413 US 601, 610-616; 93 S Ct 2908; 37 L Ed 2d 830 (1973). For example, the statute could arguably be applied to conduct between a husband and wife, although such conduct is constitutionally protected. Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965).

Our Supreme Court has defined the statutory offense in issue as follows, "[t]he well settled and generally known significance of the phrase 'indecent and obscene exposure of the person’ is the exhibition of those private parts of the person which instinctive modesty, human decency or natural self-respect requires shall be customarily kept covered in the presence of others”. People v Kratz, 230 Mich 334, 337; 203 NW2d 114 (1925). The Kratz opinion employs the "common sense of the community” approach as being sufficient to define the proscribed statutory conduct. But this type of approach was specifically rejected by Justice Levin with regard to the analogous offense of gross indecency, MCL 750.338; MSA 28.570, in People v Howell, 396 Mich 16, 22-24; 238 NW2d 148 (1976). Moreover, the Supreme Court has apparently taken contradictory stances regarding what is, and what is not, a violation of the statute, e.g., compare People v Ring, 267 Mich 657; 255 NW 373 (1934), with People v Hildabridle, 353 Mich 562; 92 NW2d 6 (1958). Until a clarification similar to the one offered in People v Howell, supra, 22-24, is made by our Supreme Court, I must dissent. See also Anno: Topless or bottomless dancing or similar conduct as offense, 49 ALR3d 1084.

       The existence of these state interests was noted by the Michigan Supreme Court in People v Neumayer, 405 Mich 341; 275 NW2d 230 (1979), wherein the Court refused to exempt the dissemination of obscene materials to consenting adults from prosecution under the state’s criminal obscenity statute.


author: V. J. Brennan, P.J., Cynar, J.

text:
    W MASON, INC v JACKSON COUNTY PROSECUTOR
    Docket No. 78-2972.
    Submitted April 10, 1979, at Lansing.
    Decided February 20, 1980.
    Leave to appeal applied for.
    On April 16, 1978, a bulldozer and trailer owned by plaintiff, W. Mason, Inc., was allegedly stolen by one Timothy O’Brien. During the course of the larceny O’Brien killed a police officer. O’Brien was arrested, and the bulldozer and trailer were seized by the police at the time of the arrest. On June 15, 1978, plaintiff brought an action against the Jackson County Prosecuting Attorney and various law enforcement officers seeking the return of its property or, in the alternative, the payment of the reasonable rental value of the property. A hearing on the matter was held in Jackson Circuit Court, James G. Fleming, J., on June 20, 1978. As of that date O’Brien was awaiting preliminary examination on an open charge of murder. The prosecutor conceded at the hearing that the bulldozer had been checked thoroughly for evidence by the crime lab with negative results, but argued that something might come up which would require further analysis of the bulldozer and that the return of the property might result in the loss of that evidence. The circuit court issued its opinion on July 12, 1978, in which it held that the prosecutor and law enforcement agencies had a temporary right of possession superior to that of the owner, and, accordingly, the court refused to order the return of the property absent a determination by the examining magistrate as to what disposition should be made of this evidence. O’Brien’s preliminary examination was held on July 31 and August 1, 1978, and he was arraigned in circuit court on August 8, 1978. The bulldozer and trailer were returned to plaintiff on October 13, 1978. Plaintiff appeals. Held:

    It was an abuse of discretion for the circuit court to refuse to order the prosecutor to return the property to its owner, since there was no reason to continue the physical retention of the property by law enforcement officials. The absence of any positive findings by the crime lab after its inspection, coupled with the fact that there was little chance that the property itself would be offered at trial, the fact that verified photographs would suffice as evidence and the fact that there was no indication that the property would not be available for further scfutiny if the need arose, negated the need to continue to hold the property. Since the property should have been returned to the owner, the owner should be compensated for the reasonable rental value of his property for the period of time during which the property was unjustifiably withheld from him.

      Reference for Points in Headnotes
    [1, 2] 68 Am Jur 2d, Searches and Seizures §§ 116, 118.

      Reversed and remanded.
    Cynar, J., dissented. He would hold that the circuit court properly refused to order the law enforcement officials to return the property, since at the time of the hearing the underlying criminal prosecution had not yet reached the preliminary examination stage and, therefore, the examining magistrate had not yet had the opportunity to pass upon the question of the proper disposition of the evidence. Since the order of the circuit court was proper under the circumstances, a basis for ordering compensation to the plaintiff does not exist. He would affirm.
    Opinion of the Court
    1. Searches and Seizures — Custodia Legis — Return of Seized Property — Compensation — Statutes.
    It is an abuse of discretion for a trial court to refuse to order a prosecutor to return to an innocent third party property owned by that third party which has been seized and held in custodia legis as evidence in a pending criminal prosecution where the property had been examined by the crime lab with negative results, the property is of such a size that it is doubtful that the property itself would be offered as an exhibit and there is no indication that the property would not be available for further scrutiny if the need arose; accordingly, the owner of the property is entitled to compensation for the reasonable rental value of the property during the period the owner is unjustifiably deprived of the use of the property (MCL 764.25; MSA 28.884, MCL 78Ó.655; MSA 28.1259[5]).
    Dissent by Cynar, J.
    2. Searches and Seizures — Return of Seized Property.

      A claim by the victim of a crime for the return of seized property owned by the victim is properly denied where the property is being held as possible evidence in a pending prosecution and the examining magistrate has not yet determined the disposition to be made of the evidence.

      Gibbons & Nye, for plaintiff.

      John L. Wildeboer, Assistant Prosecuting Attorney, for defendants.
    Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   V. J. Brennan, P.J.,

Plaintiff appeals as of right from a July 12, 1978, order of the Jackson County Circuit Court denying plaintiffs motion for an order directing defendants to return a bulldozer and trailer to plaintiff or to pay plaintiff the reasonable rental value of the bulldozer and trailer.

Plaintiff had filed a complaint on June 15, 1978, alleging that defendants wrongfully held plaintiffs bulldozer and trailer. A hearing was held in Jackson County Circuit Court on June 30, 1978. The parties did not dispute the facts. On April 16, 1978, defendants had seized the bulldozer when they arrested Timothy O’Brien. O’Brien had allegedly stolen the bulldozer and trailer from plaintiff and killed Jackson police Lieutenant Nixon in the course of the larceny. At the time of the hearing O’Brien awaited preliminary examination in the district court on an open charge of murder. At the time of the hearing the prosecutor was considering charging O’Brien with felony murder.

The prosecutor conceded at the hearing that the crime lab had checked the bulldozer thoroughly for evidence. However, he argued that there was a possibility that "something” might come up at the examination which would require further analysis of the bulldozer and that, if it were returned before that time, plaintiff would use it in its business and it would get dirty or muddy so that, perhaps, some evidence would be lost.

On July 12, 1978, the court issued its written opinion denying the order to show cause which concluded that the prosecutor and law enforcement agencies involved held a temporary, superior right of possession of such property for use as evidence in a criminal proceeding.

This case raises an issue of first impression in Michigan: How long can the state hold in custodia legis incriminating evidence belonging to an innocent third party seized from a criminal defendant pursuant to a valid arrest?

The prosecutor in the present case is holding plaintiffs bulldozer and trailer under the authority of MCL 764.25; MSA 28.884, which states:

"Any person making an arrest shall take from the person arrested, all offensive weapons or incriminating articles which he may have about his person and must deliver them to the sheriff of the county, chief of police of the city or to the magistrate before whom he is taken.”

The above statute does not indicate how long the state can hold the incriminating evidence seized pursuant to an arrest. However, as there is no difference in the use or effect of admissible incriminating evidence seized pursuant to an arrest and admissible incriminating evidence seized pursuant to a search warrant, there should likewise be no difference in the length of time such evidence can be held in custodia legis. MCL 780.655; MSA 28.1259(5) does limit the length of time evidence seized under a search warrant can be held in custodia legis and provides for the disposition of that property. Therefore the two statutes should be read in pari materia and be construed together. See County Road Ass’n of Michigan v Board of State Canvassers, 407 Mich 101, 119; 282 NW2d 774 (1979).

MCL 780.655; MSA 28.1259(5), which speaks to incriminating evidence seized pursuant to the execution of a search warrant, provides in pertinent part:

"The property and things so seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence on any trial.”

In the present case the prosecutor conceded that the crime lab had thoroughly examined the confiscated property for relevant evidence. Further, the rules of evidence do not require that physical evidence be present; it is dubious that the prosecution would have offered the bulldozer itself as an exhibit in any judicial proceeding. Photographs, if properly marked and identified, would be sufficient in most cases. In any event, there was no indication that plaintiff would refuse to make the bulldozer and trailer available for further scrutiny or a view if the need arose.

Another factor that this Court gives great weight to is that the property confiscated and held by the state represents the means whereby plaintiff’s owner makes his living; the bulldozer is the tool of the business. Plaintiff is an innocent third party which was victimized by the theft. To continue to deprive plaintiff of its property unnecessarily serves only to defeat rather than further justice.

As it was no longer necessary to hold the plaintiff’s property in custodia legis the trial court abused its discretion by refusing to order the state to restore that property to the possession of its owner.

Plaintiff corporation had to rent another bulldozer to continue its business activities during the period that the state wrongfully kept the bulldozer from it, or suffer financial loss. Plaintiff is an innocent third party which has been victimized twice, once by the thief and once by the state. It is the ruling of this Court that, based upon the basic principles of equity, plaintiff is entitled to be compensated for the reasonable rental value of the bulldozer during the period that plaintiff was unjustifiably deprived of the use of the bulldozer. GCR 1963, 820.1(7).

This case is remanded to the trial court for fact finding to determine what fair compensation would be.

Reversed.

Bronson, J., concurred.

Cynar, J.

(dissenting). Plaintiff was the claimed owner of a bulldozer and trailer allegedly stolen by one Timothy O’Brien. This equipment was impounded by law enforcement personnel at the direction of the Jackson County Prosecutor as evidence in connection with a felony murder charge against O’Brien. The people were not aware what defense, if any, would be asserted by the defendant. The people claimed that the implements must be held by it as evidence at least until the conclusion of the preliminary examination in district court.

The trial court herein determined on July 12, 1978, that absent a determination by the examining magistrate as to what disposition should be made of this evidence, the trial court had no authority to order the prosecutor to return the evidence until the completion of preliminary ex-animation, since the people had shown a temporary superior right to hold such items as evidence in a pending criminal proceeding. This appeal was filed on July 27, 1978. The preliminary examination was held on July 31 and August 1, 1978, and the defendant was arraigned in circuit court on August 8, 1978. The bulldozer and trailer were returned to the plaintiff on October 13, 1978.

The general rule is that the prosecutor or police officers may keep seized property until they are finished with its use as evidence. 68 Am Jur 2d, Searches and Seizures, § 118, p 773. The owner of the property cannot replevy the property while it is held as evidence in a criminal prosecution. 66 Am Jur 2d, Replevin, § 36, fn 44, p 858.

The property involved herein was seized at the time of a lawful arrest. It was connected with the charged offense of murder. The trial court did not err in refusing to return to plaintiff the bulldozer and trailer until the completion of the preliminary examination. Because the plaintiff is a victim of crime, the failure to compensate the plaintiff for the loss of use of the equipment pending the criminal proceeding appears to be most unfair. Acknowledging this to be so, compensation herein based on error attributed to the trial judge should not result, since in my opinion the trial judge ruled correctly on what was submitted for consideration.

I would affirm the order of the circuit court refusing to order defendants to return the bulldozer and trailer to plaintiff.


author: W. Van Valkenburg, J.

text:
    MARSHALL v PECH
    Docket Nos. 78-3723, 78-3967.
    Submitted November 6, 1979, at Detroit.
    Decided February 20, 1980.
    Leave to appeal applied for.
    Edward Marshall and Aida Pech were involved in an automobile accident. Marshall sued Pech for negligence in district court. Defendant argued that the property damage provisions of the no-fault act precluded plaintiffs suit. The district court, in a small claims hearing, rejected this defense and awarded plaintiff $125 plus costs. On June 6, 1978, defendant appealed to circuit court. On June 8, 1978, the Supreme Court upheld the no-fault act’s abolition of tort liability with respect to property damage arising from the ownership, maintenance or use of a motor vehicle. In circuit court defendant contended that she was entitled to relief, either by appeal or by superintending control, because the district court judge had failed to apply the substantive law of Michigan. Wayne Circuit Court, Richard D. Dunn, J., held that defendant was entitled to neither appellate relief nor to superintending control. Defendant appeals by right the circuit court’s denial of her petition for a writ of superintending control. She also appeals, by leave granted, the circuit court’s dismissal of her claim of appeal from the small claims division of the district court. The cases have been consolidated on appeal. Held:

    1. A person commencing an action or a defendant who remains and tries the case in the small claims division shall be considered to have waived any right of appeal. An affidavit containing a statement that plaintiff understands that he or she has waived this right to appeal should be filed with the court. In small claims proceedings no verbatim record is made. Defendant’s appellate assertion that she never waived her rights as required by statute cannot be verified. The fact that defendant remained until judgment was rendered lends credence to the conclusion that she waived her right to appeal the small claims verdict. The circuit court properly rejected defendant’s request for appellate review of the district court decision.

      References for Points in Headnotes
    [1-3] 20 Am Jur 2d, Courts § 31.
    [2] 20 Am Jur 2d, Courts § 26.
    47 Am Jur 2d, Jury §§ 41, 62.
    [3, 4] 20 Am Jur 2d, Courts §§ 91, 111 et seq.

    [4, 5] 4 Am Jur 2d, Appeal and Error § 309 et seq.

    [5] 4 Am Jur 2d, Appeal and Error § 18.

      2. A petition for a writ of superintending control is the appropriate avenue to pursue correction of serious errors of law when the petitioning party does not have an adequate remedy by appeal. The grant or denial of a petition for an order of superintending control is within the sound discretion of the court. Absent an abuse of discretion the decision of the court will not be disturbed on appeal. The judge conducting the small claims hearing made no formal written findings but did write a letter to counsel wherein he stated that the relevant section of the no-fault act was unconstitutional. At the time the district court judge made his decision, a party could sue for property damage incurred in a motor vehicle accident. The decision was a correct application of the substantive law as it existed at that time.
    Affirmed.
    1. Courts — District Courts — Small Claims Division — Right of Appeal — Waiver — Affidavits — Statutes.
    A person commencing an action or a defendant who remains and tries the case in the small claims division shall be considered to have waived any right of appeal; a statute requires that an affidavit be filed containing a statement that plaintiff understands that he or she has waived this right (MCL 600.8402, 600.8412; MSA 27A.8402, 27A.8412).
    2. Courts — District Courts — Small Claims Division — Jury — Verbatim Record — Statutes.
    There shall be no jury nor shall a verbatim record of the proceedings be made in small claims proceedings (MCL 600.8411; MSA 27A.8411).
    3. Courts — Circuit Courts — District Courts — Small Claims Division — Appellate Jurisdiction — Legislature — Right of Appeal — Waiver — Constitutional Law — Statutes.
    The constitution provides that circuit courts shall have appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; therefore, because the constitution clearly authorizes legislative curtailment of the appellate authority of the circuit court the task of conferring appellate jurisdiction over the small claims division is one within the exclusive province of the Legislature and a statute which provides that a person commencing an action or a defendant who remains and tries the case in the small claims division shall be considered to have waived the right of appeal is controlling (Const 1963, art 6, § 13, MCL 600.8412; MSA 27A.8412).
    4. Courts — Circuit Courts — Superintending Control — Appeal and Error — Constitutional Law.
    Circuit courts have supervisory and general control over inferior courts and tribunals within their respective jurisdictions; therefore, a petition for a writ of superintending control is the appropriate avenue to pursue correction of serious errors of law where the petitioning party does not have an adequate remedy by appeal (Const 1963, art 6, § 13).
    5. Courts — Superintending Control — Judge’s Discretion — Appeal and Error.
    The grant or denial of a petition for an order of superintending control is within the sound discretion of the court and, absent an abuse of discretion, the denial of a request for a writ of superintending control will not be disturbed on appeal.

      Sheldon M. Meizlish, for defendant.
    Before: Bashara, P.J., and J. H. Gillis and W. Van Valkenburg, JJ.

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

   W. Van Valkenburg, J.

Defendant, Aida Pech, appeals by right the circuit court’s denial of her petition for a writ of superintending control. She also appeals, by leave granted, the circuit court’s dismissal of her claim of appeal from the small claims division of the district court. The cases were consolidated by this Court.

On June 1, 1978, the judge of the small claims division of the 24th Judicial District awarded to plaintiff Edward Marshall $125 (plus $13.50 in costs).. Plaintiffs small claims petition arose out of an automobile accident. In the small claims court, defendant argued that the property damage provisions of the no-fault act precluded plaintiffs suit. The small claims judge rejected this defense and awarded money damages to plaintiff. In a June 9, 1978, letter to defendant’s counsel, the district judge who had presided at the small claims hearing responded to defendant’s defense by noting his opinion that the relevant provisions of the no-fault act were unconstitutional.

In circuit court, defendant based her claim on appeal and her petition for a writ of superintending control on the Supreme Court’s June 8, 1978, decision in Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), reh den 403 Mich 958 (1978). In that case the Supreme Court upheld the no-fault act’s abolition of tort liability with respect to property damage arising from the ownership, maintenance or use of a motor vehicle. MCL 500.3135(2); MSA 24.13135(2). In circuit court, defendant argued that she was entitled to relief, either by appeal or by superintending control, because the small claims judge had failed to apply the substantive law of Michigan. MCL 600.8411; MSA 27A.8411.

The circuit court held that defendant was entitled to neither appellate nor supervisory relief. The court based its decision on MCL 600.8412; MSA 27A.8412:

"A person commencing an action or defendant who remains and tries the case in the small claims division shall be considered to have waived the right to counsel, the right to trial by jury, the right to recover more than $600.00, and any right of appeal. The affidavit prescribed in section 8402 [MCL 600.8402; MSA 27A.8402] shall contain a statement that the plaintiff understands that he or she has waived these rights.” (Emphasis added.)

Chapter 84 of the Revised Judicature Act, MCL 600.8401 et seq.; MSA 27A.8401 et seq., which sets forth the framework of the small claims division of the district court, furnishes a convenient and economical means of settling disputes where small sums are involved. The sole object of small claims hearings is "to dispense expeditious justice between the parties”. MCL 600.8411. Use of this court is entirely voluntary. Each party has a statutory right to "demand and remove the case to the district court”. MCL 600.8408(2); MSA 27A.8408(2). Before trial, the parties are told of the right to removal and of the rights which are waived if they choose to remain in the small claims division. Id., MCL 600.8412. Litigants must realize, therefore, that when they accept the jurisdiction of this division of the district court, they bear the risk of receiving an unfavorable verdict.

By statute, no verbatim record of small claims proceedings is made. MCL 600.8411. Defendant’s appellate assertion that she never waived her rights as required by statute can, therefore, not be verified. The fact that she remained until judgment was rendered lends credence to the conclusion that she waived the rights enumerated in MCL 600.8412. These rights included the right to appeal the small claims verdict.

The constitution clearly authorizes legislative curtailment of the appellate authority of the circuit court: "The circuit court shall have * * * appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law”. Const 1963, art 6, § 13.

In our view, the circuit court properly rejected defendant’s request for appellate review of the small claims court decision. The philosophy underlying establishment of the small claims division and the clarity of the relevant constitutional and statutory provisions lead inevitably to this conclusion. In our view, the task of conferring appellate jurisdiction over the small claims division is one within the exclusive province of the Legislature.

Counsel for defendant nevertheless argues that the district judge who presided at the small claims hearing failed to apply the substantive law of this state and that relief should have been available by means of a writ of superintending control. From a practical standpoint, such relief would normally be difficult to render since no record is made of small claims hearings. In this case the judge made no formal written findings but did write a letter to counsel wherein he stated that the relevant section of the no-fault act was unconstitutional.

Const 1963, art 6, § 13, states in pertinent part:

"The circuit court shall have * * * supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with the rules of the Supreme Court.”

This constitutional provision sets forth clearly and distinctly that circuit courts are authorized to supervise and control inferior courts. Because this supervisory authority is set forth in the constitution, the Legislature cannot impair or limit it. In re Brant’s Estate, 269 Mich 201, 205; 256 NW 855 (1934). A petition for a writ of superintending control is the appropriate avenue to pursue correction of serious errors of law when the petitioning party does not have an adequate remedy by appeal. Moore v Ninth District Judge, 69 Mich App 16; 244 NW2d 346 (1976)._

However, we hasten to add that the grant or denial of a petition for an order of superinténding control is within the sound discretion of the court. Absent an abuse of discretion, the denial óf a request for a writ of superintending control will not be disturbed. People ex rel Ingham County-Prosecutor v East Lansing Municipal Judge, 42 Mich App 32, 36; 201 NW2d 318 (1972).

The property damage provision of the no-fault act was discussed by this Court in Shavers v Attorney General, 65 Mich App 355, 368-372; 237 NW2d 325 (1975). This Court held unconstitutional the no-fault act’s property damage protection scheme. That ruling was binding on lower courts from November 5, 1975, to June 8, 1978, when it was reversed by the Supreme Court. Therefore, at the time the decision was made in this case in the small claims division — i.e., June 1, 1978- — a party could sue for property damage incurred in a motor vehicle accident. Accordingly, the decision was a correct application of the substantive law as it existed at that time. Although the circuit court failed to exercise its discretion, we are of the opinion that, under the circumstances, no useful purpose would be served by ordering a remand.

Dismissal of defendant’s claim of appeal from the small claims division of district court and denial of her petition for a writ of superintending control are affirmed. No costs, interpretation of a statute being involved.

       See Domanski’s Small Claims Courts: An Overview and Recommendation, 9 Mich J L Reform 590 (1976).

       In most jurisdictions, there is a right to appeal small claims court judgments. See 9 Mich J L Reform, supra, at 612, fn 175.

       In addition to her reliance on the Supreme Court’s Shavers decision, defendant argues that the small claims court is an inappropriate tribunal for the determination of the constitutionality of state statutes.
      It is firmly established, however, that the courts have inherent authority to determine whether statutes are constitutional. Marbury v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803), 16 Am Jur 2d, Constitutional Law, § 101 ét seq., p 439 et seq. Courts of less than the highest rank do not lack power to rule on the constitutionality of legislation. People v Haggerty, 27 Mich App 594, 596; 183 NW2d 862 (1970), Lent v Tillson, 140 US 316; 11 S Ct 825; 35 L Ed 419, 426 (1890), 16 Am Jur 2d, Constitutional Law, § 110, p 457. As a public officer, a district judge is bound by his oath of office to support the constitution. Const 1963, art 11, § 1; MCL 168.467j; MSA 6.1467(10). We, therefore, reject defendant’s argument that the district judge sitting as judge of the small claims division exceeded his authority in this regard.


author: D. S. DeWitt, J.

text:
    PEOPLE v BLACKMON
    Docket No. 78-3940.
    Submitted October 17, 1979, at Detroit.
    Decided February 20, 1980.
    Leave to appeal applied for.
    Defendant, Aaron T. Blackmon, was convicted, in a bench trial in the Recorder’s Court of Detroit, Henry Heading, J., of assault with intent to do great bodily harm less than murder and felony-firearm. On the day of his trial, defendant signed a written waiver of trial by jury, which was acknowledged before a deputy clerk. Defendant’s attorney acknowledged the waiver in open court prior to the trial. Defendant appeals. Held:

    There was no evidence to indicate that the waiver of a jury trial was made or executed in open court, as required by statute.
    Reversed and remanded.
    Criminal Law — Right to Jury Trial — Waiver — Written Waivers — Open Court — Arraignment — Consultation with Counsel — Statutes.
    A criminal defendant has the right to waive a determination of facts by a jury and be tried before the court without a jury, and such waiver and election by a defendant shall be in writing, signed by the defendant and filed in such cause and made a part of the record thereof; such waiver of trial by jury must be made in open court after defendant has been arraigned and has had an opportunity to consult with counsel; where the waiver was executed and filed on the same day as the trial and acknowledged before a deputy clerk and the record is bereft of other evidence that the waiver was executed in open court, the open court requirement has not been met (MCL 763.3; MSA 28.856).
    References for Points in Headnote
    [1] 47 Am Jur 2d, Jury §§ 81-83.
    Sufficiency of waiver of full jury. 93 ALR2d 410.

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

      Carl Ziemba, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.

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

   D. S. DeWitt, J.

On July 19, 1978, defendant, Aaron Tyrone Blackmon, was found guilty, in a bench trial, of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm in the commission of a felony (felony-firearm), MCL 750.227(b); MSA 28.424(2). Defendant was sentenced on August 3, 1978, to a term of imprisonment for five to ten years on the assault conviction, to be served consecutively with a two-year mandatory term of imprisonment on the felony-firearm conviction. Defendant appeals as of right and raises the issue of whether his waiver of trial by jury was valid and binding.

Michigan law specifies the circumstances under which a defendant may effectively waive his right to a jury trial. MCL 763.3; MSA 28.856. The waiver must be in a writing, signed by the defendant, and must be made a part of the record of defendant’s case. In addition, defendant’s waiver "must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel”. MCL 763.3; MSA 28.856.

An examination of the lower court file indicates that the defendant executed a written "Waiver of Trial By Jury” form on the same date on which defendant’s trial commenced, July 18, 1978. The transcript of the trial proceedings further discloses that the following exchange ensued between the court and defendant’s counsel, Ira H. Harris:

"The Court: Have you filed a written waiver?

"Mr. Harris: Yes, your Honor.

"The Court: That firearm count is on this case?

"Mr. Harris: Yes, your Honor.

"The Court: All right, because I don’t know anything about this case and that’s the way it should be.

"Mr. Harris: Very well.

"The Court: But I’m always concerned about that firearm count. This case has been pretrialed and everything, you tried to work out anything?

"Mr. Harris: People offered no reduced plea.

"The Court: All right. Are you ready to proceed?

"Mr. Pearl: Yes, your Honor.

"The Court: You make your opening statement.”

The question before this Court is whether the statutory requirement of a waiver "made in open court” is met by evidence on the record that a written waiver was executed by the defendant on the date of trial and was referred to by defense counsel as filed in response to the court’s inquiry in that regard. We hodl that the above facts do not constitute sufficient compliance with the statutory direction.

In People v McKaig, 89 Mich App 746; 282 NW2d 209 (1979), two members of a panel of this Court recently stated the rule that a valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. Id, 750. We agree with the McKaig rule as a general proposition but disagree with that Court’s conclusion that it is applicable to cases where the record shows merely that a written waiver was executed on the date of defendant’s trial. Here, as in McKaig, defendant was represented by an attorney and made no claim that "he did not sign the waiver in open court”. Id. We are unsatisfied, however, that these facts rise to the level of an acknowledgment in open court of a waiver of the fundamental right to jury trial. Acknowledgement before a deputy clerk of the court, which is the customary procedure utilized in executing a written jury trial waiver, is not the equivalent of acknowledgement before a judge for purposes of complying with the statute’s "open court” requirement.

While other trial records lacking an oral acknowledgement may nevertheless contain sufficient additional evidence that a waiver was executed in open court, those facts are not presently before this Court. In the interest of insuring that waivers are properly executed and acknowledged, however, we reiterate the advice offered in McKaig:

"We encourage trial judges to supplement the written waiver with an oral acknowledgement by the defendant. This practice eliminates any doubt as to whether or not the waiver was made in open court.” McKaig, supra, 750-751.

Defendant’s other contention of error merits no discussion.

Reversed and remanded for a new trial.

       The waiver in this case was on a printed form containing a printed provision for acknowledgment before a deputy clerk.