author: G. E. Bowles, J.

text:
    DEMPSEY v DEMPSEY
    Docket No. 44759.
    Submitted November 8, 1979, at Grand Rapids.
    Decided March 18, 1980.
    Leave to appeal applied for.
    Shirley A. Dempsey brought a divorce action against John J. Dempsey in Leelanau Circuit Court. In her complaint, the plaintiff sought custody of the parties’ three minor children. Defendant was initially awarded temporary custody of the children. After a contested trial, William R. Brown, J., awarded custody of the children to the defendant. The plaintiff appeals by leave granted, asserting four grounds for reversal of the award of custody to the defendant: (1) the failure of the trial court to interview the children as to tbeir preferences, (2) the trial court’s awareness of the recommendation in the report of the friend of the court, even though there was no agreement by the parties to the admission of the report, (3) the trial court’s consideration of the capacity of the respective parties to provide for the material needs of the children as constituting a denial of due process and equal protection of the law, and (4) that the custody determination was against the great weight of the evidence. Held:

    1. The Child Custody Act requires a court to use the standard of the best interests of the children in determining the parent to whom custody should be awarded. One of the factors which must be considered is the reasonable preference of the children. However, the trial judge has the discretion to determine whether the children are of sufficient age to express a preference. In the instant case it would have been better for the trial judge to state on the record his reason or reasons for not speaking with the children.
    2. A report of the friend of the court is not generally admissible as evidence except by agreement of the parties. In this case there was no agreement to admit the report of the friend of the court, and it did not become a part of the record. However, the trial judge did indicate that he was aware of the report and recommendation. It was error for the court to weigh, in making his custody determination, any evidence not made part of the record, including the report of the friend of the court.

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 358.
    5 Am Jur 2d, Appeal and Error §§ 703, 822.
    [2, 5, 6] 24 Am Jur 2d, Divorce and Separation §§ 783-790.
    Modern status of maternal preference rule or presumption. 70 ALR3d 262.
    [3] 24 Am Jur 2d, Divorce and Separation § 784.
    Child’s wishes as factor in awarding custody. 4 ALR3d 1396.
    [4] 4 Am Jur 2d, Amicus Curiae § 4.

      3. Another factor to be considered in determining the best interests of a child is the capacity and disposition of each parent to provide for the material needs of the child. A determination of the economic capacity of the respective parents has a rational relationship to the best interests of the child. Such a determination is neither a denial of due process nor of equal protection of the law.
    4. The trial judge evaluated the relevant economic circumstances of the parties in such a way as almost to preclude the plaintiff from gaining custody. Pre-eminent and decisive reliance was placed upon the defendant’s superior economic position. In the instant case, the evaluation of the factors to be used to determine the best interest of the child placed undue reliance upon economic circumstances in relation to other factors. In addition, the trial court’s support order, which suggested that the plaintiff provide regular day care for the children while the defendant worked, further exacerbated the plaintiff’s economic circumstances. The undue weight accorded this factor was a palpable abuse of the trial court’s discretion. Upon a review of the record the award of custody of the minor children to the defendant was clearly erroneous.
    Reversed and remanded.
    1. Parent and Child — Child Custody — De Novo Review — Statutes.
    Appellate review of an order of child custody is de novo, but special consideration should be given to the trial court’s findings of fact (MCL 722.28; MSA 25.312[8]).
    2. Parent and Child — Child Custody — Best Interests of Child — Statutes.
    The Child Custody Act requires a court to use the standard of the best interest of a child in determining the parent to whom custody should be awarded; in reaching its determination the trial court must make specific findings of fact on each of the factors enumerated in the Child Custody Act (MCL 722.25; MSA 25.312[5]).

      3. Parent and Child — Child Custody — Best Interests of Child — Preference of Child — Statutes.
    One of the factors a trial court must consider in determining the best interests of a child in deciding the parent to whom custody of a child should be awarded is "the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference”; the trial court does have the discretion to determine whether the child is of sufficient age to express a preference (MCL 722.23; MSA 25.312[3]).
    4. Divorce — Friend of Court Report — Evidence — Admissibility of Evidence — Child Custody.
    A report of the friend of the court is not generally admissible as evidence, except by agreement of the parties, in a proceeding to determine which parent in a divorce action is to be awarded custody of the parties’ minor children.
    5. Divorce — Child Custody — Best Interests of Child — Economic Circumstances — Statutes.
    Among the ten factors to be considered in determining the best interests of a child in making a decision as to which parent in a divorce action should be awarded custody of the child is the capacity and disposition of each parent to provide the child with food, clothing, medical care or other remedial care recognized under the laws of this state in lieu of medical care and other material needs; in a child custody dispute the economic capacity of the parties has a rational relationship to the best interests of the child; this factor reflects the economic differences of the parties, not gender differences.
    6. Divorce — Child Custody — Best Interests of Child — Economic Circumstances — Abuse of Discretion.
    A trial court’s evaluation, in a custody matter related to a divorce proceeding, of the ten statutory factors for determining the best interest of the parties’ minor children which places undue reliance upon economic circumstances in relation to the other factors to the extent that the parent with the more modest economic circumstances is excluded from consideration as the custodial parent is an abuse of discretion.

      Troester, Picard, MacNeil, Learman & DeWit, for plaintiff.

      Zerafa & Zerafa, PC. (by Dennis M. Swain), for defendant.

      Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.

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

   G. E. Bowles, J.

On March 14, 1979, following a contested trial, custody of the parties’ three minor children was awarded to defendant father. Plaintiff mother by leave of the Court presses her delayed appeal.

On July 19, 1977, plaintiff filed a complaint for divorce and sought custody of her three children. On August 29, 1978, defendant was awarded temporary custody. Plaintiff continued to care for the children. On October 30, 1978, the final report of the friend of the court recommending that custody of the children be awarded to defendant was filed. Plaintiff objected to the report of the friend of the court. Permanent custody. of the children was awarded to defendant and judgment entered following the court’s March 27, 1979, decision.

Proofs at trial showed that plaintiff sought divorce on the basis that defendant did not spend any time with her or the family but, rather, bowled and went on snowmobile trips without them in his leisure time. Defendant also worked nights and frequently was not home in time to eat dinner with the family. Plaintiff did all the cooking, sewing, and laundry for the children, bought their clothes, took them to the doctor, and attended parent-teacher conferences. She testified that defendant did not share these responsibilities. Plaintiff also testified that she took the children to church and Sunday school and that defendant did not attend. To his credit, however, she also stated that defendant was a hard-working man, spent the money he earned on the family, and that he had been a good father. Additionally, there was testimony from neighbors that defendant did things with the children on weekends and that when he was home he acted like a good father.

At the time of trial the older children were nine and seven and the youngest child, Eric, was three. Eric suffered from epilepsy and had seizures. His epilepsy has been relieved by new medication. Plaintiff assumed for three years the care of Eric with relation to his epilepsy, working with the Traverse Bay Intermediate School Special Education Program (TBA), receiving training on home therapy; defendant did not participate. Defendant had suggested an abortion when plaintiff mother was carrying Eric. However, after Eric’s birth, defendant showed an interest in him. Defendant testified as to his care of Eric, playing with him and reading him stories. Eric’s father also took the boy on errands with him. As far as defendant’s failure to go to the hospital with Eric when the boy was suffering from seizures, defendant testified that he was in the middle of work, couldn’t get away, and did not realize the seriousness of the situation.

The testimony on behalf of plaintiff by neighbors and staff members of TBA showed that she was coping well with Eric’s seizures and his special education home program. At the time of trial Eric was attending school two days a week while the home program of therapy continued. It was shown that the program for Eric could continue with someone other than plaintiff supervising. However, such a change would require a lot of extra work. According to testimony, if defendant had custody it would take some time to train him to be able to continue with Eric’s program.

After the filing of the divorce complaint the parties continued to reside together in the marital home. Concerning household duties, defendant testified that he prepared breakfast for the children, made their lunches for school, and provided groceries in the period immediately prior to trial. If awarded custody defendant testified that he had arranged for the two older children to stay with a neighbor after school. He would pick them up after work at approximately 5 p.m. Defendant also planned to take the children to school in the mornings. A sister-in-law would take care of Eric during the week and, if she were unavailable, three other women had agreed to help with the youngster. Defendant could leave work, if necessary, during the day and thought he could follow the TBA instructions. At the time of trial plaintiff had not yet made arrangements for a place to live after the divorce.

In regard to economic circumstances, plaintiff worked part-time with an income of $1,000 to $3,000 in 1978. During 1978 defendant earned some $14,000 to $15,000.

At trial defendant sought to introduce the report and recommendations of the friend of the court. The trial judge, following objection by plaintiff’s counsel, declined to receive the report. However, the record reveals the following comment made by the judge:

"The Court will sustain the objection. It is an unnecessary inquiry, since the Court is aware of the recommendation.”

After granting custody to defendant the court reserved judgment as to whether plaintiff should pay any support. The court suggested that she could provide regular day care for the children instead.

Plaintiff asserts four grounds for reversal of the custody award on appeal: (1) the failure of the trial court to interview the children, (2) the court’s awareness of the recommendation contained in the friend of the court’s report, (3) the court’s consideration of the capacity of the parties to provide for the material needs of the children as constituting a denial of due process and equal protection of the law, and (4) that the custody determination was against the great weight of the evidence.

Pursuant to MCL 722.28; MSA 25.312(8), of the Child Custody Act, appellate review of an order of child custody is limited. This provision provides in relevant part: '

"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or clear legal error on a major issue.”

Review is de novo, but special consideration is given to the trial court’s findings of fact. Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977).

I

The Child Custody Act requires the court to use the standard of the best interests of the child in determining the parent to whom custody should be awarded. MCL 722.25; MSA 25.312(5). In reaching its determination the trial court must make specific findings of fact on each of the factors enumerated in the Child Custody Act. Barnes v Barnes, 77 Mich App 112; 258 NW2d 65 (1977). One of the factors the trial court must consider is "the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference”. MCL 722.230); MSA 25.312[3][i], The lower court’s opinion stated that, "[n]one of the children were present at the time of hearing, and the parties apparently concur that they should not be requested to express a preference”.

The interview of a minor child is a difficult matter requiring tact and sensitivity, but it is often helpful in a fair adjudication of the child’s best interests. The court does have the discretion to determine whether the child is of sufficient age to express a preference. In Roudabush v Roudabush, 62 Mich App 391, 394; 233 NW2d 596 (1975), this Court held that it is not mandatory for the trial judge to consider the preference of the child. That Court also declared, however, that sound practice dictated that the • child be interviewed when there are significant environmental differences between the parents. In Lewis v Lewis, 73 Mich App 563, 566; 252 NW2d 237 (1977), one of the parties requested that the court interview the children. The court refused without explaining why it declined to interview the children. This was found to be reversible error.

In this case the better practice, in order to dispel all doubts concerning the custody decision, was for the judge to state on the record the reason or reasons for not speaking with the children. Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978), In re Custody of James B, 66 Mich App 133; 238 NW2d 550 (1975). However, our ultimate disposition of this case makes it unnecessary to remand on this issue.

II

The law has long been settled that the report of the friend of the court is not generally admissible as evidence except by agreement of the parties. Sweet v Sweet, 329 Mich 251; 45 NW2d 58 (1950). In the case at bar, there was no agreement to admit the report of the friend of the court, and it did not become a part of the record. However, the trial judge did indicate that he was aware of the report and recommendation. The reception and consideration of the friend of the court report in a custody case is favored. Nonetheless, on the facts of this case, the trial judge should not have considered the report. It was error for the court to weigh, in making his custody determination, any evidence not made part of the record, including the friend of the court report. The trial judge’s admitted knowledge of the contents of this report might well have had a persuasive effect in the final determination of custody. For this reason alone we would have to vacate the trial court’s custody order.

Ill

Among the ten factors to be considered in determining the best interests of the child is:

"The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.” MCL 722.23(c); MSA 25.312(3)(c).

Plaintiff urges that this provision of the Child Custody Act is unconstitutional as violative of her rights to equal protection and due process of law. It is asserted that MCL 722.23(c); MSA 25.312(3)(c), differentiates between parties on the basis of economic condition, thereby favoring fathers over mothers because of the traditional roles of men and women in our society.

In Reed v Reed, 404 US 71, 76; 92 S Ct 251; 30 L Ed 2d 225 (1971), which involved equal protection and discrimination based on gender, Mr. Chief Justice Burger spoke for a unanimous Court:

"A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” (Citation omitted.)

This has been called the rational basis test.

In a child custody dispute the economic capacity of the parties has a rational relationship to the best interests of the child. The central and decisive point is that in contemplating what is best for a child the economic well-being of the child must be considered and hence the relative circumstances of the parties. There are economic differences, not gender differences, reflected in MCL 722.23(c); MSA 25.312(3)(c). See General Electric Co v Gilbert, 429 US 125; 97 S Ct 401; 50 L Ed 2d 343 (1976). If a differentiation is based on a factor other than sex there is no sex-based denial of equal protection or due process of law unless it can be found to be a mere pretext to effect an invidious discrimination. A careful reading of the ten statutory criteria shows that, as a whole, MCL 722.23; MSA 25.312(3), is not weighted in favor of either sex. While it’s true that due to the traditional roles of men as breadwinners and women as homemakers, some individual factors favor fathers, certain other factors tend to favor mothers in custody disputes.

As to economic discrimination, the rational basis test was applied by the Supreme Court in United States v Kras, 409 US 434; 93 S Ct 631; 34 L Ed 2d 626 (1973). In Kras, it was held that a $50 fee for filing a bankruptcy petition is not unconstitutionally discriminatory against indigents. On the other hand, such a fee was held to violate equal protection as regards filing fees in divorce actions. Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28 L Ed 2d 113 (1971).

Unlike the problem in Boddie, plaintiff is not excluded from exercising her right to seek and win custody on the basis of her marginal economic situation. The record in the case at bar shows the plaintiff had a relatively low rating on economic circumstance. However, such a rating is not conclusive in making a determination concerning custody. There is neither a denial of due process nor of equal protection of the law fostered by the Child Custody Act. The legislative determination that relative economic circumstances be weighed as one of the ten criteria in determining the best interests of the child has a rational basis. It cannot be overemphasized that in a child custody dispute the rights of the children are paramount.

IV

We now turn to a consideration of whether the trial court’s grant of custody to defendant was against the great weight of the evidence.

In evaluating the statutory criteria of MCL 722.23; MSA 25.312(3), the trial court found the parties equal on seven of the ten factors. As to the other three, the court found:

"Defendant has a substantially greater capacity and disposition to provide the children with food, clothing, medical care and other material needs. He has worked as a mechanic for a substantial period of time and has a consistent record of regular earnings and of providing those earnings for the benefit of the family. Plaintiff’s earnings have been solely from part time employment since the birth of the first child, and she has not obtained a rate of pay nearly comparable to that of Defendant. Defendant has indicated plans to continue his present employment following the divorce. There was no evidence as to Plaintiff’s future plans for employment. Only slight preference is accorded to Defendant based on this factor since the difference in earning capacity can be adjusted by the Court’s requirement of support by a noncustodial parent.

The factor of stability indicates a preference that Defendant be the custodial parent. The children have lived in the same community and the same home since 1974. Defendant has a greater interest and the capacity to continue to maintain that home. Plaintiff has indicated an intention to find housing but has no fixed plans.

"The Court also considers as relevant the motivation for divorce. For many years Plaintiff has been the parent with most direct and frequent contact with the children in their day to day supervision, and Defendant has assumed the wage earner role and has been out of the home for extensive hours because of his employment. Plaintiff is the one principally interested in the divorce. She has developed personal interests which take her from the home. Defendant has responded to the change of circumstances since the filing of the Complaint by working shorter hours, being available for supervision of children through the breakfast and preparing their lunches.. Defendant has further demonstrated the greater ability to change his personal routine and to develop constructive plans for care of the children if accorded custody.”

As to the property disposition, the court awarded defendant the marital home, two of the three cars, first pick of the two snowmobiles, checking and savings bank accounts, a garden tractor, and most of the household furnishings and fixtures. Plaintiff received five acres of real estate adjacent to the home free of debt and $5,000 to be paid over a five-year period. She received no alimony.

The trial judge evaluated the relevant economic circumstances of the parties in such a way as almost to preclude plaintiff from gaining custody. Pre-eminent and decisive reliance was placed upon defendant’s superior economic position. True, the employment of the plaintiff had been sporadic and part-time, but she had had three pregnancies, the responsibility of caring for the children, and the youngest child, not three years old, was an epileptic who required special care. This care was provided by plaintiff. Indeed, the trial judge in reference to stability of environment, MCL 722.23(d); MSA 25.312(3)(d), relied again on the economic factor in part:

"Defendant has a greater interest and the capacity to continue to maintain that home.”

Further, the property disposition was such that the plaintiff probably could never gain custody in the future, keeping in view her very limited economic capacity and the great emphasis which the court placed on relative economic circumstances.

The court further ordered in regard to the plaintiffs role in supporting the children:

"To as nearly as possible parallel the prior conditions, the Court will reserve any requirement for payment of support with the suggestion that Plaintiff might make a contribution by services, providing regular day care for the children and thus eliminating the cost of outside babysitters.” The trial court’s support order exacerbated the economic problem by relegating plaintiff to the role of a permanent babysitter, limiting even further her employment options and practically ensuring the perpetuation of her inferior economic position.

The Child Custody Act wisely addresses the best interests of the child and further requires that in a custody determination the ten criteria or factors be evaluated with specific findings by the trial court. This is not to suggest that the resolution of a custody case lies in a box score evaluation; that that party who is accorded the winner on six factors should necessarily "win”.

A child custody determination is much more difficult and subtle than an arithmetical computation of factors. It is one of the most demanding undertakings of a trial judge, one in which he must not only listen to what is said to him and observe all that happens before him, but a task requiring him to discern and feel the climate and chemistry of the relationships between children and parents. This is an inquiry in which the court hopes to hear not only the words but the music of the various relationships.

Here, the evaluation of factors placed undue reliance upon economic circumstances in relation to other factors. Economic matters are of considerable consequence in childrearing, but not preponderantly more important than other factors. Indeed, it can be argued that economic circumstances never should be conclusively determinative. The reason is plain. In most cases the mother will be disadvantaged, although with changing life patterns this is not always so. It is not merely a question of prejudicial effect upon mothers; the danger in placing undue reliance on economic circumstances is its potential prejudicial effect upon the child’s best interests. The party with the more modest economic resources should not be excluded from equal consideration as the custodial parent. If the parties are substantially different as to economic circumstances, the court has ample power through its orders, if it be in the best interests of the child or children, to equalize those circumstances. The assessment of the statutory criteria or factors as applied to the mother and father in this case was a palpable abuse of discretion.

Upon review of the record we conclude that the award of custody of the minor children to defendant was clearly erroneous. Consequently, the trial court is reversed. Since the disposition of the property of the parties was related intimately to the child custody determination, the case must be remanded to. the trial court for a reassessment of child support, alimony, and property disposition.

Reversed and remanded.


source: Caselaw Access Project

author: Bashara, J. T. M. Burns, P.J.

license: Public Domain

text:
    TRIMBLE v SAFECO INSURANCE COMPANY OF AMERICA
    Docket No. 45002.
    Submitted December 11, 1979, at Lansing.
    Decided March 18, 1980.
    Leave to appeal applied for.
    Plaintiffs, Arthur and Donna Trimble, were the owners of two automobiles covered by no-fault insurance under a policy of insurance issued by defendant, Safeco Insurance Company of America, for which it charged and collected separate premiums on each car. Plaintiffs’ daughter was struck and injured by a hit-and-run driver. Compensation for the accident was provided for by the uninsured motorist section of the policy. Uninsured motorist coverage on each vehicle was $20,000 per person and $40,000 per accident. Plaintiffs brought suit in the Washtenaw Circuit Court for a declaration that the uninsured motorist coverages could be stacked. The insurance policy contained a provision which applied to all coverage in the policy except the uninsured motorist coverage. It stated: "When two or more automobiles are insured hereunder, the terms of the policy shall apply separately to each.” The uninsured motorist provisions contained the following language: "Regardless of the number of automobiles to which this policy applies the limit of bodily injury liability stated in the declarations as applicable to 'each person’ is the limit of [the insurer’s] liability.” The trial court, Ross W. Campbell, J., concluded that the policy did not unambiguously prohibit stacking and that, therefore, the plaintiffs were entitled to stack the uninsured motorist coverage for each automobile. Defendant appeals. Held:

    The two provisions, when read together, do not create an ambiguity and clearly prohibit stacking of the uninsured motorist coverage. And, since there is no evidence in the record regarding the underwriting predicate upon which the two premiums were based, the Court of Appeals would not abrogate the unambiguous contract language.
    Reversed.
    T. M. Burns, P.J., dissented. He would hold that an ambiguity does exist and that the trial court was not clearly wrong in its holding. He would also hold that, since defendant has received twice as much in uninsured motorist protection premiums as it would be entitled to under its own interpretation of the contract, it should be required by simple justice to pay twice as much in benefits. He would affirm.

      References for Points in Headnotes
    [1,2] 7 Am Jur 2d (Rev), Automobile Insurance § 368.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.

      Opinion of the Court
    1. Insurance — Automobiles — Uninsured Motorist Protection — Stacking.
    A policy of no-fault insurance which contains a provision applicable to all coverage which states that "[wjhen two or more automobiles are insured hereunder, the terms of the policy shall apply separately to each,” and a provision pertaining specifically to uninsured motorist protection to the effect that "[rjegardless of the number of automobiles to which this policy applies the limit of bodily injury liability stated in the declarations as applicable to 'each person’ is the limit of [the insurer’s] liability”, is not ambiguous and prohibits the stacking of uninsured motorist protection in policies covering more than one vehicle.
    Dissent by T. M. Burns, P.J.
    2. Insurance — Automobiles — Uninsured Motorist Protection — Stacking.

      A policy of no-fault insurance which contains a provision applicable to all coverage which states that "[wjhen two or more automobiles are insured hereunder, the terms of the policy shall apply separately to each’’, and a provision pertaining speciñcally to uninsured motorist protection to the effect that "[rjegardless of the number of automobiles to which this policy applies the limit of bodily injury liability stated in the declarations as applicable to 'each person’ is the limit of [the insurer’s] liability”, is ambiguous and does not speciñcally prohibit the stacking of uninsured motorist protection in policies covering more than one vehicle.

      McLain & Winters, for plaintiffs.

      Seavitt, Westcott, Miller, Stowe & Magnuson (by Gene M. Currier), for defendant.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   Bashara, J.

On April 27, 1978, plaintiffs’ daughter was struck and injured by the driver of a hit- and-run automobile. Insurance coverage for the accident was provided by the plaintiffs’ no-fault automobile policy issued by defendant, Safeco Insurance Company of America. The policy covered two vehicles owned by plaintiffs for which separate premiums were charged and collected by defendant.

Compensation for hit-and-run accidents was provided by the uninsured motorist section of the policy. The amount of uninsured motorist coverage for each vehicle was $20,000 per person and $40,-000 per accident.

Plaintiffs, Arthur and Donna Trimble, as next friend of their minor daughter, Tonna Trimble, instituted this suit for a declaratory judgment in the circuit court to stack the uninsured motorist coverage of each vehicle. The court rendered a judgment allowing stacking. The trial judge found that the policy was ambiguous because it contained provisions both suggesting and limiting stacking. The ambiguity was construed in favor of the insured. From this judgment, defendant appeals.

The standard for interpreting an insurance contract has been stated many times by this Court, most recently in Citizens Ins Co of America v Tunney, 91 Mich App 223; 283 NW2d 700 (1979). Tunney requires that a court first examine the policy to determine if an ambiguity exists:

"If an ambiguity does exist, the policy must be liberally construed in favor of the insured and against the insurer who drafted the policy.” Id., 228.

The provisions of the policy which the trial judge found ambiguous pertain to uninsured motorist coverage and "Condition 4” which applies to all provisions of the policy except uninsured motorists:

The uninsured motorist section provides in part:

"Limits of Liability

"(a) Regardless of the number of automobiles to which this policy applies the limit of bodily injury liability stated in the declarations as applicable to 'each person’ is the limit of Safeco’s liability.”

whereas "Condition 4” states:

"When two or more automobiles are insured hereunder, the terms of the policy shall apply separately to each.”

The trial judge interpreted the provisions as follows:

"[T]he insurance policy * * * states that the terms shall apply separately to each vehicle in all respects, except for * * * Uninsured Motorist Coverage, thus implying, if not mandating that the Uninsured Motorist Coverage on each of the two vehicles, not being applied 'separately’ to each vehicle, are to be applied non-separately, i.e. together, or stacked.” (Emphasis in original.)

The court concluded that because the policy did not unambiguously prohibit stacking, the insured was entitled to stack the coverage for each automobile. We disagree.

Condition 4 of the policy does not apply to the uninsured motorist section because the uninsured motorist provision was specific on the same subject so as to limit stacking.

We also consider it anomalous to give credibility to the language which makes Condition 4 inapplicable to the uninsured motorist provision and yet hold that the negative pregnant of Condition 4 is applicable to uninsured motorist coverage.

We conclude that the above provisions, when read together, do not create an ambiguity. Moreover, we find that the policy clearly prohibits stacking.

Plaintiffs next urge us to consider Judge Kaufman’s dissent in Kozak v Detroit Automobile Inter-Ins Exchange, 79 Mich App 777; 262 NW2d 904 (1977), as to stacking limitations. The reasoning of that dissent, which looks to the reasonable expectations of the insured rather than the contract language, was adopted in Detroit Automobile Inter-Ins Exchange v Curl, 82 Mich App 140; 266 NW2d 479 (1978).

In Kozak, supra, 785, Judge Kaufman argued that the result would be unconscionable where the insured, expecting to stack coverage, was paying additional premiums without an actual increase in the dollar amount of coverage.

This argument fails to consider the fact that additional premiums may be justified by the cost of insuring a second automobile. We prefer to follow the rationale of Tunney, supra, which holds that without evidence on the underwriting predicate of an insurance policy, a court lacks adequate information to make a determination of unconscionability.

The record reveals no evidence regarding the underwriting predicate on which the dual premium was based. We conclude that "[i]n the absence of proof of double payment warranting double recovery, we will not abrogate the unambiguous contract language limiting the insurer’s liability and permit 'stacking’ ”. Tunney, supra, 229.

Reversed. Costs to appellant.

J. H. Gillis, J., concurred.

T. M. Burns, P.J.

(dissenting). Condition 4 of the insurance policy unambiguously provides that with respect to all benefit provisions of the policy, except those pertaining to uninsured motor vehicles, the terms of the policy shall apply separately to each of two or more automobiles that may be insured thereunder. The majority finds it "anomalous” to say, on one hand, that Condition 4 is not applicable to the uninsured motorist provision of the policy and, on the other hand, to say that all provisions of the policy apply separately to each automobile that may be insured thereunder except the uninsured motorist provision. Quite the opposite of being "anomalous”, this is exactly what Condition 4 states.

If, under the terms of Condition 4, all provisions of the policy are to be applied separately, i.e., not stacked, except those pertaining to uninsured motorist benefits, what is the meaning of the language used in the limits of liability clause in the uninsured motorist section of the policy that provides:

"Regardless of the number of automobiles to which this policy applies the limit of bodily injury liability stated in the declarations as applicable to 'each person’ is the limit of Safeco’s liability.”

The obvious intent of this clause was to prevent stacking of uninsured motorist benefits. As is clear, it is in conflict with the provisions of Condition 4; the insurance contract cannot both prohibit and authorize the stacking of uninsured motorist benefits. Inasmuch as I cannot say that the lower court’s interpretation of these provisions of the policy was unreasonable or its holding that they created an ambiguity in the policy clearly erroneous, I believe that the lower court must be affirmed. Any doubt as to the meaning of a provision in an insurance policy must be resolved against the insurer. Zurich Ins Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970), Weaver v Michigan Mutual Liability Co, 32 Mich App 605; 189 NW2d 116 (1971).

I also take issue with the majority’s holding that there is no evidence in the record to support plaintiffs’ contention that they twice paid premiums for the same uninsured motorist coverage. Despite the finding of the lower court that insurance policy contracts "similar to those of the instant case” enable "the insurer to charge two premiums for the Uninsured Motorist Coverage but to limit its liability to indemnify its insured to that corresponding to but a single premium”, a finding that defendant does not contest in this appeal and one that the majority does not criticize as being clearly erroneous, the majority holds that it "lacks adequate information to make a determination of unconscionability”.

In Detroit Automobile Inter-Ins Exchange v Curl, 82 Mich App 140; 266 NW2d 479 (1978), a panel of this Court held that the reasonable expectations of an insured were of primary consideration when interpreting contract language. I agree with Judge Kaufman in his dissent in Kozak v Detroit Automobile Inter-Ins Exchange, 79 Mich App 777, 783; 262 NW2d 904 (1977), and would hold that it is unreasonable to limit plaintiffs’ recovery to the policy limits on only one of their automobiles where their injuries have far exceeded those policy limits and where plaintiffs have twice purchased uninsured motorist protection under an ambiguous insurance policy written by defendant. Defendant has received twice as much in uninsured motorist protection premiums as it would be entitled to under its own interpretation of the contract; simple justice requires that it pay twice as much in benefits.

I would affirm.


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

text:
    PEOPLE v WISNESKI
    Docket No. 46214.
    Submitted November 7, 1979, at Grand Rapids.
    Decided March 18, 1980.
    Leave to appeal applied for.
    Jerome J. Wisneski, a medical doctor, was charged with unlawful delivery of a controlled substance, Preludin. A hearing was held on the question of entrapment in the Kent Circuit Court, George R. Cook, J. At the hearing it was brought out that a former patient of defendant who had named defendant as one of her sources of drugs had, at the request of the police, gone to defendant’s office to seek a prescription for the drug. Defendant refused to write the requested prescription. The police agent, who had a history of sexual contact with defendant, was wired with a transmitter and returned to the defendant’s office the following day with specific instructions that she was not to engage in sexual activity with the defendant "unless that’s what she had to do”: Upon entering the defendant’s office, the agent was ordered by the defendant to leave. She remained in the office on the pretext that she was there to pay her bill, and, thereafter, after engaging in ambiguous sexual overtures to defendant, she performed fellatio on defendant. Following this act she again asked that defendant write a prescription for Preludin. Defendant assented, making out the prescription in the agent’s maiden name. The trial court determined that there was no entrapment. Defendant applied for emergency leave to appeal and leave was granted. Held:

    1. Michigan has adopted the objective test for entrapment. As such, the courts must focus upon the question of whether the police conduct is of such a nature that it is repugnant to fair play and justice and would induce the commission of a crime by an otherwise unwilling or unready person. Any propensity of the particular defendant to commit the offense is to be disregarded.
    2. The sexual conduct undertaken by the police agent with the tacit approval of the police was a reprehensible act under the circumstances. Notwithstanding the prior history of sexual contact between the defendant and the agent, under these circumstances the use of such an inducement constitutes entrapment. The sexual conduct, in view of the fact of the defendant’s previous unwillingness to write the prescription, was the inducement for the criminal act rather than being merely incidental to the criminal act.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 143 et seq.

    [2,4,5] 21 Am Jur 2d, Criminal Law §§ 144, 145.
    Entrapment to commit offense with respect to narcotics law. 33 ALR2d 883.
    [3] 4 Am Jur 2d, Appeal and Error § 415.

      3. On the basis of the record on appeal, this Court decides, as a matter of law, that the activities of the police agent constituted entrapment and orders the defendant discharged.
    Reversed.
    G. E. Bowles, J., dissented. He would hold that the activities of the police did not constitute entrapment. He would hold that the trial court’s determination that there was no entrapment cannot be said to be clearly erroneous. He would affirm.
    Opinion op the Court
    1. Criminal Law — Entrapment — Objective Test — Police Methods — Predisposition op Dependant.
    Michigan has adopted the objective test for entrapment, which focuses on whether the police conduct is repugnant to fair play and justice and which disregards the character or propensities of a particular defendant to commit the offense; the question which the court must determine on the facts of each case is whether the police conduct was of such a nature that it would induce the commission of a crime by an otherwise unwilling or unready person.
    2. Criminal Law — Entrapment — Police Conduct — Sexual Inducement — Unwilling Person.
    The use of sexual favors by a police agent to induce a doctor to give to the agent a prescription for a controlled substance so that the substance could then be sold by the agent constitutes a reprehensible act amounting to entrapment where the police gave their tacit approval to the use of the sexual inducement by the agent if she found it necessary and where the doctor had evidenced an unwillingness to write the prescription prior to the sexual inducement offered by the agent, since, notwithstanding a prior sexual relationship between the agent and the doctor, the sexual activity was the inducement for the criminal act rather than being incidental to it.
    3. Appeal — Criminal Law — Entrapment — Uncontroverted Testimony — Matter op Law.
    The Court of Appeals will decide the question of entrapment as a matter of law rather than remanding to the trial court where the defendant’s testimony is taken as true or the evidence is uncontroverted.
    Dissent by G. E. Bowles, J.
    4. Criminal Law — Entrapment — Police Conduct — Prior Relationship.

      Entrapment must be established by showing intolerable police conduct which institutes or instigates the crime; the existence of a relationship between a police agent and the defendant prior to police involvement is a factor to be weighed in determining whether the police conduct was intolerable and offensive to public policy.

    5. Appeal — Criminal Law — Entrapment — Sexual Inducement — Prior Relationship — Appeal to Sympathy.

      A determination by a trial court that entrapment was not shown is not clearly erroneous where a police agent who had a prior history of sexual contact with a doctor engages in sexual conduct with that doctor for the purpose of securing a prescription for a controlled substance from the doctor, since there has been no showing of any appeal to the doctor’s sympathy or better nature in order to induce him to write the prescription.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Kristine D. Botsford, Assistant Prosecuting Attorney, for the people.

      Catchick & Dodge, for defendant.
    Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.

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

   V. J. Brennan, P.J.

Defendant was charged with the unlawful delivery on April 28, 1979, of a controlled substance, Preludin, in violation of MCL 333.7401(1); MSA 14.15(7401)(1). Following a Turner hearing, the trial court denied defendant’s motion for a determination of entrapment, finding no basis for an entrapment defense. We granted defendant emergency leave to appeal this decision and stayed further proceedings in the trial court.

The sole contention raised on appeal is that the trial court erred in finding no entrapment. The testimony can be summarized as follows: Betty Jean Phillips, a patient of defendant Dr. Jerome Wisneski, first contacted the Grand Rapids Police Department when she sought help to "kick” a drug habit. Questioned by officers Goethal and Ellenbaas of the vice squad, she named Dr. Wisneski as one of her sources. At the officers’ request, Phillips went to the doctor’s office on April 27, 1979, to try and get a prescription for drugs. Dr. Wisneski refused to write the requested prescription and Phillips left. She returned the next day in the company of the two officers and was instructed "not to go in and do that [oral sexual contact] unless that’s what she had to do”. Before entering the doctor’s office, she was outfitted with a tape recorder and transmitter.

The transcript of this encounter indicates that Dr. Wisneski asked her to leave and offered to bodily evict her. Although Phillips explained that she was there to pay her medical bill, she later admitted she had no money on her at the time. After making several ambiguous sexual overtures, the import of which the doctor seemed to miss, Phillips apparently made a visual gesture which he did comprehend. Thereupon, she performed oral sex on him. Only immediately after this act did she ask that the doctor write a prescription for 30 Preludin in her maiden name.

Officer Goethal testified that he instructed Phillips to do only what she would normally do when she went to the defendant’s office. At a previous administrative hearing, the officer testified that the instructions were "not to go in and do that [oral sexual contact] unless that’s what she had to do”.

Michigan has adopted the objective test for entrapment which focuses on police conduct rather than the individual defendant’s predisposition to commit the offense. People v Turner, 390 Mich 7; 210 NW2d 336 (1973). The character or propensities of a particular defendant are totally irrelevant to the entrapment determination. People v Cushman, 65 Mich App 161; 237 NW2d 228 (1975). If the methods used by the police are repugnant to fair play and justice, the courts, in an attempt to discourage the practice and to uphold confidence in the fair and honorable administration of justice, will refuse to permit prosecution. The real concern in entrapment cases is "whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand”. People v Turner, supra, 22.

For the court to determine whether the police conduct was of such a nature that it would induce the commission of a crime by an otherwise unwilling or unready person, the facts of each case must be examined. People v Fraker, 63 Mich App 29; 233 NW2d 878 (1975).

Phillips testified that Dr. Wisneski refused to fill her request for a prescription on April 27, 1979. His refusal is emphasized by the doctor’s patient information memorandum of that date which states:

"Patient wants 'speed’ to sell — told her no way. Discouraged return for any type of prescription needs in future. She has made appointment to see Dr. Dickson in our building for today. Made offer of $50 for 15 speed.”

At the officers’ request, Phillips returned the next day. The recording of her subsequent encounter with Dr. Wisneski indicates a very unwilling defendant. Surprised by Phillips’ visit, Dr. Wisneski variously told her to, "get out of here”, "I’m a busy man”, and "I may have to [bodily throw you out]”. In the face of this resistance, Phillips then performed fellatio upon the doctor in order to "soften him up”. Only after the doctor was so seduced did she repeat her request of the previous day for a prescription. He acceded.

There is no question that Phillips was a police agent, People v Stanley, 68 Mich App 559; 243 NW2d 684 (1976), and thus her conduct in conjunction with that of the police must be examined to see if it was "reprehensible under the circumstances”. People v Turner, supra, 22. We find it was.

When officers Goethal and Ellenbaas told her "not to go in and do that [engage in fellatio] unless that’s what she had to do”, they were tacitly encouraging her to induce the doctor to write the illegal prescription.

As a majority of the panel in People v Cushman, supra, 166, stated:

"The court’s attention should be focused on the conduct of the police and whether that conduct has in a reprehensible manner instigated the commission of a crime by one not ready and willing to commit it— regardless of the propensities of the particular person induced.”

Police encouragement of an agent’s use of sex to induce one who is unwilling and unready to commit a crime constitutes entrapment. Although the relationship between Phillips and Dr. Wisneski was created independent of any police involvement, People v Duis, 81 Mich App 698; 265 NW2d 794 (1978), it was at the direction of the police that this friendship was "kept alive solely for the purpose of inducing defendant to sell drugs”. The instant case is distinguishable from People v Irma Perry, 75 Mich App 121; 254 NW2d 810 (1977), which most closely deals with the use of sex in entrapment. Unlike Perry, however, Dr. Wisneski initially resisted Phillips’ request for an illegal prescription. And more importantly, the sexual activity here was not incidental to, but rather the inducement to the criminal transaction.

We note that the doctor’s path is difficult enough without subjecting him to police conduct of this kind.

This Court possesses the authority to decide the entrapment issue as a matter of law rather than remanding the case to a trial judge when the defendant’s testimony is considered as true or the evidence is uncontroverted. People v Fraker, supra, People v Henley, 54 Mich App 463; 221 NW2d 218 (1974), People v Ramon, 86 Mich App 113; 272 NW2d 124 (1978).

Reversed and defendant discharged.

Beasley, J. concurred.

G. E. Bowles, J.

(dissenting). Defendant had been the physician of Betty Jean Phillips, the chief prosecution witness, for four years. Since 1976 he had prescribed drugs for her and treated her during a hospitalization for a drug overdose. She testified that defendant was one of her drug sources and that she had received drugs from him in exchange for sexual favors.

Ms. Phillips contacted the vice squad, of the Grand Rapids Police Department on April 26, 1979, because she wanted to kick her addiction to Preludin and speed. The officers took Ms. Phillips to defendant’s office and told her to "go up there and to do what you would normally do” and "not to do anything out of the ordinary”. Defendant did not see her on April 27th, a Friday, but told her to return on Saturday, April 28th when his receptionist would not be working. Ms. Phillips returned to defendant’s office on April 28, 1979, equipped with a recording device. At the outset the two played what Ms. Phillips called their usual "silly game”, defendant asking her why she was there and telling her to leave because he was too busy to see her. She said she was there to pay her bill and offered to pay in money. After a suggestive gesture by Ms. Phillips, she participated in an act of fellatio with defendant and, at the conclusion, asked the defendant for another prescription for Preludin. Defendant wrote her a prescription for 30 pills. The prescription was written after Ms. Phillips told him that she could sell them all.

The majority relies in part on defendant’s notations on Ms. Phillips’ patient records in reaching its decision. However, these records are of dubious validity. Defendant’s record of Ms. Phillips’ April 28th visit contains a notation that defendant extracted a promise from her that she would never again return to his office. However, the truthfulness of this entry is not supported by Ms. Phillips or, more importantly, the transcript of the recording of the pair’s April 28th conversation.

As the majority notes, defendant did not see Ms. Phillips on April 27th. However, this should not be construed as evidencing resistance on the part of defendant to commit the illegal act. Defendant told her to return the following day, a Saturday. Defendant’s receptionist testified that his office hours were 9 a.m. to 3 p.m. Monday through Friday. Rather than indicating resistance, defendant’s refusal to see Ms. Phillips on April 27th may be viewed as indicative of his desire to see her alone when they could be free from interruptions.

Michigan recognizes the so-called objective test for entrapment. People v Turner, 390 Mich 7; 210 NW2d 336 (1973). The character or predisposition of the particular defendant is irrelevant to determining whether entrapment occurred. Central to the determination is whether the illegal conduct of the defendant was a product of police creativity. Turner, supra, 17. The mere fact that the actions of the police constitute the commission of a crime does not necessarily establish entrapment. There must be intolerable police conduct that institutes or instigates the crime. People v Moore, 73 Mich App 514, 517; 252 NW2d 507 (1977). The existence of a relationship between an informant and the defendant prior to police involvement is a factor to be weighed in determining whether the police conduct offends public policy. People v Irma Perry, 75 Mich App 121, 126; 254 NW2d 810 (1977).

The offense committed, delivery of a controlled substance by defendant, was not the product of the creativity of the police, nor did it result from any play on defendant’s sympathies. Ms. Phillips already had an appointment for Friday, April 27, 1979, with defendant to pay for a prescription she had received on April 24th before the contact with the police on April 26, 1979. The police gave instructions for her to "do what she normally did” and "not to do anything out of the ordinary”. That, in fact, is what happened; she did what she normally had done. Defendant gave her Preludin in exchange for sex.

Significantly, the tape recording of the April 28th conversation shows that defendant and Ms. Phillips played a game, defendant pretending that he wanted her to leave. Further, before the sexual act Ms. Phillips offered to pay her bill in money and defendant did not accept it. When he gave her the 30 Preludin pills he knew that she was going to sell "every one”.

Ms. Phillips did not play on defendant’s sympathy. The pills were not for her own use, but rather, were for resale. Under current case law, before an appeal to sympathy can constitute entrapment, it must be shown that the appeal was to human emotions and motivations which can be characterized as arising for man’s better nature. An offer to satisfy someone’s sexual desires is not an appeal to sympathy under the cases; it is hardly an appeal to man’s better nature. People v Duis, 81 Mich App 698; 265 NW2d 794 (1978), People v Rowan, 76 Mich App 124; 255 NW2d 791 (1977), People v Soper, 57 Mich App 677; 226 NW2d 691 (1975).

At most defendant was given an opportunity to commit the charged offense by the activity of Ms. Phillips and the police. This opportunity, one might add, had been seized by defendant on previous occasions. There was no inducement or incitement by the police within the contemplation of the law.

A trial court’s finding that no entrapment occurred is subject to appellate review under the clearly erroneous standard. People v D’Angelo, 401 Mich 167, 183; 257 NW2d 655 (1977). Furthermore, defendant has the burden of proving the entrapment defense by a preponderance of the evidence. In the instant case, the trial court’s finding that entrapment had not been proven was not clearly erroneous.

The entrapment defense is calculated to protect society in those situations where the police conduct is so reprehensible that the court as a matter of public policy will not permit such conduct to result in a conviction. See United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973) (Justice Stewart dissenting). Police should not be permitted to manufacture crime. However, this is not such a case.

I would affirm.

        People v Turner, 390 Mich 7; 210 NW2d 336 (1973).


author: Per Curiam.

text:
    AETNA LIFE INSURANCE COMPANY v BROOKS
    Docket No. 78-4805.
    Submitted January 17, 1980, at Detroit.
    Decided March 18, 1980.
    Leave to appeal denied, 409 Mich 892.
    Aetna Life Insurance Company issued a $25,000 life insurance policy to Chrysler Corporation insuring the life of Lee F. Lamirand, an employee of Chrysler. Lamirand died. William G. Brooks was the designated beneficiary on the policy as issued. Steve J. Jarson and Robert Gresser claimed benefits under the policy by virtue of an alleged change of beneficiary executed by Lamirand and submitted to Chrysler Corporation. The change of beneficiary was made on a group accident insurance form which was allegedly delivered but there is no record that either Chrysler or Aetna ever received a copy of the original. Aetna filed a complaint in interpleader joining Brooks and Jarson and GresSer. After payment of the proceeds of the policy to the court, Aetna was discharged from the case. The question presented was whether Lamirand had successfully changed his beneficiary from Brooks to Jarson and Gressor. Judgment for Jarson and Gresser, Wayne Circuit Court, Daniel J. Van Antwerp, J. Brooks appeals, alleging that the court erred in admitting statements of the decedent into evidence, that the trial judge improperly admitted two irrelevant pieces of evidence— decedent’s will and a change of beneficiary form for group accident insurance — and that the trial court erroneously concluded that indicating different beneficiaries on a group accident insurance form suffices to change a beneficiary on a group life insurance policy. Held:

    1. Admission of the decedent’s statement was proper. The statement was for the limited purpose of showing Lamirand’s state of mind, specifically to show his intent and plan to change beneficiaries. Assertions indicative of a declarant’s state of mind have always been admissible when mental state is at issue.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 493.
    [2,3] 29 Am Jur 2d, Evidence § 496.
    [4] 29 Am Jur 2d, Evidence § 251.
    [5] 44 Am Jur 2d, Insurance §§ 1779, 1782.
    Change of beneficiary in old line insurance policy as affected by failure to ■ comply with requirements as to manner of making change. 19 ALR2d 5.

      2. The will clearly did not, and could not, effect a change of beneficiary. It was not introduced for this purpose but to show the insured’s intent and the continuity of his state of mind regarding Jarson and Gresser. Its admission for this purpose was entirely proper. The accident insurance form, which was used to change beneficiaries, could be viewed as a manifestation of the decedent’s intent to alter his life insurance beneficiary (since he had no group accident insurance). The trial court properly exercised its discretion in admitting the form.
    3. Substantial compliance with change-of-beneficiary requirements is sufficient to effect a substitution. Decedent’s policy required a written request to change beneficiaries. Decedent attempted to comply. He made a written request. It is irrelevant that he used the wrong form since any written expression was sufficient under policy terms. Therefore, there was substantial compliance. When an insured has done all he can to change a beneficiary the original beneficiary loses all rights under the policy.
    Affirmed.
    1. Evidence — Hearsay Rule — Exceptions to Rule,
    Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein; hearsay statements are excluded from evidence absent an applicable exception to the hearsay rule.
    2. Evidence — Hearsay Rule — State op Mind Exception — Rules of Evidence.
    State-of-mind evidence may be admitted under one of the exceptions to the hearsay rule (MRE 803[3]).
    3. Evidence — State of Mind — Admissibility.
    Assertions indicative of a declarant’s state of mind are admissible where that state of mind is material in the case.
    4. Evidence — Relevancy — Admissibility — Judge’s Discretion.
    Generally, relevant information will be admitted if the probative value substantially outweighs any prejudicial effect; admissibility rests within a trial judge’s discretion and his determination will not be set aside unless there has been an abuse of that discretion.

      5. Insurance — Change of Beneficiary — Procedure — Substantial Compliance — Loss of Rights.
    Substantial compliance with change-of-beneficiary requirements is sufficient to effect a substitution; where an insured has done all he can to change a beneficiary, the original beneficiary loses all rights under a policy.

      LaBarge & Dinning, P.C., for Steve J. Jarson and Robert Gresser.

      Fossee, Shehan & McMahon, for William G. Brooks.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   Per Curiam.

This appeal arises out of claims for benefits payable under a $25,000 life insurance policy issued by the plaintiff to Chrysler Corporation employees, including the decedent Lee F. Lamirand. Plaintiff filed a complaint in inter-pleader joining defendant-appellant William G. Brooks and defendant-appellees Steve J. Jarson and Robert Gresser. After payment of the proceeds of the policy to the Wayne County Circuit Court, the plaintiff was discharged from the case. Following a two-day trial on October 24 and 25, 1978, the judge awarded benefits to the appellees.

Appellant raises several issues on appeal. First, he asserts that the trial court erred in admitting statements of the decedent into evidence under a hearsay rule exception.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein. People v Hoerl, 88 Mich App 693, 701; 278 NW2d 721 (1979). Such statements are excluded from evidence absent an applicable exception to the hearsay rule. People v Haney, 86 Mich App 311, 316; 272 NW2d 640 (1978).

The new Michigan Rules of Evidence under which this case was tried provide an exception for "state-of-mind evidence”.

"Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.” MRE 803(3).

The dispute litigated below centered on whether the decedent successfully changed his life insurance beneficiary from appellant to the appellees. At trial, the judge permitted Jarson to testify regarding the decedent’s request for forms to change his policy, finding that such statement fell within the above state-of-mind exception.

Although it is a close question, we believe that the statement would be excludable hearsay if offered to prove that the decedent did procure the forms and alter his policy. However, the judge properly admitted it for the limited purpose of showing Mr. Lamirand’s state of mind, specifically, to show his intent and plan to change beneficiaries. Assertions indicative of a declarant’s state of mind have always been admissible when mental state has. been at issue, as in the instant case. See People v White, 401 Mich 482, 502-503; 257 NW2d 912 (1977). In re Traub Estate, 354 Mich 263; 92 NW2d 480 (1958). Therefore, admission of the decedent’s statement was proper.

Appellant also argues that the trial judge improperly admitted two irrelevant pieces of evidence — decedent’s will and a change of beneficiary form for group accident insurance.

Relevancy is now determined by the new Michigan rule of evidence which states:

" 'Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401.

Relevant information will generally be admitted if the probative value substantially outweighs any prejudicial effect. People v Oliphant, 399 Mich 472, 489-490; 250 NW2d 443 (1976). Admissibility rests within the trial judge’s discretion and his determination will not be set aside unless there has been an abuse of discretion. Jarecki v Ford Motor Co, 65 Mich App 78, 83; 237 NW2d 191 (1975).

Appellant asserts that decedent’s will was improperly admitted into evidence as it is irrelevant to the issue of the life insurance beneficiaries’ identities. The will clearly did not, and could not, effect a change of beneficiary. Dogariu v Dogariu, 306 Mich 392; 11 NW2d 1 (1943). Rather, it was introduced to show the insured’s intent and the continuity of his state of mind regarding the appellees. An admission for this purpose is entirely proper. Traub, supra, Harris v Copeland, 337 Mich 30, 34; 59 NW2d 70 (1953).

Appellant further attacks the relevancy of the admitted group accident insurance form. At trial, the parties agreed that the decedent had only one policy of Aetna insurance, the group life insurance, and did not, and could not, have group accident insurance, that the decedent had executed a change of beneficiary from appellant to appellee Steve Jarson in his Chrysler Thriftstock program, and that decedent had executed a change of beneficiary from appellant to appellee on a group accident insurance form. As the accident insurance form could be viewed as a manifestation of the decedent’s intent to alter his life insurance beneficiary (since he had no group accident insurance), we believe that the trial court properly exercised its discretion in admitting that form.

Finally, appellant contends that the trial court erroneously concluded that indicating different beneficiaries on a group accident insurance form suffices to change a beneficiary on a group life insurance policy.

Decedent’s insurance policy contained a provision which stated:

"An employee, whether or not employment has terminated, may designate a beneficiary and from time to time change his designation Of beneficiary by written request filed at the headquarters of the policy holder or at the home office of the insurance company. Such designation or change shall take effect on the date of designation of such request, whether or not the employee be living at the time of such filing but without prejudice to the insurance company on account of any payments made by it before receiving such request at its home office.” (Emphasis added.)

Decedent attempted to comply with this provision by indicating his change of beneficiary in written form. Allegedly, this form was delivered but never received by the insurance company.

It is well settled in Michigan that substantial compliance with change-of-beneficiary requirements is sufficient to effect a substitution. Harris v Metropolitan Life Ins Co, 330 Mich 24, 28; 46 NW2d 448 (1951), Aetna Life Ins Co v Owens, 318 Mich 129, 138; 27 NW2d 607 (1947). When an insured has done all he can to change a beneficiary, the original beneficiary loses all rights under the policy. Quist v Western & Southern Life Ins Co, 219 Mich 406, 409; 189 NW 49 (1922).

In Aetna Life Ins Co v Parker, 130 F Supp 97 (ED Mich, 1955) the deceased had a life insurance policy with Aetna almost identical to the instant one. He wrote in his sister’s name underneath the typed name of his wife in the designated area for listing beneficiaries. This altered copy of the certificate of insurance had not been delivered to the insurance company before the policy holder’s death. The court concluded that since there was substantial compliance with the policy’s terms, a change in distribution had been accomplished. It acknowledged that since neither a special form nor receipt of the request prior to death was necessary under the policy, decedent’s taking positive action indicating his intent was sufficient to change the beneficiary.

We believe that the trial court’s similar rulings in this case are correct. Decedent made a written request to change his beneficiary. It is irrelevant that he used the wrong form since he did not have an accident policy and since any written expression was sufficient under policy terms. Nor is it determinative that the form never was received by the insurance company, since the decedent himself complied fully with the policy requirements. See Parker, supra.

GCR 1963, 517.1 states that a trial court’s factual findings will not be set aside unless clearly erroneous. See also Smith v State Accident Fund, 403 Mich 201; 267 NW2d 909 (1978). We believe that the trial court’s conclusion, that the insured’s written request to change beneficiaries executed on an accident insurance form was in substantial compliance with the life insurance policy’s terms, is amply supported by the record and should not be overturned.

Affirmed.


author: Per Curiam. Bronson, P.J.

text:
    MOORE v FOSTER
    Docket No. 78-5168.
    Submitted December 5, 1979, at Grand Rapids.
    Decided March 18, 1980.
    Leave to appeal applied for.
    Viola Moore, individually and as administratix of the estate of Ernest R. Cooper, deceased, brought a medical malpractice action against Bradford S. Foster, M.D., in Emmet Circuit Court. Martin B. Breighner, J., entered a judgment in favor of defendant in accordance with a jury verdict of no cause of action. The plaintiff appeals, alleging 1) that the trial court’s instructions to the jury erroneously limited the issues to whether peritonitis was present in the decedent’s body at the time he was first examined by the defendant, whereas the plaintiffs theory of malpractice depended on the defendant’s failure to recognize and properly act upon a hard or surgical abdomen, rather than upon thé existence of any specific disease, and 2) the trial court erred in allowing defendant’s expert, a pediatrician, who stated that he was unfamiliar with the standard of care of a general practitioner, to testify as to the higher standard of care of a specialist. Held:

      1) The trial court erred in stating that the plaintiffs recovery was predicated on a finding that the decedent was suffering from peritonitis at the time that the defendant examined him. However, when the trial court’s instructions are read as a whole, a more correct formulation of the issues was given. Thus, any error in the formulation of the issues was harmless, especially since it was immediately followed by a reading of the parties’ theories of the case.
    2) There is nothing to preclude a defendant doctor from bringing a specialist to testify on his behalf that the defendant’s standard of conduct was proper even under the higher standard of care of a specialist.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 894.
    Propriety and effect of instructions in civil case on the weight of reliability of medical expert testimony. 86 ALR2d 1038.
    [2] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§106, 198, 202, 203.
    Necessity of expert evidence to support an action for malpractice against a physician or surgeon. 81 ALR2d 597.
    [3] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 199 et seq.

    [4] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§213, 214.

      Affirmed.
    Bronson, P. J., dissented. We would hold that the trial court’s formulation of the issues unfairly limited the scope of the plaintiffs case and he would reverse and remand for a new trial.
    Opinión of the Court
    1. Jury — Instructions to Jury — Appeal.
    Jury instructions must be reviewed as a whole and not by selected excerpts; if, on balance, the theories of the parties and the applicable law are adequately and fairly represented to the jury, the instructions are not erroneous.
    2. Negligence — Medical Malpractice — Physicians and Surgeons — Evidence — Standard of Care.
    A plaintiff, in a medical malpractice action, must produce medical testimony to the effect that what an attending physician did was contrary to the practice in that community or similar communities, or that the physician omitted doing something which was ordinarily done in that community or similar communities; the plaintiff must also show by medical evidence that the physical condition for which he claims damages was caused by the alleged negligence of the defendant; in other words, a physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice.
    3. Negligence — Medical Malpractice — Physicians and Surgeons — Witnesses — Specialists — General Practitioners — Standard of Care.
    A plaintiff in a medical malpractice action may not have a specialist testify on a defendant’s breach of the standard of care of a general practitioner unless the specialist is,familiar with that standard of care; however, this rule does not preclude a defendant doctor from calling a specialist to testify on the defendant’s behalf that the conduct in question was proper even under the higher standard of care for a specialist.
    Dissent by Bronson, P.J.
    4. Negligence — Medical Malpractice — Physicians and Surgeons — Instructions to Jury — Existence of Specific Disease.

      Instructions to the jury in a medical malpractice action which

      gave the impression that the liability of the defendant physician was predicated on the existence of, and failure to diagnose, a speciSc condition may not be viewed as harmless error where such a formulation of the issue unfairly limited the scope of the plaintiffs case which was not predicated upon the existence of any speciñc condition.

      Sumpter, Harrington & Loznak, P.C., for plaintiff.

      Carpenter, Fenner, Barney & Hofmann, for defendant.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   Per Curiam.

The plaintiff instituted a medical malpractice action against the doctor who treated her 4-year old son, Ernest R. Cooper, now deceased. She appeals as of right from a jury verdict of no cause of action in favor of the defendant.

At about 7 p.m. on February 3, 1975, the plaintiff brought her son to the emergency room of the McDonald-Lockwood Hospital in Petoskey, Michigan, where he was treated by the defendant. The child’s symptoms included a runny nose, coughing, vomiting, fever, and a distended stomach. Dr. Foster examined the boy, took his temperature, and felt his stomach. When defendant was palpating the abdomen, he did not elicit a pain response and instead caused the child to laugh. Dr. Foster diagnosed the illness as tonsilitis, gave the boy a penicillin shot, and sent him home. Ernest Cooper died 30 hours later.

Dr. Mikhail, the pathologist who performed the autopsy, stated that the cause of death was acute generalized peritonitis due to perforation of the jejunum, or small intestine. The pathologist surmised that the perforation could have been caused by a small bone fragment which punctured the bowel wall. In direct examination Dr. Mikhail estimated the onset of peritonitis in the decedent as roughly 36 to 48 hours prior to his death. During cross-examination, he admitted that this was at best a rough estimate and that onset could have occurred a mere 12 hours prior to death, due to a variety of factors and differences in physical makeup between individuals. Dr. Mikhail was unable to determine whether the decedent had tonsilitis, since removal of tonsils after death necessitates surgery and disfigures the head. All of the medical experts who testified for both parties stated that a person suffering from peritonitis would normally exhibit symptoms of abdominal pain and tenderness. They agreed that a rigid or board-like abdomen is characteristic of peritonitis,

In her complaint, the plaintiff alleged, inter alia, that the defendant was negligent in failing to take a proper medical history, in failing to recognize that decedent had an acute or surgical abdomen, in failing to perform blood tests or other laboratory studies or x-rays, and in failing to admit the decedent to the hospital.

The most significant issue raised on appeal involves the trial judge’s jury instructions wherein he sua sponte framed the ultimate issues in the case as follows:

"The first issue is as follows: Was peritonitis present in the body of Ernest R. Cooper when Dr. Foster saw him on February 3, 1975. I conceive this to be an issue in the case.

"Second: If so, was Dr. Foster negligent in not diagnosing this condition on that date, or was he negligent in not requiring further testing and investigation of Cooper’s condition.

"And three: If you find Dr. Foster was negligent, you must determine if his negligence, failure to recognize peritonitis, or failure to seek appropriate testing and/or investigation and consultation with other physicians, was a proximate cause of Ernest R. Cooper’s death.”

Immediately afterward, the trial judge read the parties’ theory of the case.

The plaintiff alleges that the aforesaid instructions erroneously limited the issues to whether peritonitis was present in the decedent’s body at the time he was first examined by the defendant, whereas her theory of malpractice depended on defendant’s failure to recognize and properly act upon a hard or surgical abdomen, rather than upon the existence of any specific disease.

We note that the instructions of a trial judge must be reviewed as a whole and not by selected excerpts. Froling v Bischoff, 73 Mich App 496, 503; 252 NW2d 832 (1977). If, on balance, the theories of the parties and the applicable law are adequately. and fairly presented to the jury, there is no reversible error. Berlin v Snyder, 89 Mich App 38, 41; 279 NW2d 322 (1979).

In a medical malpractice case, the plaintiff must produce medical testimony to the effect that what the attending physician did was contrary to the practice in that or similar communities, or that he omitted doing something which was ordinarily done in that or similar communities. Daniel v McNamara, 10 Mich App 299, 306; 159 NW2d 339 (1968), Skeffington v Bradley, 366 Mich 552, 555; 115 NW2d 303 (1962). The plaintiff must also show by medical evidence that the physical condition for which he claims damages was caused by the alleged negligence of the defendant. Miles v Van Gelder, 1 Mich App 522, 536; 137 NW2d 292 (1965). In other words, a physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice. McPhee v Bay City Samaritan Hospital, 10 Mich App 567, 570; 159 NW2d 880 (1968).

We would conclude that the trial judge erred in stating that plaintiffs recovery was predicated on a finding that the decedent was suffering from peritonitis at the time that defendant examined him. A more correct formulation of the issue would have required the jury to find malpractice if, upon the symptoms exhibited by the decedent at the time that defendant examined him, customary medical practice would have required further laboratory tests, x-rays, or immediate admission to the hospital. However, this is the import of the trial court’s issues 1, 2 and 3 when read together. Thus, we would hold that any error in the formulation of the issues was harmless, especially since it was immediately followed by reading the parties’ theories of the case. Based upon the evidence, reaffirmed by the plaintiff herself, that the child did not complain of any abdominal pain and laughed when the defendant examined his abdomen, we cannot say that the erroneous formulation of the issues would have affected the jury’s verdict.

The plaintiff also alleges that the trial court erred in allowing defendant’s expert witness, a pediatrician, who stated that he was unfamiliar with the standard of care of a general practitioner, to testify as to the higher standard of care of a specialist. However, we find that the plaintiff misconstrues the purpose of the rule concerning the standard of care.

MCL 600.2912a; MSA 27A.2912(1):

"Sec. 2912a. In an action alleging malpractice the plaintiff shall have the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:

"(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.

"(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.”

Under the statute, the plaintiff could not have brought a specialist to testify on the defendant’s breach of the standard of care of a general practitioner unless he was familiar with that standard of care. See Siirila v Barrios, 398 Mich 576, 593; 248 NW2d 171 (1976). That rule is designed to protect the defendant from being compared with the higher standard of care required from one who holds himself out as an expert in the field. However, we see nothing in this rule to preclude a defendant doctor from bringing a specialist to testify on his behalf that the conduct in question was proper even under the higher standard of care.

We have examined the remainder of the plaintiff’s allegations and find them to be free of reversible error.

Affirmed.

Bronson, P.J.

(dissenting). I agree with the majority that the trial court’s sua sponte statement of the issues was erroneous in that it predicated liability on a finding that decedent was suffering from peritonitis at the time of defendant’s examination. I must respectfully dissent, however, from the majority’s conclusion that such a framing of the issues was harmless error.

I cannot reach the conclusion that, taken together, the three issues as formulated by the trial court correctly stated the case. Each of the three issues directly or indirectly referred to peritonitis. Taken together, the impression still remains that liability is predicated on the existence of, and failure to diagnose, peritonitis. Formulating the issues in this manner unfairly limited the scope of plaintiff’s case, and, coming as it did from the bench, the trial court’s statements undoubtedly had a great impact on the jury and should not be considered harmless.

I would reverse and remand for a new trial.


text:
    BADOUR v ZIFKIN
    Docket No. 43289.
    Submitted February 7, 1980, at Detroit.
    Decided March 18, 1980.
    Plaintiffs, George H. and Dorothy Badour, Jr., entered into a land contract to sell parcels #1, 4 and 5 of a large tract they owned to Loretta Zifkin. The contract limited the liability of the buyer in the event of default to the payments already made at the time of default, which the seller was entitled to keep. Loretta Zifkin assigned her interest with respect to the land contract to Hampton Estates Company, a Michigan copartnership consisting of Anthony V. Ciaramitaro and Leo Zifkin. An amendment to the land contract was entered into between the Badours and Hampton Estates for the purchase of parcels 2 and 3, which were conveyed to Hampton Estates in exchange for a promissory note signed by the copartners and their wives. Hampton Estates sold parcels 2 and 3 to Chateau Estates, a copartnership consisting of John A. Boll, Joseph P. Ministrelli, Charles Trombley and John Trombley. Chateau Estates agreed to pay certain obligations of Hampton Estates including the amount left owing on the amended land contract. Chateau Estates defaulted, and the Badours obtained a judgment of forfeiture on parcels 4 and 5 (parcel 1 having been previously transferred in fee). Plaintiffs then commenced an action against Leo Zifkin, Loretta Zifkin, his wife, Anthony V. Ciaramitaro, and Stephanie Ciaramitaro, his wife, on the promissory note. Loretta Zifkin was never personally served. Defendants filed a third-party claim against Chateau Estates and its partners. The Macomb Circuit Court, George R. Denewith, J., entered a judgment of no cause of action on the third-party complaint and a judgment against Leo Zifkin, Anthony V. Ciaramitaro and Stephanie Ciaramitaro on the note, holding:
    That the original land contract provided that parcels 1, 4 and 5 were to be conveyed by warranty deeds, which were to be placed in escrow to be released upon payment to the Badours of $4,000 per acre;

      References for Points in Headnotes
    [1] 30 Am Jur 2d, Evidence §§ 1040, 1052, 1069 et seq.

    [2] 46 Am Jur 2d, Judgments § 542 et seq.

      That, at the time that this land contract was assigned to Hampton Estates, the copartnership was negotiating for an FHA loan for the purpose of constructing a trailer park upon the subject property. This endeavor required the purchase of the entire five parcels of plaintiffs property;
    That, to this end, the Badours and Hampton Estates amended the land contract to include parcels 2 and 3. The amended contract provided for the conveyance of parcels 2 and 3 upon the payment of a promissory note for $22,515 by the Ciaramitaros and Zifkins on or before February 24, 1975;
    That, to secure a loan commitment from FHA, however, Hampton Estates had to obtain an immediate release of parcels 1, 2 and 3 from the land contract. Fee title to parcel 1 was obtained by Hampton’s promise to pay the Badours $176,000 out of money secured from the FHA guaranteed mortgage. Fee title to parcels 2 and 3 was obtained at the time of execution of the aforementioned promissory note by the principals of Hampton. The release of these properties occurred at the same time as execution of the amended land contract;
    That, therefore, when the amended land contract was assigned to Chateau Estates, although it purported to deliver an interest in parcels 2 and 3, it did not, as fee title to parcels 2 and 3 was in Hampton Estates in exchange for the promissory note of its principals. Foreclosure upon the amended land contract by the Badours against Chateau Estates, then, did not preclude the Badours from proceeding against Hampton Estates on the promissory note. And, as a consequence, the Zifkins and Ciaramitaros were jointly responsible for the note to the Badours.
    Defendants Ciaramitaro appeal. Held:

    1. The forfeiture proceeding for the recovery of parcels 4 and 5 did not bar the subsequent proceeding on the promissory note.
    2. Since the land contract and promissory note were ambiguous, the trial court did not err in permitting the introduction of parol evidence to explain the relation of the parties and the attending circumstances as an aid to interpreting or construing the ambiguity.
    3. Failure to obtain a judgment against one of four obligations who are liable on a promissory note jointly and severally by the terms of the note does not render the judgment against the other obligors ineffective.
    Affirmed.

      1. Evidence — Parol Evidence'— Ambiguities.
    Parol evidence is competent to show the relations of parties and attending circumstances as an aid in interpreting or construing a written instrument which is uncertain and ambiguous.
    2. Judgments — Joint and Several Liability.
    Failure to obtain a judgment against one of four obligors who are liable on a promissory note jointly and severally by the terms of a note does not render a judgment against the other obligors ineffective.

      Giltner, Walsh, Charters & Parker, P.C., for plaintiff.

      Stephen A. Crane, for defendants Ciaramitaro.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr. and R. M. Maher, JJ.
   Per Curiam.

Defendants • Anthony V. Ciaramitaro and Stephanie Ciaramitaro appeal as of right from an August 29, 1978, decision of the Macomb County Circuit Court awarding plaintiffs George and Dorothy Badour $22,515, with interest, on a promissory note executed on April 15, 1971, by Leo Zifkin and Loretta Zifkin, his wife, and Anthony V. Ciaramitaro and Stephanie Ciaramitaro, his wife.

On February 25, 1970, plaintiffs, George and Dorothy Badour, entered into a land contract to sell 71.51 acres of land they owned in Hampton Township, Bay County, Michigan, to Loretta Zifkin. This land consisted of parcels #1,4 and 5 of a larger unit owned by plaintiffs. The land contract contained a provision limiting liability of the parties in the event of breach. The purchaser’s liability was limited to the down payment and any additional payments made on the land contract. The seller’s remedy for default was the retention of any and all sums paid under the contract.

On February 5, 1971, Loretta Zifkin assigned her right, title and interest with respect to the land contract to Hampton Estates Company, a Michigan copartnership consisting of Anthony V. Ciaramitaro and Leo Zifkin. On April 15, 1971, an amendment to the land contract was entered into between the Badours and Hampton Estates Company. The amendment provided for the additional purchase of parcels 2 and 3 of plaintiffs’ property.

However, at the time the land contract amendment was executed, the Badours conveyed parcels 2 and 3 to Hampton Estates. In return, the Zifkins and the Ciaramitaros executed a promissory note to the Badours in the amount of $22,515, payable on or before February 24, 1975, with interest at seven percent per annum.

On September 12, 1973, Hampton Estates Company sold the property described in the amended land contract to Chateau Estates, a Michigan co-partnership consisting of John A. Boll, Joseph P. Ministrelli, Charles Trombley and John Trombley. Chateau Estates assumed and agreed to pay certain obligations of Hampton Estates Company, including payment of an indebtedness in the principal amount of $95,795 in accordance with the terms and conditions of the amended land contract.

Chateau Estates subsequently defaulted on the amended land contract. The Badours brought a forfeiture action on the land contract against Chateau Estates, seeking to proceed against parcels not previously conveyed to Hampton Estates. An amended judgment of forfeiture was granted in the 74th District Court of Bay County on November 4, 1975, providing for forfeiture of the property described in the complaint. On June 22, 1976, the Badours commenced this action for recovery on the promissory note against the Zifkins, the Ciaramitaros and Chateau Estates. The, Ciaramitaros filed a third-party complaint against Chateau Estates. A bench trial was held on August 22, 1978.

The trial court awarded recovery to the Badours against the Zifkins and the Ciaramitaros but dismissed the Ciaramitaros’ third-party complaint against Chateau Estates. In essence, the court found:

That the original land contract provided that parcels one, four and five were to be conveyed by warranty deeds, which were to be placed in escrow to be released upon payment to the Badours of $4,000 per acre;

That, at the time that this land contract was assigned to Hampton Estates, the copartnership was negotiating for an FHA loan for the purpose of constructing a trailer park upon the subject property. This endeavor required the purchase of the entire five parcels of plaintiffs’ property;

That, to this end, the Badours and Hampton Estates amended the land contract to include parcels two and three. The amended contract provided for the conveyance of parcels two and three upon the payment of a promissory note for $22,515 by the Ciaramitaros and Zifkins on or before February 24, 1975;

That, to secure a loan commitment from FHA, however, Hampton Estates had to obtain an immediate release of parcels one, two and three from the land contract. Fee title to parcel one was obtained by Hampton’s promise to pay the Bad-ours $176,000 out of money secured from the FHA guaranteed mortgage. Fee title to parcels two and three was obtained at the time of execution of the aforementioned promissory note by the principals of Hampton. The release of these properties occurred at the same time as execution of the amended land contract;

That, therefore, when the amended land contract was assigned to Chateau Estates, although it purported to deliver an interest in parcels two and three, it did not, as fee title to parcels two and three was in Hampton Estates in exchange for the promissory note of its principals. The forfeiture action upon the amended land contract by the Badours against Chateau Estates, then, did not preclude the Badours from proceeding against Hampton Estates on the promissory note. And, as a consequence, the Zifkins and Ciaramitaros were jointly responsible for the note to the Badours.

The Ciaramitaros take issue with this conclusion. Their first contention is that the summary forfeiture proceedings on the land contract barred the subsequent action on the promissory note.

The trial court found that the promissory note involved a separate transaction dealing with separate parcels from those covered under the land contract. Thus, the forfeiture against Chateau did not include a forfeiture on parcels two and three. They were no longer under the land contract due to their release and conveyance by deeds from the Badours at the time of their receipt of the promissory note on April 15, 1971.

We have reviewed the district court record and found that the forfeiture in favor of the Badours against Chateau Estates provided for recovery of only parcels four and five of the amended land contract. This supports the trial court’s conclusion that parcels two and three were conveyed when the promissory note were executed. We reject defendants’ argument that the forfeiture proceedings barred plaintiffs’ action on the note. In a similar situation in McBride v Arends, 79 Mich App 440; 263 NW2d 5 (1977), this Court found that two separate contracts existed and that the summary proceedings resulting in the forfeiture of the land contract did not bar subsequent action on the bill of sale, promissory note and security agreement. The same conclusion is in order herein.

The defendants’ next contention is that the trial court erred in permitting the introduction of parol evidence to explain the terms of the unambiguous amended land contract and promissory note.

We find, however, that the amended land contract and the promissory note were ambiguous. The trial testimony of plaintiffs’ attorney indicated that, although parcels two and three were added to the description of property in the amended land contract, the deeds were transferred at the time the note was given and the ámendment to the land contract was drafted. The plaintiffs’ attorney further related that the note was intended to pay for the release of parcels two and three from the land contract. The trial testimony of George Badour reiterated these assertions. He stated that he deeded parcels two and three in exchange for the promissory note, that the language "to further secure same” on the note was understood by him to provide the Badours with additional security, and that the amendment to the original land contract to include the $22,515 was for bookkeeping purposes only.

There were other indications that the amended land contract did not transfer the interest it purported to transfer. One such example is the fact that plaintiffs’ forfeiture proceeding against the amended land contract assignee, Chateau Estates, only encompassed parcels four and five of the subject property.

Since the land contract and promissory note were ambiguous and since parol evidence is competent to show the relations of parties and attending circumstances as an aid in interpreting, or construing, a written instrument which is uncertain and ambiguous, Piasecki v Fidelity Corporation of Michigan, 339 Mich 328, 337; 63 NW2d 671 (1954), we find the trial court did not err in permitting the introduction of parol evidence herein.

Lastly, defendants claim that the plaintiffs, by electing to sue all of the four obligors jointly in one suit and then failing to obtain a proper judgment against one of them, rendered the judgment against the remaining three obligors unenforceable. Specifically, defendants argue that the fact that Mrs. Zifkin, a joint obligor under the note, was not properly served with process renders any judgment obtained against the remaining three obligors ineffective.

We find this issue without substance. The promissory note, by its very language, rendered its coobligors join fly and severally liable. Plaintiffs initiated this action against these four co-obligors jointly and severally. Defendants’ arguments speak to a situation involving joint liability alone. In that situation, the common-law rule of required joinder would be in effect to support defendants’ claim. However, where liability is joint and several, the obligors may be proceeded against jointly or severally. See J. A. Fay & Co v James Jenks & Co, 78 Mich 312; 44 NW 380 (1889). Therefore, plaintiffs’ failure to obtain service of process over one of the co-obligors would not serve to defeat their claim.

Affirmed.