author: R. M. Maher, J.

text:
    WILLIAMS v WARDEN, MICHIGAN REFORMATORY
    Docket No. 77-3555.
    Submitted October 5, 1978, at Escanaba.
    Decided March 6, 1979.
    Plaintiff Ted Williams, an inmate of the Michigan Reformatory at Ionia, brings an original action in the Court of Appeals for mandamus seeking to compel the warden of the reformatory to restore his good-time credits previously forfeited by order of the warden. Plaintiff contends he was not afforded due process in connection with such forfeitures. Held:

    The plaintiff’s assaults upon another inmate are the type of conduct falling within the class of infractions for which forfeiture of good-time credits may result only if authorized by duly promulgated rules by the Director of Corrections. No such rules have been promulgated, therefore, the forfeiture of plaintiff’s good-time credits was not within the warden’s power and was a denial of due process of law.
    The petition for a writ of mandamus is granted. Defendant will restore to the plaintiff the good-time credits forfeited.
    1. Prisons — Good-Time Allowances — Statutes.
    A convict’s sentence may be reduced for each month of good conduct served by the convict in accordance with the schedule set out in the statute regarding good-time allowances (MCL 800.33; MSA 28.1403).
    2. Prisons — Good Time — Forfeiture Rules — Administrative
    Procedures Act — Guidelines — Rules — Statutes.
    The good-time statute authorizes the Director of Corrections to provide for the forfeiture of good-time credits earned by a convict for any infraction of the prison rules by promulgating rules governing such forfeitures in compliance with the Administrative Procedures Act; the Administrative Procedures Act provides that an agency shall not adopt a guideline in lieu of a rule (MCL 24.226, 800.33; MSA 3.560[126], 28.1403).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 533.
    60 Am Jur 2d, Penal and Correctional Institutions § 58.

       60 Am Jur 2d, Penal and Correctional Institutions § 64.
    Withdrawal, forfeiture, modification, or denial of goodtime allowance to prisoner. 95 ALR2d 1262.

      3. Prisons — Good Time — Forfeiture Rules — Special Orders — Serious Acts of Insubordination — Escape — Statutes.
    A convict’s good-time credits may be forfeited for one or more infractions of prison rules in any month in accordance with rules promulgated by the Director of Corrections delineating how much good time shall be forfeited or by special order of the warden where there is a serious act of insubordination, attempt to escape or escape; a convict must escape, attempt to escape, or commit an act both serious and insubordinate in order to be punishable by special order of the warden (MCL 800.33; MSA 28.1403).
    Ted Williams, in propria persona, and Dawn Van Hoek, Assistant State Appellate Defender, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas L. Casey, Assistant Attorney General, for defendant.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   R. M. Maher, J.

Plaintiff, an inmate of the Michigan Reformatory at Ionia, brings this original action for mandamus, seeking to compel the defendant warden to restore 7 months, 26 days of good time previously forfeited by order of the warden. We hold that plaintiffs good time was improperly forfeited, and that mandamus should issue.

Plaintiff was twice accused of assault upon another inmate, and was twice found guilty in .prison disciplinary proceedings. Following each incident plaintiffs accumulated good time was ordered forfeited by the warden, as recommended by the disciplinary officers. Plaintiff contends that he was not afforded due process of law in connection with these forfeitures, and we agree.

The good time statute, MCL 800.33; MSA 28.1403, provides for a reduction of a convict’s sentence for each month of good conduct, according to a schedule set out in the statute. The same statutory section also provides for forfeiture of accumulated good time, as follows:

"The commissioner of corrections may, by general rule, subject to amendment from time to time and subject to general rules promulgated in compliance with the provisions of Act No. 88 of the Public Acts of 1943, as amended, being sections 24.71 to 24.82, inclusive, of the Compiled Laws of 1948, prescribe how much of the good time earned under the foregoing provisions a convict shall forfeit for 1 or more infractions of the prison rules in any month, and for any serious act of insubordination, attempt to escapé, or escape, the warden may, by special order, take away any portion of the whole of the good time made by any convict up to the date of such offense.”

The quoted portion of the good time statute clearly authorizes the Director of Corrections to provide for forfeiture of good time for any infraction of prison rules by promulgating rules governing such forfeitures in compliance with the Administrative Procedures Act. We note with approval that the director has recently promulgated rules defining resident misconduct and providing certain penalties therefor, including loss of good time "in accordance with guidelines established by the department”, 1977 AACS, R 791.5505. We will assume that guidelines have been established; however, the Administrative Procedures Act, under which the good-time rules must be promulgated, specifically provides, MCL 24.226; MSA 3.560(126): "An agency shall not adopt a guideline in lieu of a rule”. The good time statute requires the formulation of rules, not guidelines, and the director has failed to promulgate such rules.

In the absence of properly promulgated rules delineating how much good time shall be forfeited for one or more infractions of prison rules in any month, good time may be forfeited by special order of the warden only for a serious act of insubordination, attempt to escape or escape. The infractions charged against plaintiff were clearly not escapes or attempts to escape. Nor do we believe that the term "insubordination” may be interpreted so broadly as to encompass plaintiff’s conduct. The statute authorizes loss of good time by special order only for serious acts of insubordination. We interpret this to mean that the offense must fulfill both criteria to be punishable under the statute. Thus an act which is unquestionably insubordinate, but which represents little, if any, threat to institutional order, may not result in forfeiture of good time by special order. By the same token, an infraction of the rules which, though serious, does not constitute the sort of open defiance of authority which is insubordination may not be summarily punished under this provision. To hold otherwise would lead to absurd results. Theft from another inmate, for example, could be punished as insubordination, although it clearly does not represent a challenge to or defiance of the prison authorities. Likewise, refusing to make one’s bed could result in loss of good time by special order, even though such an act presents little threat to good order in the prison.

Plaintiff’s conduct falls within the class for which forfeiture of good time may result only if authorized by duly promulgated rules, cf. Pfefferle v Corrections Comm, 86 Mich App 366; 272 NW2d 563 (1976). No such rules having been promulgated, forfeiture of plaintiff’s good time was not within the power of the warden.

The good time statute establishes a procedure by which the department of corrections may forfeit a convict’s good time. The department has chosen not to follow this procedure, yet it purports to have forfeited plaintiff’s good time. It is manifest that the action of the defendant, acting in disregard of the clear requirements of the statute, denied plaintiff the due process of law to which he is entitled, Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974).

We are aware of this Court’s decision in Heyman v Kropp, 24 Mich App 231; 180 NW2d 47 (1970), rejecting a claim that a forfeiture of good time for an assault was a denial of due process. We note that Heyman was decided before the United States Supreme Court opinion in Wolff v McDonnell, supra, and would appear to be overruled by that opinion. To the extent that Heyman v Kropp, supra, holds that MCL 800.33; MSA 28.1403 establishes no procedure for forfeiture of good time, we decline to follow it.

Because we find that forfeiture of plaintiff’s good time was improper under MCL 800.33; MSA 28.1403, we do not consider whether the actual procedure at the hearings complied with the requirements of Wolff v McDonnell, supra.

The petition for a writ of mandamus is granted. Defendant will restore to plaintiff 7 months and 26 days of good time.

D. E. Holbrook, J., did not participate.

       Act No. 88 of the Public Acts of 1943 was repealed by the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq. Reference to the repealed act is now deemed to be a reference to the APA, see MCL 24.312; MSA 3.560(212).

       The rule-making power formerly vested in the Commissioner of Corrections now reposes in the Director of Corrections, subject to approval of the Corrections Commission, see MCL 791.206; MSA 28.2276.

       The Xerox copies of prison records which were furnished us in lieu of the originals reveal significant gaps in documentation of hearing procedures. Wolff v McDonnell, cited in text, supra, mandates that an accused inmate be given written notice of the charges no less than 24 hours before the disciplinary hearing. In the first assault charged, no such notice appears in the record furnished us by prison officials, although what purports to be a copy of such notice is attached as an appendix to defendant’s brief. Wolff also provides that the inmate be afforded the opportunity to call witnesses in his defense, unless doing so would endanger the safety of the institution. The record does not reveal whether plaintiff was afforded the opportunity to present witnesses, or, if he was not, why not. Wolff leaves to the discretion of prison officials whether to grant the accused inmate the right to confront and cross-examine his accuser, based on a balancing of the inmate’s interest in cross-examination against the danger of disruption in the institution. There is nothing in the record to indicate whether the discretion conferred on prison officials was ever exercised, although in the case of the first assault plaintiff was found guilty solely on the basis of an officer’s written report of information he received from an inmate. Wolff also mandates that the inmate be given written findings stating what evidence forms the basis for the hearing board’s decision. In the two instances with which we are concerned, the only findings which appear on the hearing report are, in one case, "Guilty based on written report” and, in the other, "Based on written report and statement to the court by both Steve Adams and John Staten”. We question whether "findings” such as these will facilitate review by other bodies or protect the plaintiff "against collateral consequences based on a misunderstanding of the nature of the original proceeding”, Wolff, supra, 418 US at 565. On this record, we would be hard put to find that plaintiff was afforded the due process rights to which he is entitled under Wolff v McDonnell, supra.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v BERRY
    Docket Nos. 78-1169, 78-1170.
    Submitted August 31, 1978, at Detroit.
    Decided March 6, 1979.
    Joyce Berry, also known as Annette Williams, was convicted, on her plea of guilty, of armed robbery, assault with intent to rob while armed, and of two counts of possession of a firearm during the commission of a felony in the Recorder’s Court for the City of Detroit, Michael J. Connor, J. Defendant appeals alleging double jeopardy. Held:

    1. The rule against double jeopardy prohibits separate convictions on both felony-firearm and the underlying felony; therefore, the two felony-firearm convictions are set aside.
    2. The felony-firearm statute should be viewed and upheld as a sentencing enhancement and sentence augmenting measure; therefore, the defendant’s sentence as an augmentation of. the penalty for the underlying felonies is upheld.
    Reversed in part; affirmed in part.
    J. H. Gillis, P.J., concurred in part, and dissented in part. He agrees that double jeopardy prohibits separate convictions on both felony-firearm and the underlying felony and that the felony-firearm convictions should be set aside. However, because the convictions cannot stand, the additional punishment prescribed by the statute should not be imposed.
    Opinion of the Court
    1. Criminal Law — Felony-Firearm Statute — Statutory Construction — Legislative Intent — Sentence Augmenting Statute — Statutes.
    The felony-firearm statute should be viewed and upheld as a sentencing enhancement and sentence augmenting measure in light of the manifest intent of the Legislatúre in enacting the statute; the portion of the statute which delineates possession of a firearm during the commission of a felony as a separate and distinct offense should be construed as being inoperable (MCL 750.227b; MSA 28.424[2]).
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 182 et seq., 583-585.

      Concurrence in part, Dissent in part by J. H. Gillis, P.J.
    2. Criminal Law — Statutes — Felony-Firearm — Conviction — Punishment.

      The language of the felony-ñrearm statute is clear and unambiguous and no interpretation is necessary; the Legislature clearly intended to create an offense separate and distinct from the underlying felony and to impose a separate punishment for that offense; where a defendant’s conviction of a felony-ñrearm offense cannot stand, a punishment for that offense cannot be imposed for the commission of the underlying felony (MCL 750.227b; MSA 28.424[2]).

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

      Robert E. Slameka, for defendant.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Bashara, JJ.
   V. J. Brennan, J.

On October 11, 1977, defendant Joyce Berry pled guilty to armed robbery, MCL 750.529; MSA 28.797, assault with intent to rob while armed, MCL 750.89; MSA 28.284, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a total of 7 to 15 years in prison and brings this appeal by right.

Of the three issues raised by defendant on appeal only one merits discussion. We have held in People v Blount, 87 Mich App 501; 275 NW2d 21 (1978), that the rule against double jeopardy prohibits separate convictions on both felony-firearm and the underlying felony. In accordance with that opinion we set aside the two convictions for felony-firearm. However, the defendant’s sentence as an augmentation of the penalty for the underlying felonies is upheld.

Reversed in part; affirmed in part.

Bashara, J., concurred.

J. H. Gillis, P.J.

(concurring in part, dissenting in part). I agree with Judge Brennan’s opinion except for the last paragraph. I agree that the double jeopardy provisions of both the Michigan and United States Constitutions prohibit separate convictions on both the felony-firearm and the underlying felony and I would set aside the two convictions for felony-firearm and the penalty imposed as a result thereof. See my dissenting opinion in People v Moore, 87 Mich App 475; 275 NW2d 19 (1978).


author: Per Curiam.

text:
    WOODWARD v KEENAN (AFTER REMAND)
    Docket No. 30820.
    Submitted June 20, 1977, at Detroit.
    Decided March 6, 1979.
    Complaint by Victoria Woodward and Timothy J. Woodward, her husband, against P. Justin Keenan, M.D., South Bend Clinic, and Bertram W. Smith, M.D., in Berrien Circuit Court, for damages for medical malpractice. Julian E. Hughes, J., granted accelerated judgment for defendant P. Justin Keenan, M.D., and South Bend Clinic on the ground that the court lacked in personam jurisdiction. Plaintiffs appealed. The Court of Appeals remanded the matter to the trial court to determine the adequacy of the contacts by the doctor and clinic with the State of Michigan for purposes of jurisdiction in the Michigan courts, 79 Mich App 543 (1977). The trial court determined that the defendants maintained no contracts or referral services with anyone in the state, nor did they engage in any program designed to encourage Michigan residents to make use of the out-of-state clinic. Held:

    The doctor and the clinic lacked sufficient due-process ties with Michigan courts; therefore, the trial court’s grant of accelerated judgment for want of in personam jurisdiction should be affirmed.
    Affirmed.
    Courts — Jurisdiction — Out-of-State Defendants — Carrying on Business — Statutes.
    Michigan courts lack jurisdiction over an Indiana medical clinic where the clinic maintains no contracts or referral services with anyone in Michigan and does not engage in any program designed to encourage Michigan residents to make use of the clinic (MCL 600.705[1], 600.725[1]; MSA 27A.705[1], 27A.725[1]).
    References for Points in Headnote
    20 Am Jur 2d, Courts § 146.
    State’s power to subject nonresident individual other than a motorist to jurisdiction of its courts in action for tort committed within state. 78 ALR2d 397.

      Charfoos & Charfoos, P.C. (by Thomas H. Bleakley and J. Douglas Peters), for plaintiffs.

      Kitch & Suhrheinrich, P.C. (by Scott A. Saurbier), for defendants P. Justin Keenan, M.D., and South Bend Clinic.
    Before: D. C. Riley, P.J., and Bashara and P. R. Mahinske, JJ.

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

   Per Curiam.

In our original opinion, 79 Mich App 543; 261 NW2d 80 (1977), we remanded the matter to the trial court for limited discovery to determine the adequacy of defendants’ contacts with the State of Michigan for purposes of MCL 600.705(1); MSA 27A.705(1), MCL 600.725(1); MSA 27A.725QL). Pursuant thereto, the court below determined that defendants maintained no contracts or referral services with anyone in the state, nor did they engage in any program designed to encourage Michigan residents to make use of defendant clinic.

As defendants lacked sufficient due-process ties with this state making them amenable to the jurisdiction of our courts, we therefore affirm the court’s grant of accelerated judgment for want of in personam jurisdiction, GCR 1963, 116.1(1), in accordance with our prior decision.

No costs, the construction of statues being involved.

P. R. Mahinske, J., not participating.


text:
    PEOPLE v BASS
    Docket No. 77-2460.
    Submitted January 10, 1979, at Detroit.
    Decided March 6, 1979.
    Jerry L. Bass was convicted of unarmed robbery and as a fourth-time habitual offender in Recorder’s Court of Detroit, Joseph A. Gillis, J. He was sentenced to a term of 10 to 15 years imprisonment for the robbery and 20 to 30 years on the habitual offender conviction. Defendant appeals both the robbery conviction and the habitual offender supplementation. On appeal, defendant claims (1) that the trial judge, prior to the unarmed robbery trial, erred in refusing to permit defense counsel to question a prospective juror about her employment, (2) that error occurred as a result of the trial judge’s refusal to question a juror as to whether she believed that because defendant was on trial he must have committed some crime, (3) that the prosecutor’s closing argument to the jury in the unarmed robbery trial consisted of "civic duty” statements which constitutes reversible error even in the absence of objection, (4) that the trial judge erred in refusing his request for a new court-appointed attorney for the habitual offender trial, and (5) that he should not have been allowed to proceed pro se at the habitual offender trial because of his incompetence. Held:

    1. On voir dire,, a trial judge may exclude matters relating to a juror’s employment where this information is readily available to counsel through the use and review of juror questionnaires.

      References for Points in Headnotes

       47 Am Jur 2d, Jury §§ 198-202, 212.
    Examination of prospective jurors under Rule 24(2) of Federal Rules of Criminal Procedure. 28 ALR Fed 26.

       47 Am Jur 2d, Jury § 265 et seq., 321.

       47 Am Jur 2d, Jury §§ 268-321.
    Examination of prospective jurors under Rule 24(2) of Federal Rules of Criminal Procedure. 28 ALR Fed 26.

       47 Am Jur 2d, Jury § 212.
    Examination of prospective jurors under Rule 24(2) of Federal Rules of Criminal Procedure. 28 ALR Fed 26.

       75 Am Jur 2d, Trial § 280.

       75 Am Jur 2d, Trial § 280.

       21 Am Jur 2d, Criminal Law §§ 318, 319, 321, 323.

       21 Am Jur 2d, Criminal Law §§ 316-318.

      2. A trial judge is not required to ask questions precisely as requested by counsel in the voir dire of prospective jurors and no error was committed where counsel failed to object and the questions that were asked by the judge provided sufficient information for counsel to challenge prospective jurors.
    3. An objection to the prosecutor’s comments by defense counsel and a curative instruction cautioning the jury to disregard the comments would have been sufficient to cure any remaining prejudice; in the absence of an objection, the Court of Appeals will not reverse a conviction based upon a prosecutor’s closing argument where the claimed prejudice could have been avoided by a curative instruction.
    4. Notice of a breakdown in the attorney-client relationship between defendant and his appointed counsel was brought to the attention of the trial judge' by a letter written to him by the defendant and by defendant’s in-court complaints and ramblings. The trial judge erred in failing to make inquires into the dispute between defendant and his attorney. A trial judge should appoint different counsel for an indigent defendant if there is a legitimate difference of opinion as to a fundamental trial tactic and where this breakdown in the attorney-client relationship occurs the judge is obligated to inquire whether defendant’s allegations are true and should inquire as to whether defense counsel could continue to effectively represent the defendant.
    5. The trial judge was put on notice of defendant’s incompetence by defendant’s difficulty in articulating his ideas and by his ramblings and often incoherent statements. A decision to waive counsel must be knowingly, intelligently and voluntarily made and the competence of a defendant is a pertinent consideration in making this determination. The defendant was not competent to represent himself at the habitual offender proceeding and it was error to allow the defendant to proceed pro se.

    Defendant’s conviction of unarmed robbery is affirmed. The sentence imposed for the habitual offender conviction is vacated and the previous sentence imposed for the unarmed robbery conviction is reinstated.
    1. Jury — Voir Dire — Judge’s Discretion — Abuse op Discretion — Appeal and Error.
    The scope of voir dire examination of jurors is left to the discretion of the trial judge and will not be disturbed absent an abuse of that discretion.
    2. Jury — Prospective Jurors — Questionnaires — Personal Background — Employment — Examination of Questionnaires — Court Rules.
    Prospective jurors are required to fill out a questionnaire concerning the person’s personal background including the place of employment and attorneys may examine these questionnaires for a reasonable time before being called upon to challenge jurors for cause (GCR 1963, 510, 510.3[2]).
    3. Jury — Voir Dire — Prospective Jurors —• Questionnaires — Employment — Availability of Information.
    A trial judge may expedite trial progress by limiting the voir dire of prospective jurors by excluding matters relating to a juror’s employment where this information was readily available to counsel through juror questionnaires.
    4. Jury — Criminal Law — Prospective Jurors — Voir Dire — Precise Questions — Failure to Object — Appeal and Error.
    The failure of a trial judge to ask a question precisely as requested by counsel in the voir dire of prospective jurors does not constitute error where counsel failed to object and the questions that were asked by the judge provided sufficient information for counsel to challenge the prospective jurors.
    5. Criminal Law — Prosecutor’s Improper Argument — Civic Duty — Closing Argument.
    The Court of Appeals has consistently condemned the use of "civic duty” appeals by a prosecutor in closing argument.
    6. Criminal Law — Prosecutor’s Remarks — Prejudice — Objections — Instructions to Jury — Curative Instructions.
    The Court of Appeals, in the absence of an objection, will reverse a conviction based upon a prosecutor’s improper closing argument only where the prejudice could not have been rectified by a curative instruction.
    7. Criminal Law — Indigents — Appointed Counsel — Breakdown in Relationship — Successor Counsel.
    An indigent defendant’s basic right to representation by counsel encompasses the right to the appointment of different counsel when a legitimate difference of opinion develops between the defendant and his appointed counsel as to a fundamental trial tactic; where a defendant alleges the existence of a dispute leading to a destruction of communication and a breakdown in the attorney-client relationship, the judge is obligated to inquire whether such allegations are true.
    8. Criminal Law — Waiver of Counsel — Defendant’s Competence.
    A trial judge has an obligation to determine that a defendant’s decision to waive his right to counsel is knowingly, intelligently and voluntarily made and the competence of the defendant is a pertinent consideration in making this determination.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Kraizman & Kraizman, for defendant on appeal.
    Before: Bronson, P.J., and R. M. Maher and J. T. Letts, JJ.

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

   Per Curiam.

On January 5, 1977, defendant was found guilty of the offense of unarmed robbery, MCL 750.530; MSA 28.798, and was sentenced to a term of 10 to 15 years imprisonment. He was then arraigned on a supplemental information charging him as a fourth-time habitual offender, MCL 769.12; MSA 28.1084. On April 18, 1977, defendant was convicted of this charge and was resentenced to a term of 20 to 30 years imprisonment. He now appeals as of right, challenging both the unarmed robbery conviction and the habitual offender supplementation.

Testimony at the unarmed robbery trial established that defendant grabbed the purse of the complainant, Lucy Jakubowicz, and pulled it away from her, knocking her to the ground. A bystander to this offense pursued defendant, apprehended him, and turned him over to the police. Defendant subsequently confessed to the crime.

Defendant initially contends that the trial judge erred in limiting defense counsel’s voir dire of the jury prior to the unarmed robbery trial. Specifically, he argues that the trial judge improperly refused to permit defense counsel to question a juror about her employment. He further contends that error occurred as a result of the trial judge’s refusal to question another juror as to whether she believed that because he was on trial defendant must have committed some crime.

The scope of voir dire examination of jurors is left to the discretion of the trial judge and will not be disturbed absent an abuse of that discretion. People v Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976). GCR 1963, 510 requires prospective jurors to fill out a questionnaire containing inquiries concerning the person’s personal background, including her place of employment. GCR 1963, 510.3(2) permits attorneys to examine the questionnaires for a reasonable time before being called upon to challenge jurors for cause.

In light of the availability of the information sought by defense counsel, we find no error in the trial judge’s attempt to expedite matters by limiting voir dire to exclude matters relating to the juror’s employment. If defense counsel believed this information was necessary in order to intelligently exercise his challenges to the jury panel, he could have moved for an adjournment to review these questionnaires. See People v. Heard, 31 Mich App 439, 442; 188 NW2d 24 (1971), rev’d on other grounds 388 Mich 182; 200 NW2d 73 (1972).

Nor did error occur as a result of the judge’s refusal to question a juror as to her belief that defendant must have committed some crime or he wouldn’t be on trial. Instead of asking the proffered question, the trial judge instructed the jury on the presumption of innocence and the fact that an arrest is not evidence of guilt. Then, he asked the entire jury if they could abide by these principles. No objection to this manner of questioning was made by defense counsel.

We believe the question asked was sufficient to afford defense counsel information necessary to challenge the prospective jurors. People v Harrell, supra, at 393. The failure of the trial judge to ask the question precisely as requested does not constitute error. People v Jolly, 51 Mich App 163, 166; 214 NW2d 849 (1974).

People v Milkovich, 31 Mich App 582; 188 NW2d 124 (1971), relied on by defendant, is inapplicable to this case. There, the judge ordered the jury to follow his instructions and then asked which of the jurors was unwilling to do so. In the present case, the instruction and question were not stated in such a way as to intimidate jurors from expressing their biases.

Defendant next challenges the propriety of some statements in the prosecutor’s closing argument at the unarmed robbery trial. He contends these statements consisted of a "civic duty” argument and that such arguments constitute reversible error even in the absence of an objection.

At the end of his closing argument the prosecutor said:

"Ladies and-gentlemen, keep this in mind that this is not just Mrs. Jakubowicz’ case. This case is the People of the State of Michigan against Jerry Lorenzo Bass. That is you, that is me, that is everybody in this courtroom; and we have an interest in seeing to it that those people in our community who are infirmed, who like Mrs. Jakubowicz are alone, people who are not strong enough or tough enough to protect themselves from violence on the street. All those people have an interest in seeing that justice is done.
"I ask you, ladies and gentlemen, to return a verdict that is consistent with justice in this case, and that is guilty as charged.
"Thank you.”

No objection was made to this line of argument.

In rebuttal the prosecutor clarified his previous argument by stating:

"When I ask you to return a verdict of guilty in this case, I am not asking you to convict Mr. Bass just because an elderly woman was mugged on the street.
"The reason I’m asking you for a verdict of guilty as charged in this case is that all of the evidence indicates that this man and this man alone is responsible for attacking Mrs. Jakubowicz and taking her purse.
"Thank you.”

Subsequently the jury was instructed that the comments of the attorney are not evidence and defense counsel stated his general satisfaction with the instructions.

We do not believe the prosecutor’s comments constituted reversible error in this case. It is true that this Court has consistently condemned the use of "civic duty” appeals by the prosecutor in closing argument. See People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975), People v Meir, 67 Mich App 534; 241 NW2d 280 (1976), and People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977). It is also true that the prosecutor’s initial comment falls within that class of arguments which this Court has condemned.

However, in the absence of an objection, this Court will reverse a conviction based upon a prosecutor’s improper closing argument only when the prejudice could not have been rectified by a curative instruction. People v Blassingame, 59 Mich App 327, 335; 229 NW2d 438 (1975). In the present case the prejudice created by the prosecutor’s initial comments was substantially reduced by his subsequent clarification. It was further reduced by the trial judge’s instruction regarding the weight to be given the argument of attorneys. In light of these circumstances, we conclude that had defense counsel objected to the prosecutor’s comments, a curative instruction cautioning the jury to disregard the comments would have been sufficient to cure any remaining prejudice.

Defendant next contends that the trial judge erred in refusing his request for a new court-appointed attorney for the habitual offender trial. He further contends that defendant was not competent to proceed pro se at this proceeding.

Prior to the unarmed robbery trial defendant’s first two court-appointed attorneys withdrew from the case. Monsey Wilson was then appointed to represent defendant and did so through his initial sentencing for the unarmed robbery. After the robbery trial defendant wrote a letter to the trial judge in which he expressed his dissatisfaction with his attorney’s representation during that trial. He indicated that there was a disagreement between them as to how to handle the defense at the unarmed robbery trial.

The trial judge treated this letter as a motion for a new trial. On April 18, 1977, the date scheduled for the habitual offender proceeding, he denied the motion. Defendant then vehemently expressed his dissatisfaction with attorney Wilson and requested that a new attorney be appointed. Trial counsel also made a motion to withdraw based upon defendant’s desire for a new attorney. In response, the trial judge gave the defendant a choice between representing himself and continuing to be represented by Mr. Wilson. At this point defendant commenced a protracted and usually incoherent argument with the trial judge. Ultimately, defendant agreed to represent himself and defense counsel was excused. Defendant then sought an adjournment so that he could prepare for the trial. The trial judge denied this request and proceeded with the habitual offender trial, where defendant was found guilty as charged.

The general rule regarding the substitution of attorneys is stated in People v Charles O Williams, 386 Mich 565, 574; 194 NW2d 337 (1972):

"We believe the basic right to representation by counsel, made so clear by Gideon v Wainwright, 372 U.S. 335, 344 [9 L Ed 2d 799, 805, 83 S Ct 792, 796, 93 ALR 2d 733], encompasses the right to the appointment of different counsel when a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic. When this occurs, the defendant is entitled to a reasonable continuance in order to effectuate a change of attorneys and obtain the representation by counsel he is entitled to have under the Constitution.”

This rule has been applied so as to require the appointment of new counsel when there is a dispute as to the use of an alibi defense at trial, People v Hooper, 82 Mich App 713; 267 NW2d 162 (1978). In addition, when defendant alleges the existence of a dispute leading to a destruction of communication and a breakdown in the attorney-client relationship, the judge is obligated to inquire whether such allegations are true. People v Wilson, 43 Mich App 459, 461-463; 204 NW2d 269 (1972).

We believe the trial judge erred in failing to make further inquiries into the dispute between defendant and his attorney. Defendant’s displeasure with his representation by Mr. Wilson was brought to the attention of the trial judge both in the letter written by defendant and defendant’s ramblings prior to the habitual offender proceeding. Although defendant’s complaints related to Mr. Wilson’s representation of defendant at the prior robbery trial, the implication of defendant’s complaints was that there presently was a breakdown in the attorney-client relationship. However, no inquiry was made as to whether defense counsel could continue to effectively represent defendant. As in People v Wilson, supra, the trial judge instead assumed that defendant’s allegations were without foundation and offered him a choice of proceeding with his present lawyer or proceeding pro se.

This error was further compounded upon defendant’s decision to proceed in his own behalf. The trial judge has an obligation to determine that defendant’s decision to waive his right to counsel is knowingly, intelligently and voluntarily made. People v Anderson, 398 Mich 361; 247 NW2d 857 (1976). Defendant’s competence is a pertinent consideration in making this determination. Anderson, supra, at 368. In light of defendant’s difficulty in articulating his ideas and his rambling and often incoherent statements, we conclude that defendant was not competent to represent himself at the habitual offender proceeding. See also People v Wilson, supra, at 461, fn 1.

Therefore, we conclude that the habitual offender supplementation to defendant’s sentence must be vacated and the case remanded to the trial court. Should the habitual offender charge against defendant be reinstituted, defendant is entitled to have a new attorney appointed to represent him.

Defendant’s conviction of unarmed robbery is affirmed. The sentence imposed for the habitual offender conviction is vacated and the previous sentence imposed for the unarmed robbery conviction is reinstated.

       Defendant’s letter is replete with case citations and quasi-legal arguments. Much of it appears to be copied from some other source. He does specifically allege that defense counsel used a trial strategy that he knew would result in a guilty verdict. He further takes issue with defense counsel’s decision not to bring out defendant’s tuberculosis at trial. In general he claims to have been denied the effective assistance of counsel.

       Originally defendant requested that Sienna Larene of the Federal Defender’s Office be contacted. He claimed that she had promised to give him assistance. An inquiry into this matter revealed that she no longer worked for the Federal Defender’s Office and that she had made no such promise.

       The matters brought out by defendant include: his not facing the jury at the robbery trial; his alleged lawsuit against the Wayne County Jail; abuse at the Wayne County Jail, including the injection of hallucinogens into his food; his physical and mental ailments at the time of his arrest; and his attorney’s failure to effectively represent him at the unarmed robbery trial.

       A good example of defendant’s ramblings is the following:
      "THE DEFENDANT: When we think about convictions, we think about fairness, you see, and to go along with the conviction, not so much that we convicted a man because of his ignorance of the law, okay, or the things that you people that put into society and the fact that you are really just letting a lot of things happen in order that you might be able to work and function and whatnot, you know.
      “See, this is what we got to look at, the thing that systematically be put into the child’s mind. You know, that wasn’t me, that was another person’s mentality. My mentality is the mentality of a righteous Musían (spelling) M-u-s-l-a-n, and I would like at this time to again request a thousand times for the government to come in here and look at my papers. They already have information in regards to your court and the county jail and everything else. They said they would be here if I needed them.
      "Just let me get to your phone. You don’t even have to call them. I’ll call them. Can you call the government?”

       We note that on appeal defendant alleges that one of the offenses supporting his habitual offender conviction was in fact a misdemeanor. We express no opinion on the accuracy of this claim. However should the prosecutor subsequently reinstitute the habitual offender charge, the trial judge should take care to insure that the charge is based upon prior conviction for felonies, as required by MCL 769.10-769.13; MSA 28.1082-28.1085.


text:
    BRUMFIELD v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 77-3479.
    Submitted November 3, 1978, at Detroit.
    Decided February 7, 1979.
    Paul V. Brumfield brought an action against Detroit Automobile Inter-Insurance Exchange in Wayne Circuit Court for reimbursement of Social Security benefits deducted by defendant in paying survivor’s loss benefits under a section of the Michigan no-fault insurance act. Summary judgment for plaintiff, Theodore R. Bohn, J. Defendant appeals. Held:

    The amount of benefits payable under any no-fault insurance policy may be reduced by the amount of benefits payable to a beneficiary by the state or Federal government without violation of the due process or equal protection clauses of the state or Federal constitutions.
    Reversed.
    Automobiles — Insurance — No-Fault — Beneficiaries — Reduction of Benefits — Statutes.
    A section of the Michigan no-fault insurance act which allows the amount of benefits payable under any no-fault insurance policy to be reduced by the amount of benefits payable to a beneficiary by' the state or Federal government is constitutional (MCL 500.3109[1]; MSA 24.13109[1]).
    Reference for Points in Headnote
    New Topic Service Am Jur 2d, No-Fault Insurance § 22.

      Draugelis, Ashton & Scully, for plaintiff.

      Selby, Dickinson, Pike, Mourad & Brandt (by Sarah Wildgen Sweet), for defendant.
    Before: N. J. Kaufman, P.J., and V. J. Brennan and Bashara, JJ.
   Per Curiam.

Plaintiff filed an action in the Wayne Circuit Court for reimbursement of Social Security benefits deducted by defendant in paying survivor’s loss benefits under MCL 500.3109(1); MSA 24.13109(1) of the "no fault” insurance act. The defendant appeals from an order of the trial court granting summary judgment to the plaintiff.

This issue has been litigated several times before the Court of Appeals. Most of the decisions have adopted the rationale or result obtained in the majority opinion in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976). However, the Supreme Court, in a very recent opinion, has reversed this Court’s holding in O’Donnell, 404 Mich 524; 273 NW2d 829 (1979). In view of the pronouncement of the Supreme Court, we accordingly reverse the decision of the trial court granting summary judgment and remand for entry of an order consistent with the opinion of the Supreme Court.

Reversed.


text:
    WHITMORE v SEARS, ROEBUCK & COMPANY
    Docket No. 31419.
    Submitted November 7, 1978, at Detroit.
    Decided March 19, 1979.
    Leave to appeal denied, 406 Mich 985.
    Natalie Whitmore brought an action against Sears, Roebuck & Company and Globe Union Company for damages for injuries she suffered in a fall in the parking lot of a Sears retail store. She alleged that an employee of Globe Union spilled fuel from a truck onto the parking lot and that she slipped when she inadvertently walked onto the spilled fuel. The jury returned a verdict against Sears in the amount of $40,000 and found no cause of action in favor of Globe Union. Upon motion by Sears for judgment notwithstanding the verdict, the St. Clair Circuit Court, Ernest F. Oppliger, J., modified the verdict, setting damages at $30,000 and holding both defendants jointly and severally liable. Both defendants appeal, alleging among other things that the trial court erred when it denied their motions for directed verdicts at the close of plaintiff’s proofs. Held:

    The plaintiff failed to make out a prima facie case of negligence against either of the defendants. There was no testimony to link Globe Union with the spilled fuel on the parking lot. There was no testimony from which it could be inferred that the fuel was on the lot as a result of the actions of employees of Sears or that Sears had actual notice that the fuel was there or that it had been there for a considerable period of time sufficient to justify an inference that Sears should have known of its presence. The motions for directed verdict should haye been granted.
    Reversed, and remanded for entry of judgments in favor of both defendants.
    1. Negligence — Verdict — Directed Verdict.
    A trial court is justified in directing a verdict of no cause of action where there is no evidence from which a defendant’s negligence may be found or inferred.

      References for Points in Headnotes

       57 Am Jur 2d, Negligence § 7.

       62 Am Jur 2d, Premises Liability § 212.

       62 Am Jur 2d, Premises Liability § 198.

       5 Am Jur 2d, Appeal and Error § 886.

       57 Am Jur 2d, Negligence § 141.

       62 Am Jur 2d, Premises Liability § 16.

      2. Negligence — Storekeepers — Unsafe Conditions.
    A storekeeper has a duty to provide reasonably safe aisles for his customers and he is liable for injury resulting from an unsafe condition caused by either the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have had knowledge of it.
    3. Negligence — Storekeepers — Unsafe Conditions — Directed Verdict.
    It may be inferred that a storekeeper had notice of an unsafe condition on the premises where there is evidence that the condition had existed for a length of time sufficient to have enabled a reasonably careful storekeeper to discover it; however, a directed verdict in favor of a defendant storekeeper is proper where there is no evidence to show that an unsafe condition existed for a considerable time.
    4. Motions — Appeal and Error — Directed Verdict — Burden of Proof.
    A motion for a directed verdict made at the close of a plaintiffs proofs is reviewed by examining only the plaintiffs case in chief to determine whether the plaintiff has carried the burden of proof.
    5. Negligence — Circumstantial Evidence — Prima Facie Case.
    Negligence may be established by circumstantial evidence, and where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, at least a prima facie case is made.
    6. Negligence — Prima Facie Case — Burden of Proof — Inferences.
    A plaintiff who slipped and fell on an oily substance in the parking lot of a retail store failed to carry the burden of establishing a prima facie case of negligence against the defendant store owner where there was no testimony from which it could be inferred that the substance came there as a result of the actions of the store’s employees or that the owner had actual notice of the presence of the substance and no evidence from which the jury could infer that the substance had been there for some time.

      Cummings, Monaghan, Thomas & McColl (by John C. McColl and John B. McNamee), for plaintiff.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C., (Gromek & Bendure, of counsel), for Sears, Roebuck & Company.

      Robert B. Tatham, (Norman L. Zemke, of counsel on appeal), for Globe Union Company.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   R. M. Maher, J.

Plaintiff Natalie Whitmore brought this action for damages she allegedly suffered in a fall in the parking lot of the Port Huron store of defendant Sears. Defendant Globe Union Company’s liability was premised on the action of its driver in causing fuel to spill from its truck onto the Sears parking lot, creating a slippery area on which plaintiff fell. At the close of plaintiff’s proofs, defendants moved for a directed verdict. The motion was denied by the trial court, and defendants proceeded to present their defenses. The jury returned a verdict in favor of plaintiff and against defendant Sears for $40,000. As against defendant Globe Union, the jury found no cause of action. Sears filed a motion for judgment n.o.v. or, in the alternative, for a new trial. Upon consideration of this motion, the trial court modified the jury’s verdict to $30,000 and ordered that both defendants be held jointly and severally liable therefor. Both defendants now appeal, Sears alleging inter alia error in the trial court’s denial of its motion for a directed verdict. Globe Union joins in Sears’ claims of error and alleges in addition that the trial court erred in making it jointly and severally liable for the judgment against Sears.

The only evidence presented by plaintiff at trial was her own testimony and that of a companion who witnessed her fall. Plaintiffs companion, Emily Blackney, testified that she went with plaintiff, in plaintiffs automobile, to Sears at about 10:30 a.m. on August 16, 1972. They parked in the south corner of the parking lot and entered the store to shop. Later, they went to a nearby restaurant for lunch, returning to the store after about an hour. Upon returning to Sears, they picked up a catalog at the catalog desk and then left the store. As they walked to Mrs. Whitmore’s car, Mrs. Blackney noticed a wet area on the parking lot just as she stepped into it. She started to warn plaintiff to watch her step, but at the same moment plaintiff fell onto her knees. After the fall, plaintiff was assisted by several Sears employees, who also took steps to soak up the wet substance, which now appeared to be a petroleum product.

Plaintiff’s testimony regarding her movements on the day in question confirmed Mrs. Blackney’s testimony. Plaintiff added only that they left the restaurant at about noon to return to Sears and left immediately after picking up the catalog. She testified that she did not see the substance on the parking lot until she stepped in it, although she acknowledged that she had a clear view of the area. The remainder of plaintiffs testimony concerned the damages she allegedly suffered as a result of the fall.

Defendants claim that their motions for directed verdicts should have been granted because plaintiff failed to make out a prima facie case of negligence against either of them. We are constrained to agree. We note first of all that there was no testimony whatsoever to link Globe Union with the substance on the parking lot which allegedly caused plaintiffs fall. Neither plaintiff nor her witness testified to seeing Globe Union’s agent spill the oily substance or, indeed, to seeing anyone or anything connected with Globe Union in the parking lot or nearby. Where there is no evidence from which defendant’s negligence may be inferred, the trial court is justified in directing a verdict of no cause of action, Rockey v General Motors Corp, 1 Mich App 100; 134 NW2d 371 (1965). We have no doubt that the trial court in this case erred in denying Globe Union’s motion for a directed verdict. In view of the fact that the jury rendered a verdict of no cause of action against Globe Union, the error might be considered harmless, Shepard v Barnette, 4 Mich App 243; 144 NW2d 685 (1966). Because the trial court set aside that verdict and entered judgment against Globe Union, however, we are constrained to reverse the judgment against Globe.

The error committed by the trial court in denying Sears’ motion for a directed verdict, on the other hand, cannot be regarded as harmless, in view of the subsequent jury verdict against Sears. The cause of action against Sears rests on a storekeeper’s duty to provide safe premises for business invitees. The parameters of that duty were summarized in Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968), quoting a much earlier case:

"Carpenter v Herpolsheimer’s Co. (1937), 278 Mich 697 [271 NW 575] (syllabus 1), distinctly and concisely sets forth defendant’s duty as a storekeeper, as follows:
" 'It is the duty of a storekeeper to provide reasonably safe aisles for customers and he is liable for injury resulting from an unsafe condition either caused by the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have had knowledge of it. ’ (Emphasis ours.)”

See also Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975).

Thus, in order to recover from Sears, plaintiff must show either that an employee of Sears caused the unsafe condition or that a servant of Sears knew or should have known that the unsafe condition existed, Anderson v Merkel, 393 Mich 603; 227 NW2d 554 (1975), Suci v Mirsky, 61 Mich App 398; 232 NW2d 415 (1975). Notice may be inferred from evidence that the unsafe condition has existed for a length of time sufficient to have enabled a reasonably careful storekeeper to discover it, Suci v Mirsky, supra, Winfrey v SS Kresge Co, 6 Mich App 504; 149 NW2d 470 (1967). Where there is no evidence to show that the condition had existed for a considerable time, however, a directed verdict in favor of the storekeeper is proper, Serinto v Borman Food Stores, supra, Suci v Mirsky, supra, Winfrey v SS Kresge Co, supra. Cf. Holliday v National Dairy Products Corp, 391 Mich 816 (1974), reversing 50 Mich App 366; 213 NW2d 289 (1973).

Plaintiff had the burden of producing evidence sufficient to make out a prima facie case, Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708; 202 NW2d 727 (1972), Rose v McMahon, 10 Mich App 104; 158 NW2d 791 (1968). Where a motion for directed verdict was made at the close of plaintiff’s proofs, we look only at plaintiff’s case in chief to determine whether she has carried her burden, Taylor v Butcher, 349 Mich 581; 84 NW2d 779 (1957), Snyder v Johnson, 264 Mich 286; 249 NW 856 (1933). Should we find any evidence there, however slight and circumstantial in nature, from which a jury could infer that defendant was negligent, we would then weigh defendant’s proofs to determine whether they bolster the inference of negligence or rebut it, Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1959), Kasza v Detroit, 370 Mich 7; 120 NW2d 784 (1963). This latter rule is sometimes referred to as the Michigan version of the doctrine of res ipsa loquitur, Gadde v Michigan Consolidated Gas Co, 377 Mich 117; 139 NW2d 722 (1966), Weisenberg v Village of Beulah, 352 Mich 172; 89 NW2d 490 (1958). The doctrine was well-articulated in Burghardt v Detroit United Ry, 206 Mich 545, 546-547; 173 NW 360; 5 ALR 1333 (1919), quoted in Gadde, supra, 121:

" 'This Court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made.’ ”

See also Stefan v White, 76 Mich App 654; 257 NW2d 206 (1977), Rose v McMahon, supra.

Applying these rules to the case before us, we conclude that plaintiff did not establish circumstances "such as to take the case out of the realm of conjecture” and into "the field of legitimate inferences from established facts”. Gadde, supra, 121. Plaintiff established that there was an oily substance on Sears’ parking lot at the spot where she fell, from which one might be able to infer that the substance caused her fall, cf. Stefan v White, supra. There is no testimony, however, from which one may infer that the substance came there as a result of the actions of Sears’ employees; nor is there evidence that Sears had actual notice of the presence of the substance. Finally, there is no testimony that the substance had been in the parking lot for a considerable period of time, evidence from which the inference could be drawn that Sears should have known of its presence. Indeed, there is no evidence from which a jury could infer that the substance had been on the parking lot surface for some time (e.g., testimony that many cars appeared to have driven through the substance). Here, as was the case in Serinto v Borman Food Stores, supra, the substance was indisputably at the spot where plaintiff fell, but how and when it came there were matters of conjecture.

Plaintiff failed to carry the burden of establishing a prima facie case against defendants; defendants’ motions for directed verdicts at the close of plaintiffs case should therefore have been granted. We therefore reverse and remand for entry of judgments in favor of both defendants. Because of our disposition of this issue, we do not reach defendants’ other claims of error.

Reversed.

       As authority for the proposition that a denial of a motion for directed verdict is reviewed as of the time it was made, the cited cases cite 1948 CL 618.56 and 618.57 and their predecessor statutes, which have been carried forward, substantially unchanged, as GCR 1963, 515.


author: D. E. Holbrook, Jr., J.

text:
    WRONSKI v SUN OIL COMPANY KOZIARA v SUN OIL COMPANY
    Docket Nos. 77-241, 77-242.
    Submitted January 10, 1978, at Detroit.
    Decided March 19, 1979.
    Leave to appeal applied for.
    Plaintiffs Walter F. Wronski and Eleanor J. Wronski and plaintiffs Eugene Koziara and Aniela Koziara, owners of certain real property and the attendant mineral rights in St. Clair County, commenced two separate actions against Sun Oil Company and William J. Mielke and Gerald A. Perkins seeking rescission ab initio of their oil and gas leases with Sun Oil coupled with an accounting or, in the alternative, both compensatory and exemplary damages for Sun Oil’s overproduction of oil from the pool beneath plaintiffs’ properties. At the time of the alleged overproduction, there was a proration order in effect from the Supervisor of Wells of the Department of Natural Resources limiting the production of oil from the pool in question. The' plaintiffs alleged that Sun Oil illegally overproduced more than 180,000 barrels of oil from the pool and that the illegally overproduced oil was drained from beneath the plaintiffs’ lands. The cases were consolidated for trial.
    The St. Clair Circuit Court, Halford I. Streeter, J., found that Sun Oil had intentionally and illegally overproduced 150,000 barrels of oil and that 50,000 barrels of this oil had been drained from plaintiffs’ properties. The court held that this overproduction and drainage constituted tortious breaches of Sun Oil’s contractual obligations under the oil and gas leases entered into with the plaintiffs and violated the plaintiffs’ common-law right to the oil beneath their properties. The trial court refused to rescind the leases, but awarded compensatory and exemplary damages. The defendants appeal alleging that the findings of the trial court are contrary to the great preponderance of the evidence, that an improper formula for compensatory damages was applied and that the circuit court lacked jurisdiction. Plaintiffs cross-appeal alleging that rescission should have been granted, that an improper formula for compensatory damages was applied and that the exemplary damages awarded were inadequate. Held:

      References for Points in Headnotes

       20 Am Jur 2d, Courts §§ 103, 123.
    2 Am Jur 2d, Administrative Law § 776 et seq.

       38 Am Jur 2d, Gas and Oil §§ 157, 158.

       5 Am Jur 2d, Appeal and Error § 841

       18 Am Jur 2d, Conversion § 1.

       38 Am Jur 2d, Gas and Oil § 4.

       38 Am Jur 2d, Gas and Oil §§ 164,165.

       38 Am Jur 2d, Gas and Oil §§ 286, 302.

       38 Am Jur 2d, Gas and Oil §§ 161, 302.

       38 Am Jur 2d, Gas and Oil § 302.

       22 Am Jur 2d, Damages §§ 236, 237.

       18 Am Jur 2d, Conversion § 87.

       17 Am Jur 2d, Contracts §§ 458, 482.

      1. Jurisdiction over violation of rules and regulations issued by a state agency lies with a court of general jurisdiction, even when the agency has exclusive regulatory powers. The trial court’s inherent jurisdiction to hear this claim had not been transferred to the Supervisor of Wells. The circuit court was within its jurisdiction in hearing and deciding this case.
    2. The doctrine of primary jurisdiction is inapplicable in this case because the office of the Supervisor of Wells was not established to provide a forum for individuals alleging injury caused by waste in violation of procedures established by the Supervisor of Wells. Jurisdiction for such matters has remained in the circuit courts.
    3. The Court of Appeals is not convinced that had it been the trier of fact it would have reached a different conclusion based on the evidence presented, and does not reverse or modify the findings of the trial court. A review of the record discloses sufficient facts upon which the trial court could find that Sun Oil systematically, intentionally and illegally overproduced oil in an amount of 150,000 barrels from the wells in question.
    4. Violation of the proration order constituted conversion of oil from the pool, thereby subjecting Sun Oil to liability to all the owners of interest in the pool for conversion of the illegally obtained oil. The finding of the trial court that Sun Oil is liable to plaintiffs for the conversion of 50,000 barrels of oil is affirmed.
    5. The trial court used an improper method of calculating the value of the oil converted. Since Sun Oil was an intentional and wilful convertor and since the oil was produced in violation of the leases, the "harsh” rule for calculating the value should have been applied, and the plaintiffs should have been awarded the value of the oil at the time of conversion without any credit to Sun Oil for expenses incurred in producing the oil.
    6. The addition of exemplary damages was also improper. Exemplary damages are compensatory in nature and not punitive. The exemplary damages awarded in this instance were actually punitive. The application of the "harsh” rule of damages includes an amount for punitive damages and they may not be assessed twice.
    7. The price per barrel of oil converted did not properly reflect the value of the oil for the period during which the conversion took place. The doctrine that the measure of damages for conversion of goods that fluctuate in value is the highest value between conversion and judgment has never been applied in Michigan. The highest price for the period of conversion should have been utilized for measuring damages.
    8. The grant or denial of rescission of the leases was within the discretion of the trial court. Plaintiffs have been adequately compensated by the damage award. Rescission would not be appropriate in this instance.
    Affirmed in part, reversed in part and remanded.
    1. Action — Torts — Jurisdiction — State Agencies — Courts of General Jurisdiction.
    Jurisdiction for tortious causes of action based upon violation of rules or regulations issued by a state agency lies with a court of general jurisdiction, even where the agency has exclusive regulatory powers.
    2. Mines and Minerals — Gas and Oil — Supervisor of Wells — Waste — Statutes.
    It is the function of the Supervisor of Wells to protect the interests of the state’s citizens and land owners from unwarranted waste of gas and oil and foster the development of the industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products (MCL 319.1; MSA 13.139[1]).
    3. Mines and Minerals — Gas and Oil — Supervisor of Wells — Jurisdiction — Department of Natural Resources — Statutes.
    The act creating the position of the Supervisor of Wells within the Department of Natural Resources is forward looking with a purpose to prevent waste from occurring and is not intended to provide a forum for individuals alleging injury caused by waste in violation of its established procedures (MCL 319.6[a]; MSA 13.139[6][a]).

      4. Appeal and Error — Findings of Fact — Court Rules.
    Findings of fact made by a trial court will not be set aside unless clearly erroneous (GCR 1963, 517.1).
    5. Conversion — Wrongful Dominion — Personal Property.
    Conversion is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.
    6. Mines and Minerals — Gas and Oil — Ownership — Ownership in Place.
    Ownership of gas and oil contained in the land is ruled in • Michigan by the ownership in place theory; under this theory the nature of the interest of the landowner in oil and gas contained in his land is the same as his interest in solid minerals; solid minerals are a part of the land in or beneath which they are located and as a consequence the owner of land is also the owner of the gas or oil in or beneath it.
    7. Mines and Minerals —• Gas and Oil — Ownership — Fair-Share Principle — Statutes.
    Michigan recognizes the "fair-share” principle of a landowner’s property rights in gas and oil beneath his land; this principle allows each owner of property over a pool of gas or oil the opportunity to produce his just and equitable share of the oil and gas in the pool (MCL 319.13; MSA 13.139[13]).
    8. Mines and Minerals — Gas and Oil — Conversion — Overproduction of Gas and Oil.
    An oil company is liable for conversion of gas or oil if it can be said that the oil company overproduced from its wells in a given pool and the overproduction deprived other owners of the oil in the pool of their opportunity to claim and take the oil under their respective properties.
    9. Mines and Minerals — Gas and Oil — Supervisor of Wells — Conversion — Proration Orders — Overproduction of Gas and Oil.
    An oil company’s violation of a proration order issued by the Supervisor of Wells as to a specific pool of oil constitutes conversion of oil from the pool and subjects the violator to liability to all the owners of interests in the pool for conversion of the oil taken in violation of the order.
    10. Mines and Minerals — Gas and Oil — Conversion of Oil — Damages — Harsh Rule — Mild Rule.
    The two rules as to the amount of damages for a conversion of oil are 1) a wilful convertor is liable for the enhanced value of the oil at the time of conversion without deduction for expenses or for improvements by labor, and 2) an innocent or nonwilfull convertor is liable only for the value of the oil undisturbed, that is, he is entitled to set off the reasonable cost of production; these two rules are known respectively as the "harsh” rule and the "mild” rule.
    11. Damages — Punitive Damages.
    Punitive damages are damages awarded solely to punish.
    12. Damages — Exemplary Damages — Actual Damages.
    Exemplary damages are compensatory in nature and not punitive since they are an element of actual damages.
    13. Conversion — Damages — Goods with Fluctuating Value — Highest Value.
    The doctrine that the measure of damages in an action for conversion of goods that fluctuate in value is the highest value between conversion and judgment has never been applied in Michigan.
    14. Contracts — Courts — Rescission op Contract — Discretion — Trial Court.
    The grant or denial of a request for the rescission of a contract is not a matter of right, but rather lies within the discretion of the trial court.

      Sharp, Walsh, O'Sullivan & Beauchamp, for plaintiffs.

      Loomis, Ewert, Ederer, Parsley, Davis & Gotting (by Lawrence J. Gagnon and Roger T. Ederer), for defendants.
    Before: Allen, P.J., and D. E. Holbrook, Jr., and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., J.

Plaintiffs are the owners of 200 acres of land and the attendant mineral rights located in St. Clair County. Plaintiffs Koziara own two 20-acre tracts (Tracts 1 & 2) and one 40-acre tract (Tract 6). Plaintiffs Wronski own an 80-acre tract (Tract 7) and a 40-acre tract (Tract 13). These properties overlie the Columbus Section 3 Saline-Niagaran Formation Pool, and Tracts 2, 6 and 7 have producing oil wells. Tracts 6 and 7 are under lease to defendant Sun Oil Company.

The Supervisor of Wells, Michigan Department of Natural Resources, pursuant to the authority granted him by 1939 PA 61, as amended, established 20-acre drilling units for the Columbus 3 pool, and provided for a uniform well spacing pattern. The purpose of this order was to "prevent waste, protect correlative rights and provide for orderly development of the pool”. The supervisor, by a proration order effective February 1, 1970, further limited production in the Columbus 3 pool to a maximum of 75 barrels of oil per day per well. This order remained in effect until June 30, 1974, when Columbus 3 was unitized.

Defendant Sun Oil leases property from H. H. Winn (Tract 9) and from H. H. Winn, et al (Tract 12). Sun Oil has drilled several wells on these tracts in compliance with the uniform well spacing pattern, including well 1-C on Tract 9 and wells 3 and 6 on Tract 12. These three wells were operating during the effective date of the proration order and were subject to its terms. Plaintiffs contend that Sun Oil illegally overproduced more than 180,000 barrels of oil from these three wells, and that the illegally overproduced oil was drained from beneath plaintiffs’ lands. They sought rescission ab initio of their oil and gas leases with Sun Oil coupled with an accounting, or in the alternative both compensatory and exemplary damages.

After a bench trial the court found that Sun Oil had intentionally and illegally overproduced 150,-000 barrels of oil, and that 50,000 barrels of this oil had been drained from plaintiffs’ property. The court held that this overproduction and drainage constituted tortious breaches of Sun Oil’s contractual obligations under the oil and gas leases entered into with plaintiffs, as well as violating plaintiffs’ common-law rights to the oil beneath their property. The court refused to rescind the leases, but awarded compensatory and exemplary damages. Sun Oil appeals contending that the findings of the court are contrary to the great preponderance of the evidence, that an improper formula for compensatory damages was applied, that the award of exemplary damages was contrary to law and that the court lacked jurisdiction. Plaintiffs cross-appeal contending that rescission should have been granted, that an improper formula for compensatory damage was applied and that the exemplary damages awarded were inadequate.

Sun Oil contends that the Supervisor of Wells has exclusive jurisdiction over violations of rules and regulations issued pursuant to 1939 PA 61. This suit arose out of a claimed tortious violation of the proration order issued by the Supervisor of Wells. Jurisdiction for tortious causes of action based upon violation of rules or regulations issued by a state agency lies with a court of general jurisdiction, even when that agency has exclusive regulatory powers. Valentine v Michigan Bell Telephone Co, 388 Mich 19; 199 NW2d 182 (1972), Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich 472; 65 NW2d 748 (1954). A fair reading of 1939 PA 61, as amended, does not indicate that the trial court’s inherent jurisdiction has been transferred to the Supervisor of Wells.

Sun Oil further contends that the doctrine of primary jurisdiction enunciated in White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262; 177 NW2d 473 (1970), is applicable and that the trial court abused its discretion in not deferring decision in this matter to the Supervisor of Wells. The supervisor’s function is to "protect the interests of its citizens and landowners from unwarranted waste of gas and oil and foster the development of the industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products”. MCL 319.1; MSA 13.139(1).

In order to carry out this function the supervisor is empowered:

"To make and enforce rules subject to the approval of the commission, issue orders and instructions necessary to enforce such rules and to do whatever may be necessary with respect to the subject matter stated herein to carry out the purposes of this act, whether or not indicated, specified, or enumerated in this or any other section hereof.” MCL 319.6(a); MSA 13.139(6)(a). (Emphasis supplied.)

The act is forward looking with a purpose to prevent waste from occurring and is not intended to provide a forum for individuals alleging injury caused by waste in violation of its established procedures. The absence of authority by the Supervisor of Wells to decide the issue heard by the trial court makes the doctrine of primary jurisdiction inapplicable in this instance.

The findings of fact made by the trial court are challenged as against the great weight of the evidence. This case involves an action sounding in equity and was tried by the court without a jury. The court made extensive findings of fact as required by GCR 1963, 517.1. The findings of fact made by the trial court will not be set aside unless clearly erroneous. GCR 1963, 517.1, Rencsok v Rencsok, 46 Mich App 250; 207 NW2d 910 (1973). Review of the record discloses sufficient facts upon which the trial court could find that Sun Oil systematically, intentionally and illegally produced the H. H. Winn, et al, No. 3 and No. 6 wells, and the H. H. Winn C-1 well in an amount of 150,000 barrels over that allowed by the proration order. The record also supports the finding that one-third of this illegally produced oil was drained from the property of the plaintiffs. We are not convinced that had this Court been the trier of fact that we would have come to a different result, and do not reverse or modify these findings. Norton Shores v Carr, 81 Mich App 715, 720; 265 NW2d 802 (1978).

The trial court found that Sun Oil’s actions were intentional tortious breaches of its contractual obligation to both plaintiffs under their respective oil and gas leases. It found breaches of the implied convenant to prevent drainage as well as a failure to comply with the orders of the Supervisor of Wells as required by the provisions of the lease. It also found that:

"Sun Oil Company has violated the common law rights of Plaintiffs Wronski and Koziara by illegally, unlawfully and secretly draining valuable oil from beneath their properties.”

The nature of Sun Oil’s violation, while not clearly stated by the trial court, was a claim for the conversion of oil.

" 'Conversion is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’ ” Thoma v Tracy Motor Sales Inc, 360 Mich 434, 438; 104 NW2d 360 (1960), quoting Nelson & Witt v Texas Co, 256 Mich 65, 70; 239 NW 289 (1931).

We only address the finding regarding conversion as it is dispositive of the questions in this appeal.

In Michigan we adhere to the ownership-in-place theory. Attorney General v Pere Marquette R Co, 263 Mich 431; 248 NW 860 (1933). Under this theory "the nature of the interest of the landowner in oil and gas contained in his land is the same as his interest in solid minerals”. William and Meyers, Oil and Gas Law, § 203.3, p 44. Solid minerals are a part of the land in or beneath which they are located, Mark v Bradford, 315 Mich 50; 23 NW2d 201 (1946), and as a consequence the owner of land is also the owner of the oil and gas in or beneath it.

Oil and gas, unlike other minerals, do not remain constantly in place in the ground, but may migrate across property lines. Because of this migratory tendency the rule of capture evolved. This rule provides:

" 'The owner of a tract of land acquires title to the oil and gas which he produces from wells drilled thereon, though it may be proved that part of such oil or gas migrated from adjoining lands. Under this rule, absent some state regulation of drilling practices, a landowner * * * is not liable to adjacent landowners whose lands are drained as a result of such operations * * *. The remedy of the injured landowner under such circumstances has generally been said to be that of self-help— "go and do likewise”.’ ” William and Meyers, supra, § 204.4, pp 55-57. (Emphasis supplied.)

This rule of capture was a harsh rule that could work to deprive an owner of oil and gas underneath his land. To mitigate the harshness of this rule and to protect the landowner’s property rights in the oil and gas beneath his land, the "fair share” principle emerged.

"As early as 1931, the Board of Directors of the American Petroleum Institute expressed this principle by declaring a policy:
"that it endorses, and believes the petroleum industry endorses the principle that each owner of the surface is entitled only to his equitable and ratable share of the recoverable oil and gas energy in the common pool in the proportion which the recoverable reserves underlying his land bears to the recoverable reserves in the pool.” Graham, Fair Share or Fair Game? Great Principle, Good Technology — But Pitfalls in Practice, 8 Nat Res Law 61, 64-65 (1975).

The API clarified the principle in 1942 by saying:

"Within reasonable limits, each operator should have an opportunity equal to that afforded other operators to recover the equivalent of the amount of recoverable oil [and gas] underlying his property. The aim should be to prevent reasonably avoidable drainage of oil and gas across property lines that is not offset by counter drainage.” Id. at 65.

This fair-share rule does not do away with the rule of capture, but rather acts to place limits on its proper application.

Texas has adopted both the ownership-in-place doctrine and the fair-share principle. Its courts have addressed the interrelationship between these two principles and the rule of capture.

"It must be conceded that under the law of capture there is no liability for reasonable and legitimate drainage from the common pool. The landowner is privileged to sink as many wells as he desires upon his tract of land and extract therefrom and appropriate all the oil and gas that he may produce, so long as he operates within the spirit and purpose of conservation statutes and orders of the Railroad Commission. These laws and regulations are designed to afford each owner a reasonable opportunity to produce his proportionate part of the oil and gas from the entire pool and to prevent operating practices injurious to the common reservoir. In this manner, if all operators exercise the same degree of skill and diligence, each owner will recover in most instances his fair share of the oil and gas. This reasonable opportunity to produce his fair share of the oil and gas is the landowner’s common law right under our theory of absolute ownership of the minerals in place. But from the very nature of this theory the right of each land holder is qualified, and is limited to legitimate operations.” Elliff v Texon Drilling Co, 146 Tex 575, 582; 210 SW2d 558 (1948). (Emphasis supplied.)

The rule of capture is thus modified to exclude operations that are in violation of valid conservation orders.

Michigan recognizes the fair-share principle and its subsequent modifications of the rule of capture. When an adjacent landowner drilled an oil well too close to a property line the Supreme Court said that this:

"[D]eprived plaintiff of the opportunity of claiming and taking the oil that was rightfully hers; and defendants must respond in damages for such conversion.” Ross v Damm, 278 Mich 388, 396; 270 NW 722 (1936).

The supervisor of wells act also incorporated the' fair-share principle into § 13. This section concerns proration orders and states in part that:

"The rules, regulations, or orders of the supervisor shall, so far as it is practicable to do so, afford the owner of each property in a pool the opportunity to produce his just and equitable share of the oil and gas in the pool, being an amount, so far as can be practicably determined and obtained without waste, and without reducing the bottom hole pressure materially below the average for the pool, substantially in the proportion that the quantity of the recoverable oil and gas under such property bears to the total recoverable oil and gas in the pool, and for this purpose to use his just and equitable share of the reservoir energy.” MCL 319.13; MSA 13.139(13). (Emphasis supplied.)

This right to have a reasonable opportunity to produce one’s just and equitable share of oil in a pool is the common-law right that the trial court found Sun Oil violated. Under the authority of Ross v Damm, supra, if it can be said that Sun Oil’s overproduction deprived plaintiffs of the opportunity to claim and take the oil under their respective properties, then Sun Oil will be liable for a conversion.

Production in the Columbus 3 field was restricted to 75 barrels of oil per well per day. Compulsory pooling was also in effect, limiting the number of oil wells to one per 20 acres, and specifying their location. The purpose behind pro-ration is that the order itself, if obeyed, will protect landowners from drainage and allow each to produce their fair share. A violation of the proration order, especially a secret violation, allows the violator to take more than his fair share and leaves the other landowners unable to protect their rights unless they also violate the proration order. We therefore hold that any violation of a proration order constitutes conversion of oil from the pool, and subjects the violator to liability to all the owners of interests in the pool for conversion of the illegally-obtained oil. See Bolton v Coats, 533 SW2d 914 (Tex, 1975), Ortiz Oil Co v Geyer, 138 Tex 373; 159 SW2d 494 (1942). The trial court found that Sun Oil produced 150,000 barrels of oil from the Columbus 3 pool in contravention of the order of the Supervisor of Wells, and that 50,000 barrels of this oil had been drained from the lands of plaintiffs, which the trial court identified as a violation of the plaintiffs’ common-law rights. The finding that Sun Oil is liable to plaintiffs for the conversion of 50,000 barrels of oil is affirmed.

The rule as to the amount of damages for a conversion of oil was established in Michigan in Robinson v Gordon Oil Co, 266 Mich 65, 253 NW 218 (1934). The Court stated:

"The general rule in the United States in actions for the conversion of oil, as in the case of conversion of minerals and other natural products of the soil is that, although a wilful trespasser is liable for the enhanced value of the oil at the time of conversion without deduction for expenses or for improvements by labor, an innocent trespasser is liable only for the value of the oil undisturbed; that is, he is entitled to set off the reasonable cost of production.” (Citations omitted.) Robinson, supra, at 69. (Emphasis supplied.)

This rule sets the liability of the convertor as the enhanced value of the oil at the time of conversion, but then subdivides this liability into two subrules depending upon the nature of the conversion. These two subrules are a "mild” rule which applies to innocent or nonwilful conversion and a "harsh” rule which applies to bad faith or wilful conversions.

Both the mild rule and the harsh rule are discussed in Anno: Right of trespasser to credit for expenditures in producing, as against his liability for value of, oil or minerals, 21 ALR2d 380. It indicates that:

"The 'mild’ rule is applied where the trespass is inadvertent or not wilful or not in bad faith, and fixes the damages as the value of the minerals in situ. Where such value can be ascertained, the question of allowance or disallowance of credit to the trespasser for his expenditures in producing the minerals is not reached. Where evidence of value in situ cannot be obtained, two methods are used to establish the equivalent of such value: (1) the royalty method, whereby the injured party is allowed the amount for which the privilege of mining and removing the minerals under the customary lease or conveyance of the mineral rights could be sold, and (2) the value of the minerals after extraction less the production costs.” 21 ALR2d at 382.

Both methods of determining the value of the minerals in situ have been applied in Michigan, the royalty method in Ross v Damm, supra, and the value of minerals after extraction less production costs method in Eagle Oil Corp v Cohassett Oil Corp, 263 Mich 371; 248 NW 840 (1933). The annotation further indicates that:

"The 'harsh’ rule is applied where trespass is wilful or in bad faith, and allows the injured party the enhanced value of the product when and where it is finally converted without any credit to the trespasser for his expenses in producing it or for any value he might have added to the minerals by his labor. The award of enhanced value as damages without any credit to the trespasser for his expenditures in production is actually an award of compensatory damages plus punitive damages because of the wilfulness or bad faith of the trespass.” 21 ALR2d at 382. (Emphasis supplied.)

While there are no reported cases applying this harsh rule in Michigan, Robinson v Gordon Oil Co, supra, clearly indicates that it is the law within this state.

The trial court applied the "mild” rule with a royalty method of determining the value in situ and added exemplary damages. This method was improper since the court specifically found that Sun Oil was an intentional and wilful convertor and that the oil was produced in violation of the leases. The "harsh” rule should have been applied in this instance, and plaintiffs awarded the value of the oil at the time of conversion. The addition of exemplary damages was also improper.

In Michigan the categories of punitive and exemplary damages are often incorrectly interchanged. Punitive damages are damages awarded solely to punish. Kewin v Massachusetts Mutual Life Ins Co, 79 Mich App 639; 263 NW2d 258 (1977). Exemplary damages are compensatory in nature and not punitive, since they are properly an element of actual damages. Ray v Detroit, 67 Mich App 702; 242 NW2d 494 (1976). The trial court assessed what it called exemplary damages.

"The Court finds the primary purpose of exemplary damages in Michigan to be an assessment of damages against a defendant that will discourage the defendant from continuing with intentional, wilful and illegal acts and to encourage a defendant to adopt practices and procedures that will prevent damages and losses to plaintiffs as well as to parties similarly situated to plaintiffs.”

It is clear that the exemplary damages awarded were actually punitive damages. Application of the "harsh” rule of damages includes an amount for punitive damages and they may not be assessed twice.

As indicated in Robinson v Gordon Oil Co, supra, the measure of damages is the value of the oil at the time of the conversion. This is in keeping with the general rule in conversion actions that the measure of damages is the market value at the time of the conversion plus interest. Baxter v Woodward, 191 Mich 379; 158 NW 137 (1916), Bowen v Detroit United R Co, 212 Mich 432; 180 NW 495 (1920), Ross v Damm, supra, Embrey v Weissman, 74 Mich App 138; 253 NW2d 687 (1977). The evidence at trial indicated that the selling price for oil from the Columbus 3 field during the period of conversion was from $3.17 to $5.02 per barrel, with a weighted average price of $3.65 per barrel. The price fluctuated from $13.35 to $5.15 per barrel, with a weighted average of $10.34 per barrel, in the period after the conversion ended and up to the time of trial. The trial court utilized $12.50 per barrel as an average price upon which to calculate damages. This figure was clearly erroneous because it does not reflect the value of the converted property at the time of conversion. There is a doctrine that the measure of damages for conversion of goods that fluctuate in value is the highest value between conversion and judgment, but this has never been applied in Michigan. See Anno: Allowance as damages for conversion of commodities or chattels of ñuctuating value, of increase in market value after the time of conversion, 40 ALR 1282; 87 ALR 817. We do not choose to apply this doctrine in this instance.

Sun Oil’s conversionary actions occurred from February 1970 through June 1974. When a conversion occurs over such an extended period of time it is difficult to fix a market price. A weighted average might effectively compensate the plaintiffs, or it might understate the total damages. Since it is impossible to accurately determine the proper price, the highest price during the period, $5.02 per barrel, should be utilized. This will insure that the innocent party will receive adequate compensation for the injury suffered.

Plaintiffs requested that the leases with Sun Oil be rescinded ab initio, but this remedy was refused by the trial court. The grant or denial of rescission is not a matter of right, but rather lies within the discretion of the trial court. Bechard v Bolton, 316 Mich 1; 24 NW2d 422 (1946). Plaintiffs have been adequately compensated by the damage award. We agree with the trial court that rescission would not be appropriate in this instance.

Affirmed in part. Reversed in part. Remanded for entry of a judgment not inconsistent with this opinion. No costs, neither party having prevailed in full._

       Supervisor of wells act, MCL 319.1 et seq.; MSA 13.139(1) et seq.

       The Supervisor of Wells Order of May 22, 1969, established:

        "(B) DRILLING UNIT

      The drilling unit for wells drilled for oil and gas in the pool defined in (A) above shall be a tract of approximately 20 acres, rectangular in shape, formed by dividing a governmental surveyed quarter-quarter section of land into an east half and a west half thereof.

        "(C) WELL SPACING PATTERN

      Permits shall be granted for the drilling of wells for oil and gas in the pool defined in (A) above provided the wells are located in the center of the northeast one-quarter (NE1/4) or the center of the southwest one-quarter (SE1/4) of a governmental surveyed quarter-quarter section of land.”

       Supervisor of Wells Order of May 22, 1969.

         The trial court awarded damages as follows:
      "The Court finds that the 50,000 barrels of oil illegally drained from beneath the Wronski and Koziara tracts are to be valued at the rate of $12.50 per barrel, are to be allocated in accordance with their relative allocation factors based on the participation percentages set forth in PlaintiiFs Exhibit No. 7 and reduced by the percentage royalty ownership of the respective Plaintiffs in each tract. The Court finds Koziara Tract No. 1 to have an allocation factor of .405% and a royalty ownership of 100%; Koziara Tract No. 2 to have an allocation factor of 13.212% and a royalty ownership of 20.83%; Koziara Tract No. 6 to have an allocation factor of 59.218% and a royalty ownership of 18.75%. The Court finds compensatory damages to be awarded the Plaintiffs Koziara against Defendant Sun Oil Company in the total amount of Eighty-Nine Thousand One Hundred Twenty-Seven and 00/000 ($89,127.00) Dollars.
      "The Court finds the Wronski Tract No. 7 to have an allocation factor of 26.421% and a royalty percentage of 12.5%; the Wronski Tract No. 13 to have an allocation factor of .743% and a royalty interest of 100%. The Court finds compensatory damages to be awarded the Plaintiffs Wronski in the amount of Twenty-Five Thousand Two Hundred Eighty-Four and 00/100 ($25,284.00) Dollars and assessed against the Defendant Sun Oil Company.
      "The Court determines on the basis of all the testimony and evidence in this case and after considering the matters stated above, that it would be reasonable and proper to assess exemplary damages against Defendant Sun Oil Company in the amount of Fifty (50%) per cent of the compensatory damages previously awarded to the Plaintiffs. The Court finds exemplary damages to be assessed against Defendant Sun Oil Company in the amount of Forty-Four Thousand Five Hundred Sixty-Three and 50/100 ($44,563.50) Dollars and awarded to plaintiffs Eugene H. Koziara and Aniela Koziara. The Court finds exemplary damages to be assessed against Defendant Sun Oil Company in the amount of Twelve Thousand Six Hundred Forty-Two ($12,642.00) Dollars and awarded to Plaintiffs Walter F. Wronski and Eleanor J. Wronski.” Trial court opinion at 15-19.

       The act provides for criminal sanction under §§ 18 (b) and 19, MCL 319.18b; MSA 13.139(18b), MCL 319.19; MSA 13.139(19), and civil penalties under § 20, MCL 319.20; MSA 13.139(20), for violations of any rule, regulation or order issued in furtherances of the act. Specifically absent is any authority to award damages to any individual injured by violation of rules or orders issued by the supervisor.

       Trial court opinion at 14.

       When there is conversion from a common pool all those having an interest therein are harmed. It would be advisable to join all such parties, but we do not require such joinder.

       Illegal oil is any oil produced in violation of a rule or regulation of the supervisor. MCL 319.2(m); MSA 13.139(2)(m). It is subject to confiscation and sale by the supervisor. MCL 319.21; MSA 13.139(21);

       Trial court opinion at 17.

       The total damages awardable in this case is $251,000 based upon the conversion of 50,000 barrels of oil valued at $5.02 per barrel. Plaintiffs Koziara are entitled to $187,815.85 due to their ownership of 72.835% of the converted oil. Plaintiffs Wronski are entitled to $68,189.15 due to their ownership of 27.165% of the converted oil.