author: Beasley, J. Bashara, J.

text:
    CITIZENS INSURANCE COMPANY OF AMERICA v TUTTLE
    Docket No. 78-4737.
    Submitted October 4, 1979, at Marquette.
    Decided April 21, 1980.
    Leave to appeal applied for.
    Plaintiff Edgar Schaedig was driving a tractor and trailer owned by plaintiff Zaiger Beverage Company when he collided with a cow belonging to defendant, Donald Tuttle, which was running at large on the highway. Plaintiff Citizens Insurance Company of America, the insurer of the truck, paid for the damage to the truck and became subrogated to that claim of Zaiger Beverage. Citizens brought an action against defendant and both Schaedig and Zaiger Beverage were permitted to join claims against defendant for lost wages and additional expenses. All of plaintiffs’ claims rested on the theory that the proximate cause of the damages was defendant’s allowing the cow to run at large on the highway, contrary to law, and defendant’s negligence in not fencing in and restraining the cow. The Schoolcraft Circuit Court, William F. Hood, J., granted defendant’s motion for summary judgment for failure to state a claim, on the theory that the cause of action was barred .by the abolition of tort liability in the no-fault insurance act. Plaintiffs appeal. Held:

    The statute abolishing "tort liability arising from the ownership, maintenance or use * * * of a motor vehicle” precludes, aside from specifically enumerated exceptions, liability whenever an automobile is involved in any way, even if the cause of the accident could in no way be attributed to the vehicle and applies to situations where the vehicle is owned by either the plaintiff or the defendant. The action does not fall within one of the enumerated exceptions and is, therefore, barred.
    Affirmed.
    Bashara, J.; dissented. He would hold that the statute does not preclude recovery of damages occasioned by a cause in no way attributable to a vehicle. He would reverse.

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d (Rev), Automobile Insurance § 348.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.
    [2] 4 Am Jur 2d, Animals § 114.
    Liability for damage to motor vehicle or injury to person riding therein by animal at large in street or highway. 59 ALR2d 1328.

      Opinion of the Court
    1. Insurance — No-Fault Insurance — Automobiles — Tort Liability — Statutes.
    The statute abolishing "tort liability arising from the ownership, maintenance or use * * * of a motor vehicle” precludes, aside from specifically enumerated exceptions, liability whenever an automobile is involved in any way, even if the cause of the accident could in no way be attributed to the vehicle and applies to situations where the vehicle is owned by either the plaintiff or the defendant (MCL 500.3135; MSA 24.13135).
    Dissent by Bashara, J.
    2. Insurance — No-Fault Insurance — Automobiles — Tort Liability — Statutes.

      The statute abolishing "tort liability arising from the ownership, maintenance or use * * * of a motor vehicle” does not' preclude liability where the cause of the accident could in no way be attributed to the vehicle and does not preclude recovery of damages occasioned by the collision of an automobile with a cow negligently left to roam the highway (MCL 500.3135; MSA 24.13135).

      Davis & Olsen Law Office, for plaintiffs.

      Nebel & Revord, for defendant.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Beasley, J.

This is another case of first impression under Michigan no-fault insurance law and, in particular, MCL 500.3135; MSA 24.13135. The question posed is the interpretation to be given to the phrase "tort liability arising from the ownership, maintenance or use within this state of a motor vehicle * * * is abolished”, in the light of the peculiar fact situation presented in the instant case.

Plaintiff Edgar Schaedig was driving a tractor and trailer owned by Zaiger Beverage Company on US Highway 2 in Schoolcraft County when he collided with defendant’s cow, which was running at large on the highway. The truck-trailer unit jackknifed, ran into a ditch and suffered extensive damage.

Citizens Insurance Company of America, the insurer of the truck, paid for the damage to the truck and became subrogated to that claim of the Zaiger Beverage Company. Citizens filed suit to recover the amount paid, and both Schaedig and Zaiger were allowed to join the suit to recover lost wages and additional costs respectively. Plaintiffs’ claims were based on defendant’s allowing the cow to run at large on the highway in violation of MCL 433.11 et seq.; MSA 18.789(1) et seq., and, also, that he was negligent in not fencing in and restraining the cow.

Defendant brought a motion for summary judgment pursuant to GCR 1963, 117.2(1), alleging that plaintiffs’ cause of action was barred by the no-fault act, MCL 500.3135; MSA 24.13135. The trial judge granted the motion and awarded summary judgment to defendant. Plaintiffs appeál as of right.

MCL 500.3135; MSA 24.13135 provides:

"Sec. 3135. (1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.

"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:

"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his act or omission, he does not cause or suffer such harm intentionally if he acts or refrains from acting for the purpose of averting injury to any person, including himself, or for the purpose of averting damage to tangible property.

"(b) Damages for noneconomic loss as provided and limited in subsection (1).

"(c) Damages for allowable expenses, work loss and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3 year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his liability by the amount of taxes that would have been payable on account. of income the injured person would have received if he had not been injured.” (Footnotes omitted.)

On appeal, plaintiffs argue that if defendánt’s tort did not arise from his use of a motor vehicle, defendant’s liability is not abolished by Virtue of §3135. Defendant counters, arguing that any tifne a motor vehicle is involved in an accident, tort liability is abolished by this section, and the vehicle owner must look to his own insurance company for coverage.

T'bus, the issue is to what extent the Legislature intended to abolish tort liability under MCL 500.3135; MSA 24.13135. If we determine that the Legislature intended that, aside from the enumerated exceptions, toft liability is to be precluded whenever an automobile is involved in any Way, even if the cause of the accident could in no way be attributed to the vehicle, we must affirm the ruling of the trial court. We determine that the Legislature did so intend and affirm.

In Shavers v Attorney General, the Michigan Supreme Court upheld the constitutionality of the no-fault insurance act with respect to the abolition of tort liability for property damage, enumerating four legislative goals which would be served by the no-fault plan:

"First, with the shift from liability to collision insurance resulting from the abolition of tort liability, there would be a new emphasis on the value and repairability of the insured’s own motor vehicle; rates would be calculated on the basis of repair costs for that vehicle, rather than, as in liability insurance, on the potential damage to a vehicle of unknown value.

"Second, an additional anticipated effect of relating premium costs to the insured’s car was that this system would create incentives for safer cars.

"Third, the abolition of tort liability eliminates the necessity for accident investigations, because a determination of fault is irrelevant to the payment of compensation. The elimination of such investigations, it was hoped, would result in the decreased administrative costs and resultant savings on insurance premiums.

"Finally, by shifting from a liability to a no-fault system which emphasizes the risk to be insured, not the exposure to some unknown third party, the Legislature anticipated that group insurance would become feasible. Group insurance has been shown to be far less expensive to administer and more likely to result in lower costs. Furthermore, this potential for group insurance may draw large life and group insurance underwriters into the automobile insurance field, resulting in beneficial competition.” (Footnotes omitted.)

Since a legitimate state interest was involved, the statute’s constitutionality was upheld against a due process attack. The court also rejected a claim that the statute unconstitutionally denied equal protection, using the following language which is instructive in analyzing . the problem posed in the instant case:

"The different treatment of moving vehicles and tangible property and properly parked vehicles is related to the second conceptual difficulty relating to the use of fault in a no-fault act. Common sense would indicate, and actuarial studies have shown, that in accidents involving motor vehicles and tangible property, the motor vehicle is usually at fault. Consequently, the act makes the motorist strictly liable for the damage he does to tangible property and requires him to purchase insurance for such damage

"The system, however, functions without regard to fault. That is, there is no determination in each accident of who was at fault. Thus, the appellation 'no-fault’ is a misnomer only if one concentrates on the-initial legislative allocation of responsibility. However, if one looks at the operational effect of the act, it remains a system of insurance without fault.”

In the quoted dictum, the Shavers Court appears to have rejected the "fault investigation” requirement even in the case where a stray animal may occasion the damage. Thus, the insurer of the driver of an automobile who does damage to property would be strictly liable for the damage regardless of who was at fault.

Plaintiffs also argue that the language of § 3135 seems to indicate otherwise. MCL 500.3135(1); MSA 24.13135(1) speaks of "tort liability * * * caused by his ownership> maintenance or use of a motor vehicle”. MCL 500.3135(2); MSA 24.13135(2), states "tort liability arising from the ownership, maintenance or use”. This language indicates that the tort liability must arise from the ownership of the vehicle. What the language does not state is whether it must be from a vehicle driven by plaintiff, by defendant, or by either. We find that to fulfill the objectives of the Legislature, the statute must be construed to apply to a vehicle "owned, maintained or used” by either plaintiff or defendant. Where ambiguities exist in a statute, or if a statute is susceptible of two or more meanings, courts may construe the statute in a reasonable fashion, considering its purpose and objectives.

Under the circumstances of the case at bar, the fact that the cow was a stray on the highway and* therefore, allegedly caused the accident, does not absolve the motorist’s insurance company from liability to pay for the damage to the vehicle. Otherwise, an investigation to determine fault would be required, in contravention of the Legislature’s purpose in enacting the no-fault statute.

Under MCL 500.3101; MSA 24.13101, and MCL 500.3121; MSA 24.13121, plaintiffs, as owners of a motor vehicle and trailer, were required to furnish insurance to protect against damage to personal property. If the owner or operator of a vehicle desires to protect against the loss or damage to his vehicle, he must provide for his own insurance. Regardless of who is at fault, one looks to one’s own insurance carrier to pay for the damage to property. The effect of § 3135(2) is to do away with tort liability unless a claimant fits within one of the enumerated exceptions to the statute. Since none of the exceptions are applicable in the instant case, the only claims made related to property damage by plaintiff driver.

Plaintiffs’ well-prepared brief states several hypothetical examples of how the trial court’s interpretation of § 3135(2), when applied in other situations, would undercut the Legislature’s intention when it abolished tort liability:

"A person rents a trailer for his car from an automobile equipment rental company. The company installs a trailer hitch and hooks up the trailer, both done negligently. As the motorist drives on a street the trailer comes loose and damages the auto. In a second hypothetical situation a construction company excavates and throws dirt into a pile on a road. No warniiig devices are left. Negligence of the construction company is clear. In the night a motorist hits the pile of dirt. A third hypothetical could be the classic situation of a motorist being hit by a train at a dangerous and unmarked crossing.”

Although plaintiff’s argument is well articulated, to effectuate the no-fault scheme, there can be no hearing to determine fault, even in the above situations where there is only damage to tangible property.

No-fault was enacted in order to provide a method of prompt compensation for persons and property involved in automobile accidents. If the Legislature had intended to limit § 3135(2) to the defendant’s use of a motor vehicle, it could have achieved this purpose by abolishing "tort liability arising from the defendant’s ownership”. Or, the statute could have abolished "tort liability caused by the ownership of a motor vehicle”. The use of the broad term "arising from” indicates that the Legislature did not intend to limit § 3135(2) to accidents caused by a defendant’s use of a motor vehicle.

The trial judge’s conclusion that § 3135(2) applies to actions arising out of a plaintiffs use of a motor vehicle is correct. Plaintiffs’ claims are barred by the no-fault act.

Affirmed.

Allen, P.J., concurred.

Bashara, J.

(dissenting). 1 would dissent. The majority concludes that under no-fault, the Legislature intended tort liability to be precluded whenever an automobile is involved, even if the cause of the accident could in no way be attributed to the vehicle.

In my view, the statute does not speak to the probability that an owner or operator of a vehicle may be injured by a nonvehicular cause. It speaks only of liability. Indeed, the Commission’s comment to § 5 of the Uniform Motor Vehicle Accident Reparations Act, from which our no-fault legislation is patterned, states the following:

"Moreover, the only tort actions which are abolished are those which arise from the defendant’s ownership, maintenance, or use of a motor vehicle. Among the potential tort actions thus retained by an automobile accident victim would be those against an automobile manufacturer for products liability or against a railroad in the case of an automobile-train collision.” 1 Uniform Laws Annotated, Civil Procedural and Remedial Laws, § 3, Commissioner’s Comment, p 372. (Emphasis supplied.)

The above comments clearly suggest that one whose negligence may have caused damage, but who may not have been involved in a collision, should not be absolved from liability. Moreover, the majority’s interpretation of the statute would create an anomalous situation. A victim who suffers permanent disfigurement or serious impairment of a bodily function may maintain a tort action where the injuries are caused by the ownership, use or maintenance of a motor vehicle. Conversely, an owner or operator suffering the same injuries may not maintain such an action, merely because the causation did not arise from the ownership, use or maintenance of another automobile.

It is my opinion that had the Legislature intended to exclude this class of tortfeasors, an express provision could easily have been added to the statute. Until that is accomplished, fairness alone should dictate that we not enlarge upon the ambit of "no-fault” legislation.

I would reverse the decision of the trial court.

       402 Mich 554, 627-628; 267 NW2d 72 (1978).

      "58 It is possible that a motorist’s insurer will be liable to the owners of stray animals, trains or other non-stationary tangible property which may occasion the damage. The equal protection clause does not, in this context, require that statutory classification be drawn with great precision. New Orleans v Dukes, 427 US 297, 303-304; 96 S Ct 2513; 49 L Ed 2d 511 (1976).”

        Id., 631-632.

        Poole v Board of Canvassers of Wayne County, 88 Mich App 299, 304; 276 NW2d 587 (1979).

       MCL 500.3135(2); MSA 24.13135(2).

       Although we recognize that this defendant suffers a windfall by not having to pay for damage to plaintiffs automobile, the legislative plan recognized that in most instances where a collision occurs between a vehicle and property, most often the vehicle will cause the damage.


source: Caselaw Access Project

author: Bashara, J.

license: Public Domain

text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v STRAW
    Docket No. 78-4750.
    Submitted January 3, 1980, at Detroit.
    Decided April 21, 1980.
    Leave to appeal applied for.
    Defendant, Dollie Straw, was injured as a result of an accident with an uninsured motorist. Defendant’s insurance policy with plaintiff, Detroit Automobile Inter-Insurance Exchange, provided uninsured motorist coverage. Defendant’s daughter, who resided in the same household, owned another vehicle which was insured with plaintiff under a separate policy having identical coverage. Defendant sought to "stack” the $20,000 limit of uninsured motorist coverage under her daughter’s policy with the identical limit of coverage under her own policy. When plaintiff refused to "stack” the limits of coverage of the two policies, defendant demanded arbitration under each policy pursuant to the arbitration provision contained in each of the insurance policies. Plaintiff objected to the arbitrators’ jurisdiction to decide the issue of the "stacking” of the coverage of the two policies. The arbitrators awarded defendant $37,500 without prejudice to the parties resolving the question of "stacking” in circuit court. Plaintiff moved in circuit court to vacate the arbitration award or to modify the award to reflect the $20,000 limit of coverage in defendant’s policy. Defendant moved for entry of a judgment on the full arbitration award. The Wayne Circuit Court, Charles S. Farmer, J., vacated the arbitration award insofar as it exceeded the $20,000 limit of coverage contained in the insurance policy issued to defendant. Defendant appeals. Held:

    1. The scope of arbitration is determined by the contract of the parties, with the arbitrability of an issue being a matter for judicial determination. A reviewing court may vacate an arbitration award if it determines that a claim is not arbitrable by reason of the fact that the arbitrator did not possess subject matter jurisdiction over the claim in dispute.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Arbitration and Award §§ 15, 54.
    [2] 5 Am Jur 2d, Arbitration and Award § 167.
    [3] 44 Am Jur 2d, Insurance §§ 1707, 1708.
    [4] 7 Am Jur 2d (Rev), Automobile Insurance.§ 326.

      2. The arbitrability of an issue in ah insurance contract is ascertained through a three-stage inquiry: (1) is there an arbitration agreement in a contract between the parties; (2) is the ihsUred’s claim ón its face or arguably related to the contract; and (3) is the dispute expressly exempt by the terms of the contract.
    3. There is rió question that there was ah arbitration agreement in the insurance contract between plaintiff and defendant and that the policies in question do not expressly exempt from arbitration the question of "stacking” the coverage under the two policies. Defendant’s "stacking” claim is not on its face or arguably related to the policy of insurance on her Own automobile. The nature of that claim is rather an attefnpt to collect damages as a third party under her daughter’s policy, and thus defendant is not entitled to arbitrate that question under the arbitration language in her own policy.
    Affirmed.
    1. Arbitration — Contracts — Interpretation — Courts.
    The scope of arbitration is determined by the contract of the parties; the arbitrability Of an issue is a matter for judicial determination.
    2. • Appeal — Arbitration — Court Rules.
    Ari appellate court may vacate an arbitrator’s award where the court determines that a claim is nonarbitrable by reason of the fact that the arbitrator did not possess actual subject-matter jurisdiction over the claim (GCR 1963, 769.9[l][c]).
    3. Arbitration — Contracts — Arbitrable Issues — Three-Stage Inquiry.
    The arbitrability of an issue in an insurance contract is ascertained through a three-stage inquiry: (1) is there an arbitration agréehient in a contract between the parties; (2) is the insured’s claim on its face or arguably related to the contract; and (3) is the dispute expressly exempt by the terms of the contract.
    4. Arbitration — Contracts — Insurance — Uninsured Motorist Coverage — Stacking of Coverage — Arbitrable Issues.
    The question of whether an insured may "stack” the uninsured motorist coverage provided in the automobile insurance policy issued to the insured’s daughter on the uninsured motorist coverage provided in the irisured’s policy is not an arbitrable issue on a claim brought by the insured under her policy, since such a claim is not on its face or arguably related to the contract of insurance issued to the insured who is making the claim.

      Ronald R. Hanlon, for plaintiff.

      Edward M. Miller, for defendant.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   Bashara, J.

Defendant, Dollie Straw, alleged injury as a result of aii accident with an uninsured motorist. Her insurance policy with the plaintiff provided uninsured motorist coverage. Defendant’s daughter resided in the same household and also owned another vehicle which was insured with the plaintiff under a separate policy, identical in coverage.

Each of the policies contained a $20,000 limit for uninsured motorist coverage, all arbitration clause, as well as the following language in the uninsured motorist coverage:

"Defihitiohs

"For the purpose of this coverage:

"(a) 'insured’ means

(1) the individual insured named first in Item 1 of the Declaration Certificate, and while residents of the sainé household of such individual, the spouse and relatives of either,

"Exclusions

"The insurance afforded by this coverage does not apply:

"(1) to bodily injury to an insured sustained while occupying any automobile, other than ah owned automobile, except a non-owned automobile to which there is applicable and available to such insured no insurance similar to that afforded by this coverage.”

The policies also contain the following definitions:

"(d) 'owned automobile’ means the vehicle described in the Declaration Certificate and, as defined herein, a temporary substitute automobile, a replacement automobile, and a trailer owned by the insured.”

and

"(i) 'non-owned automobile’ means any automobile or trailer, other than a temporary substitute automobile, not owned by, furnished or available for the frequent or regular use of the named insured, relative or other resident of the same household of such named insured.”

Arbitration was demanded under both the policy issued to defendant on her own automobile and the policy issued to defendant’s daughter on the daughter’s automobile. Plaintiff objected to the arbitrators’ jurisdiction to decide the issue of "stacking” the coverage of the policies, arguing that the arbitrators could only award damages pursuant to the language of the policies.

The arbitrators awarded the sum of $37,500 to the defendant without prejudice to resolve the issue of "stacking” in circuit court.

Plaintiff paid the $20,000 limit under the policy on defendant’s automobile, but refused to pay the balance allocated to the daughter’s vehicle. Plaintiff filed in circuit court a motion to vacate the arbitration award, which exceeded the $20,000 limit on the policy issued to defendant. Defendant moved for entry of a judgment on the full arbitration award.

The trial court found that the arbitrators exceeded their authority in considering the daughter’s insurance as "an issue to be included in this award”. The court vacated that portion of the award which exceeded the $20,000 policy limit of defendant’s insurance as an unlawful exercise by the arbitrators of equity jurisdiction.

We concur with the conclusion reached by the trial court and affirm.

The scope of arbitration is determined by the contract of the parties, and the arbitrability of an issue is a matter for judicial determination. Kaleva-Norman-Dickson School District No 6 v Kaleva-Norman-Dickson School Teachers Ass’n, 393 Mich 583; 227 NW2d 500 (1975). Paragraph (1)(c) of GCR 1963, 769.9 specifies the grounds for vacating an arbitration award in Michigan. This Court has construed the provision as follows:

"This would mean that the award herein could be vacated if this Court should determine that claim 3(b) was in fact nonarbitrable, such vacation being justified on the grounds that the arbitrator did not possess actual subject matter jurisdiction over the claim and thus inadvertently exceeded his authority in ruling thereon even if apparent jurisdiction over the claim was granted him by the fact of the submission.” Detroit Demolition Corp v Burroughs Corp, 45 Mich App 72, 80; 205 NW2d 856 (1973).

In American Fidelity Fire Ins Co v Barry, 80 Mich App 670, 674-676; 264 NW2d 92 (1978), lv den 402 Mich 915 (1978), we established a three-step process to ascertain the arbitrability of an issue:

"First, is there an arbitration agreement in a contract between the parties?

"Second, is the insured’s claim 'on its face’ or 'arguably’ related to the contract?

"Third, is the dispute 'expressly exempt’ by the terms of the contract? If not it is arbitrable. MCLA 600.5001(2); MSA 27A.500l(2).”

See also, Detroit Automobile Inter-Ins Exchange v Reck, 90 Mich App 286; 282 NW2d 292 (1979).

In applying the foregoing criteria, it is easy to conclude, frotti the insurance policy, that there in fact was an arbitration agreement between the parties. The dispute in question does not appear to be "expressly exempt” by the terms of the contract. The policy provides that:

"matters upon which the insured and the exchange do not agree shall be settled by arbitration.”

The "stacking” issue arguably falls within those matters involving legal entitlement to recovery. At any rate, the stacking question is certainly not "expressly exempt” from the arbitration provision.

It is the remaining element of the Barry standard which leads to a determination that the stacking issue is not arbitrable. True, doubts should be resolved in favor of arbitration. Detroit Automobile Inter-Ins Exchange v Kurak, 81 Mich App 217; 265 NW2d 86 (1978), Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975), lv den 395 Mich 806 (1975). However, a review of the facts in the instant case convinces us that the "stacking” claim is not "on its face” based on defendant’s insurance contract with plaintiff concerning her automobile.

This matter does not involve a situation in Which the party is a named insured on two insurance policies with the same insurer, as in Detroit Automobile Inter-Ins Exchange v Standfest, 96 Mich App 71; 292 NW2d 164 (1980). Rather, defendant is attempting to collect damages under a third-party contract. Although defendant may be "insured” for certain purposes under her daughter’s policy, her right to recover under that policy is not "on its face” or "arguably related to the contract” of insurance on her own automobile. The trial court correctly noted that the scope of defendant’s insurance contract with plaintiff should not be broadened to include a third party’s contract, absent a showing of privity qr contractual obligation with defendant’s daughter.

In view of our holding, we find it unnecessary to address the remaining issues presented.

Affirmed, costs to plaintiff.


author: Per Curiam.

text:
    WOLVERINE TOWER ASSOCIATES v CITY OF ANN ARBOR
    Docket Nos. 43601, 43602, 43603, 43604.
    Submitted February 5, 1980, at Lansing.
    Decided April 7, 1980.
    Wolverine Tower Associates (WTA) is the owner of a multi-tenant commercial building located in the City of Ann Arbor. In 1975, WTA petitioned the Tax Tribunal for a change of assessment and later amended its petition to include the years 1976-1978. The Tribunal consolidated the petitions for hearing, used a combination of approaches, namely, value, cost and capitalization of adjusted income, to determine true cash value and made a finding. From that finding, WTA appeals. Held:

    Use by the Tax Tribunal of the actual cash value, reproduction cost and capitalization of income methods of determining true cash value of an income producing multi-tenant office building for tax assessment purposes is proper, as all are recognized approaches to determining true cash value. The Tax Tribunal did not err as a matter of law in determining that, in using the capitalization of income approach to determine actual cash value for taxation purposes, actual income may be adjusted in light of market rentals in comparable properties. Affirmed.
    1. Taxation — Assessment — True Cash Value — Determination of True Cash Value — Methods.
    Use by the Tax Tribunal of the actual cash value, reproduction cost and capitalization of income methods of determining true cash value of an income producing multi-tenant office building for tax assessment purposes is proper, as all are recognized approaches to determining true cash value.
    2. Taxation — Assessment — Determination of Actual Cash Value — Capitalization of Income Method — Adjustment of Actual Income.
    The Tax Tribunal did not err as a matter of law in determining that, in using the capitalization of income approach to determine actual cash value for taxation purposes, actual income may be adjusted in light of market rentals in comparable properties.

      References for Points in Headnotes
    [1] 72 Am Jur 2d, State and Local Taxation §§ 753-755, 759, 761, 762, 765, 766.
    [2] 72 Am Jur 2d, State and Local Taxation §§ 760-762.
    Income or rental value as factor in evaluation of real property for purposes of taxation. 96 ALR2d 666.
    [3] 2 Am Jur 2d, Administrative Law § 657 et seq.

      3. Taxation — Appeal — Tax Tribunal — Findings op Fact.
    A reviewing court is bound by the factual determinations of the Tax Tribunal.

      Fred Gordon, for plaintiff.

      R. Bruce Laidlaw, City Attorney, for defendant.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

Wolverine Tower Associates (WTA) appeals a decision of the Michigan Tax Tribunal upholding the city’s assessments of property owned by WTA for the tax years 1975 through 1978.

WTA first contends that the Tax Tribunal erred in affirming the assessments solely on the basis of WTA’s failure to meet its burden of proof. We disagree. We fail to find any abdication by the Tax Tribunal of its duty to make an independent finding regarding the true cash value of WTA’s property. To the contrary, the Tax Tribunal’s opinion indicates a careful review of all evidence presented in reaching its conclusion with respect to true cash value, in accord with its obligation to do so.

Next, WTA assigns as reversible error the Tax Tribunal’s utilization of a combination of three customary approaches in establishing the true cash value of WTA’s commercial multi-tenant office building, instead of relying exclusively on the income approach to valuation. We reject this argument.

The three tests used by the Tax Tribunal, market value, cost, and capitalization of income, are all recognized approaches for determining the true cash value of property for tax assessing purposes. Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 130; 265 NW2d 182 (1978), lv den 403 Mich 848 (1978). WTA’s reliance on CAF Investment Co v State Tax Comm, 392 Mich 442; 221 NW2d 588 (1974), is misplaced. That case does not hold that the only method permissible in calculating the true cash value of an income producing multi-tenant office is capitalizing the property’s actual income stream. Instead, it expressly indicates that other methods may, and indeed, should be used in situations where employing the income capitalization approach would be too speculative to be a reliable indicium of valuation. Id., 450, 456. The emphasis is instead on the reliability and accuracy of the methods used. Safran Printing Co v Detroit, 88 Mich App 376; 276 NW2d 602 (1979). In addition, this Court has held that actual income is not the only basis for calculating true cash value, even under the capitalization of income approach. Ramblewood Associates v City of Wyoming, 82 Mich App 342, 345-347; 266 NW2d 817 (1978). Therefore, we find WTA’s argument lacking in merit.

The Tax Tribunal’s ruling that actual income appropriately adjusted in light of market rentals in nine comparable properties was a more reliable indication of true cash value than actual income alone is clearly proper under the above-cited authorities and not error as a matter of law.

We finally find no error in the Tax Tribunal’s determination of the applicable capitalization rate and its holding that the assessment of WTA’s property was uniform with a neighboring office building. The former determination was a question of fact and we are bound by the Tax Tribunal’s determination thereof. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 231-232; 276 NW2d 566 (1979). Moreover, the Tax Tribunal’s conclusion is supported by substantial record evidence.

As to the finding of uniformity, no fraud is alleged, nor do we find any error of law in this respect, or adoption of any wrong principles. As we see this to be a factual finding, we are bound by the Tax Tribunal’s conclusion. Even assuming it was a legal question or a mixed question of law and fact, there is again substantial evidence in the record to buttress this conclusion.

We find no error necessitating reversal and, therefore, affirm.

Affirmed. No costs, a public question.


author: V. J. Brennan, J.

text:
    BAY COUNTY CONCEALED WEAPONS LICENSING BOARD v GASTA
    Docket No. 78-4906.
    Submitted January 4, 1980, at Lansing.
    Decided April 22, 1980.
    James G. Gasta was convicted of intentionally pointing a firearm at another person. He had a permit to carry a concealed weapon in his employment which had been issued by the county concealed weapons licensing board. A complaint was filed with the licensing board for revocation of Gasta’s concealed weapons permit. The complaint alleged that Gasta had intentionally pointed his firearm at two teenagers without malice. A hearing was held and the licensing board ordered revocation of defendant’s permit. A petition for review of this order was granted in Ingham Circuit Court. Venue was transferred to Bay Circuit Court. Bay County was the residence of the licensing board and where the revocation of the permit was made. Bay Circuit Court, John X. Theiler, J., in answer to defendant’s challenge to the composition of the licensing board composed of the prosecuting attorney, sheriff and commissioner of state police, or their respective authorized deputies, ruled that the presence of full-time law enforcement officials on concealed weapons licensing boards created an intolerably high risk of bias against licensees in revocation hearings, thus violating due process rights in such hearings. The licensing board’s revocation order was reversed. Plaintiff appeals. The issue on appeal is whether defendant was denied procedural due process in the license revocation proceedings. Held:

    In view of the inherent potential danger which accompanies the issuance of a permit to carry a concealed weapon, the licensing board, composed of a prosecuting attorney, sheriff, and commissioner of the Michigan State Police, or their respective authorized deputies, reflects the Legislature’s intent that power to issue and revoke concealed weapons licenses is properly placed with those professionals most able to assess community needs and problems in this area.

      References for Points in Headnotes
    [1, 6] 79 Am Jur 2d, Weapons and Firearms § 4.
    [2, 5, 6] 79 Am Jur 2d, Weapons and Firearms §§ 14, 31.
    Who is entitled to permit to carry concealed weapons. 51 ALR3d 504.
    [3] 79 Am Jur 2d, Weapons and Firearms §§ 14, 31.
    [4] 51 Am Jur 2d, Licenses and Permits § 58 et seq,

    79 Am Jur 2d, Weapons and Firearms § 14.

      Reversed.
    1. Weapons — Concealed Weapons — Regulatory Agency — Constitutional Law — Right to Bear Arms — Police Power.
    The existence of a concealed weapons licensing board reflects a state’s legitimate interest in limiting public access to weapons suitable for criminal purposes and confirms the notion that the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of police power.
    2. Weapons — Concealed Weapons — Applications and Permits — Qualifications of Applicant — Statutes.
    An applicant for a permit to carry a concealed weapon must meet certain age and residency requirements; the application must be approved by a local official; and it must appear that the applicant has good reason to fear injury to the applicant’s person or property, or has other proper reasons, and that the applicant is a suitable person to be so licensed (MCL 28.426; MSA 28.93).
    3. Weapons — Concealed Weapons — Licensing Board — Weapons Permit — Revocation of Permit — Statutes.
    A county concealed weapons licensing board is composed of three members, the prosecuting attorney, the sheriff and the commissioner of the Michigan State Police, or their respective deputies, who are charged with the exclusive authority to issue to applicants licenses to carry concealed weapons; this three-member licensing board has statutory authority to both issue and revoke a concealed weapons permit (MCL 28.426; MSA 28.93).
    4. Weapons — Concealed Weapons — Licensing Board — Revocation of Permit — Procedure to Revoke — Statutes.
    Procedures for revocation of a concealed weapons permit require that the licensee be notified of the reasons for license revocation; there must be a written complaint to the licensing board alleging a reason for disqualification; there must be a hearing by the board on the complaint and the licensee must receive timely notice of that hearing; witnesses may be placed under oath (MCL 28.428; MSA 28.96).

      5. Weapons — Concealed Weapons — Licensing Board — Composition of Board — Authority of Board.
    The potential danger which a concealed weapon poses to the unsuspecting public justifies that licensing procedures be entrusted to a board of law enforcement officials; the Legislature has insured that an individual’s perceived need to carry a concealed weapon will be evaluated in light of the experience and knowledge of community needs by creating a licensing board composed of law enforcement officials and by giving this board the exclusive authority to issue, deny and revoke permits for concealed weapons.
    6. Weapons — Concealed Weapons — Reasons for Permit — Temporary Need — Time Limitation.
    The issuance of a concealed weapons permit is dependent on the existence of certain facts and circumstances at the time of issuance which show a temporary need and the permit is issued only for the limited time those reasons exist.

      Henry J. Sefcovic, Bay County Civil Counsel, for plaintiff.
    Amicus Curiae: Judd R. Spray, Staff Attorney, Prosecuting Attorneys Association of Michigan.
    Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   V. J. Brennan, J.

The Bay County Concealed Weapons Licensing Board appeals by right from a November 6, 1978, Bay County Circuit Court order. That order reversed a September 23, 1977, order of the Bay County Concealed Weapons Licensing Board revoking defendant’s permit to carry a concealed weapon. Relying on Crampton v Dep’t of State, 395 Mich 347; 235 NW2d 352 (1975), the Bay County circuit judge ruled that defendant was denied procedural due process in the license revocation procedures.

The following brief summary of the facts is offered simply to describe the context in which the legal issue arose.

Following application to the licensing board on January 7, 1976, and a hearing, Gasta was granted a permit to carry a concealed weapon, limited to use in conjunction with his employment with Jamies Dairies. Proceedings to revoke this permit were initiated following an incident which occurred on August 22, 1977.

There are two versions of this incident. Defendant claims that he returned home from work to discover his son being threatened by two older youths, who had chased the younger Gasta both on foot and by car. Accordingly, defendant pulled the gun he normally carries in his dairy business and held the assailants at bay until police officers arrived.

A conflicting version was given by the investigating officers who reported that defendant’s son was one of a group of youngsters throwing fruit at a passing vehicle occupied by two older teenagers, who chased the youngsters. Defendant removed the keys from the ignition of the teenagers’ car, and, without contacting the authorities, held the teenagers at gunpoint, made them assume the "spread-eagle” position, and used threatening language.

On August 25, 1977, Mark Berger, one of the Bay County Deputy Sheriffs who had investigated the August 22 incident, signed a complaint against defendant alleging two counts of intentionally pointing a firearm at another person without malice, MCL 750.233; MSA 28.430. Defendant was jury-convicted of one count of the offense charged, and sentenced to a fine of $50, which has been paid.

On September 6, 1977, Deputy Sheriff Berger filed a complaint with the "Licensing Board” for revocation of defendant’s concealed weapons permit. A hearing was held and plaintiff board ordered revocation of defendant’s permit on September 23, 1977. On November 15, 1977, defendant filed a petition for review of the licensing board’s revocation order in Ingham County Circuit Court, leave to appeal was granted and venue was transferred to Bay County Circuit Court by order dated April 27, 1978. Defendant moved for "peremptory reversal in the nature of a partial summary judgment”, challenging the composition of the licensing board on the authority of Crampton, supra. The Bay County circuit judge reversed the licensing board’s September 23 revocation of defendant’s permit to carry a concealed weapon. We disagree with the circuit judge’s finding and hereby reverse.

The existence of the Concealed Weapons Licensing Board reflects the state’s legitimate interest in limiting public access to weapons suitable for criminal purposes and confirms the notion that the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power. People v McFadden, 31 Mich App 512; 188 NW2d 141 (1971), lv den 385 Mich 771 (1971).

An applicant for a permit to carry a concealed weapon must meet certain age and residency requirements; the application must be approved by a local official; and it must appear "that the applicant has good reason to fear injury to the applicant’s person or property, or has other proper reasons, and that the applicant is a suitable person to be so licensed”. MCL 28.426; MSA 28.93.

By statute, a county concealed weapons licensing board is composed of three members, "the prosecuting attorney, the sheriff and the commissioner of the Michigan State Police, or their respective authorized deputies”, who are charged with the exclusive authority to issue to applicants licenses to carry concealed weapons. MCL 28.426; MSA 28.93. This three member licensing board has statutory authority to both issue and revoke a concealed weapon permit:

"The licensing board herein created by section six [6] may revoke any license issued by it upon receiving a certificate of any magistrate showing that such licensee has been convicted of violating any of the provisions of this act, or has been convicted of a felony. Such license may also be revoked whenever in the judgment of said board the reason for granting such license shall have ceased to exist, or whenever said board shall for any reasonable cause determine said licensee to be an unfit person to carry a pistol concealed upon his person. No such license shall be revoked except upon written complaint and then only after a hearing by said board, of which at least seven [7] days’ notice shall be given to the licensee either by personal service or by registered mail to his last known address. The clerk of said licensing board is hereby authorized to administer an oath to any person testifying before such board at any such hearing.” MCL 28.428; MSA 28.96.

The statutory revocation procedures require that the licensee be notified of the reasons for license revocation. There must be a written complaint to the licensing board alleging a reason for disqualification. There must be a hearing by the board on the complaint and the licensee must receive timely notice of that hearing. Witnesses may be placed under oath.

The licensing board is comprised of one representative each from the County Prosecutor’s Office, the State Police, and the County Sheriff’s Department. By creating a board composed of law enforcement officials and by giving it the exclusive authority to issue, deny and revoke permits for concealed weapons, the. Legislature has insured that an individual’s perceived need to carry a concealed weapon will be evaluated in light of the experience and knowledge of community needs possessed by these local officials. The potential danger which a concealed weapon poses to the unsuspecting public justifies that licensing procedures be entrusted to a board comprised of law enforcement officials.

In the instant case, the trial court below relied on Crampton v Dep’t of State, supra, in determining the presence of full-time law enforcement officials on concealed weapons licensing boards created an intolerably high risk of bias against licensees in revocation hearings, thus violating a licensee’s due process rights in such hearings. Because of the significant differences in the rights affected and the issues decided by the two boards, we decline to extend Crampton to the instant case.

Although the earlier distinctions between rights and privileges in terms of defining protected property interests have been rejected by both the Federal and Michigan courts, we continue to look at the nature of the interest claimed to require protection in determining the scope of the procedural safeguards required in a revocation proceeding. While the holder of a permit to carry a concealed weapon has a modicum of interest in that permit, that interest is not equivalent to the interest and correspondingly the procedural safeguards which surround the holder of a liquor license, Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976), a driver’s license, Crampton v Dep’t of State, supra, or one entitled to receipt of welfare benefits, Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970).

The issuance of a concealed weapons permit is dependent on the existence of certain facts and circumstances at the time of issuance which show a temporary need. The permit is issued only for the limited time those reasons exist. Unlike the holder of a driver’s license or a liquor license, the holder of a concealed weapons permit will usually not generate an economic dependence and reliance on the continued existence of the license.

In view of the inherent potential danger which accompanies the issuance of a permit to carry a concealed weapon, the licensing board as composed reflects the Legislature’s intent that power to issue and revoke such licenses is properly placed with those professionals most able to assess community needs and problems in this area.

Reversed. The trial court order which reversed the licensing board’s revocation of defendant’s permit to carry a concealed weapon is hereby reversed.

       US Const, Am II; Const 1963, art 1, § 6.

       This Court has unanimously declined to further extend Crampton v Dep’t of State, 395 Mich 347; 235 NW2d 352 (1975), in subsequent decisions thereto. See Wolney v Secretary of State, 77 Mich App 61; 257 NW2d 754 (1977), lv den 402 Mich 877 (1978), In the Matter of Del Rio, 400 Mich 665; 256 NW2d 727 (1977), cert den 434 US 1029; 98 S Ct 759; 54 L Ed 2d 777 (1978), Golembiowski v Madison Heights Civil Service Comm, 93 Mich App 137; 286 NW2d 69 (1979), Automobile Service Councils of Michigan v Secretary of State, 82 Mich App 574; 267 NW2d 698 (1978), lv den 403 Mich 810 (1978).

        Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972), Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976).


author: Danhof, C.J.

text:
    PEOPLE v WILSON (ON REHEARING)
    Docket No. 78-4984.
    Submitted December 5, 1979, at Lansing.
    Decided April 22, 1980.
    Erwin C. Wilson was convicted of unarmed robbery and appealed. His conviction was affirmed, 95 Mich App 93; 290 NW2d 89 (1980). Defendant’s application for rehearing was granted to consider whether the original opinion incorrectly suggests that, in an appeal from a criminal trial, the prosecution is without responsibility to preserve its trial exhibits and produce them for the Court of Appeals. A witness selected defendant’s photograph from a stack of nine in a pretrial identification procedure and later made an in-court identification. Of the nine photographs, three were missing, including that of the defendant, in the records submitted on appeal. In the original opinion the Court stated: "Pressing this issue on appeal, having apparently made no effort to produce the array for our inspection, the defendant asks this Court to substitute its assessment of the unseen photographs for the informed judgment of the trial court. This we will not do.” Defendant asserts that he made strenuous efforts to secure the array of photographs for the Court of Appeals and that the preservation of the photographic exhibit was exclusively the duty of the prosecution. Held:

    1. A prosecutor is required to make every effort to preserve trial exhibits for appeal, and where he fails to file an exhibit with the trial court for transmission to the Court of Appeals the primary legal responsibility for its absence from the record is his. Consideration of a defendant’s appeal may not be precluded by his failure to produce a prosecution exhibit for appellate review which was never in his possession and was not properly filed with the trial court.
    2. Failure by the prosecution to file with the Court of Appeals all the required exhibits mandates a new trial only where the defendant is so prejudiced thereby that his constitutional right to appeal has been impeded. A defendant’s right to appeal is satisfied where the surviving record is sufficient to allow appellate evaluation. The surviving record is sufficient to show that the trial judge did not abuse his discretion in holding that the photographic array was not unduly suggestive.

      References for Points in Headnotes
    [1, 2] 4 Am Jur 2d, Appeal and Error §§ 432, 527.
    [3, 4] 4 Am Jur 2d, Appeal and Error § 399.
    [5] 5 Am Jur 2d, Appeal and Error §§ 601, 602.
    [6] 5 Am Jur 2d, Appeal and Error §§ 880, 881.

      Affirmed.
    1. Appeal — Criminal Law — Evidence — Trial Exhibits — Filing Exhibits — Transmission to Appeals Court — Preservation of Exhibits — Court Rules.
    A court rule requires a prosecutor, within 20 days after the commencement of a criminal appeal, to file any evidentiary trial exhibits in his possession with the clerk of the trial court for transmission to the Court of Appeals; the rule is mandatory in its direction and the prosecutor must make every effort to preserve trial exhibits until the period for the filing of a defendant’s claim of appeal has passed (GCR 1963, 812.4).
    2. Criminal Law — Evidence — Appeal — Trial Exhibits — Failure to File — Motive — Serious Omission.
    A prosecutor’s failure to file trial exhibits with the clerk of the trial court where there is an appeal is a serious omission even where there is no sign of an improper motive.
    3. Appeal — Criminal Law — Evidence — Trial Exhibits — Possession of Exhibits — Filing of Exhibits.
    Consideration of a defendant’s appeal may not be precluded by his failure to produce for appellate review a prosecution exhibit which was never in his possession and was not properly filed with the trial court.
    4. Appeal — Criminal Law — Incomplete Record — Sufficient Record — Constitutional Law.
    An incomplete lower court record can jeopardize the one appeal constitutionally guaranteed to a defendant; however, not every gap in a record on appeal requires reversal of a conviction, and where the surviving record is sufficient to allow evaluation on appeal the defendant’s right is satisfied (Const 1963, art 1, § 20).
    5. Appeal — Criminal Law — Pretrial Identification — In-Court Identification — Failure to Object — Preserving Question.
    The question of the admissibility of a victim’s in-court identification and the testimony describing a pretrial identification is not properly preserved for review where a defendant never raised the issue of suggestiveness in the pretrial hearing or objected to the testimony as it was presented.

      6. Criminal Law — Evidence — In-Court Identification — Photographs — Witnesses — Discretion — Abuse of Discretion — Appellate Review.
    A trial judge is empowered to decide, in the exercise of his sound discretion, whether an independent basis exists for an in-court identification of a defendant by a witness who has viewed an improperly suggestive set of photographs and appellate review is limited to deciding whether the judge abused his discretion in holding that an array of photographs was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Lawrence J. Bunting, Assistant Prosecuting Attorney, for the people.

      Lawson & Lawson, P.C., for defendant.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   On Rehearing

Danhof, C.J.

We granted the defendant’s application for rehearing in this case to consider whether our original opinion incorrectly suggests that in an appeal from a criminal trial the prosecution is without responsibility to preserve its trial exhibits and to produce them for review in this Court.

At issue is an exhibit consisting of a stack of nine "mug shots” from which the victim selected the defendant’s photograph in a pretrial identification procedure. The procedure and the victim’s in-court identification of the defendant were presented at trial without protest. The defendant unsuccessfully objected to the prosecution’s subsequent offer of the photographs themselves, on the ground that the photograph of the defendant bore a mark that singled it out from the others in the stack.

The defendant’s brief on appeal challenged the admission of the array but did not indicate that it had not been made available to appellate counsel or this Court. After the briefs of both parties had been filed, our staff sought the exhibit from the trial court and from the prosecutor. The search led to the investigating police agency, which was able to produce six of the photographs that had comprised the exhibit. The six photographs were forwarded to us by the prosecutor; among the three missing photographs was that of the defendant. It soon became apparent that the defendant’s photograph was irretrievably lost. Attached to the defendant’s application for rehearing are copies of letters written about this time by the defendant’s appellate counsel to the police agency and the prosecutor, requesting production of the missing photographs.

The trial court had treated the defendant’s objection to the admission of the "suggestive” array as an attack on the admissibility of the identification testimony as well, and the issue was presented in this posture on appeal. We wrote in our original opinion: "Pressing this issue on appeal, having apparently made no effort to produce the array for our inspection, the defendant asks this Court to substitute its assessment of the unseen photographs for the informed judgment of the trial court. This we will not do.”

The defendant asserts that he made strenuous efforts to secure the array for us and that the preservation of the exhibit was exclusively the duty of the prosecution.

The answer to the defendant’s claim lies in GCR 1963, 812.4:

"Within 20 days after filing of claim of appeal, attorneys for appellant or appellee having possession of any exhibits offered in evidence shall file them with the clerk for transmission to the Court of Appeals, as part of the record on appeal, unless by stipulation of counsel, or order of the trial court, it is provided that they shall not be transmitted, or that copies or summaries or excerpts shall be transmitted in lieu thereof, and provided further, that photostatic copies may be filed in lieu of originals of any exhibits, unless the trial court shall otherwise require. Upon final disposition of the case, such exhibits shall be returned to the persons who filed them.”

This rule is mandatory in its direction that exhibits be filed. See People v Drake, 64 Mich App 671; 236 NW2d 537 (1975). Because the prosecutor failed to file his exhibit with the trial court, the primary legal responsibility for their absence from the record is his.

We are aware that the rule refers to "attorneys * * * having possession of any exhibits”, and that the record does not show whether, when the filing deadline passed, the prosecutor had the photographs in his possession. However, he has assumed, we believe correctly, that the rule required him to make every effort to preserve his exhibit until the period for filing the defendant’s claim of appeal had passed.

Failure to observe this mandate is a serious omission, even where, as here, there is no sign of improper motive on the part of the prosecutor. Insofar as our original opinion implied that the defendant’s then-apparent failure to seek the exhibit for our inspection impaired his right to review of his claim on appeal, we correct it here. The court rule makes it clear to us that consideration of a defendant’s appeal may not be precluded by his failure to produce a prosecution exhibit that was never in his possession and was not properly filed with the trial court.

An incomplete lower court record can jeopardize the one appeal guaranteed to criminal defendants by Const 1963, art 1, § 20. However, not every gap in a record on appeal requires reversal of a conviction. When the surviving record is sufficient to allow evaluation of the appeal, the defendant’s right is satisfied. See People v Drake, supra, and People v Dunn, 50 Mich App 529; 213 NW2d 832 (1973). Whether a record is sufficient in a particular case will of course depend upon the questions that must be asked of it.

We note at the outset that the admissibility of the victim’s in-court identification and the testimony describing the pretrial identification was not properly preserved for review, in that the defendant never raised the suggestiveness issue in a pretrial hearing or objected to the testimony as it was presented. People v Moss, 397 Mich 69; 243 NW2d 254 (1976), People v Mann, 89 Mich App 511; 280 NW2d 577 (1979). Review in this case is particularly difficult because counsel’s choice to object to the admission of the photographs rather than to the identification testimony itself forced the trial judge into a mid-trial, after-the-fact consideration of issues that would have been better reviewed in a separate hearing. However, we do have the trial judge’s conclusion that the array was not sufficiently suggestive to taint the identification testimony, and so can review at least that threshold question. See People v Kachar, 400 Mich 78; 252 NW2d 807 (1977). Because a constitutional question is involved, and because we undertook in our original opinion to review the other identification issues the defendant brought to us, we believe that it is appropriate for us to examine his claims concerning the photographic array.

When there is claimed to exist an "independent basis” for an in-court identification of a defendant by a witness who has viewed an improperly suggestive showup, the trial judge is empowered to decide that question in the exercise of his "sound discretion”. Kachar, supra, 100. We believe that that power extends to the threshold decision of whether such a showup was improperly suggestive. To commit a decision to the trial court’s "sound discretion” implies a standard of appellate review limited to deciding whether that discretion has been abused. Thus, we must decide whether the trial judge abused his discretion in holding, as he has implicitly held, that the array was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. People v King, 384 Mich 310, 312-313; 181 NW2d 916 (1970).

The objection to the array was that the defendant appeared in his "mug shot” with a mark over his forehead. The prosecutor characterized the mark, to the apparent satisfaction of the trial judge, as a photographic flaw. Our examination of the photographs that were preserved confirms the prosecutor’s assertion that many of the other photographs in the exhibit bore both technical flaws and ink marks. All six photographs show evidence of having been handled a great deal.

"Mug' shots” are necessarily produced under widely differing circumstances of light and background, using various kinds of equipment. The purposes for which they are produced practically guarantee that they will be handled often. Thus, the presence of flaws and marks on the photographs in a showup array may be expected to be more the rule than the exception.

While our review of the suggestiveness claim would be easier if all the photographs comprising the exhibit were before us, the surviving record in this case is sufficient to show that the trial judge did not abuse his discretion in holding that the array was not unduly suggestive. We conclude that admission of both the identification testimony and the exhibit was proper, and therefore decline to reverse our original decision in his case.

Affirmed.

       The rule allows for stipulation or court order concerning the transmission of exhibits to this Court. Neither appears in the record. We note that approximately one third of the circuits do not forward exhibits as a matter of course, but hold them at the disposal of this Court instead.

       We observe, however, that the power, though certainly not an obligation, to assist in the preservation of the record was partially in the defendant’s hands. In the preparation of his appeal the defendant had access to the trial transcripts and exhibits. Had he noticed the absence and called it to the prosecutor’s attention at that time, the prosecutor and the police agency might have had more success in locating the photograph in question.


author: Beasley, J.

text:
    TURNER v NORTHWEST GENERAL HOSPITAL
    Docket No. 78-5028.
    Submitted April 1, 1980, at Detroit.
    Decided April 22, 1980.
    Leave to appeal applied for.
    Plaintiff, Shirley Turner, was the administratrix of the estate of Talmadge Turner, who, at the time of his death, was employed by a private security company as a security guard in the emergency room of defendant Northwest General Hospital. While on duty at the hospital, plaintiffs decedent was fatally shot. Plaintiff brought an action against the hospital for wrongful death, alleging negligence in: failure to warn of prior violent incidents; failure to use reasonable safeguards to prevent exposing decedent to unreasonable risk; failure to train its personnel to respond and report violent behavior; failure to provide a proper warning system and adequate lighting; failure to provide more armed and trained security guards; failure to institute reasonable precautions; allowing decedent to escort two unknown males from the premises; failure to install metal-detection devices; failure to aid or attempt to aid decedent while he was being assaulted; failure to inquire as to the inordinate risk of harm confronting decedent. The Wayne Circuit Court, John D. O’Hair, J., granted summary judgment for failure to state a cause of action. Plaintiff appeals. Held:

    A hospital which hires an independent security guard company for its emergency room owes no duty to warn and protect an employee of the security guard company working in the emergency room from violence erupting in the emergency room resulting in the guard’s death by gunshot.
    Affirmed.
    Negligence — Private Security Guards — Failure to Warn — Failure to Protect.
    A hospital which hires an independent security guard company for its emergency room owes no duty to warn and protect an employee of the security guard company working in the emergency room from violence erupting in the emergency room resulting in the guard’s death by gunshot.
    Reference for Points in Headnote
    [1] 41 Am Jur 2d, Independent Contractors § 24.

      Peter R. Barbara & Associates, P.C. (by Frank G. Becker), for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Raymond W. Morganti), for defendant.
    Before: J. H. Gillis, P.J., and Allen and Beasley, JJ.
   Beasley, J.

The trial court granted defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1) on the ground that plaintiff’s complaint failed to state a cause of action as a matter of law. Plaintiff appeals as of right.

On January 26, 1975, while employed by an independent security guard company, plaintiff’s decedent was shot to death while on duty as a security guard in the emergency room of defendant hospital. Plaintiff filed a complaint for damages for wrongful death against defendant hospital, asserting ten areas of alleged negligence, as follows:

"a) The defendant failed to properly warn the Plaintiff’s decedent of prior instances of violent nature and of certain communicative threats of physical harm.
"b) The defendant failed to utilize reasonable safe guards, including the use of protective glass, to prevent exposing the plaintiff’s decedent to unreasonable risk of harm from the use of gun fire.
"c) The defendant failed to train all of its personnel of those, including security guards, who were subject to the directions of the defendant to promptly respond and report violent behavior so as to deter the likelihood of an occurrence of this nature.
"d) The defendant failed to provide a proper warning system and adequate lighting.
"e) The defendant failed to have an armed and trained security guard in addition to the plaintiffs decedent posted in the emergency room despite the likelihood of an occurrence of this nature.
"f) The defendant failed to institute reasonable precautions such as name checking before entry was achieved so as to lessen the possibility of an occurrence of this nature.
"g) The defendant negligently allowed plaintiffs decedent to solely accompany the two unk[n]own males out of the defendant’s establishment despite the fact that the defendant either knew or should have known that the unk[n]own males had no legitimate purpose for being on the defendant’s premises.
"h) The defendant was negligent in failing to install metal detection devices, so as to prevent the armed entry of dangerous persons.
"i) The defendant was negligent in failing to aid or attempt to aid Plaintiffs decedent while he was being assaulted and thus allowing a close range fatal gun shot into the plaintiffs decedent’s chest.
"j) The defendant was negligent in failing to inquire as to the inordinate risk of harm confronting the plaintiffs decedent.”

The case goes beyond the outer limit of liability established in Samson v Saginaw Professional Building, Inc, Johnston v Harris, Hersh v Kentfield Builders, Inc and Farwell v Keaton.

In this case, defendant hospital, recognizing a duty to safeguard, protect and secure its patients, visitors, doctors and other business invitees, hired an independent security guard company for that purpose. What happened to plaintiffs decedent was the very reason plaintiffs decedent and his employer were hired, i.e., to safeguard against criminal acts of violence. It would be ironic to hold defendant hospital liable to an employee of the very security guard company it hired for protection.

We hold defendant hospital owed no duty to plaintiffs decedent to warn and protect him from the injury and violence which occurred in the instant case. The allegations of negligence in the context suggested by plaintiffs complaint do not give rise to a duty owed by defendant hospital to plaintiffs decedent such as would here entitle plaintiff to damages. There may be, and no doubt are, cases whose facts will give rise to a duty owed by someone employing a security guard company; this is not one.

Affirmed.

       393 Mich 393; 224 NW2d 843 (1975).

       387 Mich 569; 198 NW2d 409 (1972).

       385 Mich 410; 189 NW2d 286 (1971).

         396 Mich 281; 240 NW2d 217 (1976).