author: Allen, J. N. J. Kaufman, P.J.

text:
    PEOPLE v PAYNE
    Docket No. 77-4108.
    Submitted May 15, 1979, at Detroit.
    Decided June 19, 1979.
    Larry W. Payne was convicted of five counts of first-degree criminal sexual conduct and one count of assault with intent to commit criminal sexual conduct, St. Clair Circuit Court, Ernest F. Oppliger, J. The charges arose from an incident in which the defendant beat the complainant and then repeatedly assaulted her sexually. Defendant appeals. Held:

    1. The injuries inflicted in the beating were the means of coercion for the first act of criminal sexual conduct and support one conviction of first-degree criminal sexual conduct. The subsequent acts of the defendant were not accompanied by further injury, however, and the initial injuries may. not be used to support convictions of first-degree criminal sexual conduct for those subsequent acts. Four of those convictions, therefore, are reduced to third-degree criminal sexual conduct.
    2. The defendant requested instructions to the jury on aggravated assault, indecent exposure, and assault with intent to commit great bodily harm less than murder. The trial court declined to give these instructions. Instructions on aggravated assault and indecent exposure were unnecessary because those crimes are punishable by less than one year of incarceration. Refusal to instruct on assault with intent to do great bodily harm less than murder was not error because that offense is not a lesser included offense of the crime charged, first-degree criminal sexual conduct.
    3. A trial court need not instruct the jury on all elements of criminal sexual conduct for each individual count of the same degree of criminal sexual conduct with which a defendant is charged.

      References for Points in Headnotes

       65 Am Jur 2d, Rape § 112.

       65 Am Jur 2d, Rape § 110.

       65 Am Jur 2d, Rape §§ 20-22.

       41 Am Jur 2d, Indictment and Information § 97.

       75 Am Jur 2d, Trial § 716.

       65 Am Jur 2d, Rape § 108.

       65 Am Jur 2d, Rape § 107.
    Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination. 18 ALR3d 1433.

      4. The trial court’s instructions regarding the difference between penetration and contact and regarding consent were sufficient and not erroneous.
    5. The trial court’s refusal to order a psychiatric examination of the complainant was not an abuse of discretion.
    One conviction of first-degree criminal sexual conduct and the conviction of assault with intent to commit criminal sexual conduct are affirmed. The other four convictions of first-degree criminal sexual conduct are vacated and reduced to convictions of third-degree criminal sexual conduct. Remanded for resentencing.
    N. J. Kaufman, P.J., concurred, except that he would affirm four of the convictions of first-degree criminal sexual conduct which represent acts of the defendant immediately following the beating of the complainant. Those acts, during which the defendant maintained a physical hold on the complainant, constituted a series of sexual assaults which were induced by the beating. The fifth conviction of first-degree criminal sexual conduct, which represents an act which occurred during a second series of assaults, should properly be reduced to third-degree criminal sexual conduct. The conviction of assault with intent to commit criminal sexual conduct is proper.
    Opinion of the Court
    1. Rape — First-Degree Criminal Sexual Conduct — Third-Degree Criminal Sexual Conduct — Injuries — Statutes.
    A defendant who administered a beating to a victim and followed this with a series of sexual assaults was erroneously convicted of five counts of first-degree criminal sexual conduct; the injuries inflicted in the beating support a conviction of first-degree criminal sexual conduct for the first assault, but cannot be transferred to the following assaults to provide the element of injury sufficient to raise the assaults from third-degree to first-degree criminal sexual conduct (MCL 750.520b[l][f], 750.520d[l][b]; MSA 28.788[2][l][f], 28.788[4][l][b]).
    2. Criminal Law — Instructions to Jury — Lesser Crimes.
    An instruction on lesser crimes carrying penalties of imprisonment for one year or less need not be given a jury where the crime charged is a felony carrying a penalty of imprisonment for two years or more.

      3. Criminal Law — Lesser Included Offenses — First-Degree Criminal Sexual Conduct —■ Assault With Intent to Harm.
    Assault with intent to do great bodily harm less than murder is not a lesser included offense of first-degree criminal sexual conduct; it is a different type of offense and protects a different societal interest than the offense of criminal sexual conduct.
    4. Criminal Law — Lesser Included Offenses — Cognate Offenses.
    A cognate lesser included offense is one which shares several elements with and is of the same class or category as the greater offense; if the primary offense charged gives a defendant fair notice that he may have to defend against a certain lesser offense, that lesser offense may be an included lesser offense of the offense charged.
    5. Criminal Law — Instructions to Jury — Reversible Error — Manifest Injustice.
    A jury charge is to be read as a whole and in the absence of objection reversal based upon an erroneous instruction will not be required unless the error would result in manifest injustice.
    6. Rape — Instructions to Jury — Consent.
    There is no requirement that a trial court instruct a jury on consent in a criminal sexual conduct case.
    7. Rape — Complaining Witness — Psychiatric Examinations.
    A psychiatric examination of a complaining witness in a criminal sexual conduct case may be ordered in certain cases, but there must be a compelling reason to do so.
    Partial Concurrence by N. J. Kaufman, P.J.
    8. Rape — First-Degree Criminal Sexual Conduct — Third-Degree Criminal Sexual Conduct — Injuries — Statutes.

      A defendant who beat his victim and then repeatedly sexually assaulted her may be convicted of ñrst-degree criminal sexual conduct for each of the sexual assaults where he maintained his hold on the victim throughout the series of sexual assaults, plainly indicating his intention to continue the attack, because the injuries indicted were the means of coercion for the entire series of sexual assaults; the injuries cannot, however, be used to elevate another sexual act from third-degree to ñrst-degree criminal sexual conduct where that act occurred after the defendant had released the victim from his grasp for a time

      before renewing his sexual attack (MCL 750.520b[l][f], 750.520d[l][b]; MSA 28.788[2][l][f], 28.788[4][l][b]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Janet Tooley, Assistant State Appellate Defender, and Nora J. Pasman, Research Attorney, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, Jr., JJ.

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

   Allen, J.

Defendant appeals his April 26, 1977, jury conviction on five counts of first-degree criminal sexual conduct (CSC), MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), and one count of assault with intent to commit criminal sexual conduct, MCL 750.520g; MSA 28.788(7). Defendant was charged with seven counts of CSC I. Counts 1, 2 and 3 charged vaginal intercourse, counts 4 and 5 charged fellatio, count 6 charged anal intercourse, and count 7 charged cunnilingus. Count 3 was dropped, and the jury returned a verdict of the lesser assault offense in count 6. Defendant was sentenced to life imprisonment on each of the five CSC I convictions and was sentenced to 6 to 10 years in prison for the assault conviction. Defendant’s appeal is of right.

The acts of sexual conduct occurred during the morning hours of September 18, 1976. The complainant testified that she had been extremely intoxicated when she went to bed. She was awakened by someone in bed with her whom she identified as defendant and whom she had never met before. The complainant attempted to escape but was dragged back to the bedroom and beaten severely about the face. She then submitted to her assailant. The complainant submitted to subsequent sexual acts out of fear, of further injury. There was no further beating or injury, however, defendant did maintain a hold on complainant’s arm between acts, even when she used the bathroom. The complainant did make at least one unsuccessful attempt to escape during the attack upon her.

Due to the way the case was presented to the jury the major issues at trial were (1) whether the acts were done with the consent of the complainant, and (2) the credibility of the defendant and the complainant. The defendant testified that he was intoxicated in the early morning hours of September 18, 1976, and was walking by the house where complainant was staying when complainant’s brother invited him in for a beer and then offered defendant his sister as well. According to defendant, complainant consented to several sexual acts. He and complainant then had an altercation, thus explaining the beating of complainant. They soon resolved their differences and had additional sexual relations.

I.

One of the elements of the type of first-degree criminal sexual conduct defendant was charged with and convicted of is personal injury to the victim. In this case we are presented with injuries that occurred prior to and as the means of coercion for the first act of criminal sexual conduct. The injuries readily support the jury’s verdict of CSC I for the first count, but confront us with the question, apparently of first impression, of whether these same injuries can be transferred to the subsequent sexual acts in order to meet the element of personal injury in CSC I. We think not.

What the prosecution showed by the evidence it submitted to the jury was one act of CSC I and five acts of CSC III (except for one instance where the jury found a lesser offense). Third-degree sexual conduct, in this case, is simply the sexual assault through force or coercion but without the injury. And this is what took place in all but the first attack. The initial beating affects the latter assaults in that it is part of the force or coercion through which defendant accomplished his assault. The use of the beating in this manner in these subsequent assaults is acceptable since there were additional instances of fear associated with each additional assault. But there were no additional injuries associated with the latter assaults. Holding on to the complainant’s arm between acts did not create an injury sufficient to raise the assault from CSC III to CSC I.

The Legislature included the highest possible punishment in this state in the penalty provision for first-degree criminal sexual conduct. Before this penalty may be imposed the prosecutor must show all of the elements of the crime. To the extent certain elements are lacking, the offender does not go unpunished; rather, he is punished according to the lesser crime committed. In the instant case, defendant was convicted five times of CSC I and was sentenced five times to the maximum penalty of life in prison. Yet all of the elements of CSC I were shown only once. Only the first count can carry a conviction of CSC I; the other counts, having no evidence to support the injury element but having evidence to support all elements of CSC III and having a jury verdict which found all of those elements, must be reduced to convictions of third-degree sexual conduct. The accompanying punishments are to be commensurate with the actions of defendant and the penalties intended by the Legislature.

II.

The second issue of first impression in this case concerns lesser included offenses. The jury was instructed on CSC I, II, III, IV, assault with intent to commit sexual conduct, and gross indecency. Defendant had requested further instructions on assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, aggravated assault, MCL 750.81a; MSA 28.276(1), and indecent exposure, MCL 750.335a; MSA 28.567(1), but the court declined to instruct on these crimes. It was unnecessary to instruct on aggravated assault or indecent exposure since those crimes carry a penalty of one year or less and do not approach the seriousness of the charged offense. People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975). The Chamblis rule as to these lesser crimes continues in good standing. People v Miller, 406 Mich.244; 277 NW2d 630 (1979).

Although the assault with intent to injure offense does not fall within the Chamblis rule, there was no error in refusing to instruct on it either. This is so because assault with intent to do great bodily harm less than murder is not a lesser included offense of first-degree criminal sexual conduct. It is clearly not a necessarily lesser included offense since CSC I can be committed without committing the offense of assault with intent to injure less than murder. People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975).

To be a cognate lesser offense the two crimes must share several elements and be of the same class or category. People v Ora Jones, supra, at 387. If the primary offense gives fair notice that a defendant may have to defend against a certain lesser offense, then that lesser offense may be an included lesser offense. People v Ora Jones, supra, at 388, People v Chamblis, supra, at 418, People v Green, 86 Mich App 142, 148-149; 272 NW2d 216 (1978). A lesser included offense will have a common statutory purpose protecting the same societal interests as the greater offense. People v Ora Jones, supra, at 389, People v Green, supra, at 149. When dealing with a cognate lesser offense the evidence adduced at trial must support a conviction on that offense. People v Ora Jones, supra, at 390, People v Chamblis, supra, at 423-424.

Except for having certain elements in common with criminal sexual conduct, assault with intent to do great bodily harm less than murder meets none of the requirements for a lesser included offense. Criminal sexual conduct is a distinct type of assaultive offense. The Legislature has gone to great lengths to carve out sexual assaults from other types of assaults. Society views sexual assaults as particularly heinous and the Legislature has determined punishments for the various types of criminal sexual conduct. There is a specific "assault” crime associated with criminal sexual conduct. With this statutory backdrop, we find that assault with intent to do great bodily harm less than murder is a different type of offense than and protects a different societal interest than criminal sexual conduct, and hence it is not a lesser offense of criminal sexual conduct.

It is highly doubtful that when defendant was charged with sexual offenses he was fairly placed on notice to defend against general assault charges. The evidence adduced at trial indicated much more of an intent on the part of defendant to commit sexual acts than to do great bodily harm less than murder. The lesser assault charge in this case was the criminal sexual assault charge, and this was given. The evidence was not presented to the jury on the basis of assault with intent to do great bodily harm less than murder. Defendant contends that his theory of the case suggests nonsexual assault. But defendant is now, in effect, asking for an instruction on a crime he was never charged with (i.e., assault) and therefore, under this analysis, there is no greater offense from which there can be lesser offenses and hence there is no right to have an instruction on such a "lesser” offense.

III.

Defendant’s remaining issues merit considerably less discussion.

There is no merit in defendant’s contention that the court must instruct on all elements of criminal sexual conduct for each individual count of criminal sexual conduct. A jury charge is read as a whole, People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), and in the absence of objection will not require reversal unless there is manifest injustice. GCR 1963, 516.2; People v Douglas, 75 Mich App 241; 254 NW2d 856 (1977). There is no question the court properly instructed on the elements of the possible verdicts and made it clear that the elements applied to each count. There was also a verdict form given to each juror which listed each possible verdict and its elements for each count. Defendant is, in effect, asking for six charges to the jury. This would be unnecessarily cumbersome and a poor administration of justice.

The court’s instructions on CSC I were basically the same as those recommended in CJI 20:2:01, CJI 20:2:02, and CJI 20:2:11. These instructions make it clear that some penetration is required for CSC I, and the court here so instructed. But in explaining oral sex the term "contact” is used. Reading the instruction as a whole, and bearing in mind the lack of objection, we find that the jury was adequately and clearly apprised that first-degree sexual conduct requires penetration as opposed to mere contact. Our review of the instructions also shows that the jury was adequately apprised of the difference between penetration and contact with respect to all four degrees of CSC.

Defendant requested an instruction indicating if the jury found consent it must acquit defendant, and that the jury was dealing with "an accusation easily made and hard to be proved, and harder to be defended by the party accused” and should bear that in mind in considering consent. The court instructed:

"One of the elements in this case is whether or not there was consent on the part of the complaining witness * * *. In determining whether or not the complaining witness consented you may consider all of the testimony and evidence including the conduct of the complaining witness.”

We know of no requirement that the court instruct on consent but, to the extent it did, the instruction given fairly covered the substance of the request and was sufficient. People v McCrea, 303 Mich 213, 255-256; 6 NW2d 489 (1942). Defendant’s description of the "accusation” need not have been given because it was argumentative, and defendant’s cases cited in support of it, People v Smallwood, 306 Mich 49; 10 NW2d 659 (1970), are distinguishable.

Finally, prior to trial defendant requested a psychiatric examination of the complaining witness. While such an examination apparently may be ordered in Michigan in certain cases, it requires, at least, a compelling reason to do so. See, Anno: Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination, 18 ALR3d 1433; 2 Wharton’s Criminal Evidence (13th ed), § 378. In light of the ordeal the complaining witnesses in sex offense cases have sustained and will undergo at trial, a stringent standard controlling such tests is appropriate. In the instant case there was no evidence close to meeting a compelling reason standard. Hence, even if the trial court failed to understand its discretion, any error therefrom was harmless.

Defendant’s first conviction for CSC I and his conviction for assault with intent to commit criminal sexual conduct are affirmed. Defendant’s latter four convictions for CSC I are vacated and reduced to convictions for CSC III. Remanded for resentencing on the modified convictions.

K. B. Glaser, Jr., J., concurred.

N. J. Kaufman, P.J.

(concurring in part, dissenting in part). Judge Allen has done a fine job in this case of first impression and I fully agree with his resolution of all but the first issue. As to that issue, I would affirm the first-degree criminal sexual conduct convictions for Counts I, II, IV, and V; affirm the assault conviction for Count VI; and reduce the first-degree criminal sexual conduct conviction for Count VII to third-degree criminal sexual conduct. My determinations are based on the facts of this case.

Immediately after beating complainant, defendant had vaginal intercourse with her (Count I). Complainant then asked defendant if she could go to the bathroom. Defendant permitted this but held onto her. While in the bathroom, defendant made complainant perform fellatio (Count IV). Defendant maintained his physical hold on complainant, returned to the bedroom with her, and had vaginal intercourse with her (Count II). Thinking she could escape from defendant, complainant again asked to go to the bathroom. Defendant accompanied her, held onto her and made her commit a second act of fellatio (Count V).

At that point, complainant ran out of the bathroom ahead of the defendant to the bedroom window. A secure window screen prevented her escape. Defendant pursued her and told her not to do anything stupid. Defendant put on his clothes, complainant put on a shirt and they sat in the dining room for a short time. Defendant gave complainant some ice water, discussed his desire to see her again, and secured her phone number.

Defendant then ordered complainant back into the bedroom, told her to remove her clothes, and performed cunnilingus (Count VII) and anal intercourse (Count VI) on her.

Defendant’s assaults on the complainant can be divided into two criminal series. The first series began when defendant beat complainant and ended when complainant broke free from the defendant for a time, got partially dressed and sat in the dining room with defendant. The second series began when defendant ordered complainant back into the bedroom for the last two sexual assaults and ended when the assaults were completed.

As Judge Allen notes, one of the elements of first-degree criminal sexual conduct under MCL 750.520b(l)(f); MSA 28.788(2)(l)(f) is personal injury to the victim. We all agree that the complainant’s injuries support the jury’s verdict of first-degree criminal sexual conduct on Count I. But the majority conclude that the injuries "occurred prior to and as the means of coercion for the first act of criminal sexual conduct” only. Under that interpretation of the facts, defendant’s remaining convictions of first-degree criminal sexual conduct should be reduced to third-degree criminal sexual conduct.

In my view, however, the injuries occurred prior to and as the means of coercion for the first series of sexual assaults. By maintaining his hold on the complainant after the first, second and third assaults, defendant plainly indicated his intention to continue the attack. Therefore, there is no need to "transfer” the injuries to the second, third, and fourth sexual acts. Each of these assaults was part of the first series of acts which defendant sought to induce by the beating. For that reason, I would affirm the first-degree criminal sexual conduct convictions for Counts II, IV and V as well as Count I.

The jury found defendant guilty of assault with intent to commit criminal sexual conduct on Count VI and I have no difficulty affirming that verdict. The jury also found defendant guilty of first-degree criminal sexual conduct on Count VII. However, since this assault occurred in the second series of sexual acts, I agree with the majority that the initial beating cannot be used to prove personal injury and elevate that offense from third- to first-degree criminal sexual conduct.

       Complainant’s brother did not remember any of what defendant testified about. Complainant’s brother had gone to sleep on the couch after heavy drinking. He and complainant testified that he was "out cold” during the entire assault.

       MCL 750.520b(l)(f); MSA 28.788(2)(l)(f).

       MCL 750.520d(l)(b); MSA 28.788(4)(l)(b).

       On appeal the prosecution suggests that during the four additional sexual acts the complainant suffered mental injury sufficient to support the personal injury requirement of CSC I. While mental injury may constitute personal injury, MCL 750.520a(f); MSA 28.788(l)(f), our review of the record shows that this theory was not presented to the jury and consequently defendant had no real opportunity to defend against it. We note in passing that this raises the significant issue as to just how much or what type of mental injury is required to support a CSC I conviction. There is some distress in any sexual assault and yet there must still be a distinction between the various degrees.

       MCL 750.520g; MSA 28.788(7).

       MCL 750.338b; MSA 28.570(2).

       Also supporting our conclusion that the assault charge was not a lesser offense of the charged CSC I is the fact that it was within the prosecutor’s discretion to charge defendant with the assault charge itself. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 682-683; 194 NW2d 693 (1972). Of course, in this case we need not decide the potential additional issue of whether a defendant could be charged with both an assault and CSC I where the same injury is used to support both charges.

       "* * * that the act involved contact between the mouth of one party and the sex organs of the other * * CJI 20:2:02.

       See People v Freeman, 402 Mich 930 (1978). Also, such a test might be ordered, in appropriate cases, under existing rules. GCR 1963, 311; MRE 702.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v IZZO
    Docket No. 77-4486.
    Submitted February 14, 1979, at Lansing.
    Decided June 19, 1979.
    Leave to appeal applied for.
    Domenic F. Izzo was convicted in Dickinson Circuit Court, Ernest W. Brown, J., of first-degree criminal sexual conduct. At the trial, the prosecution called a psychiatrist for the purpose of establishing whether the complaining witness experienced mental anguish. During the prosecution’s questioning of the psychiatrist, the doctor testified that he had taken a history from the complaining witness in which she had related that she had been exposed to forcible intercourse. The doctor also indicated that certain psychological tests had been administered and a psychological evaluation of the complaining witness had been undertaken. The prosecution inquired whether the psychological tests could pick up the fact that someone was faking responses, to which the doctor answered "yes”. Over defendant’s objection, the doctor was permitted to opine his belief that the complaining witness "was answering quite honestly”. Defendant appeals. Held:

    Reversible error resulted from permitting the psychiatrist to state his opinion that the complaining witness was honest in her responses during the psychiatric examination. Since the doctor had already testified that the complaining witness had related to him that she had been exposed to a forcible intercourse, the testimony regarding the honesty of her responses amounted to an unwarranted reinforcement of the complaining witness’s testimony and gave scientific legitimacy to the truth of the complaining witness’s factual testimony concerning the rape.
    Reversed.
    M. F. Cavanagh, J., dissented. He would hold that, while the specific questions asked by the prosecutor were unnecessary and improper, the testimony as to the complaining witness’s veracity did not warrant reversal. Expert psychiatric testimony as to mental anguish of a complaining witness is appropriate, and such testimony is necessarily premised on a presumption of veracity. He would affirm.

      References for Points in Headnotes

       31 Am Jur 2d, Expert and Opinion Evidence § 21.

       31 Am Jur 2d, Expert and Opinion Evidence § 22.

      Opinion op the Court
    1. Evidence — Testimony — Expert Witnesses — Psychiatrists — Veracity of Complaining Witness — Reversible Error.
    Reversible error results from permitting a psychiatrist to state his opinion, in a prosecution for criminal sexual conduct, that the complaining witness was honest in her responses during a psychiatric examination, where there was prior testimony that the complaining witness related to the doctor that she had been exposed to forcible intercourse, since such expert testimony amounted to an unwarranted reinforcement of the complaining witness’s testimony and gave scientific legitimacy to the truth of the complaining witness’s factual testimony concerning the rape.
    Dissent by M. F. Cavanagh, J.
    2. Evidence — Testimony — Expert Witnesses — Psychiatrists — Veracity op Complaining Witness — Statutes.

      Admission of expert psychiatric testimony relative to the veracity of a complaining witness in a criminal sexual conduct prosecution does not result in reversible error, even though it invades the province of the jury to some extent, since such testimony is appropriate to the determination of mental anguish under the criminal sexual conduct statute and necessarily carries with it a presumption of veracity on the part of the complaining witness (MCL 750.520b[l][fj; MSA 28.788[2][l][f¡).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert G. Foster, Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Derrick Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   M. J. Kelly, P. J.

Defendant appeals as of right his jury conviction for first-degree criminal sexual conduct, contrary to MCL 750.520b(l)(f); MSA 28.788(2X1X0.

Defendant raises three issues on appeal, the first two of which have no merit and do not require discussion. The third issue is framed as follows:

"Did the trial court commit reversible error by allowing, over defense objection, a psychiatrist to deliberately invade the province of the jury and testify, upon insufficient foundation, that he believed the complainant’s story?”

We find that the trial court erred and reverse for the reason that the testimony in question violates the rule established in People v McGillen #2, 392 Mich 278, 285; 220 NW2d 689 (1974). There the rule was stated as follows:

"It is also noted that in no event is the doctor permitted to lend his expert opinion testimony as to the crucial issue of whether or not the prosecutrix was actually raped at a specific time and place.” (Footnote omitted.)

The incident out of which this prosecution arose took place on June 9, 1977. The testifying psychiatrist, David R. Wall, M.D., of Marquette, Michigan, was called into the case by State Trooper Lemke, who arranged an examination of the complaining witness on July 11, 1977, at the doctor’s office. The doctor testified that he took a history from the complaining witness in which she related a "forcible intercourse in June”. She was given certain psychological tests, and an examination was conducted. On direct examination the doctor was asked to characterize the truth of the complaining witness’s hearsay statements:

"Q. Excuse me, if somebody was faking those responses, would the inventory pick that up?
"A. Yes.”

At this point the defense objected, and the court ruled that the doctor could state his opinion. The doctor responded: "My opinion was that she was answering quite honestly.”

The import of this testimony was directly contrary to the prosecutor’s earlier statement, on a motion to suppress Dr. Wall’s testimony, that this expert witness was being produced solely to establish mental anguish, that that was the people’s "total and only objective in that testimony”. The prosecutor had stated:

"Your Honor, I’m going to ask this expert, as in any other case, a hypothetical question — assuming certain facts, and based on his examination, does he have an opinion as to whether this woman experienced mental anguish.”

It is our conclusion that the testimonial reenactment of the psychiatric examination went beyond the bounds of expert testimony establishing mental anguish and amounted to unwarranted reinforcement of the complaining witness’s testimony. The people were allowed to, in effect, produce a human lie detector in the person of Dr. Wall, who gave a stamp of scientific legitimacy to the truth of the complaining witness’s factual testimony concerning the rape.

Reversed.

Mackenzie, J., concurred.

M. F. Cavanagh, J.

(dissenting). I dissent from the majority’s determination that reversible error was committed. I am persuaded that mental anguish, as that term is utilized in MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), takes on a much greater significance than just ordinary or normal after effects or upsets. To establish that this type of injury in fact occurred, psychiatric testimony might be appropriate.

The real question here was the probative value of the psychiatrist’s testimony. That was a matter of weight for the jury. It is true that the psychiatrist, by testifying to the victim’s veracity, buttressed her testimony that a rape in fact occurred. However, any such expert testimony would have to be premised upon the presumption of veracity. By this same token, that testimony would always invade the province of the jury to some extent.

I think the specific questions asked by the prosecutor in this instance were unnecessary and improper. The error, however, in my view, does not rise to a level warranting reversal. I would affirm.


author: Bronson, J. Danhof, C.J.

text:
    MICHIGAN ROOFING & SHEET METAL, INC v DUFTY ROAD PROPERTIES
    Docket No. 77-4757.
    Submitted February 7, 1979, at Detroit.
    Decided June 19, 1979.
    Leave to appeal applied for.
    On March 17, 1972, defendant John Casey Development Company, a general contractor, conducted, through a subcontractor, soil borings on a certain property owned by defendant Dufty Road Properties. At the time Casey was not a licensed residential builder under the residential builders act but became one prior to entering into a construction contract with Dufty on April 1, 1972, and remained one throughout the construction. On May 2, 1972, after the construction contract had been signed, the engineering plans completed and demolition of existing buildings begun, Dufty gave to Continental Mortgage Investors (CMI) a mortgage, which was recorded on May 26, 1972. On October 8, 1975, Casey recorded a statement of account and lien pursuant to the mechanic’s lien law. When suit was filed by Michigan Roofing & Sheet Metal, Inc., another mechanic’s lien holder, to foreclose its lien, Casey cross-claimed against Dufty, CMI and the other interest holders of record to foreclose its lien. The Oakland Circuit Court, Robert B. Webster, J., granted summary judgment in favor of CMI and against Casey. Casey appeals and CMI cross-appeals from the court’s prior opinion that the word "improvement” in the statute establishing priorities for mechanic’s liens encompasses the preparation of engineering plans. Held:

    1. The purpose of the residential builders act is to protect home-owners from incompetent, inexperienced and fly-by-night contractors. A general contractor is not precluded from suing upon a mechanic’s lien for literal failure to comply with the residential builders act requirement that the contractor be licensed at all times during the construction where the contractor has substantially complied and where such substantial compliance has afforded the protection contemplated by the statute.

      References for Points in Headnotes

       13 Am Jur 2d, Building and Construction Contracts § 130.
    53 Am Jur 2d, Mechanics’ Liens § 168.

       53 Am Jur 2d, Mechanics’ Liens § 268.

      2. A general contractor’s mechanic’s lien takes preference over a mortgage given and recorded after the general contractor renders engineering services which are "improvements” within the meaning of the mechanic’s lien statute.
    Reversed and remanded.
    Danhof, C.J., dissented. He would hold that the residential builders act requires a contractor to have been licensed at all times during the construction in order to maintain a suit on a mechanic’s lien. He would affirm.
    Opinion of the Court
    1. Mechanic’s Lien — Licensed Builder — Statutes — Substantial Compliance.
    A general contractor is not precluded form suing upon a mechanic’s lien for literal failure to comply with the residential builders act requirement that the contractor be licensed at all times during the construction where the contractor has substantially complied and where such substantial compliance has afforded the protection contemplated by the statute; the purpose of the residential builders act is to protect homeowners from incompetent, inexperienced and fly-by-night contractors (MCL 338.1516; MSA 18.86[116]).
    2. Mechanic’s Lien — Priorities — Improvements — Soil Borings — Statutes.
    A general contractor’s mechanic’s lien takes preference over a mortgage given and recorded after the general contractor renders engineering services, which are "improvements” within the meaning of the mechanic’s lien statute (MCL 570.9; MSA 26.289).
    Dissent by Danhof, C.J.
    3. Mechanic’s Lien — Licensed Builder — Statutes — Substantial Compliance.

      A general contractor is precluded by statute from maintaining a suit on a mechanics’ lien where he was not licensed at all times during the construction; substantial compliance is insufficient (MCL 570.9; MSA 26.289).

      Schlussel, Lifton, Simon, Ranos, Kaufman, Lesinski & Jackier (by Donald B. Lifton and Douglas

      E. Busbey), for defendant John Casey Development Company.

      Dickinson, Wright, McKean, Cudlip & Moon (by Stephen E. Dawson and Terence M. Donnelly), for defendant Continental Mortgage Investors.
    Before: Danhof, C.J., and Bronson and Beasley, JJ.
   Bronson, J.

This case involves the interpretation to be given the residential builders act, MCL 338.1501 et seq.; MSA 18.86(101) et seq.

On March 17, 1972, John Casey Development Company, a general contractor, through Michigan Drilling, a subcontractor, conducted soil borings on a certain site owned by Dufty Road Properties to determine if the site was suitable for construction. At the time the soil borings were conducted, Casey had not yet obtained a residential builder’s license. Casey did, however, obtain such a license prior to the time it formally executed the construction contract with Dufty on April 1, 1972, and Casey remained licensed throughout the remainder of the construction project which it worked on until July 21, 1975.

After the construction contract had been signed, the engineering plans completed'and demolition of existing structures on the property commenced, Dufty executed a construction loan agreement with Continental Mortgage Investors (C.M.I.). This mortgage was recorded by C.M.I. on May 26, 1972. Appellant alleged that during the construction project C.M.I. ran into financial difficulties which caused it to fail to disburse funds in accordance with the terms of the loan agreement, and finally stopped performance of the agreement altogether and filed for bankruptcy.

On October 8, 1975, Casey recorded a statement of account and lien pursuant to the mechanics lien act, MCL 570.1 et seq.; MSA 26.281 et seq., but failed to attach to this statement proof that it had served notice on the owner of its intention to claim a lien.

Casey then commenced this present suit to foreclose on its mechanic’s lien. C.M.I. opposed the foreclosure and moved for summary judgment on the ground that Casey’s lien was unenforceable because Casey had not complied with the residential builders act or in the alternative C.M.I. had a prior mortgage which superseded the lien. The trial court granted C.M.I. ’s motion for summary judgment on both grounds.

In reviewing the question concerning the residential builders act, the circuit court held that since soil borings had been conducted before Casey was licensed, Casey was not licensed at all times during the performance of the contract and thus under MCL 338.1516; MSA 18.86(116) Casey was precluded from maintaining the present action. We agree with the trial court that there was not literal compliance with the statute. We do not agree, however, that the insignificant variance represented in this case precludes Casey from maintaining the present action. In so holding, we adopt the California test of substantial compliance.

"Although plaintiff thus failed literally to conform to the commands of section 7031 of the Business and Professions Code,[] the courts of this state have not insisted upon such strict observance if it would transform the statute into an 'unwarranted shield for the avoidance of a just obligation.’ (Gatti v. Highland Park Builders, Inc. (1946) 27 Cal.2d 687, 690 [166 P.2d 265].) If the facts clearly indicate that the contractor has 'substantially’ complied with the statute and that such compliance has afforded to the obligor the protection contemplated by the statute, we have rejected the obligor’s attempt to escape liability.”

Latipac, Inc v The Superior Court of Marin County, 64 Cal 2d 278, 281; 49 Cal Rptr 676; 411 P2d 564 (1966), accord, Vitek, Inc v Alvarado Ice Palace, Inc, 34 Cal App 3d 586; 110 Cal Rptr 86 (1973), Lewis v Arboles Development Co, 8 Cal App 3d 812; 87 Cal Rptr 539 (1970), Elster’s Sales v Longo, 4 Cal App 3d 216; 84 Cal Rptr 83 (1970).

In the present case, Casey served as general contractor on the construction project for over 40 months, during which time it was unlicensed for a total of 13 days. When viewed in relation to the total time of performance, the length of time that Casey was unlicensed was insignificant. Moreover, Casey did in fact possess a valid license at the time he executed the construction contract with Dufty. Also, there is no indication in the record that the reason for the 13-day period was because Casey was not qualified to obtain a license. Finally, there is no proof that Casey was not a competent and responsible contractor throughout the term of the contract. This being the case, the criteria set forth in Latipac for invocation of the substantial compliance doctrine have been satisfied, and Casey is not precluded from maintaining the present action.

The residential builders act is a prophylactic measure designed for the protection of homeowners "from incompetent, inexperienced and fly-by-night contractors”. Alexander v Neal, 364 Mich 485, 487; 110 NW2d 797 (1961). See MCL 338.1501; MSA 18.86(101). It was not intended to be a device whereby persons could be relieved from paying their legitimate obligations. Adoption of the substantial compliance test fully protects homeowners thereby fulfilling the purpose of the act, without saddling contractors with oppressive and total forfeitures for trivial and inconsequential deficiencies, forfeitures we might add that will eventually have to be made up by subsequent homebuyers. The principles expressed by the California Court of Appeals in Vitek, supra, apply equally as well to the case at bar.

"We are not involved in aiding an incompetent or dishonest artisan. Nor can it be seriously argued that the statutory purposes of public protection would be frustrated by allowing enforcement of a contract fully performed by a licensed contractor whose qualifications for a license were unquestioned and whose only disability was signing the contract one business day before the license was issued. The defendant received full value under the terms of the contract. The licensing law should not be used as a shield for the avoidance of a just obligation. * * * The contract must be upheld.” (Citation omitted.) Vitek, supra, 594-595.

The second question on appeal is whether C.M.I. had a prior recorded mortgage which superseded Casey’s mechanic’s lien. Relying on Burton Drywall, Inc v Kaufman, 69 Mich App 85; 244 NW2d 367 (1976), the circuit court held that Casey’s failure to prove that it had served notice on Dufty of its intention to claim a mechanic’s lien precluded it from establishing a valid mechanic’s lien and therefore C.M.I.’s mortgage took precedence. Burton, however, was reversed by the Supreme Court and C.M.I. concedes that the reversal answers the notice question adversely to it, and therefore even if Casey did not serve the owner with its intention to claim a lien Casey may still have a valid mechanic’s lien.

Nevertheless, on cross-appeal, C.M.I. contends that even though Casey’s mechanic’s lien may be valid, it is still superseded by C.M.I.’s mortgage because the mortgage was recorded prior to the time Casey commenced construction on the project.

MCL 570.9; MSA 26.289 states that mechanic’s liens shall take preference over any other encumbrance "given or recorded subsequent to the com-

mencement of said building, or buildings, erection, structure or improvement(Emphasis added.) The act also defines improvement as the furnishing of engineering services. MCL 570.1; MSA 26.281. Since engineering services were performed prior to the giving or recording of C.M.I.’s mortgage, Casey’s lien takes precedence. Williams & Works, Inc v Springfield Corp, 81 Mich App 355, 362-363; 265 NW2d 328 (1977).

The trial court’s order granting C.M.I.’s motion for summary judgment is reversed, and the case is remanded for further proceedings.

Reversed.

Beasley, J., concurred.

Danhof, C.J.

(dissenting). I dissent.

Latipac does not support the majority’s finding of substantial compliance in this case. As the majority acknowledges, the finding of substantial compliance in Latipac was based on three criteria. One criterion was that the contractor’s qualifications as a licensee had been "officially confirmed” throughout the period of contract performance. A careful reading of the dissent in Latipac shows the Court’s reliance on this criterion was a slight extension of California law and was crucial to the decision.

In the present case the contractor seeking recovery has not shown that its qualifications were "officially confirmed” throughout the period of performance of the contract. The majority has not found otherwise. Although the majority concludes the Latipac test has been met in this case, its conclusion is based on the reason "there is no proof that Casey was not a competent and responsible contractor throughout the term of the contract”. This reasoning confuses "license” and "official confirmation” with "qualification in fact”. In reality the majority’s ruling today is much broader than the holding in Latipac.

The majority’s extension of Latipac is contrary to the clear language of the residential builders act. The majority justifies this extension by reasoning the purposes of the residential builders act will not be served by exacting a forfeiture from the contractor in this case. These matters, however, may not be considered in an action barred by the clear language of the licensing act. Justice Mosk made this point well in his Latipac dissent. Regarding the California Contractors Licensing Law, he wrote:

" 'In each * * * case, how the aims of policy can best be achieved depends on the kind of illegality and the particular facts involved. [Citations.] But we are not free to weigh these considerations in the present case. Section 7031 represents a legislative determination that the importance of deterring unlicensed persons from engaging in the contracing business outweighs any harshness between the parties, and that such deterrence can best be realized by denying violators the right to maintain any action for compensation in the courts of the state [citation].’ (Italics added.)” 64 Cal 2d 278, 289 quoting, Lewis & Queen v N M Ball Sons, 48 Cal 2d 141, 150-151; 308 P2d 713 (1957).

Prior Michigan cases are in accord with Justice Mosk’s position. See e.g., Bilt-More Homes, Inc v French, 373 Mich 693; 130 NW2d 907 (1964), Chilson v Clevenger, 12 Mich App 56; 162 NW2d 303 (1968).

While I am sympathetic in this case to the equitable claims of the contractor and to the policy concerns of the majority, I believe such claims should be addressed to the Legislature.

       The present action is just one claim in a complex suit involving Casey, Dufty, C.M.I., and various subcontractors, laborers and materialmen.

       Our review of prior case law in Michigan has turned up no cases in which the doctrine of substantial compliance has been applied. However, we also found no cases where it has specifically been rejected. Therefore the question is still open in this state and we are free to look to our sister states for guidance.

       The California provision prohibiting unlicensed builders from bringing or maintaining suit is almost exactly identical to the Michigan provision. Compare California Business and Professions Code, § 7031:
      "No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly licensed contractor at all times during the performance of such act or contract * * with MCL 338.1516; MSA 18.86(116):
      "No person engaged in the business or acting in the capacity of a residential builder and/or residential maintenance and alteration contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract * * .

       In Latipac, the California Supreme Court feet forth three criteria it used to determine whether the residential builder had substantially complied with the Residential Builders Act: 1) did the builder hold a valid license at the date the Construction contract was executed, 2) during the time the builder did not possess a license, was the reason for the nonpossession because the builder was not qualified to hold a license, and 3) was the competence of the corporation’s officer who qualified for the license confirmed throughout the existence of the contract? Latipac, supra.

        Burton Drywall v Kaufman, 402 Mich 366; 263 NW2d 249 (1978).


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

text:
    PIPE v LEESE TOOL & DIE COMPANY
    Docket No. 77-4817.
    Submitted January 4, 1979, at Grand Rapids.
    Decided June 19, 1979.
    Leave to appeal applied for.
    Plaintiff Frederick J. Pipe sustained an injury to his right hand while operating a press in the course of his employment with Leese Tool and Die Company. As a result of this injury the index and middle fingers were amputated and the remaining digits suffered stiffness and loss of flexibility. The plaintiff sought workmen’s compensation benefits. A hearing referee found the plaintiff to have sustained the loss of the industrial use of his right hand. The Workmen’s Compensation Appeal Board found the plaintiff to have no significant power grasp, some precision grasp, no significant pinch function and some hook and push function and concluded that this loss constituted the industrial loss of use of the right hand. The WCAB further found that the plaintiff continued to be partially disabled as to his skill as a die maker following April 30, 1974, the time when the 215-week period provided for receiving benefits for the industrial loss of use of the hand ended, and thus established the plaintiffs right to continuing benefits for partial disability. The WCAB then sua sponte applied the one-year-back provision of the workmen’s compensation law, thereby limiting the plaintiff’s recovery. The plaintiff appeals, by leave granted, that portion of the opinion applying sua sponte the one-year-back rule and Leese Tool and Die Company and Liberty Mutual Insurance Company cross-appeal on the finding of loss of industrial use of the hand. Held:

    1. The employer and its insurer did not raise the one-year-back rule before the WCAB. The failure to raise this defense constitutes a waiver of the statute’s protections and precludes the WCAB from raising it sua sponte.

    2. The Appeal Board’s findings of fact concerning the extent of the loss of function of the plaintiffs hand are supported by the record and are conclusive upon the Court of Appeals. However, the Appeal Board applied an erroneous legal standard in reaching the ultimate legal conclusion that the plaintiff had in fact suffered the loss of the industrial use of his hand. The finding that the plaintiff had suffered the loss of industrial use of his right hand is reversed.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 382, 483-486, 605.

       82 Am Jur 2d, Workmen’s Compensation §§ 616, 631.

       82 Am Jur 2d, Workmen’s Compensation §§ 339, 350, 351.

      Reversed and remanded.
    1. Workmen’s Compensation — One-Year-Back Rule •— Waiver — Appeal Board — Statutes.
    The one-year-back rule of the Worker’s Disability Compensation Act provides that no compensation shall be ordered for any period which is more than one year prior to the date of filing an application for additional benefits; the failure of an injured employee’s employer or the employer’s workmen’s compensation insurance carrier to raise this defense constitutes a waiver of the statute’s protections and precludes the Workmen’s Compensation Appeal Board from raising it sua sponte (MCL 418.833[1]; MSA 17.237[833][1]).
    2. Workmen’s Compensation — Appeal and Error — Appeal Board — Constitutional Law — Statutes.
    The Court of Appeals, when reviewing a decision of the Workmen’s Compensation Appeal Board, is bound by law to accept the Appeal Board’s decision if the Appeal Board correctly understood the law and applied it to the findings of fact (Const 1963, art 6, § 28, MCL 418.861; MSA 17.237[861]).
    3. Workmen’s Compensation — Loss of Industrial Use of Limb — Total Incapacitating Loss — Test.
    For there to be the loss of the industrial use of a limb or member, for purposes of the workmen’s compensation law, there must be that total incapacitating loss of use which renders the organ or member industrially useless for any type of work, skilled or unskilled; the test is the degree of loss as compared with the actual physical loss by destruction or amputation, not the degree of loss measured by the requirements of the skill of the injured workman.
    4. Workmen’s Compensation — Workmen’s Compensation Appeal Board — Appeal and Error — Loss of Industrial Use of Limb.
    The Court of Appeals is not bound by a determination of the Workmen’s Compensation Appeal Board regarding the loss of the industrial use of a limb or member where it is clear that the WCAB applied an erroneous legal standard in reaching its ultimate legal conclusion that a plaintiff had in fact suffered the loss of the industrial use of the limb or member.

      Reamon, Williams, Klukowski, Craft, Wood & Drew, P.C., for plaintiff.

      Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendants.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., P.J.

Plaintiff sustained an injury to his right hand while operating a press in the course of his employment with defendant Leese Tool and Die Company. Amputation of his index and middle fingers resulted, as well as stiffness and loss of flexibility in the remaining digits. After a hearing, the referee found plaintiff to have sustained the loss of industrial use of his right hand. After appeal to the Workmen’s Compensation Appeal Board (WCAB), that boárd found plaintiff to have no significant power grasp, some precision grasp, no significant pinch function and some hook and push function. They concluded that this loss constituted the industrial loss of use of the right hand under the standards set forth in Hutsko v Chrysler Corp, 381 Mich 99; 158 NW2d 874 (1968). The WCAB further found plaintiff continued to remain partially disabled as to his skill as a die maker following April 30, 1974, the time when the 215-week period provided for receiving benefits for the industrial loss of use of his right hand ended, and thus established his right to continuing benefits for partial disability. The WCAB then sua sponte applied the one-year-back provision of MCL 418.833(1); MSA 17.237(833X1) to limit plaintiff’s recovery. Plaintiff appeals that portion of the WCAB’s opinion applying sua sponte the one-year back rule, and Leese Tool and Die Company and its insurer Liberty Mutual Insurance Company cross-appeal the finding of industrial loss of the right hand.

In this instance defendants did not raise the one-year-back rule, MCL 418.833; MSA 17.237(833), before the WCAB. Defendants’ failure to raise this defense constitutes a waiver of the statute’s protections and precludes the WCAB from raising it sua sponte. Kleinschrodt v General Motors Corp, 402 Mich 381; 263 NW2d 246 (1978).

When reviewing a decision of the Workmen’s Compensation Appeal Board this Court is bound by law to accept its decision if the Appeal Board correctly understood the law and applied it to the findings of fact. Const 1963, art 6, § 28, MCL 418.861; MSA 17.237(861), DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 100; 214 NW2d 794 (1974), Thornton v Luria-Dumes Co-Venture, 347 Mich 160; 79 NW2d 457 (1956). In this instance the WCAB found that plaintiff had no significant power grasp, some precision grasp, no significant pinch function and some hook and push function in his hand. They then concluded that the loss incurred by plaintiff constituted the industrial loss of the right hand based upon the standards set in Hutsko v Chrysler Corp, supra. We find that the WCAB’s findings of fact concerning the extent of plaintiff’s loss of function in his hand are supported by the record and are conclusive upon this Court. The only question that remains is whether the WCAB correctly applied the appropriate governing law.

In 1968, the Michigan Supreme Court in Hutsko v Chrysler Corp, supra, indicated that in order for there to be the loss of the industrial use of a limb or member,

"[T]here must be that total incapacitating loss of use which renders the organ or member industrially useless for any type of work, skilled or unskilled. * * * The test is not the degree of loss measured by the requirements of the skill of the injured workman. The test is the degree of loss as compared with the actual physical loss by destruction or amputation.” Hutsko v Chrysler Corp, supra, at 102-103.

This test has not been reversed or modified by the Supreme Court and has been consistently applied by this Court. See Miller v Sullivan Milk Products, Inc, 385 Mich 659, 666; 189 NW2d 304 (1971), Russell v VIC Metal Products Co, 82 Mich App 456, 458; 267 NW2d 141 (1978), Pintar v Copper Range Mining Co, 79 Mich App 518, 521; 261 NW2d 69 (1977), Lewis v Detroit, 58 Mich App 570, 573; 228 NW2d 467 (1975), Lockwood v Continental Motors Corp, 27 Mich App 597, 607; 183 NW2d 807 (1970), lv den 384 Mich 823 (1971).

The standard announced in Hutsko, supra, is easy to state but much more difficult to apply. The WCA'B must determine what functions of the hand have been lost to the plaintiff and compare that loss to the loss of function that would have occurred had the hand actually been amputated. Only when the actual loss is the same as the hypothetical loss that would have occurred in the event of an amputation is the WCAB justified in concluding that there has been a compensable loss of industrial use of the hand. The Hutsko standard does not mandate that there be no finding that the loss of the industrial use of the hand has occurred when there remains some movable flesh and bone, as interpreted by board member Marshall. The decision whether an individual plaintiff has in fact suffered the loss of industrial use of a hand is always a question of fact which must be decided in view of his retained functional ability. See Miller v Sullivan Milk Products, Inc, supra, at 666. This Court has found that there was no loss of industrial use of the hand when four fingers of a worker’s hand were amputated leaving a palm and thumb, see Lewis v Detroit, supra, and has also found that the loss of a thumb and index finger did constitute the loss of industrial use of a hand. See Chaffin v Grand Rapids Metalcraft, 38 Mich App 200; 196 NW2d 20 (1972), lv den 387 Mich 776 (1972). We emphasize that each case was decided on its own particular facts and reflects the WCAB’s factual determination concerning the degree of loss of the hand’s functions suffered by an individual plaintiff.

The WCAB, after hearing the evidence presented before it, found that plaintiff retained some precision grasp and some hook and push function. This determination was based upon the testimony of Dr. Van’t Hof who also testified that this retained precision grasp and hook and push, as well as retained sensation of the fingers, would not have been present had plaintiff’s hand been amputated. In view of these findings the WCAB could not have applied the Hutsko standard, as it is properly interpreted, because it is clear that plaintiff retained some functions of the hand that would not have been present had the hand actually been amputated. Since it is clear that the WCAB applied an erroneous legal standard in reaching its ultimate legal conclusion that plaintiff had in fact suffered the loss of the industrial use of this hand, we are not bound by their determination and have the duty and authority to correct it. DeGeer v DeGeer Farm Equipment, supra, at 100. Accordingly that portion of the Workmen’s Compensation Appeal Board’s opinion and order of October 28, 1977, finding that plaintiff had suffered loss of industrial use of his right hand and ordering defendant to pay plaintiff compensation benefits for a 215-week period is reversed.

Remanded for entry of an order not inconsistent with this opinion.


author: J. E. Townsend, J.

text:
    McFADDEN v DOWNRIVER AREA NARCOTICS ORGANIZATION
    Docket No. 78-84.
    Submitted November 9, 1978, at Detroit.
    Decided June 19, 1979.
    Leave to appeal applied for.
    Defendant Downriver Area Narcotics Organization confiscated $5,800 from plaintiff Edward McDaniel following his arrest. Defendant Michigan Department of Treasury later seized those funds pursuant to a jeopardy tax assessment and levy against plaintiff McDaniel. Plaintiff William R. McFadden and plaintiff McDaniel brought an action in circuit court seeking an order requiring the Department of Treasury to show cause why the funds should not be returned. Plaintiffs alleged that the ownership of those funds, prior to seizure, had been transferred from McDaniel to McFadden, an attorney at law, as a retainer fee in the criminal case against McDaniel. The Wayne Circuit Court, Roland L. Olzark, J., denied plaintiffs’ request for an evidentiary héaring and dismissed plaintiffs’ complaint on the basis that they failed to meet their burden of proof. Plaintiffs appeal. Held:

    1. A taxpayer seeking relief from a jeopardy tax assessment and levy is entitled to introduce proofs at a post-seizure hearing.
    2. The right of the Department of Treasury to make disclosures of facts relevant to a jeopardy tax assessment and levy in the form of affidavits does not deny a taxpayer the right to introduce proofs at a post-seizure hearing.
    3. A third party who asserts ownership of property seized from a taxpayer in a jeopardy tax assessment and levy may seek to establish his ownership at the post-seizure hearing in circuit court.
    Reversed and remanded.
    1. Taxation — Jeopardy Assessments — Hearing — Proofs.
    A taxpayer seeking relief from a jeopardy tax assessment and levy, having the burden of proof, is entitled to introduce proofs at a post-seizure hearing.

      References for Points in Headnotes

       72 Am Jur 2d, State and Local Taxation §§ 713, 1077, 1107.

       68 Am Jur 2d, Searches and Seizures § 118.
    72 Am Jur 2d, State and Local Taxation § 1086.

      2. Taxation — Jeopardy Assessments — Affidavits — Hearing — Proofs.
    The right of the Department of Treasury to make disclosures of facts relevant to a jeopardy tax assessment and levy in the form of affidavits does not deny a taxpayer the right to introduce proofs at a post-seizure hearing.
    3. Taxation — Jeopardy Assessment — Ownership — Hearing — Circuit Court.
    A third party who asserts ownership of property seized from a taxpayer in a jeopardy tax assessment and levy may seek to establish his ownership at a post-seizure hearing in circuit court.

      William R. McFadden, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and E. David Brock-man, Assistant Attorney General, for defendants on appeal.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   J. E. Townsend, J.

This cause arises out of a jeopardy tax assessment and seizure of moneys. Plaintiffs McFadden and McDaniel appeal from an order of the Wayne County Circuit Court issued December 21, 1977, which dismissed plaintiffs’ complaint. Plaintiffs’ complaint sought the return of $5,800, initially confiscated from plaintiff McDaniel following his arrest by the Downriver Area Narcotics Organization, and later seized by defendant Michigan Department of Treasury pursuant to a jeopardy tax assessment and levy against plaintiff McDaniel. Plaintiff McFadden, an attorney at law, claimed ownership of such money by transfer from plaintiff McDaniel as a "retainer fee” in the criminal case against plaintiff McDaniel.

At the show cause hearing on September 2, 1977, the circuit judge precluded oral argument and denied plaintiff attorney’s request for an evidentiary hearing.

The circuit judge issued an opinion on October 26, 1977, which cited Craig v Detroit Police Dep't, 397 Mich 185; 243 NW2d 236 (1976), and acknowledged that the taxpayer was entitled to a post-seizure hearing before the circuit court. The opinion recognized that plaintiffs had the burden of proof, and stated that "plaintiff offered no proofs” and found that plaintiff "has not met his burden of pleading and proving” his claims.

On December 21, 1977, the circuit judge entered an order dismissing plaintiffs’ complaint and petition for order to show cause, which recited that the court "found that the plaintiffs have failed to meet their burden of proof’.

It is apparent that the circuit court interpreted Craig, supra, as not mandating an evidentiary hearing. We disagree.

The decision in Craig mandates a "prompt post-seizure hearing into the factual basis for the assessment”. (Emphasis supplied.) Id. at 190.

The Supreme Court, by placing the burden of proof on the taxpayer in the post-seizure hearing (Id. at 195), necessarily assumes the opportunity for the taxpayer to introduce proofs at such hearing on the relevant issues.

Procedural due process, as a basic constitutional right, requires an evidentiary hearing to determine whether there has been a deprivation of property without due process of law. For example, see Detroit & Northern Savings & Loan Ass’n v Woodworth, 54 Mich App 517, 221 NW2d 190 (1974), recognizing the right to introduce evidence at a claim and delivery show cause hearing.

The reference in the Craig case to "disclosure by affidavit” (Craig, supra, at 195) is concerned merely with prehearing discovery, and does not deny a taxpayer the right to introduce evidence at the hearing.

A basic issue in this case not faced or decided by the Supreme Court in the Craig case is the right of a third party to an evidentiary hearing on his claim that he, and not the taxpayer, owned the property seized for the tax obligation, and that, as a third-party owner, he has prior and superior rights to such property which deserve protection.

Surely, the owner of personal property seized for another’s taxes while in the custody of someone other than the owner, whether such property be money, a motor vehicle, or whatever, may seek to establish his ownership, and his right to immediate possession thereof, at a prompt post-seizure hearing in circuit court.

The seizure of property owned by someone other than the taxpayer in question, if such is the fact, is an invalid and illegal act which may be challenged forthwith in the circuit court.

Reversed and remanded for an evidentiary hearing on plaintiffs’ complaint in the Wayne County Circuit Court.


author: Mackenzie, J.

text:
    GIDDAY v WAKEFIELD
    Docket No. 78-223.
    Submitted February 13, 1979, at Lansing.
    Decided June 19, 1979.
    Leave to appeal applied for.
    Elwyn G. Gidday, Jr., brought an action against Shirley Wakefield, individually, and as Clerk of Highland Township, for damages for slander, alleging that the defendant had slandered the plaintiff at a meeting of the Highland Township Board of Trustees. Summary judgment was entered for the defendant by the Oakland Circuit Court, Frederick C. Ziem, J., based on the plaintiff’s failure to state a claim upon which the court could grant relief as the court found the defendant to be protected by an absolute privilege for the statements in question. The plaintiff appeals. Held:

    In Michigan the doctrine of absolute privilege from liability for libel and slander extends to the proceedings of subordinate legislative and quasi-legislative bodies. The duly convened meeting of the township board, at which the statements at issue were spoken, qualifies as a forum for the doctrine of absolute privilege. The remarks by the defendant were made in the performance of an official duty and they were spoken at a regularly scheduled meeting of the township board. The statements were privileged. The grant of summary judgment was proper.
    Affirmed.
    1. Judgment — Summary Judgment — Appeal and Error — Failure to State Claim — Well-Pleaded Facts — Court Rules.
    The Court of Appeals, when reviewing a ruling on a motion for summary judgment based on the plaintiff’s failure to state a claim upon which relief can be granted, accepts as true all well pleaded facts in the plaintiff’s complaint; the court then determines whether the claims are so clearly unenforceable as a matter of law that a right to recovery cannot be predicated upon any factual development (GCR 1963, 117.2[1]).
    References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 104
    73 Am Jur 2d, Summary Judgment §§ 15, 35.

       50 Am Jur 2d, Libel and Slander §§ 192-194.

      2. Libel and Slander — Privilege — Absolute Privilege — Legislative Bodies.
    An absolute privilege from liability for libel and slander extends, in Michigan, to the proceedings of subordinate legislative and quasi-legislative bodies.
    3. Libel and Slander — Townships — Township Boards —• Absolute Privilege.
    A duly convened meeting of a township board may serve as a forum to which the doctrine of absolute privilege from libel and slander applies.
    4. Libel and Slander — Privilege — Absolute Privilege — Legislative Body — Public Officials — Official Duty.
    The fact that a public official is a member of a legislative body and is in attendance at a duly convened proceeding of such body does not afford him an invitation to undertake an unrestricted slanderous campaign against whomever he pleases, concerning whatever he pleases, with an absolute privilege from liability for defamation; in addition to being spoken during a legislative session or a quasi-legislative session, the statements at issue must be made by the public official while in the process of carrying out an official duty in order to be absolutely privileged.

      Stephen P. Ferris, for plaintiff.

      Moore, Sills, Poling, Wooster, Sinn & Taylor, P.C., for defendant.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Mackenzie, J.

The plaintiff appeals as of right from a December 28, 1977 order of the Oakland County Circuit Court granting the defendant’s motion for summary judgment against the plaintiff. Plaintiff had filed a complaint against defendant on July 8, 1976, alleging that the defendant slandered the plaintiff at a meeting of the Highland Township Board of Trustees on July 9, 1975.

At the meeting, the plaintiff’s wife, Sharyn Gidday, the township treasurer, requested a key to an area of the township offices where the defendant’s office was located. The defendant, the township clerk, resisted the request, contending that an unauthorized person had been seen in her office and had gone through her files. The defendant then requested that a security partition be constructed in order to protect her records. The plaintiff’s wife inquired whether the defendant wished to protect the records from her. The defendant responded that she wanted to keep the records safe "from your husband, Mrs. Gidday!” The defendant then reiterated that her files had been "rifled” and that a person saw "this man” in her office.

In his complaint, the plaintiff alleged that the defendant’s statements were not spoken in furtherance of any legislative debate, judicial proceeding, executive or statutory duty or military affair, and thus were spoken without benefit of privilege or immunity.

The plaintiff’s complaint had additional counts alleging that the remarks invaded the plaintiff’s privacy and intentionally inflicted mental distress on the plaintiff. He sought a total of $2,500,000 in damages, $1,000,000 of this figure representing the damages resulting from the alleged defamation.

Trial was twice adjourned by agreement of the parties. On October 13, 1977, defendant filed a motion for summary judgment under GCR 1963, 117.2(1), alleging that the plaintiff had failed to state a cause of action upon which the court could grant relief. On December 5, 1977, the motion was granted by the trial judge, who held that the statements were protected under the doctrine of absolute privilege.

When reviewing a ruling on a motion for summary judgment, we accept as true all well pleaded facts in the plaintiffs complaint. We then determine whether the claims are so clearly unenforceable as a matter of law that a right to recovery cannot be predicated upon any factual development. Gartside v Young Men’s Christian Association, 87 Mich App 335, 337-338; 274 NW2d 58 (1978).

In Tocco v Piersante, 69 Mich App 616, 629; 245 NW2d 356 (1976), this Court discussed the doctrine of absolute privilege in defamation cases:

"A communication absolutely privileged is not actionable, even though false and maliciously published, whereas proof of actual malice will overcome a qualified privilege. Trimble v Morrish, 152 Mich 624, 627; 116 NW 451 (1908), Lawrence v Fox, [357 Mich 134; 97 NW2d 719 (1959)], Timmis v Bennett, 352 Mich 355; 89 NW2d 748 (1958), Prosser, Torts (4th ed), § 114, pp 776-777.
"Michigan has recognized an absolute privilege for communications made by judges during the course of judicial hearings. Ginger v Wayne Circuit Judge, 369 Mich 680; 120 NW2d 842 (1963), Mundy v McDonald, 216 Mich 444; 185 NW 877 (1921). This privilege is well known and universally recognized, albeit sometimes with minor modifications not relevant here.
"An absolute privilege is also generally recognized for statements made in the course of legislative proceedings. Prosser, Torts (4th ed), § 114, pp 781-782. This privilege has also been adopted in Michigan. Bolton v Walker, 197 Mich 699; 164 NW 420 (1917), Trebilcock v Anderson, 117 Mich 39; 75 NW 129 (1898), Wachsmuth v The Merchants’ National Bank, 96 Mich 426; 56 NW 9 (1893).”

In Michigan, the absolute privilege extends to proceedings of subordinate legislative and quasi-legislative bodies. In Wachsmuth v The Merchants’ National Bank, 96 Mich 426; 56 NW 9 (1893), it was held that a resolution offered by a city council member to the council, relating to a matter within the member’s duty, was absolutely privileged. In Trebilcock v Anderson, 117 Mich 39; 75 NW 129 (1898), a mayor’s communication to a city council concerning a veto was deemed absolutely privileged. In Bolton v Walker, 197 Mich 699; 164 NW 420 (1917), words spoken by an ex officio member of the Board of Estimates of the City of Detroit during a discussion of a matter of public concern at a regular meeting of the board were held absolutely privileged. In Powers v Vaughan, 312 Mich 297; 20 NW2d 196 (1945), a report issued by the Detroit Department of Health was deemed absolutely privileged.

In the instant case, the defendant was a member of the Board of Trustees of Highland Township. The aforementioned Supreme Court decisions establish that proceedings of local legislative and quasi-legislative bodies are cloaked by an absolute privilege. We thus conclude that the duly convened meeting of the township board may serve as a forum for application of the absolute privilege doctrine.

The finding that the proceeding lends itself to application of the doctrine of absolute privilege does not, however, end our inquiry. The fact that a public official is a member of a legislative body and is in attendance at a duly convened proceeding of such body does not afford him an invitation to undertake an unrestricted slanderous campaign against whomever he pleases, concerning whatever he pleases. In addition to being spoken during a legislative or quasi-legislative session, the statements at issue must be made by the public official while in the process of carrying out an official duty. See Wachsmuth v Merchants’ National Bank, supra, Brunn v Weiss, 32 Mich App 428; 188 NW2d 904 (1971), Stewart v Troutt, 73 Mich App 378; 251 NW2d 594 (1977).

Upon examining the circumstances of the instant case, we conclude that the statements of the defendant were made in the performance of an official duty. Her remarks were spoken during a regularly scheduled meeting of the Board of Trustees. At the meeting, the township treasurer requested a key to a certain area of the township offices. Upon explaining her reasons for opposing the request, the defendant expresséd her desire that a security partition be constructed to protect her records. The treasurer inquired as to whether the clerk wished to keep her records safe from her. In responding to the treasurer’s question, the defendant stated that she wanted to protect her records from the treasurer’s husband, as her files had been gone through and a "particular” man had previously been seen in her office. The statements of the defendant were pertinent to the subject being considered by the board, it being undisputed that the subject was an appropriate matter for the board’s consideration.

The facts of the instant case resemble the situation in Bolton v Walker, supra, where the Supreme Court held the communications at issue absolutely privileged. In that case, the plaintiff and the defendant were members of the City of Detroit’s Board of Estimates. At a duly convened meeting where a matter of the board’s concern was under discussion, the defendant imputed that the plaintiff was susceptible; to improper influences, such as bribery. The Court held:

"[The absolute privilege] doctrine is discussed and finds support in Wachsmuth v National Bank, 96 Mich 426 (56 NW 9, 21 LRA 278); Trebilcock v Anderson, 117 Mich 39, (75 NW 129), and Madill v Currie, 168 Mich 561 (134 NW 1004). In the instant case the alleged defamatory words were spoken in debate, by a public officer, in discussing a matter of public concern, in which both he and plaintiff were officially interested and had a duty to perform, and on an occasion when it was properly up for consideration by a legally constituted public body, of which both were members, which had jurisdiction to dispose of the subject under debate and was then in session at a regularly convened meeting.
"[W]e are well satisfied as a conclusion of law on the undisputed facts that the occasion presents a privilege absolute, and defendant’s request for a directed verdict should have been granted.” 197 Mich at 707-708.

Although the plaintiffs complaint alleged that the defendant’s statements were outside the scope of a legislative debate and were spoken without benefit of privilege or immunity, we are not bound by these statements; they are conclusions of law rather than statements of facts.

Because the defendant’s statements were pertinent to a discussion of a subject under proper consideration by the Highland Township Board of Trustees, we conclude that the lower court did not err in granting the motion for summary judgment.

Affirmed. Costs to defendant-appellee.


text:
    WAGNER v DOOLEY
    Docket No. 78-372.
    Submitted December 5, 1978, at Lansing.
    Decided June 19, 1979.
    Leave to appeal applied for.
    In 1941 Grace J. Norton and her husband John F. Norton transferred certain property located in Montmorency County to Willis F. Dooley and his wife Ruth A. Dooley. In the deed conveyed to the Dooleys, the Nortons reserved to themselves the ownership of all subsurface minerals and mineral rights. This deed was destroyed in 1943 when a fire destroyed the records of the Register of Deeds for Montmorency County. The deed was rerecorded on June 13, 1970, by the Dooleys.
    By a deed dated April 8, 1975, Grace Norton, as survivor of herself and John F. Norton, granted the retained minerals and mineral rights to B. F. Wagner, with Mrs. Norton retaining a life estate. On March 16, 1976, Mrs. Norton and B. F. Wagner filed an action against the Dooleys to quiet title to their interest in the property. Montmorency Circuit Court, Philip J. Glennie, J., entered a judgment quieting title to the plaintiffs. In its opinion the trial court indicated that the dormant minerals act did not operate upon a deed reservation of a fee interest in subsurface minerals and mineral rights which included within it the interest in oil and gas. The court further ruled that the plaintiffs’ oil and gas interests were not abandoned under the dormant minerals act because of the rerecording of the deed by the Dooleys in 1970. The trial court did not address the question of the constitutionality of the dormant minerals act. The defendants appeal. Held:

    1. The enactment of the dormant minerals act was a valid exercise of police power and the statute does not unconstitutionally impair the obligation of contracts or deny equal protection of the law.
    2. The reservation of minerals and mineral rights in the deed in question has the effect of reserving the oil and gas rights to the plaintiffs and severing those rights from the surface owner. The dormant minerals act applies to all interests in subsurface oil and gas which have been severed from the interests of the surface owner. The dormant minerals act does apply to the instant case.

      References for Points in Headnotes

       54 Am Jur 2d, Mines and Minerals §§ 103, 105, 108-110.

       38 Am Jur 2d, Gas and Oil § 46.
    54 Am Jur 2d, Mines and Minerals §§ 108-110.

       38 Am Jur 2d, Gas and Oil §§ 115-119.

       38 Am Jur 2d, Gas and Oil §§ 208, 209.

      3. The rerecordation of the deed by the Dooleys, under the statute concerning the rerecordation of public records that have been destroyed, did not toll the operation of the dormant .minerals act and did not prevent the 20-year period of the dormant minerals act from running.
    4. Even if the operation of the rerecordation statute tolled the operation of the dormant minerals act, the plaintiff still would not prevail in this instance. The dormant minerals act requires the owner of the interest in the subsurface oil and gas to take certain action to indicate nonabandonment of that interest. In the instant case it was the defendants who took the rerecordation action, not the plaintiffs, and this does not satisfy the requirements of the dormant minerals act. The plaintiffs took no action within the appropriate time period to preserve their interests and it is deemed to have been abandoned and vested in the Dooleys who are the surface owners.
    Reversed.
    1. Mines and Minerals — Surface Owner — Severance of Mineral Rights — Reservation in Deed.
    The ownership of subsurface mineral interests may be severed from the ownership of the surface by a reservation in a deed.
    2. Mines and Minerals — Dormant Minerals Act — Oil and Gas Rights — Severance of Mineral Rights — Surface Owner — Statutes.
    The dormant minerals act applies to a deed which contains a reservation of a right in subsurface minerals which has the effect of reserving gas and oil rights to a former owner and severs those rights from the rights of the surface owner (MCL 554.291; MSA 26.1163[1]).
    3. Mines and Minerals — Oil and Gas — Dormant Minerals Act — Words and Phrases — Statutes.
    The Legislature, by the utilization of the words "any interest in oil or gas” in the dormant minerals act, intended that all interests in oil and gas in any land owned by any person other than the owner of the surface, whether they be created by deed reservation, lease or otherwise, be subject to the affirmative duties imposed by the dormant minerals act (MCL 554.291; MSA 26.1163[1]).
    4. Mines and Minerals — Statutes — Dormant Minerals Act — Oil and Gas Interests — Abandonment — Preservation of Interests.
    The dormant minerals act provides that any person holding any interest in oil or gas in any land, other than the surface owner, shall be deemed to have abandoned such interest unless during any 20-year period such person relative to the land does one of five things: (1) secures a drilling permit, (2) actually produces or withdraws gas or oil, (3) sells, leases, mortgages or transfers such interest by recorded instrument, (4) uses the property subject to such interests for underground gas storage, or (5) records a notice of interest with the Register of Deeds; a three-year grace period was provided by the act for persons affected to record their notice to preserve their interest (MCL 554.291 et seq.; MSA 26.1163[1] et seq.).

      Bujold & Bailey (by Frank J. Bujold and Douglas A. Tull), for plaintiffs.

      Meyers & Polaczyk, for defendants.
    Before: D. E. Holbrook, Jr., P.J., and M. F. Cavanagh and Cynar, JJ.
   D. E. Holbrook, Jr., P.J.

This controversy arises out of an action to quiet title. The land which is the subject matter of this lawsuit is located in Montmorency County and was originally owned by plaintiff Grace J. Norton and her husband John F. Norton, now deceased. This property was transferred via a deed dated March 14, 1941, to defendants Willis F. Dooley and his wife Ruth A. Dooley. This deed contained a reservation that:

"Parties of the first part, however, saving and reserving unto themselves, their heirs and assigns, forever, all minerals and mineral rights beneath the surface of said lands, together with the right to enter upon said lands and explore the same therefor and to mine the same without let or hindrance.”

The deed containing this reservation was recorded on May 17, 1941. In 1943 a fire destroyed the records of the Register of Deeds for Montmorency County including the recorded deed in question. This deed was rerecorded by defendants on June 13, 1970. Plaintiff Grace Norton, as the survivor of herself and John F. Norton, deeded the retained minerals and mineral rights to plaintiff B. F. Wagner retaining a life estate to herself by a deed dated April 8, 1975. On March 16, 1976, plaintiffs filed suit to quiet title to the property. After a nonjury trial the trial court issued a judgment quieting title to plaintiffs. In its opinion, the trial court indicated that the dormant minerals act, MCL 554.291; MSA 26.1163(1), did not operate upon a deed reservation of a fee interest in subsurface minerals and mineral rights which included within it the interest in oil and gas. It was the court’s further opinion that plaintiffs’ oil and gas interests were not abandoned under this statute because of the rerecording of the deed by defendants on June 13, 1970. Plaintiffs raised challenges to the constitutionality of the dormant minerals act at trial but the trial court was not required to reach these issues because of its prior findings. It is from this judgment quieting title that defendants appeal as of right raising several issues.

In Van Slooten v Larsen, 86 Mich App 437; 272 NW2d 675 (1978), Iv gtd 405 Mich 824 (1979), this Court found that the dormant minerals act was a valid exercise of police power and did not unconstitutionally impair the obligation of contracts or deny equal protection of the laws. This act, effective September 6, 1963, provides:

"Any interest in oil or gas in any land owned by any person other than the owner of the surface, which has not been sold, leased, mortgaged or transferred by instrument recorded in the register of deeds office for the county where such interest is located for a period of 20 years shall, in the absence of the issuance of a drilling permit as to such interest or the actual production or withdrawal of oil or gas from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized or included in unit operations therewith, or the use of such interest in underground storage operations, during such period of 20 years, be deemed abandoned, unless the owner thereof shall, within 3 years after the effective date of this act or within 20 years after the last sale, lease, mortgage or transfer of record of such interest or within 20 years after the last issuance of a drilling permit as to such interests or actual production or withdrawal of oil or gas, from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized, or included in unit operations therewith, or the use of such interests in underground gas storage operations, whichever is later, record a claim of interest as hereinafter provided. Any interest in oil or gas deemed abandoned as herein provided shall vest as of the date of such abandonment in the owner or owners of the surface in keeping with the character of the surface ownership.” MCL 554.291; MSA 26.1163(1).

Since the constitutionality of this statute is. no longer in question, we must proceed to examine the facts of this case to determine its applicability.

The ownership of subsurface mineral interests may be severed from the ownership of the surface by a reservation in a deed. Rathbun v Michigan, 284 Mich 521, 534; 280 NW 35 (1938). By reserving the mineral rights the grantor of the deed is also deemed to have reserved the rights in oil and gas. Weaver v Richards, 156 Mich 320, 324; 120 NW 818 (1909), Kruger v Agnor, 321 Mich 131, 138; 32 NW2d 365 (1948). The reservation contained in the deed in the instant case has the effect of reserving the oil and gas rights to plaintiffs and severing those rights from the surface owner, thus creating a situation where the dormant minerals act is applicable.

The trial court held the dormant minerals act was not intended by the Legislature to operate upon a deed reservation of a fee interest in subsurface minerals and mineral rights which includes the interest in oil and gas. This was based upon its perception that "the evil to be corrected clearly was the difficulty posed to persons resuming drilling operations on land covered by abandoned oil and gas leases in locating persons claiming fractional royalty interests under such abandoned leases”. We disagree with this interpretation as it would directly contradict the plain language of the statute. The statute on its face applies to "any interest in oil or gas”. The trial court has apparently accepted plaintiffs’ argument that the Legislature intended this statute to apply only to leasehold interests in oil and gas. We note that when the Legislature has desired. to address problems concerning oil and gas leases in the past it specifically utilized the term "lease” in its statutory enactment. See MCL 554.281; MSA 26.1161. Accordingly we find that by utilization of the words "any interest in oil or gas” the Legislature intended that all interests in oil and gas, whether they be created by deed reservation, lease or otherwise, be subject to the affirmative duties imposed by the dormant minerals act.

Having determined that the interest in oil and gas reserved by plaintiffs was intended to be affected by the dormant minerals act, we must now determine whether plaintiffs have complied with the requirements of the act. The trial court found that defendants’ rerecordation of their deed on June 13, 1970, pursuant to the provisions of MCL 561.4; MSA 26.878(4) prevented the 20-year period provided in the dormant minerals act from running. This statute concerns the rerecordation of public records that have been destroyed and provides that rerecorded deeds shall be of like force and affect as the original recording. Contrary to plaintiffs’ contention, the operation of this statute does not toll the operation of the dormant minerals act but rather provides a method by which an individual relying upon protection of the recordation act may recreate his record notice. The rerecordation of defendants’ deed merely acts to reaffirm defendants’ continuity of record title.

Even assuming defendants’ actions of rerecording their deed have some retroactive application as applied to the dormant minerals act, plaintiffs still may not prevail. The dormant minerals act:

"provides that any person holding any interest in oil or gas in any land, other than the surface owner, shall be deemed to have abandoned such interest unless during any 20 year period such person relative to the land does one of five things: (1) Secures a drilling permit; or (2) actually produces or withdraws gas or oil individually or as part of a pool; or (3) sells, leases, mortgages or transfers such interest by recorded instrument; or (4) uses the property subject to such interests for underground gas storage; or (5) records a notice of interest with the Register of Deeds.” Bickel v Fairchild, 83 Mich App 467, 469-470; 268 NW2d 881 (1978). (Emphasis supplied.)

Implicit in the legislative scheme is the requirement that the owner of the interest in oil and gas take some action to indicate nonabandonment of the interest. In this instance the rerecordation in 1970 was an action taken by defendants rather than by plaintiffs and cannot suffice to satisfy plaintiffs’ obligation under the statute.

Plaintiffs’ interest in the oil and gas was created by means of a reservation of the mineral rights contained in a deed recorded May 17, 1941. The 20-year period imposed upon these oil and gas rights by the dormant minerals act would have run by May 17, 1961, two years before the effective date of the dormant minerals act. To cover such situations the statute provides a grace period of three years after the effective date of this act, September 6, 1963, in which to perform one of the required actions. This grace period expired September 6, 1966. We find that plaintiffs have failed to perform any of the actions required by the dormant minerals act and their interest in oil and gas is deemed to have been abandoned and vested in defendants who are the surface owners of the property in question. The trial court’s finding that plaintiffs’ oil and gas interests had not been abandoned is reversed. The judgment quieting title to the subsurface minerals and mineral rights is modified to reflect that such mineral rights are exclusive of the oil and gas rights in the property

Reversed. No costs, interpretation of a statute involved.