author: D. E. Holbrook, Jr., P.J. T. M. Burns, J.

text:
    WESTERVELT v DEPARTMENT OF CORRECTIONS
    Docket No. 77-5075.
    Submitted June 15, 1978, at Grand Rapids.
    Decided November 6, 1978.
    William Westervelt, an inmate at the Michigan Reformatory at Ionia, brought suit in the Court of Claims against the Michigan Department of Corrections and Dale Fontz, Warden of the reformatory, for damages for injury allegedly suffered in an assault by other inmates, claiming the injuries were the result of the defendants’ negligence. An accelerated judgment of dismissal was granted as to defendant Dale Fontz only. The Department of Corrections later raised the defense of governmental immunity by way of a motion for accelerated judgment, which was granted by the Court of Claims, Martin B. Breighner, J. Plaintiff appeals, alleging that the Department of Corrections waived the governmental immunity defense, and that his claim falls within either the defective building exception to the governmental immunity statute or the nuisance exception to governmental immunity. Held:

    1. The governmental immunity defense was not waived. An affirmative defense may be raised by amendment as well as in the initial answer and if so raised is to be treated as if raised by motion for accelerated judgment. Although the defense was raised in a motion for accelerated judgment, not timely filed, the trial court has discretion to hear such a motion.
    2. Plaintiffs claim of injuries caused by other inmates does not fall within the defective condition exception to governmental immunity. The thrust of the exception is to provide redress for injuries caused by structural fault or failure to properly maintain a building.

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Pleading § 308.
    [2] No Reference
    [3, 5] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 98, 101, 150.
    [4] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 293.
    Rule of municipal immunity from liability of acts in performance of governmental functions as applicable to personal injury or death as result of a nuisance. 56 ALR2d 1415.
    [6] No Reference
    [7] 58 Am Jur 2d, Nuisance § 32.

      3. The nuisance exception to governmental immunity applies to intentional, not negligent, nuisances. Plaintiffs claim is based upon negligent maintenance of a nuisance.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that the plaintiff has pled facts which bring his complaint within the defective building exception to governmental immunity and is therefore entitled to trial on the merits of his claims. He also would hold that plaintiffs claim of nuisance alleges facts concerning a dangerous condition, intentionally created, and that the plaintiff is entitled to a trial on the merits of that issue.
    Opinion op the Court
    1. Pleading — Affirmative Defenses — Amendment of Pleadings.
    An affirmative defense may be raised by amendment of a party’s pleadings allowed by leave of the court, even if not raised in the party’s initial answer to the complaint.
    2. Motions — Accelerated Judgment — Amendment to Pleadings.
    A trial court did not err by hearing a defendant’s motion for accelerated judgment based upon governmental immunity which was not timely brought because had the defendant properly raised the defense by means of amendment to its pleadings the defense would have been treated as if raised by motion for accelerated judgment.
    3. Torts — Negligence—Governmental Immunity — Public Buildings — Correctional Facilities — Inmates—Statutes.
    The fact that an injury occurs in a public building does not in and of itself bring that injury within the defective building condition exception to the governmental immunity statute; an inmate of a correctional institution who was allegedly injured by other inmates may not invoke the defective condition exception for failure to provide adequate supervision because the thrust of the exception is to provide redress for injuries caused by structural fault or failure to properly maintain a building (MCL 691.1406; MSA 3.996[106]).
    4. Nuisance — Torts—Governmental Immunity — Exceptions.
    A nuisance exception to governmental immunity applies to intentional but not negligent nuisances.

      Dissent by T. M. Burns, J.
    5. Torts — Negligence—Governmental Immunity — Public Buildings — Correctional Facilities — Inmates—Statutes.

      A correctional facility is a public building and an inmate is a member of the public for purposes of the statute which creates an exception to governmental immunity where an injury occurs as the result of a defective or dangerous condition of a public building (MCL 691.1406; MSA 3.996[106j).

    6. Judgment — Accelerated Judgment — Governmental Immunity— Public Buildings — Statutes.

      A trial court’s grant of accelerated judgment to the Department of Corrections was improper where the plaintiff, an inmate who was allegedly injured by his fellow inmates, pled facts which would bring his complaint within the defective building exception to the governmental immunity statute (MCL 691.1406; MSA 3.996[106j).

    7. Nuisance — Nuisance in Fact — Intentionally Created Nuisance —Question of Fact.

      A plaintiff inmate who in his suit against the Department of Corrections has alleged a nuisance in the maintenance of the facility in which he was incarcerated is entitled to a hearing on the merits of his allegations; whether there was a nuisance in fact and whether that nuisance was intentionally created are questions for the trier of fact.

      Cholette, Perkins & Buchanan (by Kenneth L. Block), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Rebecca Chapman McClear, Assistant Attorney General, for defendant.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

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

Appellant, an inmate at the Ionia Reformatory, claims he was sexually attacked by other inmates, resulting in physical and emotional injury. Suit was filed against the Department of Corrections and Dale Fontz alleging that plaintiffs injuries were the result of defendants’ negligence. The Department of Corrections filed its answer but did not raise the defense of governmental immunity. Such defense was raised by means of a motion for accelerated judgment approximately four months later. Thereafter plaintiff attempted to amend his complaint to include an allegation that the case fell within the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106). The motion to amend was never granted although the claims therein contained were examined by the trial court. Thereafter defendant’s motion for accelerated judgment was granted. Plaintiff appeals as of right.

Plaintiff claims that failure to raise the defense of governmental immunity in the first responsive pleading constitutes waiver. We disagree.

GCR 1963, 111.3 provides that defenses not asserted in the responsive pleading are waived, while GCR 1963, 118.1 permits amendment of pleadings by leave of the court. Affirmative defenses may be raised by amendment, even if not raised in the initial answer. Ben P. Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). Clearly, the affirmative defense of governmental immunity can only be waived when not asserted.

Defendant raised governmental immunity as a defense through a motion for accelerated judgment. Said motion not being brought within the time set by GCR 1963, 108.2, it must be considered a motion out of time. GCR 1963, 108.7(2) grants the trial court discretion to hear motions out of time. Guastello v Citizens Mutual Ins Co, 11 Mich App 120; 160 NW2d 725 (1968). This discretion applies to motions for accelerated judgment made out of time as well as other motions. Manufacturers Construction Co v Covenant Investment Co, 43 Mich App 123; 204 NW2d 54 (1972). While appellee should have proceeded by means of amendment to its answer with a hearing on the merits of the claim, as prescribed by GCR 1963, 116.3, similar results would have occurred since a defense raised by responsive pleading is treated as if raised by a motion for accelerated judgment. The trial court did not err in hearing the motion for accelerated judgment or in its determination that governmental immunity had not been waived.

Appellant contends this case falls within the defective condition exception to governmental immunity. MCL 691.1406; MSA 3.996(106). We reject this argument. The fact that an injury occurred in a public building does not in and of itself bring that injury within the defective condition exception. Cody v Southfield-Lathrup School Dist, 25 Mich App 33; 181 NW2d 81 (1970). Plaintiffs injuries were caused by inmates rather than the physical building. His allegation of defective condition is in effect a claim that the physical structure was so designed that inmates could not be adequately supervised. Plaintiff cannot invoke the defective condition exception for failure to provide adequate supervision since the thrust of the exception is to provide redress for injuries caused by structural fault or failure to properly maintain a building. Lockaby v Wayne County, 63 Mich App 185; 234 NW2d 444 (1975). Such was hot the case here.

Plaintiffs contention that the governmental immunity statute is unconstitutional is without merit. White v Detroit, 74 Mich App 545; 254 NW2d 572 (1977). See Thomas v Dept of State Highways, 398 Mich 1; 247 NW2d 530 (1976).

With respect to plaintiffs nuisance claim it is based upon maintaining and operating the Ionia Reformatory in a fashion hazardous to the inmates. This claim fails even in light of the Michigan Supreme Court’s decision in Gerzeski v Dept of State Highways, 403 Mich 149; 268 NW2d 525 (1978). Gerzeski held that the nuisance exception to governmental immunity applies to intentional but not negligent nuisances. The claim in the instant case was predicated upon negligently maintaining a nuisance.

Affirmed. No costs, interpretation of a statute involved.

W. Van Valkenburg, J., concurred.

T. M. Burns, J.

(dissenting). I cannot agree that the claims raised in plaintiff’s complaint are subject to summary dismissal by the court on the basis of governmental immunity and, therefore, dissent.

In Count III of his amended complaint, plaintiff alleged that the "facility was designed, constructed, maintained and operated in a dangerous and defective condition in that it did not provide for constant and unobstructed observation of all areas by the supervisory personnel” and that the facility "was dangerous in that it physically separated the plaintiff and potentially dangerous inmates from observation and supervision by the correctional facility staff”.

In two recent opinions, a five-member majority of our present Supreme Court has rejected the former narrow construction placed on the so-called public buildings exception to governmental immunity contained in MCL 691.1406; MSA 3.996(106) by this Court. Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), Tilford v Wayne County General Hospital, 403 Mich 293; 269 NW2d 153 (1978). Instead, the Court stated the statute placed "upon governmental agencies the duty to maintain safe public places”. Pichette, at 285. A correctional facility is a public building and an inmate is a member of the public for purposes of this statute. See, Green v Dep’t of Corrections, 386 Mich 459, 464; 192 NW2d 491 (1971).

Plaintiff has pled facts which bring his complaint within the statutory exception as interpreted by the Supreme Court. He is claiming a defect in the building, not mere negligence in the supervision of the inmates in the building. Whether he can prove that a correctional facility which does not provide for constant observation is a defective building, or whether, if shown to be defective, the building was the cause of his injuries is something to be shown at trial. See, Lockaby v Wayne County, 63 Mich App 185, 191; 234 NW2d 444 (1975) (N. J. Kaufman, J., dissenting in part), lv gtd, 400 Mich 814 (1977). The Court of Claims, by summarily dismissing the complaint, and the majority, by affirming that dismissal, are confusing the legal and fact-finding roles of the Court of Claims. Plaintiff is entitled to trial on the merits of the defective building allegations.

Similarly, I disagree with the majority’s analysis of plaintiff’s claim of nuisance in Count IV of the complaint. There may be a variance between what plaintiff has alleged and what he can prove, but plaintiff has alleged facts concerning a "dangerous condition” "intentionally created” even if those precise words are not used. Under the opinions in Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), further proceedings should be held in the Court of Claims. Whether there was a nuisance in fact and whether that nuisance was intentionally created are questions of fact for the trier of fact and not questions of law for a court.

I would reverse and remand for further proceedings in the Court of Claims.

       The point in question is discussed in § IIB of Justice Fitzgerald’s opinion in Pichette v Manistique Public Schools. The Chief Justice and Justice Levin signed the opinion authored by Justice Fitzgerald. Justices Moody and Williams joined in this part of Justice Fitzgerald’s opinion in their own separate opinions.

       Since there was no majority opinion in either of the cited cases, the applicable rule to be drawn from them is unclear. See, Affiliated FM Ins Co v Department of State Highways, 86 Mich App 203; — NW2d — (1978). At the very least, governmental immunity is no bar to an intentionally created nuisance in fact, the position set forth by Justices Moody and Williams.


source: Caselaw Access Project

author: V. J. Brennan, J.

license: Public Domain

text:
    KISSEL v NELSON PACKING CO.
    Docket No. 78-101.
    Submitted June 8, 1978, at Grand Rapids.
    Decided November 7, 1978.
    Plaintiff Ervan K. Kissel brought an action against defendants Nelson Packing Co., a partnership, and Robert H. Nelson and Juanita N. Nelson, partners, for damages for injuries sustained through defendants’ alleged negligence. Defendants hired Dr. Douglas H. Giese who examined plaintiff, at defendants’ request. Plaintiff scheduled a deposition of Dr. Giese and at the appointed time defendants provided plaintiff with a copy of the examination report but refused to allow the doctor to be deposed. Plaintiff moved the court for an order allowing the deposition and the Mason Circuit Court, Charles A. Wickens, J. denied the motion and ruled that neither party might call Dr. Giese as a witness at trial. Plaintiff appeals by leave granted. Held:

    1. The work-product doctrine does not apply to protect Dr. Giese’s testimony from discovery or to prevent its being offered by plaintiff and admitted at trial.
    2. Since no party should be bound by the rejected opinions of experts employed by him to assist in evaluating his case, the fact of Dr. Giese’s original employment by defendant may not be disclosed at trial.
    Reversed and remanded with instructions.
    1. Witnesses — Triai^—Depositions—Expert Witnesses — Medical Doctor — Parties’ Right to Depositions.
    The work-product doctrine does not apply to the testimony of a doctor hired by a defendant in a negligence action to examine the injured plaintiff; the plaintiff is entitled by court rule to depose the doctor as a person having knowledge of relevant facts and may subpoena him to testify to the examination at trial regardless of whether or not the defendant intends to employ the testimony of the doctor at trial (GCR 1963, 302.2).
    References for Points in Headnotes

       23 Am Jur 2d, Depositions and Discovery §§ 199, 200, 229.

       23 Am Jur 2d, Depositions and Discovery §§ 199, 200.

      2. Witnesses — Expert Witnesses — Trials—Disclosure of Employment by Adverse Party.
    A plaintiff who employs the testimony of an expert originally employed by an opposing party may not disclose the fact of his original employment since it is not pertinent and neither party should be bound by the rejected opinions of experts employed by him to assist in evaluating his case.

      Warner, Norcross & Judd (by Ernest M. Sharpe and Jeffrey O. Birkhold), for plaintiff.

      White, Spaniola, Knudsen, Stariha & Potuznik, P.C. (by Darrel G. Brown), for defendants.
    Before: Banhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   V. J. Brennan, J.

This is an interlocutory appeal by plaintiff, Ervan K. Kissel, from the lower court’s order denying plaintiff’s motion to allow further discovery by way of deposition of defendants’ expert medical witness who had examined plaintiff, but was not to be called by defendants at trial.

The present appeal arose out of a negligence action brought by plaintiff for alleged injuries sustained on defendants’ premises. On November 22, 1977, the plaintiff submitted to an independent medical examination by Dr. Douglas H. Giese as arranged by the defendants pursuant to GCR 1963, 311. Defendants then scheduled Dr. Giese’s deposition for December 13, 1977, and on that day plaintiff was provided with a copy of the examination report. At the scheduled time for the deposition, the defendants’ attorney met with Dr. Giese privately and then advised plaintiff that the doctor’s deposition would not be taken.

Plaintiff then moved for an order allowing the deposition of Dr. Giese. The trial court on January 10, 1978, ruled that the doctor was the defendants’ witness, and since the defendants did not intend to use the doctor’s testimony, the plaintiff could neither depose nor subpoena him for trial. The plaintiff appeals the lower court’s order.

Our inquiry focuses upon the following question: Whether a medical doctor employed by a party to examine the opposite party, but who is not to be called to testify by his employer, may be deposed or called as a witness by the opposite party?

It must be noted that Michigan has a strong historical commitment to a far-reaching open and effective discovery practice, and to that end the Court has repeatedly emphasized that discovery rules are to be liberally construed. Daniels v Allen Industries, Inc, 391 Mich 398, 403; 216 NW2d 762 (1974); Hallett v Michigan Consolidated Gas Co, 298 Mich 582; 299 NW 723 (1941).

GCR 1963, 302 provides in pertinent part:

".1 When depositions may be taken. After commencement of an action in any court, any party may take the testimony of any person, including a party, by deposition on oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.
".2 Scope of examination.
"(1) Persons taking depositions unless for good cause otherwise shown as provided by sub-rules 306.2 and 306.4, shall be permitted to examine the deponent regarding any matter not privileged which is admissible under the rules of evidence governing trials and relevant to the subject matter involved in the pending action * * * .” (Emphasis added.)

The thrust of the defendants’ argument on appeal is that the testimony of Dr. Giese represents privileged information, and the use of the testimony by the plaintiff is foreclosed by the work-product doctrine. We note that an attorney’s impressions, mental reflections, conclusions and opinions are protected by the work-product restriction. Furthermore, the situation may arise where an attorney’s consultation with an expert contributes to the attorney’s conclusions and legal theories so as to encompass the consultation within the work-product restriction. However, the employment of Dr. Giese in the case at bar does not present this situation.

Normally, an expert is not a person "having knowledge of relevant facts” within the meaning of GCR 1963, 302.2. Klabunde v Stanley, 384 Mich 276, 282; 181 NW2d 918 (1970). However, upon examining the plaintiff, Dr. Giese became a witness to the nature and extent of the plaintiff’s injuries. Having first-hand knowledge, Dr. Giese could then describe what he had seen and give expert inferences therefrom. Such testimony does not fall within any work-product restriction, and therefore the trial court should have granted the plaintiff’s motion.

Defendant cites Lindsay v Lipson, 367 Mich 1; 116 NW2d 60 (1962), as suggestive of a different result. On its facts Lindsay is distinguishable from the case at bar. There the Court held that a physician’s examination of the plaintiff as communicated to the plaintiff’s attorney in preparation of the plaintiff’s case was in essence a communication by the plaintiff to his attorney and was, therefore, protected by the attorney-client privilege. In the present case the medical interpretation of the plaintiff’s injuries was communicated to the defendants’ attorney in the preparation of the defendants’ case and, therefore, no attorney-client privilege attached.

We feel that our decision allowing plaintiff to depose or subpoena Dr. Giese for trial comports with the enunciated purpose behind liberal discovery as follows:

"Properly employed, discovery conserves judicial resources — by facilitating settlement and by shortening the time it takes to try a case properly prepared for trial. Much of what is laboriously brought out during a trial could be covered by stipulation based on the results of pretrial discovery; by narrowing the disputed issues, this would increase the impact of the competing presentations on the points in dispute.
"It seems to us, having in mind the clogged dockets of our trial courts, that the interest in shortening the interval between the commencement of an action and adjudication requires not only that we allow litigants to require disclosure of the other side’s case in advance of trial, but further that in some cases it is the duty of the trial court to insist that the parties employ these and ancillary techniques in an effort to expedite the trial process and to reduce the backlog.” Roe v Cherry-Burrell Corp, 28 Mich App 42, 53; 184 NW2d 350 (1970).

The plaintiff has raised a collateral question as to whether the testimony of Dr. Giese may be bolstered by the fact that he was originally employed by the defendant. We answer in the negative.

Testimony as to the expert’s original employment is not pertinent to any issue presented, and neither party should be bound by the rejected opinions of experts employed by him to assist in evaluating his case. Furthermore, the credibility of a witness generally may not be bolstered until attacked, McCormick, Evidence (2d ed), § 49, p 102, and we see no reason to deviate from the general rule.

Reversed and remanded with directions to the lower court to enter an order allowing the plaintiff to depose or subpoena Dr. Giese for trial.


author: Allen, J.

text:
    MILLER v COOK
    Docket No. 78-407.
    Submitted October 5, 1978, at Lansing.
    Decided November 7, 1978.
    Leave to appeal denied, 406 Mich 890.
    Plaintiffs Phillip and Maxine Miller brought an action for themselves and on behalf of Rodney Miller, their son, against North Adams High School, its superintendent and principal, George Cook, one of its teachers, the North Adams School District and the North Adams Board of Education and its individual members for damages arising out of an alleged assault and battery upon their son by Mr. Cook. One cause of action was for anxiety, emotional upset and distress suffered by the parents as a result of the injuries sustained by their son. Phillip and Maxine Miller did not allege in their claim that they were present at the occurrence of that assault and battery or that they became aware of it at a time fairly contemporaneous with it. Defendants moved for a partial summary judgment as to this claim for failure to state a claim for which relief can be granted. The Hillsdale Circuit Court, Kenneth G. Prettie, J., granted defendants’ motion. Plaintiffs appeal. Held:

    There is no cause of action in Michigan for damages for mental anguish sustained upon learning of an intentional tort committed at a noncontemporaneous time upon an immediate family member.
    Affirmed.
    Torts — Intentional Torts — Causes of Actions — Mental Anguish— Immediate Family.
    A cause of action does not exist in Michigan for damages for mental anguish sustained upon learning of an intentional tort committed at a noncontemporaneous time upon an immediate family member.
    Reference for Points in Headnote
    38 Am Jur 2d, Fright, Shock, and Mental Disturbance §§ 36-39.

      Sablich, Ryan, Dudley, Rapaport & Bobay, P.C., for plaintiffs.

      Patch, Rosenfeld, Potter & Grover, P.C. (by Dennis E. Whedon), for defendants.
    Before: V. J. Brennan, P.J., and Allen and P. F. O’Connell, JJ.

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

   Allen, J.

In this cause, plaintiffs-appellants ask that the limitations set forth in Gustafson v Faris, 67 Mich App 363; 241 NW2d 208 (1976), on the right of parents to recover damages for emotional injury sustained upon learning of injury to the child, be held inapplicable where the injury to the immediate family member is caused by an intentional tortfeasor as distinguished from a negligent tortfeasor. This issue of first impression comes to us following the trial court’s January 23, 1978, order granting partial summary judgment in favor of all defendants and against plaintiffs Maxine Miller and Phillip Miller as parents of Rodney Miller.

On December 10, 1976, plaintiff Rodney Miller, then age 15, was attending a physical education class at the North Adams High School. The classroom teacher was defendant George Cook. Plaintiffs’ complaint alleges that at said time and place, defendant Cook, after first striking Rodney Miller in the throat and thereby knocking him down, picked Rodney up by the throat and for more than five minutes beat Rodney’s head against the bleachers following which defendant carried Rodney by the throat through the school hallways to the office of the high school principal where Rodney was denied the right to call his parents and denied medical assistance. The reasons for the alleged assault are not set forth in the complaint.

Plaintiff parents then allege that they sustained injuries in that they became emotionally upset and distraught as a result of the injuries suffered by their son. In their brief, the parents admit that they were not present when the assault took place nor did they become aware of the injuries within a time fairly contemporaneous with the alleged assault.

The defendants filed a motion for partial summary judgment under GCR 1963, 117.2(1) against plaintiffs Phillip Miller and Maxine Miller, claiming that, since the parents neither witnessed the assault nor became aware of the assault contemporaneously with its occurrence, the complaint failed to state a claim upon which relief could be granted. After hearing oral argument and reviewing the law on the matter, the trial court granted the motion on January 23, 1978.

The issue of recovery by a plaintiff when a tort is committed upon a family member is thoroughly discussed in two Michigan cases. Perlmutter v Whitney, 60 Mich App 268; 230 NW2d 390 (1975), Gustafson v Faris, supra. In Perlmutter, this Court ruled that "the law does not allow recovery for mental anguish suffered by third persons as a result of their concern for the injuries of others where such third persons were not witnesses to the accident in which those injuries were sustained”. 60 Mich App at 273. In Gustafson, the rule was softened somewhat by allowing recovery even if the parent was not present, provided that the. parent’s shock and resulting injury occurred fairly contemporaneously with the injury to the child. In so ruling, this Court adopted, by reference, the limitations on recovery by third persons set forth in Prosser, Torts (4th ed), § 54, pp 334-335.

"Some limitations might, however, be suggested. It is clear that the injury threatened or inflicted upon the third person must be a serious one, of a nature to cause severe mental disturbance to the plaintiff, and that the shock must result in actual physical harm. The action might, at least initially, well be confined to members of the immediate family of the one endangered, or perhaps to husband, wife, parent, or child, to the exclusion of mere bystanders, and remote relatives. As an additional safeguard, it might be required that the plaintiff be present at the time of the accident or peril, or at least that the shock be fairly contemporaneous with it, rather than follow when the plaintiff is informed of the whole matter at a later date. (Footnotes omitted. Emphasis supplied.)” Gustafson, supra at 368-369.

Plaintiff parents contend that the Gustafson rule applies only to negligence actions and not to situations where the injury is intentionally inflicted. In support of this position two arguments are advanced: (1) § 435A and § 435B of 2 Restatement of Torts 2nd support such position; and (2) § 54 from Prosser, Torts (4th ed), quoted above, addresses itself solely to negligence situations. We disagree on both arguments.

Sections 435 A and B of the Restatement, read in conjunction with the commentary thereto, refer to the scope of damages rather than to unintended harm to third persons. The illustrations accompanying the commentary refer only to the extended harm of the person directly injured. Clearly, said sections concern additional compensatory relief to the person upon whom the original tort was committed — in the case before us, Rodney Miller.

Admittedly, §54 of Prosser is directed to the negligence situation only. But it does not follow that Prosser would allow damages for emotional distress to nonwitnessing parents. Section 12 of Prosser deals with the intentionally inflicted tort situation and comes to the same conclusion as was subsequently pronounced in Gustafson, supra.

"The decisions indicate that recovery in such cases is limited to plaintiffs who are not only present at the time, but are known: by the defendant to be present, so that the mental effect can reasonably be anticipated by the defendant. The distinction between the wife who sees her husband shot down before her eyes, and the one who hears about it five minutes later, may be a highly artificial one; but it is perhaps justified by the obvious necessity of drawing a line somewhere short of the widow who learns of the decease ten years afterward, when the genuineness and gravity of her distress may very reasonably be doubted.” (Footnotes omitted.) Prosser, Torts (4th ed), § 12, p 61.

In a footnote accompanying the text above quoted Prosser cites Ellsworth v Massacar, 215 Mich 511; 184 NW 408 (1921). In that case our Supreme Court held a husband could not recover for the loss of services of his wife who was incapacitated from shock of an assault and battery committed on the husband but out of the presence of the wife. That decision has not been overruled and was cited with approval in Perlmutter, supra, at 272-273.

Finally, we would note that the rationale for imposing limitations on the right of third parties to recover damages for mental anguish is to protect against disingenuous claims. Since the reason for the limitation does not relate to the degree of fault, the dictinction between a negligent or intentional act does not appear appropriate.

In light of the foregoing, we conclude that in Michigan a cause of action does not exist for damages for mental anguish sustained upon learning of an intentional tort committed at a noncon-temporaneous time upon an immediate family member. The motion for summary judgment was properly granted.

Affirmed, costs to defendants.

        Gustafson, supra, held that parents could not recover for their emotional suffering for injuries to their child where the injury to the child was not witnessed by the parents or where the emotional shock to the parents did not occur fairly contemporaneously with the injury to the child. In the instant case the injury to Rodney Miller was not witnessed by the parents nor did it occur fairly contemporaneously.

       The grant of partial summary judgment did not affect the right of the injured party to recover nor the right of the parents to recover for medical expenses incurred as a result of injuries to the child.

       "§ 435 A. Intended Consequences
      "A person who commits a tort against another for the purpose of causing a particular harm to the other is liable for such harm if it results, whether or not it is exceptable, except where the harm results from an outside force the risk of which is not increased by the defendant’s act.
      "§ 435 B. Unintended Consequences of Intentional Invasions
      "Where a person has intentionally invaded the legally protected interests of another, his intention to commit an invasion, the degree of his moral wrong in acting, and the seriousness of the harm which he intended are important factors in determining whether he is liable for resulting unintended harm.”


author: T. M. Burns, J.

text:
    PEOPLE v McCARVER (ON REMAND)
    Docket No. 78-3537.
    Submitted October 5, 1976, at Grand Rapids.
    Decided November 7, 1978.
    Leave to appeal applied for.
    Alvin L. McCarver, Jr., was convicted of possession of a controlled substance (amphetamines) in Berrien Circuit Court, Chester J. Byrns, J. Defendant appealed, and the Court of Appeals reversed and remanded for a new trial, 72 Mich App 311; 249 NW2d 403 (1976). The people applied for leave to appeal to the Supreme Court. Leave was granted and the decision of the Court of Appeals was reversed by the Supreme Court and the case was remanded to the Court of Appeals "[F]or consideration of the question of whether the testimony of the Federal agent and the state police detective, standing alone, or when combined with other issues raised by the defendant in the Court of Appeals but not discussed by that Court, served to deny the defendant a fair trial.” 403 Mich 376; 269 NW2d 186 (1978). The issues considered, on remand from the Supreme Court, are (1) whether defendant was deprived of a fair trial by testimonial references to the fact that he had a previous conviction and to unspecified, uncharged criminal activity, and (2) whether defendant was deprived of a fair trial by the fact that four of the members of the jury which decided his guilt had also been members of the jury which convicted Ricky Miller, a defense witness, for arson. Held:

    1. A Federal agent, in response to a prosecutorial inquiry concerning what the authorities were looking for when the search warrant was executed, responded: "We are searching for firearms which were illegal by virtue of their possession by Mr. McCarver who was a convicted felon and certain narcotics or suspected narcotic substances.” This resulted in reversible error. Reversible error occurs where an officer brings out the fact that a defendant has previously been convicted or charged with crime, even if his answer could be considered nonresponsive.
    Other separate references to uncharged or unspecified criminal activity all occurred in trying to prove or disprove that defendant’s name was brought to the authorities’ attention by incarcerated persons or in attempting to show the bias of the defense witnesses. This testimony was admissible. Evidence that is competent and relevant for a trial purpose is admissible, notwithstanding the fact that it may be inadmissible if introduced for another purpose.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 797-799.

       29 Am Jur 2d, Evidence §§ 320, 321, 327.

       29 Am Jur 2d, Evidence §§ 262, 263.

       47 Am Jur 2d, Jury §§ 306, 308-310.

      2. A defendant is not deprived of a fair trial by the fact that prospective jurors had been members of a panel which convicted a defense witness for another crime where during voir dire the court satisfied itself that the jurors could impartially deal with the testimony of this witness and defense counsel made no attempt to challenge these jurors either for cause or peremptorily.
    Reversed and remanded.
    1. Witnesses — Criminal Law — Police Officers — Previous Criminal Activity — Prejudice—Error.
    Prosecutors and police officers have a special obligation not to venture into forbidden areas of testimony which may prejudice the defense; reversible error occurs where an officer brings out the fact that a defendant has previously been convicted or charged with crime, even if the answer could be considered nonresponsive.
    2. Criminal Law — Evidence—Defendant’s Prior Record — Admissibility — Impeachment—Courts—Court of Appeals.
    The Court of Appeals has consistently condemned bringing a defendant’s prior record to the jury’s attention where that information is not properly admissible for impeachment purposes.
    3. Criminal Law — Evidence—Admissibility.
    Generally, evidence that is competent and relevant for one trial purpose is admissible, notwithstanding the fact that it may be inadmissible if introduced for another purpose.
    4. Criminal Law — Jury—Prospective Jurors — Voir Dire — Impartial Jury — Cause and Peremptory Challenges — Pair Trial.
    A defendant is not deprived of a fair trial by the fact that prospective jurors had been members of a previous jury panel which convicted a defense witness for another crime where during voir dire the court questioned each of these jurors to determine if they could impartially deal with the testimony of the defense witness in light of their prior contact with him and each affirmed that they would consider the case and the testimony of the witness impartially, especially, where defense counsel did not attempt to challenge these jurors either for cause or peremptorily.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Sally M. Zack and Chris W. Dunñeld, Assistants Prosecuting Attorney, for the people.

      Taylor, Yampolsky, Struwin & Hass, for defendant on appeal.
    Before: R. B. Burns, P.J., and T. M. Burns and D. E. Holbrook, JJ.
   On Remand

T. M. Burns, J.

The underlying facts of this case are stated in our prior opinion, People v McCarver, 72 Mich App 311; 249 NW2d 403 (1976). In that initial assessment, a majority of the panel concluded that evidence of illegal marijuana possession or use by the defendant was improperly admitted in a prosecution for possession of amphetamines and reversed the conviction. On further appeal, that conclusion was held to be erroneous, People v McCarver, 403 Mich 376; 269 NW2d 186 (1978), and the case returned to us:

"[F]or consideration of the question of whether the testimony of the Federal agent and the state police detective, standing alone, or when combined with other issues raised by the defendant in the Court of Appeals but not discussed by that Court, served to deny the defendant a fair trial.”

We proceed with that task.

Within a single issue, defendant claims he was deprived of a fair trial by testimonial references to the fact that he had a previous conviction and unspecified, uncharged criminal activity. Because different considerations apply to these points, we discuss these instances in two groups.

The first incident is described in both our earlier opinion and the opinion of the Supreme Court. In response to the prosecutor’s inquiry concerning what the authorities were looking for when the search warrant was executed, the agent from the Federal Bureau of Alcohol, Tobacco & Firearms responded: "We were searching for firearms which were illegal by virtue of their possession by Mr. McCarver who was a convicted felon and certain narcotics or suspected narcotic substances.”

Prior to trial, the trial court had granted defense counsel’s motion to suppress reference to defendant’s 1959 conviction for breaking and entering with intent to commit larceny for purposes of impeachment if defendant should choose to take the stand.

Our courts have recognized that prosecutors and police witnesses have a special obligation not to venture into forbidden areas of testimony which may prejudice the defense. If an officer brings out the fact that a defendant has previously been convicted or charged with crime, even if the answer could be considered nonresponsive, reversible error will have occurred. People v McCartney, 46 Mich App 691; 208 NW2d 547 (1973). This Court has consistently condemned bringing a defendant’s prior record to the jury’s attention where that information is not properly admissible for impeachment purposes. See, e.g., People v Sullivan, 32 Mich App 181; 188 NW2d 247 (1971), People v Thomas Jones, 48 Mich App 470; 210 NW2d 497 (1973), People v Deblauwe, 60 Mich App 103; 230 NW2d 328 (1975).

Given the trial court’s order suppressing reference to defendant’s prior conviction, which was fully justified, and the special duty of prosecutors to steer police witnesses clear of just such responses, we would rest reversal squarely on this point. The fact that defendant was a convicted felon was not relevant to the issues in this case, regardless of any possible relevance in the Federal prosecution.

Defendant also complains of six other separate references by various prosecution and defense witnesses to uncharged or unspecified criminal activity. The thread common to each of these references is the defense theory at trial. The defense contended that defendant had been "set up” by the police or persons working for the police and did not knowingly and intentionally possess a controlled substance. The complained of comments all occurred in trying to prove or disprove that defendant’s name was brought to the authorities’ attention by persons already incarcerated and not vice versa, or in attempting to show the possible bias of the defense witnesses. Admission of this evidence could be justified, by one theory or another, under the holding of People v Spillman, 399 Mich 313; 249 NW2d 73 (1976), that evidence admissible for one purpose is admissible, notwithstanding the fact that it may be inadmissible if introduced for another purpose. We would not rest reversal on these other references to criminal activity.

The final issue which must be discussed is whether defendant was deprived of a fair trial by the fact that four of the members of the jury which decided his guilt had also been members of the jury which convicted Ricky Miller, a defense witness, for arson.

The fact that several prospective jurors had earlier been members of Miller’s jury panel was brought to light during voir dire. The court questioned each of these jurors to determine if they could impartially deal with Miller’s testimony in light of their prior contact with him. The one juror who was unsure of his impartiality was excused. The four other jurors involved each affirmed that they would consider this case and Miller’s testimony impartially. Defense counsel did not attempt to challenge the remaining four jurors either for cause or peremptorily.

Defendant’s only allegation is that the trial court had a duty to be assured that the jurors had not formed an opinion about the defendant from their knowledge of one of his witnesses. From our review of the record, we conclude that the trial court did exactly what defendant had asked. There was no error.

Reversed and remanded for new trial.

       Different considerations might apply had the answer been in response to a question from defense counsel or had the answer come from someone other than a police officer. See, People v Fisher, 77 Mich App 6; 257 NW2d 250 (1977), lv den 402 Mich 811 (1977), People v Chambers #1, 64 Mich App 311; 236 NW2d 702 (1975), lv den 399 Mich 850 (1977).

       The statute provides that it is unlawful for any person knowingly or intentionally to possess a controlled substance, MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The information in this case charged that defendant did knowingly and intentionally possess a controlled substance. The trial court originally instructed the jury in accordance with the statute, but upon defendant’s request instructed the jury that it would have to find the defendant knowingly and intentionally possessed a controlled substance as was charged in the information.

       Miller was one of several individuals to testify that while in jail awaiting trial on an unrelated offense, he had been approached by officers who promised him some consideration if he would aid in securing a conviction of McCarver on some unspecified charge.


author: Per Curiam.

text:
    PEOPLE v ERNEST SMITH PEOPLE v FOSTER
    Docket Nos. 30126, 30338.
    Submitted April 5, 1978, at Lansing.
    Decided November 7, 1978.
    Defendants Ernest Smith and Ronald H. Foster were convicted of unarmed robbery in Calhoun Circuit Court, Stanley Everett, J. At the close of the people’s case at trial defendant Smith inquired whether the prosecutor intended to introduce evidence of his prior misdemeanor convictions for unauthorized use of a motor vehicle and was told that they would be used to show intent or motive in the event Mr. Smith testified. The trial court ruled that the prior convictions were admissible under the statute allowing the admission of like acts to show intent or motive. As a result, Mr. Smith did not testify and the prior coinvictions were never introduced. Defendants appeal raising several issues. Held:

    1. There must be a showing by the prosecutor of some special circumstances about prior bad acts of the defendant which make the fact of the prior acts probative of intent or motive before they may be admitted for that purpose; remote convictions for unauthorized use of a motor vehicle are not probative of intent or motive of armed robbery and are not admissible as such in a prosecution for armed robbery.
    2. The error here was not harmless since the evidence was not so overwhelming as to dissuade the prosecutor from insisting on using the prior convictions in the event Mr. Smith exercised his right to testify and, as a result, he was forced to rely on the often self-serving and contradictory statements of his codefendant to preserve his defense. The Court of Appeals noted that it is difficult for a jury to believe a defendant’s defense when the defendant fails to testify in his own defense.
    3. There was no showing of prejudice which would warrant a mistrial where a uniformed police officer led the handcuffed defendants past one of the jurors, where the court and counsel examined the officer and the juror and where it was apparent from the examination that the officer’s actions were inadvertent and the juror was sufficiently absorbed so that the defendants’ passing made little impression. The trial court had no duty to give sua sponte a cautionary instruction concerning this incident.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 320, 321, 333.

       29 Am Jur 2d, Evidence §§ 320, 321, 326.

       29 Am Jur 2d, Evidence § 330.

       5 Am Jur 2d, Appeal and Error §§ 624-627.

       75 Am Jur 2d, Trial §§ 211, 218.

      4. Failure to object to the prosecutor’s closing remarks and to request a cautionary instruction precludes a reversal of conviction unless in all likelihood the instruction would not have eliminated the prejudice arising from the remarks.
    Reversed and remanded as to defendant Smith. Affirmed as to defendant Foster.
    1. Criminal Law — Evidence—Statutes—Other Bad Acts — Admissibility — Requirements.
    The statute permitting the limited use of evidence of other "bad acts” of a criminal defendant to show intent, motive, plan or the absence of mistake or accident even if the evidence shows the commission by the defendant of another crime is governed by four requirements: (1) substantial evidence must show that the defendant actually committed the bad act; (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items; (3) the evidence is material, i.e., is probative of a matter "in issue”; and, (4) even if all three of the above are satisfied, the trial court must still weigh the evidence’s probative value against its prejudicial effect before deciding whether to admit it (MCL 768.27; MSA 28.1050).
    2. Criminal Law — Evidence—Other Bad Acts — Admissibility—Requirements — Common Thread of Facts and Circumstances.
    The prosecutor must show a common thread of facts and circumstances between the past act and the offense for which the defendant is on trial before evidence of prior bad acts is admissible and a mere showing that the defendant committed the same crime in the past is insufficient.
    3. Criminal Law — Armed Robbery — Evidence—Prior Convictions —Misdemeanors—Unauthorized Use of a Motor Vehicle.
    A remote misdemeanor conviction for use of a motor vehicle without authority but without intent to steal is not admissible to show intent to steal in a prosecution for armed robbery.
    4. Appeal and Error — Criminal Law — Closing Argument — Prose-cutorial Comment — Preserving Question.
    A conviction will not normally be reversed for improper closing argument by the prosecutor where there has been no objection and request for a cautionary instruction, unless in all likelihood the instruction would not have eliminated the prejudice arising from the prosecutor’s remarks.
    5. Criminal Law — Closing Argument — Prosecutorial Comment. A prosecutor, as an advocate, is free, in closing argument, to relate the facts to his theory of the case and to argue the evidence and all reasonable inferences therefrom.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James D. Norlan-der, Prosecuting Attorney, and T. P. Hentchel, Jr., Assistant Prosecuting Attorney, for the people.

      Terence R. Flanagan, Assistant State Appellate Defender, for defendants on appeal.
    Before: Allen, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

Defendants were arrested and charged with armed robbery, MCL 750.529; MSA 28.797. After a joint trial, they were convicted by a jury of unarmed robbery, MCL 750.530; MSA 28.798. Defendants appeal as of right.

According to the trial testimony, defendants attempted to force the complainant, Mr. Francis Wilk, from his car while he was stopped at a streetlight. Mr. Wilk testified that he believed one defendant was armed. He resisted, and attracted the attention of a police officer in a nearby patrol car by leaning on his horn. Defendants fled, one of them taking a jar of loose change and bills from the floor of the car. The police officer pursued and apprehended defendant Smith soon afterward; defendant Foster subsequently appeared voluntarily and was placed under arrest at the Battle Creek police station.

I

The first issue on appeal deals exclusively with defendant Smith.

After the prosecutor rested his case, Smith’s counsel asked the prosecutor whether he intended to introduce defendant’s 1968 misdemeanor convictions for unlawfully driving away a motor vehicle, MCL 750.414; MSA 28.646. The prosecutor responded that he planned to offer these prior convictions to show the defendant’s intent or motive in connection with the present charge of armed robbery if the defendant testified. The prosecutor asserted MCL 768.27; MSA 28.1050, as the basis for the admission of this evidence:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

Over objection, the trial court ruled that the evidence of the prior convictions fell within the statute and would be admitted on that basis. Defendant Smith did not testify and the evidence was never offered.

Defendant contends that the trial court’s ruling was erroneous on essentially four grounds: (1) the evidence of like acts properly belonged only in the prosecutor’s case-in-chief; (2) the 1968 misdemeanor convictions are not "like acts” within the meaning of MCL 768.27; MSA 1050, and are thus irrelevant to the charged offense of armed robbery; (3) the offered evidence is not material to this charge; and (4) the trial court either failed to recognize its discretion to exclude the evidence or abused its discretion in admitting the evidence, on the grounds that its prejudicial impact far outweighed its probative value.

People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), comprehensively sets out the appropriate guidelines on the admissibility of prior bad act evidence under MCL 768.27; MSA 28.1050. These rules summarize the applicable Michigan precedent on this issue and will serve as the guide for our analysis in the instant case.

MCL 768.27; MSA 28.1050 is a legislatively created exception to the general rule that evidence of prior bad acts is inadmissible because of its inherent prejudice to the defendant. The statute permits proof of a defendant’s intent, motive, plan or the absence of mistake or accident by evidence of "like acts”, even if this shows the commission by the defendant of another prior or subsequent crime. However, this exception is governed by four requirements: (1) substantial evidence must show that the defendant actually committed the bad act; (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items; (3) the evidence is material, i.e., is probative of a matter "in issue”; and (4) even if all three of the above are satisfied, the trial court must still weigh the evidence’s probative value against its prejudicial effect before deciding whether to admit it. People v Wilkins, supra; see also People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), People v Henry, 129 Mich 100; 88 NW 77 (1901), People v Spillman, 63 Mich App 256; 234 NW2d 475 (1975), rev’d on other grounds, 399 Mich 313; 249 NW2d 73 (1976), People v Bledsoe, 46 Mich App 558; 208 NW2d 545 (1973).

Our review of the above-cited precedent indicates that defendant’s second contention, namely, that the evidence of the prior convictions was not relevant to the charged offense of armed robbery, in that those prior convictions specifically involved lack of intent to steal and were not similar to the present charge, is alone sufficient for a finding of error.

It is clear that before a prior bad act by the defendant is admissible, there must be a showing of some special circumstances about that act which are probative of one of the statutory items — here, defendant’s intent or motive. People v Wilkins, supra at 267, People v Oliphant, supra at 488. These special circumstances form the logical connection between the past act and the present charge. United States v Burkhart, 458 F2d 201, 206 (CA 10, 1972). Establishing this connection by showing factual similarities permits the evidence to meet the threshold requirement of relevancy. People v Stander, 73 Mich App 617, 625, n 2; 251 NW2d 258, 262-263, n 2 (1976).

Absent this connection, admission of prior bad acts achieves the very result the general rule on nonadmissibility intends to avoid: the admission of evidence which is relevant only to the defendant’s propensity to commit an offense. People v Der-Martzex, supra, People v Dean, 253 Mich 434; 235 NW 211 (1931). While proof of identical acts is not required to make this connection, People v Streetman, 59 Mich App 49; 228 NW2d 539 (1975), lv den, 394 Mich 798 (1975), it is nevertheless insufficient to show merely that a defendant had committed the same crime in the past. Rather, cases treating the "like acts” requirement speak in terms of a common thread of facts or circumstances between the past act and the offense for which defendant is on trial. See People v Duncan, 402 Mich 1; 260 NW2d 58 (1977) (use of an informer by defendants to obtain payoffs in exchange for police protection), People v Oliphant, supra (orchestration of circumstances surrounding rapes to make proof of nonconsent difficult), People v Lundberg, 364 Mich 596; 111 NW2d 809 (1961) (subsequent burglary unrelated to prior homicide inadmissible), People v Stander, supra (involvement in prior auto theft with identical copartici-pant).

In the instant case, we fail to see the common thread between the defendant’s prior convictions for unlawfully driving away a motor vehicle which would be probative of his intent with regard to the charged offense of armed robbery. The connection is particularly difficult to make in light of the fact that the prior convictions for unlawfully driving away an automobile did not involve intent to steal but are being offered to show the defendant’s intent to steal in the armed robbery charge. Aside from the fact that the offense for which the defendant is on trial incidentally also involved an automobile, there are no facts on the record to indicate any further similarities between the past acts and the current offense. In addition, the extreme remoteness in time of the former misdemeanors also weakens their already tenuous connection and tendency to establish the defendant’s intent relative to the charged offense. People v Henry, supra at 101.

We note that when challenged on this absence of similarities, the prosecution argued that the prior convictions were admissible to show intent because "any criminal conviction requires a criminal intent”. To admit prior bad acts into evidence on such grounds encourages a jury to convict a defendant merely because "he is a bad man”. People v Wilkins, supra at 265. Avoiding this type of prejudice is precisely the purpose for the general exclusion of such evidence; the prosecutor cannot avoid this rule merely by invoking the statutory exception without the necessary showing of similarities.

The lack of similarity between the past and present offenses, coupled with the remoteness in time of the misdemeanors, thus prevents us from perceiving that "visible connection”, United States v Burkhart, supra at 206, n 8, necessary to find that the misdemeanors are "like acts” within the meaning of MCL 768.27; MSA 28.1050, admissible to prove the defendant’s intent in the instant case. The trial court therefore erred in ruling in favor of their admissibility.

The prosecutor asserts that any error in this regard was harmless and directs our attention to the "overwhelming” evidence against the defendant. We agree it is substantial. It was not so overwhelming, however, to dissuade the prosecutor from insisting on introducing the prior convictions if the defendant elected to exercise his right to testify. As a result the defendant was forced to rely on the often self-serving and contradictory statements of a codefendant in order to present his defense. As reviewing courts have noted in the past, "it is difficult for a jury to believe defendant’s defense when he fails to testify in his own behalf’. People v Killebrew, 61 Mich App 129, 135; 232 NW2d 329, 332 (1975), lv den, 395 Mich 817 (1975), People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). See also People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967). We conclude that the error was not harmless beyond a reasonable doubt and reverse.

II

Defendants Foster and Smith jointly raise several additional claims of error.

They argue first that the trial court erred in denying defense counsel’s joint motion for a mistrial on the grounds that a uniformed police officer had led the handcuffed defendants past one of the jurors, and thus prejudiced their presumption of innocence.

Before ruling on the defense motion, the court and counsel examined the officer and juror involved. The officer testified that he approached the juror from behind while escorting the defendants and noticed her speaking to a third party with her back somewhat turned away. The juror testified that she recognized the defendants but noticed nothing unusual about them.

There is no showing, on this record, of prejudice to the defendant that would warrant a mistrial. People v Yarbrough, 78 Mich App 81, 86; 259 NW2d 248, 250 (1977), remanded, 402 Mich 920 (1978). It is apparent that the officer’s actions were inadvertent; furthermore, the juror was sufficiently absorbed in her conversation that her view of the defendants evidently made little impression on her. We therefore find no merit in the defendants’ claim of error on this ground.

We also disagree that the trial court had a duty to give a cautionary instruction to the jury on its own motion concerning this incident. It is true that "a juror’s chance observation of a defendant in custody could, if untreated, provide a source of prejudicial speculation which might infect the ultimate verdict”. (Emphasis added.) United States v Larkin, 417 F2d 617, 618 (CA 1, 1969). In the instant case, the trial court took adequate steps to "treat” whatever untoward effect this view may have had on the jury by examining the juror involved in the presence of counsel and by cautioning her not to discuss the interview. Defense counsel expressed their satisfaction with the procedure and waived any specific instruction. The court had no further duty to instruct the jury on this matter against the wishes of defense counsel and in light of the risk of unnecessarily directing the entire jury’s attention to the incident, thereby possibly increasing its impact. See O’Shea v United States, 400 F2d 78 (CA 1, 1968), cert denied, 393 US 1069; 89 S Ct 726; 21 L Ed 2d 712 (1969). The cases cited in support of the proposition that the court was required to give a cautionary instruction sua sponte as part of its duty to control the conduct of the trial are merely reaffirmations of the court’s duty to curtail any egregious, prejudicial behavior by the participants in the trial, and are thus inapplicable here. For example, see People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). We therefore find no merit in defendants’ contention.

Defendants next argue that they were deprived of a fair trial on the grounds that the prosecutor, in closing argument, improperly vouched for the credibility of the police officers who testified at trial, thereby causing the jury to suspend its own judgment. Defense counsel did not object to the statements at the time they were made.

Normally, a conviction will not be reversed where there has been no objection and request for a cautionary instruction, unless in all likelihood the instruction would not have eliminated the prejudice arising from the prosecutor’s remarks. People v Tarpley, 41 Mich App 227, 232; 199 NW2d 839, 844 (1972), People v Humphreys, 24 Mich App 411, 414; 180 NW2d 328, 332 (1970).

As an advocate, the prosecutor is free to relate the facts to his theory of the case and to argue the evidence and all reasonable inferences from it to the jury. People v Humphreys, supra. While the prosecutor comments strongly on the reasonableness of the officers’ testimony compared with the defendants’, his remarks stop short of an impermissible personal affirmation in the defendants’ guilt or assurances to the jury that the officers’ version describes what "actually happened”. Compare People v Bigge, 297 Mich 58; 297 NW 70 (1941), People v Pacely, 51 Mich App 67; 214 NW2d 561 (1974), lv den, 392 Mich 786 (1974), with People v McCoy, 392 Mich 231, 239; 220 NW2d 456, 460 (1974), People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), People v Tarpley, supra, and People v Humphreys, supra. Rather, they tended to emphasize inferences necessary to the prosecution’s case to prove lack of police misconduct. People v Bigge, supra at 68, People v Pacely, supra at 71.

Even if the remarks were arguably improper, we cannot say that whatever prejudice they created could not have been cured by objection and a proper instruction.

We also find that defendant was not denied a fair trial due to the prosecution’s misstatement of the intoxication defense for the reason that the court corrected the prosecutor upon defense objection, gave an adequate instruction to the jury concerning the defense and, after consultation with counsel, gave a further clarifying instruction on intoxication upon the jury’s specific request.

Reversed and remanded as to defendant Smith.

Affirmed as to defendant Foster.


author: Per Curiam. T. M. Burns, J.

text:
    RAMOS v PRODUCTION STEEL COMPANY
    Docket No. 77-1258.
    Submitted May 10, 1978, at Detroit.
    Decided November 7, 1978.
    Ismael Ramos suffered a heart attack while at his job at Production Steel Company on March 19, 1971. On February 24, 1972, he filed a petition for workmen’s compensation benefits. The hearing referee ruled that Ramos had not received knowledge that his injury was work-related until shortly before the filing of the petition and that his notice of injury was therefore timely. Benefits were granted. Production Steel and its insurer, Argonaut Insurance Company, applied for review of the claim. The Workmen’s Compensation Appeal Board reversed, holding that notice was not timely given. Ramos appeals by leave granted. Held:

    1. Testimony by the plaintiff regarding his conversations with his doctor was sufficient to establish that he had notice that his heart attack was work-related as early as April of 1971.
    2. The fact that the plaintiff was unaware of the existence of workmen’s compensation and for that reason did not file his claim was not sufficient to toll the running of the statutory notice period. The appeal board correctly found that the notice period began to run in April of 1971.
    3. Because the appeal board made no findings regarding whether the employer had knowledge of the injury and failed to notify the Bureau" of Workmen’s Compensation, and made no findings of whether the injury was in fact work-related, the case must be remanded for further findings of fact.
    Decision vacated; remanded for further proceedings.
    T. M. Burns, J., concurred separately. Judge Burns would conclude that by filing a claim for health and accident benefits for which purposes the employee filed a form with the employer weekly, Ramos gave the employer sufficient notice of the injury to satisfy the statute and to toll the running of the limitation period because of a failure of the employer to file a report with the Bureau of Workmen’s Compensation. He concludes that the appeal board erred as a matter of law in holding that Ramos was barred from relief under the act. He would remand the case for a determination of whether the plaintiffs heart attack was a compensable injury.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 630, 631.

       82 Am Jur 2d, Workmen’s Compensation § 445.

       82 Am Jur 2d, Workmen’s Compensation §§ 442-445, 453, 454, 681.

       82 Am Jur 2d, Workmen’s Compensation §§ 445, 681.

      Opinion of the Court
    1. Appeal and Error — Workmen’s Compensation — Findings of Fact — Constitutional Law — Statutes.
    Findings of fact made by the Workmen’s Compensation Appeal Board are not to be disturbed on appeal if there is any evidence to support those findings (Const 1963, art 6, § 28; MCL 418.861; MSA 17.237[861]).
    2. Workmen’s Compensation — Notice to Employer — Discovery of Disability — Statutes.
    An injured employee must give his employer notice of the injury within three months of its occurrence in order to maintain an action for workmen’s compensation benefits; this notice period commences when the employee has knowledge or reasonable grounds for knowledge of his disability and has discovered or by reasonable diligence could have discovered that his disability is work-related (MCL 418.381; MSA 17.237[381]).
    3. Workmen’s Compensation — Limitation of Actions — Report by Employer — Notice to Employer — Statutes.
    The failure of an employer who has knowledge that an employee has been injured to report the injury to the Bureau of Workmen’s Compensation tolls the running of the statutory limitation period against the claim of the injured employee; in order to so toll the running of the statutory period the notice given to the employer by the employee must be sufficient to make the employer aware that an injury has been sustained (MCL 418.381; MSA 17.237[381]).
    Concurrence by T. M. Burns, J.
    4. Workmen’s Compensation — Limitation of Actions — Report by Employer — Statutes.

      The six-month statute of limitations for making a claim for workmen’s compensation by an employee does not begin to run until a report of the injury is hied with the Bureau of Work

      men’s Compensation by the employer, where the employer has had notice of knowledge of the injury within three months of its occurrence (MCL 418.381; MSA 17.237[381j).

    5. Workmen’s Compensation — Statutes—Notice to Employer— Limitation of Actions.

      An employee who suffered a heart attack on the job and who within days Sled a claim for health and accident beneñts, and who thereafter ñled a form with his employer weekly, thereby gave the employer timely and sufficient notice of the injury for purposes of the statute which requires an employer to report injuries to the Bureau of Workmen’s Compensation or risk the tolling of the statute of limitations on the employee’s claim for ' workmen’s compensation beneñts, notwithstanding that the employee indicated that the injury was not occupationally related (MCL 418.381; MSA 17.237[381j).

      Goodman, Eden, Millender & Bedrosian (by Robert L. Millender and Robert A. Koory), for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Edward K. Pedersen, Jonathan T. Kopit, and Richard F. Brennan), for defendants.
    Before: Cynar, P.J., and T. M. Burns and D. C. Riley, JJ.
   Per Curiam.

Plaintiff appeals from an adverse ruling of the Workmen’s Compensation Appeal Board denying benefits for a disability caused by a heart attack.

Plaintiff, who is now 50 years of age, began working for defendant Production Steel Company in 1953. During the last 10 years of his employment, plaintiff’s job was to guide large steel coils through a coil reducing machine. This job required considerable physical strength.

Plaintiff testified that on March 19, 1971, while pulling some steel on some rollers, he felt a pain in his abdomen. However, at the time he informed no one of this problem. The following morning plaintiff was admitted to Hutzel Hospital under the care of his physician, Dr. Rose. It was then determined that plaintiff had suffered a heart attack.

On February 24, 1972, plaintiff filed a petition for worker’s compensation benefits. Pursuant to hearings, the referee determined that plaintiff received a personal injury arising out of his employment. He further held that plaintiff did not receive notice of the connection between his incapacity and his employment until shortly before his petition for benefits was filed and that his notice of injury thus was timely.

On March 16, 1977, in a 3-2 opinion, the appeal board reversed, holding that plaintiff had not given timely notice of his injury. The board ruled that plaintiff received notice of the work-related nature of his disability on April 23, 1971, in a discussion with Dr. Rose. Plaintiff now attacks this conclusion, raising various arguments examined below.

Plaintiff first contends that the appeal board erred in ruling that he had notice of the work-relatedness of his injury on April 23, 1971. Such a finding of fact is not to be disturbed if there is any evidence to support it. Carter v Kelsey-Hayes Co, 386 Mich 610, 615; 194 NW2d 326 (1972), MCL 418.861; MSA 17.237(861) and Const 1963, art 6, § 28. The following testimony by plaintiff clearly supports the board’s finding:

"Q. Did Dr. Rose tell you about the time you were in the hospital, or soon after you got out of the hospital, that he thought physical stress at work had brought on your problem?
"A. Yes, Dr. Rose told me it was physical stress.
"Q. Well, then, I assume that at the time you were in Hutzel Hospital, then, that you knew then that this stress at work, at least you thought, might have brought on your heart condition, caused you to go into the hospital, is that correct?
"A. I didn’t quite get that.
"Q. Well, at the time you were in the hospital, then, you knew, from talking to the doctors, that the physical stress you had at work brought on your heart condition, is that correct?
"A. No, I didn’t know. I’m not, I’m not, I can’t say anything other than what the doctor said, but I’m not a doctor and I didn’t know that. The doctors told me—
"Q. (Interposing) Didn’t the doctor tell you that?
"A. Yes, the doctor told me that it was physical stress, strenuous stress.
"Q. That you went through at work?
"A. That’s correct.
"Q. Well, he told you that at the time you were in the hospital in March, is that correct?
"A. No, he told me that after I got out of the hospital.
"Q. Dr. Rose told you that?
"A. Dr. Rose.
"Q. How soon after you got out of the hospital did he tell you that?
"A. As I indicated a few minutes ago, this was one week after that, and then, my first visit to his office, then it was every four weeks.
"Q. Okay. So, you mean on your first visit to Dr. Rose after you got out of the hospital is when he indicated this to you?
"A. Yes, he did.
"Q. The physical stress at work brought on your heart condition, is that correct?
"A. That’s correct.”

Although Dr. Rose could not remember if such a conversation took place, plaintiff’s testimony is sufficient to establish that in April of 1971 he had notice that his heart attack was work-related.

Plaintiff further contends that even if he had knowledge of his heart attack and its work-relatedness in April of 1971, that is insufficient to start the running of the statutory notice period. Plaintiff argues that the period could not have commenced running until he learned of the existence of worker’s compensation.

MCL 418.381; MSA 17.237(381) provides that in order to maintain an action for worker’s compensation benefits an employee must give his employer notice of an injury within three months of its occurrence. The statute provides in pertinent part:

"(1) No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury has been given to the employer within 3 months after the happening thereof.”

In Lewis v Chrysler Corp, 394 Mich 360, 369; 230 NW2d 538 (1975), the Court held that the statutory period of notice commences to run only after the employee has knowledge or reasonable grounds for knowledge of his disability and the employee has discovered or by reasonable diligence could have discovered that his disability was work-related. No mention was made of a requirement that plaintiff have knowledge of the worker’s compensation law and we decline to add such a requirement. Thus, the appeal board correctly held that the statutory notice period began to run on April 23, 1971, the date plaintiff learned his heart attack might be work-related.

However, this does not end the analysis of this issue. MCL 418.381(1); MSA 17.237(381X1) states in pertinent part:

"In a case in which the employer has been given notice of the happening of the injury or has notice or knowledge of the happening of the accident within 3 months after the happening of the same, and fails, neglects or refuses to report the injury to the bureau as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of the employer or his insurer, until a report of the injury has been filed with the bureau.” (Emphasis added.)

Thus, the employer’s actual knowledge can act to toll the running of the statutory limitation period when coupled with a failure to notify the bureau. The question that must be confronted here is what knowledge is sufficient to so toll the statute.

In Norris v Chrysler Corp, 391 Mich 469, 477; 216 NW2d 783 (1974), the Court stated the applicable rule:

"The notice given must be sufficient to make the employer aware that an injury has been sustained. If, after inquiry, the employer does not believe the injury to be compensable, it need not report the accident. However, in not reporting the accident, the employer assumes the risk that the injury will be found to be compensable. If such a determination occurs, the employer’s penalty is a suspension of statutory limitations.”

This standard was applied in Krol v Hamtramck, 398 Mich 341, 347; 248 NW2d 195 (1976), an occupational disease case. Although Meads v General Motors Corp, 78 Mich App 494; 260 NW2d 143 (1977) , attempted to introduce a further requirement that the employer know the injury or disease is work-related, this decision was recently reversed by the Michigan Supreme Court in Meads v General Motors Corp, 402 Mich 540; 266 NW2d 146 (1978) . Thus, defendants’ argument that this Court’s opinion in Meads controls this case is without merit. Similarly defendants’ argument that the Norris standard should be applied prospectively must be rejected in light of its application in Krol, where the employee’s death occurred 14 years prior to the decision in Norris. Nor are we convinced that anything in the Workmen’s Compensation Bureau’s rules in effect at the time of plaintiffs disability warrants a different conclusion.

However, at this time, we decline to apply the Norris standard in the present case. The Workmen’s Compensation Appeal Board has made no findings regarding this issue. Nor do we think this issue can be decided as a matter of law on the facts as given. Thus, we remand the case to the board for further factual findings. Specifically, the board should determine whether the employer had knowledge of plaintiffs heart attack within the 90-day period. An affirmative answer to this question would require that the statutory notice period be declared tolled. A negative answer to the question would necessarily lead to a rejection of plaintiff’s claim for benefits.

Furthermore, on remand, the board must confront the question of whether plaintiffs injury was, in fact, work-related. This issue was previously raised before the board by defendants but was never answered because the case was disposed of on the notice issue. Such handling of cases leads to piecemeal appeals to this Court and should be discouraged.

The decision of the board is vacated and the matter remanded for proceedings consistent with this opinion. Costs to the prevailing party.

T. M. Burns, J.

(concurring). I agree that the WCAB must make further fact-finding in this case, but I do not agree with all that is said in the majority opinion. I, therefore, write separately.

By a three to two division, the majority of the WCAB concluded that plaintiff had knowledge of the injury for which he seeks compensation on April 23, 1971. The board then stated the test of Lewis v Chrysler Corp, 394 Mich 360; 230 NW2d 538 (1975), and concluded that plaintiff had failed to notify his employer of the injury in a timely manner under MCL 418.381; MSA 17.237(381). In so concluding, the WCAB erred.

Section 381 imposes obligations on employers and employees. An employee has an obligation to notify his employer within three months of sustaining the injury that the injury has occurred and must make a claim for compensation within six months thereafter. The employer has an obligation to report the accident to the bureau so that the employee may be informed of his rights. Norris v Chrysler Corp, 391 Mich 469, 476; 216 NW2d 783 (1974). If the employer has "notice or knowledge” of the accident within the three months, the six-month statute of limitations for making a claim for compensation does not begin to run until a report by the employer of the injury is filed with the bureau.

Two types of questions have arisen under § 381, whether the notice was timely and whether it was sufficient. Questions of timeliness are governed by Lewis, supra. Questions of sufficiency are governed by Norris, supra. See also, Meads v General Motors Corp, 402 Mich 540; 266 NW2d 146 (1978), Krol v Hamtramck, 398 Mich 341; 248 NW2d 195 (1976).

In this case the record clearly shows that plaintiff filed a claim for group health and accident benefits within days after his heart attack based on the happening of the heart attack. To receive these group insurance benefits, plaintiff filed a form with his employer weekly. Plaintiff apparently indicated in this form that the injury was not occupationally related. Notwithstanding that fact, I would conclude that filing for the group health benefits was both timely and sufficient notice to the employer of the injury under § 381 and, therefore, conclude the WCAB erred as a matter of law in holding plaintiff was barred from relief under the act.

The same conclusion was reached by a panel of this Court concerning an occupational disease on similar facts in Hilton v General Motors Corp, 81 Mich App 21, 24-25; 264 NW2d 102 (1978):

"The board’s decision was nonetheless erroneous in that it failed to appreciate the significance of the sickness and accident benefit information submitted by the plaintiff to the defendant on March 9, six days after the plaintiff had been informed of his disability by his own doctor. This notice of the fact of disability (as distinguished from notice of the cause of disability) was clearly timely under MCL 418.441; MSA 17.237(441), which provides that an employee must inform the employer of his disability within 120 days after he learns of his disability and of its work-related nature. Lewis v Chrysler Corp, 394 Mich 360; 230 NW2d 538 (1975). The fact that the employee-plaintiff indicated therein that the injury was not work-related did not make the notice 'insufficient’ under the test of sufficiency enunciated in Norris, supra. Under Norris, notice is sufficient if the employer is informed thereby of the fact of disability or injury. Under the Norris test, sufficiency of notice does not turn upon whether the employer is or is not informed of the cause of disability. A determination of work relation is to be made by the hearing referee and not by the employer. Norris, supra, at 480.
"Under Lewis, supra, the notice was timely, and under Norris, supra, the notice was sufficient; therefore, the board erred, as a matter of law, in holding the plaintiff barred from obtaining relief under the act.”

As Meads, Norris and Hilton make clear, once the employer has "notice or knowledge” of the injury, it is its responsibility to notify the bureau. If the bureau is not notified, the employer runs the risk that the board will find the injury compensi-ble and, therefore, the statute of limitations to have been tolled. The employee does not have the responsibility to determine that his injury was compensable.

I would return this case to the WCAB for determination of whether plaintiffs heart attack was a compensable injury under the act.

       1968 AACS R 408.31 provided that an employer should immediately report all injuries or diseases arising out of the course of employment. However, that rule does not require that the employer know the injury was work-related. 1959 AACS R 408.33 was concerned with situations where the right to compensation was then in dispute and is not applicable here.

       Plaintiffs contention that the employer must show some prejudice as a result of the delay in notice in order to rely on the notice period is totally without merit. See Thomas v Griffin Wheel Co, 8 Mich App 35, 47-49; 153 NW2d 387 (1967), and Brown v Revere Copper & Brass Corp, 42 Mich App 143, 148; 201 NW2d 326 (1972).

       Although the board’s finding as to when plaintiff had notice of the work-relatedness of the heart attack strongly implies that they found the injury to be work-related, the board may simply have been assuming a connection between the heart attack and plaintiff’s injury for purposes of the notice issue. Thus, this point must be clarified by further findings of fact. We express no opinion on this issue at this time and nothing said herein should be deemed relevant in resolving this factual issue.