author: Danhof, C.J.

text:
    PETER BILL & ASSOCIATES, INC v DEPARTMENT OF NATURAL RESOURCES
    Docket No. 78-3023.
    Submitted June 5, 1979, at Lansing.
    Decided November 19, 1979.
    Peter Bill and Associates, Inc., through its president and sole stockholder Peter Bill, undertook to salvage a cargo of steel from a vessel submerged in Lake Huron. Bill obtained a non-objection permit from the Department of Natural Resources and the necessary permits from the Federal authorities and proceeded to contract with various persons and firms for the equipment and services necessary to accomplish the salvage operation. The project was fraught with misfortune and delay; however, at one point about 100 tons of steel, of the approximately 5,000 tons aboard the vessel, were recovered and sold. Bill was then informed by the DNR that his permit was revoked, and Bill’s attempts to mobilize a new diving crew were temporarily halted. About two weeks later Bill was notified by the DNR’s representative that the revocation of his permit had been based on an erroneous interpretation of an Attorney General’s opinion and that the DNR was again changing its position and that Bill could proceed with the salvage operation. Bill alleged that by this time his funds were exhausted. The project was abandoned with no more steel being recovered. Bill brought an action in the Court of Claims against the DNR, alleging that the acts of the DNR caused abandonment of the project and constituted tortious interference with the plaintiffs contractual rights and economic expectancies. The Court of Claims, George R. Deneweth, J., found that the DNR was liable for tortious interference with an economic expectancy, and entered a judgment for plaintiff. The defendant appeals, alleging that the DNR is protected from liability by governmental immunity, that the evidence does not support a finding of tortious interference with plaintiffs contractual rights or economic expectancies, and that the trial court erred in awarding as damages the value of the steel remaining on the sunken vessel. Held:

    1. The DNR’s action was not a "governmental function” for purposes of governmental immunity from tort liability. In protecting its property rights the state’s acts are no different than those of private property owners. The DNR is not protected by sovereign immunity in this matter.

      References for Points in Headnotes
    [1] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 42.
    [2] 45 Am Jur 2d, Interference § 110.
    [3] 74 Am Jur 2d, Torts § 7.

      2. The trial court’s finding of a tortious interference with an economic expectancy is not clearly erroneous, and is supported by the evidence.
    3. The trial court properly used the value of the remaining steel as the basic measure of damages. However, the court erred in disregarding the cost of completing the salvage operation. The case is a proper one for remittitur of an amount representing the completion costs.
    Remanded.
    1. Administrative Law — Torts — Governmental Immunity — Salvage.
    The determination of the Department of Natural Resources to approve or disapprove the salvaging of materials located on the state’s land is not a governmental function for the purpose of governmental immunity from tort liability; the protection of the state’s property is not "of essence to governing”, rather, the state’s acts in protecting its property rights are no different than those of private property owners.
    2. Torts — Interference with Economic Expectancy.
    The existence or knowledge of a contract is not required in order for a defendant to be found liable for tortious interference with an economic expectancy.
    3. Torts — Damages — Measure of Damages.
    A tortfeasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated.

      Lowell Blumberg, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank J. Pipp and Curtis G. Beck, Assistants Attorney General, for defendant.

      Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll,1 JJ.

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

   Danhof, C.J.

This case marks this Court’s second encounter with the nautical saga of plaintiffs efforts to salvage the cargo of a ship which has lain at the bottom of Lake Huron for nearly 20 years. See Light v Schmidt, 84 Mich App 51; 269 NW2d 304 (1978). In this latest chapter, the Court of Claims, Macomb County Circuit Judge George R. Deneweth presiding, entered judgment against the Michigan Department of Natural Resources for $494,000 purportedly lost by plaintiff because certain actions of defendant caused the failure of his salvage operation. The defendant department appeals as of right.

In 1959 the S.S. Monrovia, a freighter of Liberian registry, collided with another vessel and sank in Lake Huron in 27 fathoms of water, about 13.6 miles east of the Thunder Bay Light. The ship’s manifest showed that it carried approximately 5,000 tons of German and Belgian structural steel.

Peter Bill performed investigative work for the lawyer who handled the crew’s personal injury cases. At that time he decided to salvage the steel.

In 1972, Bill embarked on a program of obtaining the necessary permits and financing. He learned that the cargo was abandoned to the United States Army Corps of Engineers. Bill obtained a non-objection permit from the Corps which indicated he should also clear the project with the Coast Guard and any applicable state agency. Bill subsequently contacted the Coast Guard.

On April 18, 1974, he obtained a non-objection letter from George Bruso, a law enforcement officer for defendant DNR.

On May 15, 1974, Bill leased the tug "Lobo” (then docked in Lorain, Ohio) for $20,000 per month.

On May 17, 1974, he contracted to sell the steel raised to ABC Steel Sales, Inc., of Detroit. ABC agreed to purchase approximately 2700 tons of prime steel at 9.5 cents per pound ($190 per ton), and additional sub-par steel at the rate of 6.5 cents per pound ($130 per ton). After receiving evidence that Bill had invested $40,000 of his personal savings into the project, ABC advanced him $75,-000 to be repaid within 90 days. This advance was secured by a second mortgage on Bill’s personal residence. Under the contract, ABC agreed to pick up the steel on a dock in Alpena and pay for it within 48 hours. ABC was authorized to deduct $30 per ton to be applied to the advance.

On May 18, 1974, Bill contracted with Donald C. Schmidt d/b/a Michigan Marine Salvage and Assistance for Schmidt to provide no less than six divers, a topside crew, equipment, and the supervision required for the salvage (exclusive of the barge, tug and tug-crew which Bill would provide) at Schmidt’s expense. Schmidt was to exert best efforts to complete the operation within 30 days of the first cargo lift. Bill agreed to pay $5,000 in advance and $21,750 for each 500 tons of steel delivered to the shore (up to a maximum of $145,-000). Schmidt hired Russell F. Light, a veteran diver with a diving crew, to perform the underwater work.

An initial effort to locate the Monrovia on May 18, 1974, was unsuccessful. On May 27, 1974, the S.S. Monrovia was located. However, once on the site, a dispute erupted between Bill’s crew and another salvor, one Massey. George Bruso testified that Bill complained to him that Massey was circling Bill’s ship with guns and explosives and making threats.

Inspection dives were made on May 27, June 1 and June 2, 1974. Bill testified that Light reported the steel was beautiful and stacked on cribbing. Light testified that the steel was beautiful but not stacked on cribbing. Light also stated that hold No. 5 contained ten feet of bunker C oil while the tug board captain testified that the diver had oil marks only to the thigh level.

Although the barge and crane needed to lift the steel arrived at the project site about June 2, 1974, rough weather prevented salvage operations from proceeding until about June 12 or 13.

At about this time, the diving crew began complaining that they were not being paid. Peter Bill voluntarily advanced $12,000 to Schmidt for the divers, in an attempt to salvage the operation. However, the divers were still not paid.

Between June 12 and 16, 1974, approximately 100 tons of steel were raised from the Monrovia; 30 to 40 tons were delivered to ABC and the balance sold to an Alpena scrap dealer to meet expenses.

Oñ June 17, 1974, the Lobo ran across Head Reef and was damaged while returning from the Monrovia. Temporary repairs were made by the crew in Rockport.

On June 18, 1974, Russell Light and his divers left the project.

Schmidt then persuaded Peter Bill to allow Schmidt to salvage a brass propeller from the Nordmeer, another wreck lying in the area, to raise money. The damaged Lobo and Schmidt’s remaining crew spent two days at the Nordmeer. Unfortunately, when they returned with the propeller, they discovered that it was cast iron. In addition, Schmidt damaged plaintiff’s crane when he cut a steel boom from the Nordmeer.

Upon learning of this accident, the owner of the crane towed the barge, crane, and equipment to Cheboygan and beached it until he was paid. With the help of a prosecutor from Cheboygan, Bill brought the barge back.

Meanwhile, the Lobo proceeded to Detroit for permanent repairs and returned by July 7 or 8, 1974.

On approximately July 15, 1974, a new 85-ton crane, which was considerably more powerful than the damaged crane, arrived on the scene.

Early in July, Bill contacted a Connecticut firm, headed by George W. Wiswell, in order to obtain a new crew of divers. Around July 9, 1979, Wiswell verbally agreed to mobilize a crew. Mobilization involved preparing and making ready equipment and personnel. It could take anywhere from one or two weeks to two months to mobilize. Bill testified that, once mobilized, the divers could be on site within a day and a half and operational within two or three days of arrival. Thus, Bill thought he could have commenced salvage operations by July 20 or 22, 1974.

Peter Bill testified that on or about July 18, 1974, he was approached by a representative of defendant, accompanied by a State Police trooper. According to Bill, defendant’s representative told him that approval for his project had been withdrawn and that he would be incarcerated if he attempted to proceed.

In a letter dated July 24, 1974, defendant’s employee George Bruso, who had issued the earlier non-objection permit, informed Peter Bill that the permit was revoked and that the Monrovia and its cargo belonged to the state and its citizens. The letter stated that defendant would let bids for the salvage of the cargo.

Peter Bill testified that, after he received the verbal warning from defendant’s agent, he called Wiswell and advised him to hold off on mobilizing divers until the difficulties were resolved.

On August 2, 1974, Edward Giuliano, an attorney representing plaintiff, wrote George Bruso and vehemently objected to the revocation of the salvage permit. Immediately thereafter, Bill contacted Wiswell and instructed him to continue mobilization.

Toward the end of July, Bill borrowed an additional $53,500 from family and friends to meet expenses. He testified that on August 2, 1974, he was still attempting to borrow additional funds.

On August 6, 1974, George Bruso spoke with the attorney in charge of the Natural Resources section of the Attorney General’s office and learned that he had misinterpreted the Attorney General’s opinion on which his revocation of plaintiff’s salvage permit was based. The same day, Bsruso called plaintiff’s attorney and informed him that defendant was returning to its earlier non-objection posture. Bruso also confirmed defendant’s change of position in a letter dated August 12, 1974.

Bill testified that, by this time, he had exhausted all the available funds for the project and was unable to borrow more. The money had been used to pay the crew and rentals and upkeep on the equipment during the period that the project was halted by defendant’s actions. By the time defendant reinstated its permission, plaintiff was "broke”. Plaintiff salvaged no more steel, and for all the record reveals, the Monrovia’s cargo is still at the bottom of Lake Huron.

Defendant argues on appeal that it is immune from liability because its determination to ajpprove or disapprove the salvaging of materials located on the state’s land is a governmental function.

It is unnecessary to address the parties’ arguments regarding the proprietary function exception to governmental immunity because, under Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978), defendant’s activity was not a governmental function. Under Parker, supra, the term "governmental function” is limited to those activities sui generis governmental—of essence to governing.

George Bruso testified that he was protecting the property rights of the State of Michigan when he revoked the non-objection permit:

"I had interpreted an attorney general’s opinion, which was issued on April 1, in regards to the salvage of the property on the Great Lakes to say that these abandoned particles on the bottom of the Great Lakes belonged to the people of the State of Michigan. And it began to nag me and my conscience began to bother me that I was not fulfilling my duty to the people. I believed they should be getting some benefits from the cargo that I believed belonged to them in the form of royalties or something. We should not be just giving this away, that they should derive some benefit.”

The protection of the state’s property is not an activity "of essence to governing”. Rather, it is an activity in which all property owners stand on the same footing. In protecting its property rights the state’s acts are no different than those of private property owners. Therefore, we hold that defendant is not protected by sovereign immunity.

Defendant next argues that the evidence does not establish a tortious interference with plaintiffs contractual rights or economic expectancies. It is true that knowledge of the contract is a prerequisite to liability for tortious interference with a contract. Dassance v Nienhuis, 57 Mich App 422, 433; 225 NW2d 789 (1975).

However, the trial court found a tortious interference with an economic expectancy. This tort does not require the existence or knowledge of a contract. See, 1 Harper & James, The Law of Torts, § 6.11, pp 510-514. See also, 45 Am Jur 2d, Interference, § 50, pp 322-323. The evidence supports the trial court’s finding of a tortious interference.

Defendant also argues that the acts of defendant and its employee, George Bruso, were not the cause of plaintiffs failure to fulfill its contractual obligations since the project was doomed to failure.

The trial court found that defendant’s acts resulted in plaintiff’s financial ruin and the foundering of the entire project.

We hold that the court’s finding was not clearly erroneous. GCR 1963, 517.1. The evidence showed that plaintiff had the requisite equipment on site and a diving crew mobilizing when defendant revoked the non-objection permit. In addition, the testimony established that the weather was excellent in late July and August of 1974. While defendant’s expert, Russell Light (plaintiffs disgruntled and unpaid diver), testified that it would have taken plaintiff an additional six to nine months to remove the remaining steel, Lawrence Thorne, a veteran seafarer with salvage experience and who captained plaintiff’s tug boat at the beginning of the operation, testified that, with the new crane, salvage could have been completed within 30 to 45 days, even if the crews were only able to work every fourth day. Also, George Wiswell, plaintiffs new diver, promised to complete the operation in 20 days or less.

Finally, defendant argues that the trial court erred in awarding plaintiff the value of the steel remaining on the S.S. Monrovia, totaling $494,000.

The trial court found defendant liable for a tortious interference. In this state, the general rule for ascertaining damages in tort was stated in Sutter v Biggs, 377 Mich 80, 86; 139 NW2d 684 (1966):

"The general rule, expressed in terms of damages, and long followed in this State, is that in a tort action, the tort-feasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages are not considered in conformity to the general rule.”

Since defendant’s acts caused failure of the project, plaintiff was deprived of the steel remaining to be salvaged. Limiting plaintiffs damages to lost profits would be unjust, for profits were calculated on the assumption that a half-million dollars worth of steel would offset expenses (most of which were already incurred at the time of defendant’s acts). Thus, the trial court properly used the value of the remaining steel as the basic measure of damages. However, we hold that the court erred in disregarding the cost of completing the salvage operations.

Since the verdict exceeds the amount shown by the evidence, this case presents a situation appropriate for remittitur. GCR 1963, 820.1(7), Hartough v Safeway Lines, Inc, (On Rehearing), 288 Mich 703; 288 NW 307 (1939).

We adopt plaintiffs use of a 20-day period to complete salvage operations. In that 20-day period plaintiff would have incurred expenses totaling $107,164.80: wages, ship’s money and miscellaneous items for this period would amount to $22,500; equipment rental would amount to $21,664.80; and the divers would receive $63,000.

Accordingly, plaintiff shall have the option to remit $107,164.80 or demonstrate in a hearing, by proof satisfactory to the trial court, that the cost of raising the remaining steel would have been different from the amount estimated herein.

Remanded for proceedings not inconsistent with this opinion. No costs, neither party having prevailed in full.

       Peter Bill testified as to the cost of completion based on the 20-day contract period with George Wiswell. Captain Thorne estimated 30-45 days, working only every fourth day, while Russell Light estimated six to nine months. The 20-day period would result in the largest verdict supported by the evidence.

       Bill testified that the tug crew, a crane operator and a welder drew $975 per day. Bill indicated that ship’s money (i.e., food costs) amounted to $100 per day and miscellaneous breakage and supplies would amount to $1,000 for the 20-day period.

       Bill testified that the tug boat would cost $13,332 for the 20-day period ($666.60 per day) and the barge would cost $5,332.80 ($266.64 per day). Plaintiffs exhibit 11 reflects a monthly crane rental of $4,500 or $150 per day. Thus, the 20-day cost would be $3,000.


source: Caselaw Access Project

author: D. C. Riley, J.

license: Public Domain

text:
    PEOPLE v WADE
    Docket No. 78-2429.
    Submitted October 19, 1979, at Detroit.
    Decided November 19, 1979.
    Leave to appeal applied for.
    Defendant, Ida Wade, was convicted of assault with intent to do great bodily harm less than murder and carrying a firearm during the commission of a felony in the Recorder’s Court of Detroit, David E. Wilson, J. At trial, defendant testified that she had no intent to shoot the victim but that she hid in her basement and did not come up until the police arrived a second time. The prosecutor cross-examined, asking her why she had not come forward to explain that the shooting was accidental. Subsequently, the prosecutor suggested to the court that his cross-examination may have violated defendant’s right against self-incrimination. The court had the offending question and answer read to the jury and instructed the jury to disregard them. Defendant appeals. Held:

      A defendant’s right to remain silent is constant, extending prior to, at the time of and following his arrest. The prosecutor’s question was improper. However, the court’s instruction to disregard it alleviated any possible prejudice to defendant.
    Affirmed.
    Danhof, C.J., concurred in result only.
    1. Criminal Law — Prosecutorial Comment — Right to Silence.
    A prosecutor may not suggest a negative inference from a defendant’s pre-arrest failure to either turn himself over or to explain his defenses to police; a defendant’s right to remain silent is constant, extending prior to, at the time of and following his arrest.
    2. Criminal Law — Prosecutorial Comment — Right to Silence.
    A trial court, after an impermissible prosecutorial question on a defendant’s pre-arrest silence, properly alleviated any possible prejudice to the defendant by having the prohibited question and answer read back to the jury and directing the jury to disregard them.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 221.
    [2] 75 Am Jur 2d, Trial § 317.

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

      Neil H. Fink, for defendant on appeal.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   D. C. Riley, J.

On June 9, 1978, a jury found the defendant guilty of both assault with intent to do great bodily harm less than murder, contrary to MCL 750.84; MSA 28.279, and carrying a firearm in the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). She was sentenced to terms of two years in prison for the felony-firearm charge and 90 days in jail for the assault charge, as well as being given a $500 fine for the latter offense. Defendant now appeals as of right.

Defendant first attacks the constitutionality of the felony-firearm statute. This issue has been resolved by the Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), and needs no further discussion here.

Defendant also challenges the propriety of the prosecutor’s questioning regarding her silence prior to arrest. Defendant testified that she had no intent to shoot the complainant. Yet, following the assault, she hid in the basement of her home and did not come up until the police arrived on the scene for the second time. On cross-examination, the prosecuting attorney questioned the defendant concerning her hiding, pressing her as to why she had not come forward to explain that the shooting was accidental. Although defense counsel made no objection, the prosecutor subsequently suggested to the court that his cross-examination may have violated defendant’s rights. Upon defense counsel’s recommendation, the trial judge had the court reporter read back the disputed cross-examination to the jury and then instructed them to totally disregard both the questions and the answers to that examination. Defendant now contends that this was insufficient to rectify the error.

Michigan has a long-standing tradition of protecting defendants’ rights to remain silent and to be free from self-incrimination, covering both incrimination by word or by conduct. Over 25 years prior to Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), the Supreme Court of Michigan stated:

"The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt. He said nothing, and what was said in his presence by another was inadmissible, just as the court later held.” People v Bigge, 288 Mich 417, 420; 285 NW 5 (1939).

In the wake of Miranda, supra, defendants’ rights to remain silent and to remain free from self-incrimination have been expanded and strengthened. A prosecutor may not refer to a defendant’s silence during police interrogation, United States v Hale, 422 US 171; 95 S Ct 2133; 45 L Ed 2d 99 (1975), or in response to accusation. People v Jablonski, 38 Mich App 33; 195 NW2d 777 (1972). Further, a prosecutor may not suggest an inculpatory inference from a defendant’s failure to take the stand, Fontaine v California, 390 US 593; 88 S Ct 1229; 20 L Ed 2d 154 (1968), People v Mancill, 393 Mich 132; 223 NW2d 289 (1974), or to explain defenses upon arrest. People v Frazier, 79 Mich App 234; 261 NW2d 271 (1977). If such commentary were permissible, the entire concept of being presumed innocent until proven guilty would be severly undermined. Frazier, supra.

Michigan courts recognized early that if a defendant’s incriminating statements made at the time of arrest are inadmissible (in the absence of Miranda warnings), his silence should be protected as well. In People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), a prosecutor examined the defendant at trial as to why he had not reported possibly exculpatory evidence to police at the time of his arrest. The Supreme Court held that such examination is an impermissible infringement upon a defendant’s right to remain silent at the time of arrest. The instant defendant urges this panel to extend Bobo to her situation, so that comment on pre-arrest silence would be proscribed as well.

In People v Dailey, 36 Mich App 312; 193 NW2d 344 (1971), a case similar to the instant one, the prosecutor questioned the defendant regarding his pre-arrest failure to inform police as to why he was hiding in the bushes. In closing arguments, the prosecutor implied that defendant’s guilt could be inferred from his concealment. The Court of Appeals reversed, stating that the prosecution improperly commented on defendant’s exercise of his constitutional right to remain silent.

We hold that a prosecutor may not suggest a negative inference from a defendant’s pre-arrest failure to either turn himself over or to explain defenses to police. A defendant’s constitutional right to remain silent is constant; there is no distinction between silence prior to, at the time of, or following arrest. See, Bobo, supra, 360, Frazier, supra, 237. Thus, the prosecutor’s comment on the instant defendant’s pre-arrest silence was impermissible. Reversal would be mandated here, were it not for the trial judge’s cognizance of the error and his curative instructions. We find that the trial court’s following of defense counsel’s suggestion of having the prohibited portion read back to the jury and directing the jury to disregard both the questioning and the answers, alleviated any possible prejudice to the defendant. See People v Clemons, 91 Mich App 68, 72; 282 NW2d 838 (1979), People v Gray, 57 Mich App 289, 295; 225 NW2d 733 (1975).

Affirmed.

Chief Judge Danhof concurs in result only.

       The exact exchange was as follows:
      "Q. [Prosecuting Attorney] Now, you testified you didn’t intend to murder Mr. Tate, right?
      "A. [Defendant] Right.
      "Q. You testified that you really didn’t even—really intend to harm Mr. Tate?
      "A. Yes.
      "Q. And you are in the basement when the police are there?
      "A. Yes.
      "Q. You didn’t come out of the basement at that point in time and tell the police, 'Hey, it was an accident; I am sorry,’ did you?
      "A. I didn’t know he was shot.”

       US Const, Am V; Const 1963, art 1, § 17.

       The United States Supreme Court subsequently recognized this right in Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976).

       Bobo had stated on direct examination that, just prior to his arrest, two men ran past him from the scene of the crime. On cross-examination, the following exchange took place:
      "Q. [Prosecuting attorney]: What did you see with reference to anybody running down the street toward you?

        "A. [Defendant Bobo]: I didn’t see nothing but two men running past me.
      "Q. Did you say anything to him [the questioning police officer] about two other men running on the street?
      "A. He didn’t ask me.
      "Q. I said did you say anything to him?
      "A. No, I didn’t.

        "Defense Counsel: Before you answer that question, I do object to it.
      "A. My last question to you was did you tell the officer about these two men running down the alley; your is [sic] answer is no?
      "A. I don’t recall.

        "Prosecutor: Oh yes, one of the defendants, yesterday said something about two other men. Two other men, as they were walking, mind you, from the other direction, from what had been previously testified to by three of the officers, they claim now were coming from the other direction and two phantoms, two men who they claim ran past them five or six feet past them ran down the alley. Yet within five or six feet Edison and Ned Bobo who claimed they saw these two men said nothing to the police.

        "Defense counsel: * * * If the Court please, at this point I move for a mistrial on behalf of Ned Ladd Bobo on the ground that the Prosecutor has violated that defendant’s privilege against incrimination. The defendant Ned Ladd Bobo at the time of his interrogation by Detective Berryman with the gun pointed at him being questioned about a robbery had no duty whatsoever to speak to the detective about anything. And his failure to speak to that cannot be held against him. And I submit that I am intitled [sic] to a mistrial.

        "The Court: I will deny the motion. * * 390 Mich 355, 357, 358, fn 2, 3, 4.

         This will not be true in cases where the defendant performs a positive act indicating guilt such as fleeing from pursuing officers. See People v Dixon, 84 Mich App 675, 682; 270 NW2d 488 (1978). Our holding here is limited to the inability of the people to comment on a defendant’s nonacts or nonutterances.

       The exact handling of the matter by the court was as follows:
      "However, something has been called to the Court’s attention of a question asked during the testimony, and we are going to ask that the Court Reporter read the question to you, members of the jury, and the answer which was given.
      "It concerns the Prosecutor’s examination of the defendant relative to the time frame in which she went to the basement.
      "You have that, Mr. Court Reporter?
      "(Whereupon the Court Reporter read back a previous question and answer.)
      "THE COURT: Now, members of the jury panel, the last portion of that question asking the witness whether or not she had made a statement to the police should be totally disregarded by you. We are striking the question from the record and the answer that was given for the reason under the law that a defendant who was being charged is under no duty, no responsibility to explain what she did or may not have done unless she gives a voluntary statement. So that particular question and the answer you are to disregard completely because as the Court advises you she had no duty to answer one way or the other, and the answer that she may have given may influence you in some way. Disregard it completely.
      "Any questions?
      "* * * [Prosecuting attorney] No, your Honor.
      "* * * [Defense attorney] None, your Honor.”


author: Bronson, J. D. F. Walsh, P.J.

text:
    PETERSON v WHITE PINE COPPER COMPANY
    Docket No. 78-3133.
    Submitted May 10, 1979, at Marquette.
    Decided November 19, 1979.
    Leave to appeal applied for.
    On March 28, 1962, plaintiff, Philip M. Peterson, was forced to leave his work at defendant, White Pine Copper Company, because of chest pains caused by myocardial ischemia, a heart ailment. There is no question that plaintiff has been disabled since that date. In 1974, plaintiff sought worker’s disability compensation benefits, which were denied by the hearing referee. On appeal to the Worker’s Compensation Appeal Board, the denial of benefits was affirmed. The Appeal Board found that, while there is no question that plaintiff was disabled, the disability was the result of a progressive disease in which plaintiff’s work did not contribute to the disability. Plaintiff appeals by leave granted. Held:

    1. Worker’s disability compensation benefits may be awarded for a disabling heart ailment where employment related work has caused, accelerated or aggravated the disability.
    2. Findings of fact made by the Worker’s Compensation Appeal Board are conclusive if supported by competent, material and substantial evidence in the record. The Appeal Board may not draw factual inferences contrary to undisputed evidence in the record.
    3. The Appeal Board’s determination that plaintiff’s heart ailment was not a work-related disability was erroneous. There was no evidence in the record before the Appeal Board to contradict the expert testimony that plaintiff’s employment activities accelerated his heart ailment and that plaintiff’s disability was work-related.
    4. While it was error for the Appeal Board to deny worker’s disability compensation benefits on the basis that the disability was not work-related, it is necessary to remand this matter to the Appeal Board for its determination of whether plaintiff is barred from receiving benefits by a failure to give timely notice of the work-related disability or to file timely a claim for benefits.

      References for Points in Headnotes
    [1] 82 Am Jur 2d, Workmen’s Compensation §§ 300, 333-337, 507, 516.
    [2] 82 Am Jur 2d, Workmen’s Compensation § 613 et seq.

    [3] 82 Am Jur 2d, Workmen’s Compensation §§ 617, 631, 635.
    [4] 82 Am Jur 2d, Workmen’s Compensation §§ 631, 634, 635.

      Reversed and remanded.
    D. F. Walsh, P.J., dissented. He would hold that the Worker’s Compensation Appeal Board, from the evidence in the record before it, could properly infer that the plaintiff’s employment related work did not contribute to his admitted disability. The Appeal Board, therefore, properly denied disability compensation benefits to plaintiff. He would affirm.
    Opinion of the Court
    1. Workmen’s Compensation — Work-Related Injury — Heart Ailments.
    Worker’s disability compensation benefits may be awarded for disabling heart ailments where the employment related work has caused, accelerated or aggravated the disability.
    2. Workmen’s Compensation — Findings of Fact — Appeal Board Evidence — Inferences.
    Findings of fact made by the Worker’s Compensation Appeal Board are conclusive if supported by competent, material and substantial evidence in the record; however, the Appeal Board may not draw factual inferences contrary to the undisputed evidence in the record.
    3. Workmen’s Compensation — Work-Related Injury — Heart Ailments.
    The Worker’s Compensation Appeal Board’s determination that a heart ailment, while a disability, was not a work-related disability is erroneous where there was no evidence in the record before the Appeal Board to contradict the expert testimony that the claimant’s work accelerated his heart ailment and that the disability was work-related.
    Dissent by D. F. Walsh
    4. Workmen’s Compensation — Work-Related Injury — Heart Ailments.

      The Worker’s Compensation Appeal Board may properly infer that a disabling heart ailment is a progressive disease in which claimant’s work did not contribute to the disability where there is evidence that the symptoms suffered by claimant on his last day of work were similar to prior symptoms suffered by claimant in a nonwork setting; the Appeal Board is not bound by the

      claimant’s self-serving statements that the nature of the prior symptoms differed qualitatively from those suffered on the last day of work.

      Wisti & Jaaskelainen, for plaintiff.

      Vairo, Mechlin, Tomasi & Johnson, for defendant.
    Before: D. F. Walsh, P.J., and Bronson and T. M. Burns, JJ.
   Bronson, J.

Plaintiff appeals by leave granted from the opinion and order of the Worker’s Compensation Appeal Board (WCAB) denying him benefits.

Plaintiff worked for only about two hours on March 28, 1962, his last day of work. After moving some heavy pumps and hoses, he was forced to leave work and was hospitalized. Previous to this date plaintiff had experienced chest pains which were diagnosed as pleurisy, a respiratory ailment. The evidence also indicated that plaintiff had fainted on previous occasions while working for defendant, that on the weekend prior to his last day of work he had experienced some fainting, chest pain, and shortness of breath, and that the chest pains he suffered on his last day of work were qualitatively different from those experienced on previous occasions.

There is no question that the plaintiff is disabled. His ailment has most often been diagnosed as myocardial ischemia, apparently produced by the progressive disease arteriosclerosis. The issue is whether his disability arose out of and in the course of his employment, so that he might be awarded worker’s disability compensation benefits. The WCAB found that his disability was not employment related. Plaintiff contends that there was no evidence on which the WCAB could base such a finding, and that as a result the WCAB has drawn an inference contrary to the undisputed evidence.

Worker’s disability compensation benefits may be awarded for disabling heart ailments when the work has caused, accelerated, or aggravated the disability. Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979), Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966). The WCAB apparently recognized this as the correct legal standard, but relied on the fact the plaintiff had experienced physical symptoms prior to his last day of work as grounds for denying him benefits. This analysis brushes over the crucial question of whether the work accelerated or aggravated the plaintiff’s condition. While plaintiff’s arteriosclerosis was apparently far advanced, that does not mean that it could not have been affected by the strenuous work effort of March 28, 1962. The depositions of two physicians were used in the hearing on this matter, and both testified that the plaintiff’s work efforts did accelerate his ischemia. The fact that plaintiff may have suffered symptoms that could be equated with ischemia prior to his last day of work does not detract from this testimony. We have searched the record for evidence that contradicts the testimony to the effect that plaintiff’s injury was work-related and have found none. The factual findings of the WCAB are conclusive if supported by competent, material, and substantial evidence in the record. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978). The WCAB may not, however, draw factual inferences contrary to the undisputed evidence in the record. White v Revere Copper & Brass, Inc, 383 Mich 457; 175 NW2d 774 (1970). Accordingly, we reverse and hold plaintiff established a work-related injury.

This cause is remanded to the WCAB for a determination of whether plaintiff is barred from receiving benefits by a failure to give timely notice of injury or to file timely a claim. See MCL 412.15; MSA 17.165, the applicable provision in effect at the time of plaintiff’s injury.

Reversed and remanded.

T. M. Burns, J., concurred.

D. F. Walsh, P.J.

(dissenting). Plaintiff, Philip M. Peterson, appeals from the Worker’s Compensation Appeal Board’s denial of his petition for disability compensation benefits. The hearing referee had also. denied benefits citing Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966). Plaintiff concedes that the appeal board, in making its determination in this case, applied the correct legal standard as set forth in Zaremba and recently reaffirmed in Kostamo v Marquette Iron Co, 405 Mich 105; 274 NW2d 411 (1979).

The issue is whether the board erred by drawing factual inferences for which there was no basis in the undisputed testimony and which wére contrary to that testimony. White v Revere Copper & Brass, Inc, 383 Mich 457; 175 NW2d 774 (1970).

Specifically the board found that the plaintiff had "the progressional disease, arteriosclerosis, and that his onset of disabling symptoms preceded his fínal work day”. His brief effort on March 28, 1978, merely demonstrated his inability to any longer perform strenuous labor. The work did not contribute to that disability.

The relevant facts of this case are as follows: Plaintiff was taken to the hospital on March 28, 1962, after suffering exhaustion resulting from handling heavy sump pumps and hoses. He was treated for heart condition and has not worked since. When admitted to the hospital, plaintiff indicated that he had been ill for the previous week, that he had fainted three times over the weekend, that he was unable to continue working on that morning because of difficulty in breathing, and that he was experiencing pain in his left chest. Evidence introduced at the hearing, 14 years later, revealed that during the December preceding plaintiff’s last day of work he had experienced chest pains which were at that time considered to be associated with pleurisy. Plaintiff testified, however, that the symptoms that he experienced on his last day of work were different from the symptoms he had experienced prior to that date. From this testimony plaintiff now claims that the board’s finding that "the onset of disabling symptoms preceded the final day of work” is contrary to the undisputed testimony in the case. I cannot agree.

Dr. Stroube, plaintiff’s treating physician and one of his expert witnesses, diagnosed plaintiff’s condition as myocardial ischemia, which he described as "a condition of the heart meaning a lack of blood supply”. He further testified that chest pain, shortness of breath and fainting were all symptoms of ischemia and that plaintiff’s ischemia preceded his last day of work. From this testimony the appeal board could properly infer that the symptoms suffered by plaintiff prior to his last day of work were symptoms of the same arteriosclerosis induced ischemic condition which caused his disability. The board was not bound by plaintiffs self-serving testimony that the symptoms suffered that day were qualitatively different from previous problems.

Moreover, my review of the record persuades me that there is support therein for the board’s findings that plaintiff was disabled by the "progressional disease arteriosclerosis”; that his work "did not contribute to that disability”; and that his brief effort on March 28, 1962, did not cause disabling heart damage but "merely demonstrated his inability to any longer perform strenuous labor”.

I would affirm.

       Dr. Stroube testified as follows:
      "Q. (by defendant’s attorney) * * * Assume that he had suffered chest pain and shortness of breath throughout that weekend, that he had fainted several times during that weekend. That upon returning to work he found that he was unable to perform any physical activity. Do you have an opinion as to when the ischemia which you indicated was shown on the 28th, do you have an opinion as to when that would have first occurred? Would it have been on the 28th or would it have been prior to that time?
      "A. Well, the ischemia had to occur before that time. There is no question about it. Ischemia doesn’t just happen overnight. The onset of symptoms may occur at a specific time but the ischemia has to be a gradual onset for some time.
      "Q. Do you feel that pain, shortness of breath, fainting, and again assuming that Mr. Peterson did suffer these symptoms over the weekend prior to the time that he returned to work, do you feel that these would also be symptoms of his ischemia?
      "A. Yes.”

       Plaintiff relies on the following statement from footnote 9 in Kostamo as support for the contention made at oral argument that "miocardial ischemia” is itself an "injury” to the heart.
      " 'It is well established that at times physical activity, while not causing the primary heart disease, may precipitate acute congestive heart failure and/or acute ischemic episodes. The ischemia can precipitate angina pectoris or a dysrhythmia, perhaps a fatal one.’ American Heart Association, Report of the Committee on Stress, Strain and Heart Disease, p 4. Reprinted from 55 Circulation (No. 5, May, 1977).” Kostamo v Marquette Iron Mining Co, 405 Mich 105, 126; 274 NW2d 411 (1979).
      I do not so read the footnote nor is such a reading consistent with Dr. Stroube’s understanding of the condition as indicated in his testimony. See footnote 1, supra.


author: J. X. Theiler, J.

text:
    ROFE v ROBINSON
    Docket No. 78-3284.
    Submitted June 20, 1979, at Detroit.
    Decided November 20, 1979.
    Leave to appeal applied for.
    Plaintiffs, Edward Rofe, Jim Brooks, Harry A. Law and Alex Avram, are lot owners in the Bloomfield Township subdivision known as Hickory Knolls. All the lots in Hickory Knolls are subject to deed restrictions limiting property usage to residential use. In 1968, the township rezoned 12 lots in Hickory Knolls bordering on Telegraph Road to prohibit residential construction and permit only commercial construction. Defendants, David Robinson, Marvin L. Robinson and Robinson Brothers Realty Company, a partnership, purchased two of the rezoned lots and commenced construction of an office building. Plaintiffs filed suit in the Oakland Circuit Court to enforce the deed restriction and enjoin the construction. The court, Frederick C. Ziem, J., granted an injunction. Defendants appeal. Held:

      A change in zoning does not of itself justify the invalidation of building restrictions but is one element to be considered in determining whether a change of circumstance has occurred sufficient to justify an equity court in refusing to enforce them. The lots will be unusable for any purpose if the deed restriction is enforced. The facts disclosed a sharp increase in traffic on Telegraph Road and an existing nonconforming user in the neighborhood. Further, the construction of an office building will not economically damage the interior lots and may actually provide a better noise and air pollution buffer than would vacant lots. Under these circumstances, upholding the deed restriction was improper.
    Reversed and remanded.
    1. Appeal and Error — Equity — Real Property — Restrictive Covenants.
    Appellate review of a case seeking to have certain restrictive covenants limiting land use declared void is de novo; however, a lower court’s decision will not be reversed unless the evidence is found to preponderate contrary to the holding of the trial court.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Review §§ 702, 703, 882.
    20 Am Jur 2d, Covenants, Conditions, and Restrictions § 277.
    [2] 82 Am Jur 2d, Zoning and Planning § 25.
    [3] 82 Am Jur 2d, Zoning and Planning § 18.
    [4] 82 Am Jur 2d, Zoning and Planning § 108.

      2. Zoning — Ordinances — Presumption of Validity.
    A zoning ordinance not at issue is presumed to be valid.
    3. Zoning ■— Change of Zoning — Deeds — Building Restrictions.
    A change of zoning does not of itself justify the invalidation of building restrictions.
    4. Deeds — Building Restrictions — Remedies.
    Validly imposed building restrictions restricting use to residential purchases are properly extinguished by a court in equity where: 1) because of increased traffic and condemnation for road widening and because of a zoning classification restricting the property to use for office buildings, it is a virtual certainty that the property will not be usable for residential purposes; 2) nonconforming use already exists in the neighborhood; and 3) construction of office buildings will not damage the surrounding property from an economic or aesthetic standpoint.

      Eggenberger, Eggenberger, McKinney & Weber, for plaintiffs.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by W. A. Steiner, Jr., and Dennis M. Haffey), for defendants.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   J. X. Theiler, J.

Defendants appeal as of right from the trial court’s permanent injunctive order restraining them from erecting an office building upon their property in Hickory Knolls subdivision, Bloomfield Township, Oakland County.

The deed restrictions pertaining to defendants’ property require that the land be restricted to residential use only. However, in 1968 the lots in Hickory Knolls subdivision that bordered on Telegraph Road, which includes defendants’ property, were rezoned to an "0-1” zoning classification. That classification prohibits residential construction and allows only the construction of office buildings.

The record further indicates that traffic on Telegraph Road by defendants’ property has increased dramatically since the creation of Hickory Knolls subdivision, that a substantial portion of defendants’ property has been condemned for road-widening purposes and that other property in Hickory Knolls subdivision bordering on Telegraph Road has been used in violation of the applicable deed restrictions, because the structure contained on that property has been utilized for office purposes.

On appeal, defendants argue that the combination of changes affecting their property in Hickory Knolls subdivision requires the applicable deed restrictions to be abrogated under equitable principles, and that the trial court erred by improperly considering the factors involved.

We first note that our review of this case is de novo, and the trial court’s decision will be reversed only if the evidence preponderates contrary to its holding. DeMarco v Palazzolo, 47 Mich App 444, 445; 209 NW2d 540 (1973).

In its opinion, the trial court stated:

"Two of these factors must be somewhat discounted. If this Court upholds the deed restrictions, zoning contrary to those restrictions would be confiscatory and unconstitutional, and any change wrought by such zoning would be remediable. The change caused by the 0-1 zoning is not permanent until the strip is actually put to 0-1 uses with 0-1 structures.”

In the instant case, the constitutionality of the "0-1” zoning of defendants’ property was not an issue before the trial court. Therefore, the applicable zoning ordinance was required to be presumed valid. See Peacock Twp v Panetta, 81 Mich App 733, 737-738; 265 NW2d 810 (1978). It is clear the trial court improperly considered the effect of the "0-1” zoning by assuming the change would be remedied if the deed restrictions were upheld. However, the trial court’s improper consideration of the zoning factor does not necessarily mean its ultimate conclusion was erroneous, because a change in zoning does not of itself justify the invalidation of building restrictions. Cooper v Kovan, 349 Mich 520, 532; 84 NW2d 859 (1957).

The courts, historically, have been concerned that changes of zoning might impair the obligation of contracts when they conflict with restrictive covenants. However, zoning restrictions, to some extent, always invade property rights. We are also well aware of the attitude that residential use is a favored use, and we further recognize that changes in zoning are only one element to be considered in determining the enforceability in equity of such covenants.

"The change in the zoning ordinance cannot operate to destroy the obligations involved in the restrictions. Phillips v Lawler, 259 Mich 567. Such change is only a factor to be considered in determining whether a change of circumstances has occurred that an equity court will not enforce the restriction. Sandenburgh v Michigamme Oil Co., 249 Mich 372.” Brideau v Grissom, 369 Mich 661, 668; 120 NW2d 829 (1963).

The proofs here, however, clearly show that the lots in question will not be usable for any purpose if the restrictive covenant is enforced. "If it is not practicable to devote them under the restrictions to residence purposes, it is not equitable to hold that they may be used for no other purpose. Klug v Kreisch, 246 Mich 14; 18 CJ p 399; Columbia College v Thacher, 87 NY 311 (41 Am Rep 365).” Lemmon v Wineland, 255 Mich 90, 93; 237 NW 527 (1931).

In determining whether the facts of this case justify an invalidation of the deed restrictions pertaining to residential use only, we first note that each case of this type must necessarily be determined on its own facts. Brideau, supra, 664. However, we find the reasoning of the Court in Dipboye v Acchione, 351 Mich 550, 557; 88 NW2d 611 (1958), to be persuasive. In that case the Court permitted the lifting of validly imposed building restrictions because "of sharply increased traffic, extensive neighborhood changes, existing nonconforming user, increased commercial value as opposed to nonexistent residential value, plus an official recognition of the actualities of the situation by the noted voluntary action of the municipality in itself relaxing its prior zoning restrictions on these same lots”.

The evidence in the instant case clearly shows that the evolution of Telegraph Road plus the condemnation of a substantial portion of defendants’ property makes it virtually certain, because of economic considerations, that defendants will not be able to use the property for residential purposes. The "0-1” rezoning of defendants’ property makes it virtually certain from a legal standpoint that defendants will not be able to use their property for residential purposes. The rezoning constituted an official recognition of the actualities involved. Based upon these factors alone, to uphold the deed restrictions requiring residential use only, would be to require defendants’ land to remain vacant permanently. Further evidence shows that a nonconforming use already exists on one of the lots in Hickory Knolls subdivision which borders on Telegraph Road. Additionally, the construction of an office building on defendants’ property will not damage the interior lots of the subdivision from an economic standpoint, and may actually provide a better buffer zone regarding noise and air pollution than would the existing vacant lots.

We are satisfied that, had we sat as the trial chancellor, we would have been compelled to have reached a different result. Stribley v Michigan Marine, Inc, 42 Mich App 218; 201 NW2d 702 (1972). We find that the evidence preponderates contrary to the trial court’s holding, and order its permanent injunctive order vacated. Defendants shall be allowed to build an office structure upon their property bordering Telegraph Road in Hickory Knolls subdivision to the extent that the structure complies with the applicable zoning ordinance. All deed restrictions pertaining to defendants’ property that are in conflict with the applicable zoning ordinance are hereby extinguished. However, any deed restrictions not in conflict with the zoning ordinance shall remain in effect.

Our resolution of this issue renders any discussion of the other issues raised on appeal unnecessary.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is not retained.


author: E. F. Oppliger, J.

text:
      In re WAGSTAFF
    Docket No. 78-3368.
    Submitted June 15, 1979, at Grand Rapids.
    Decided November 20, 1979.
    Joseph A. Wagstaff, Jr., was charged with attempted skyjacking as a result of a 1970 incident. In 1972 Wagstaff was found not guilty by reason of insanity and was committed to the Center for Forensic Psychiatry pursuant to the law then in effect. On November 21, 1974, a jury sitting under the newly-enacted Mental Health Code found Wagstaff to be a person requiring treatment by reason of mental illness. He was ordered committed to the Center for Forensic Psychiatry for a period not to exceed 60 days. In February, 1975, a hearing was held without a jury, at which Wagstaff was ordered committed for a period not to exceed 90 days. In April, 1975, the acting director of the Center filed a petition for a continuing order on Wagstaff. A jury was convened to hear WagstafFs petition for discharge from the Center, and on August 26, 1975, he was again determined to be a person continuing to require treatment. Since that time periodic reviews and hearings on WagstafFs petitions for discharge have been held. With these petitions for discharge, Wagstaff has filed jury demands. However, all decisions have been made by a probate judge sitting in the absence of a jury. At the most recent determination, WagstafFs timely demand for a jury was overruled, Emmet Probate Court, Boyd C. Baird, J. Wagstaff appealed to the Emmet Circuit Court. The circuit court, Martin B. Breighner, J., affirmed the probate court. Wagstaff now appeals to the Court of Appeals, by leave granted. Held:

    Under the new Mental Health Code, WagstafFs petition made him "an individual asserted not to require treatment” and thus by definition the "subject of a petition”. The disposition of WagstafFs petition required a determination of whether Wag-staff required treatment. The Mental Health Code provides that the trial of a petitioner’s question may be heard by a jury. The lower court erred in denying WagstafFs petition for trial by jury as to his need for continuing treatment.

      References for Points for Headnotes
    [1, 3] 41 Am Jur 2d, Incompetent Persons §§ 44, 46.
    [2, 3] 41 Am Jur 2d, Incompetent Persons §§ 33, 34, 39.

      Reversed.
    1. Mental Health — Involuntary Commitment — Mental Institutions — Petition for Discharge — Need for Continued Treatment — Statutes.
    An individual who has been committed to a state mental institution and who files a petition for a discharge, pursuant to statutory requirements, asserting that he no longer requires treatment is entitled to an answer to the question of whether he is or continues to be a person requiring treatment; a section of the Mental Health Code provides that the trial of the petitioner’s question may be heard by a jury (MCL 330.1458; MSA 14.800[458]).
    2. Mental Health — Involuntary Commitment — Mental Institutions — Person Requiring Treatment — Statutes.
    The state may not hold a person in involuntary hospitalization in a mental institution if he does not meet the statutory standard of a person requiring treatment; further, the state must establish by clear and convincing evidence that the individual is a person requiring treatment (MCL 330.1465, 330.1476[2]; MSA 14.800[465], 14.800[476][2]).
    3. Mental Health — Mental Institutions — Continuing Treatment — Initial Commitment — Standards.
    The state may not proceed with lower procedural or substantive standards for a determination of whether an individual involuntarily committed to a mental institution requires continuing treatment than those standards used for a determination for initial commitment.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John F. Salan, Prosecuting Attorney, for the people.

      Lynn G. Stedman, for Joseph A. Wagstaff, Jr.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

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

   E. F. Oppliger, J.

Petitioner raises the sole issue of whether the subject of a § 484 mental-health hearing is entitled to a jury. This appears to be a case of first impression under the Mental Health Code as it was revised by 1974 PA 258 (effective August 6, 1974), MCL 330.1001 et seq.; MSA 14.800(1) et seq. Petitioner appeals the decision of the circuit court which upheld the probate judge’s denial of Joseph Wagstaffs timely demand for a jury in a mental health hearing held pursuant to MCL 330.1484; MSA 14.800(484). We reverse, holding that the Mental Health Code entitles petitioner to have his hearing conducted before a jury.

In a November, 1972 bench trial, petitioner was found not guilty by reason of insanity of attempted skyjacking based on a 1970 incident. Wagstaff was committed to the Center for Forensic Psychiatry pursuant to the law then in effect. In 1974, the Michigan Supreme Court in People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974), held unconstitutional commitments to mental institutions of persons found not guilty by reason of insanity without first having accorded them the right to a civil commitment hearing. That same year a Federal district court in Bell v Wayne County General Hospital at Eloise, 384 F Supp 1085 (ED Mich, 1974), struck down as overbroad and vague the then existing statutory standards for permanent and temporary mental illness. In response the Michigan Legislature enacted a new mental health code, which is the subject of this appeal.

On November 21, 1974, a jury operating under the newly-enacted Mental Health Code, 1974 PA 258, found Wagstaff to be a person requiring treatment by reason of mental illness. He was ordered committed to the Center for Forensic Psychiatry for a period not to exceed 60 days. In February, 1975, a hearing was held without a jury, at which petitioner was ordered committed for a period not to exceed 90 days. In April, 1975, the acting director of the Center filed a petition for a continuing order on Wagstaff. A jury was convened to hear WagstafFs petition for discharge from the Center, and on August 26, 1975, he was again determined to be a person continuing to require treatment.

Since that time periodic reviews and hearings on WagstafFs petitions for discharge have been held. Petitioner has filed jury demands, but all decisions have been made by the probate judge sitting in the absence of a jury. From the most recent such determination, where WagstafFs timely demand for a jury was overruled, Wagstaff appeals.

The consideration of petitioner’s argument that he is entitled to a jury requires that we piece together a number of sections of the Mental Health Code. First is § 482, under which Wagstaff has sought to enforce his right to periodic review of his condition with a view toward release. That section provides:

"Sec. 482. Every individual subject to an order of continuing hospitalization has the right to regular, adequate, and prompt review of his current status as a person requiring treatment and in need of hospitalization. Six months from the date of an order of continuing hospitalization, and every 6 months thereafter, the director of any hospital in which an individual is hospitalized shall review his status as a person requiring treatment and in need of hospitalization.” MCL 330.1482; MSA 14.800(482).

Section 483 requires that, in order to accomplish the review contemplated by § 482, the hospital director shall appoint a psychiatrist to examine the patient and make a report to the court. If the report is favorable to the patient, the Code assumes the director will order that the patient be discharged pursuant to § 476. When, however, the report indicates that the patient still qualifies for involuntary hospitalization, § 484 provides as follows:

"Sec. 484. If the report concludes that the patient continues to require treatment and hospitalization, and the patient objects to either or both of those conclusions, the patient shall have the right to a hearing and may petition the court for discharge. This petition may be presented to the court or a representative of the hospital within 7 days, excluding Sundays and holidays, after the report is received.” MCL 330.1484; MSA 14.800(484).

Thus, § 484 is not itself enlightening on the nature of the "hearing” involved. The procedure for court hearings convened under this chapter of the Code is provided by § 451 to be governed by §§ 451 to 465, section 452(d) explicitly provides the time within which a hearing must be convened to hear a petition for discharge filed pursuant to §484.

Section 458, which is central to petitioner’s jury demand, provides as follows:

"Sec. 458. The subject of a petition may demand that the question of whether he requires treatment or is legally incompetent be heard by a jury. A jury shall consist of 6 persons to be chosen in the same manner as jurors in civil proceedings.” MCL 330.1458; MSA 14.800(458).

Section 458 thus calls into play two concepts. One, "the subject of a petition”, and two, "whether he requires treatment”. The subject of a petition is defined in § 400(f) as follows:

"(0 'Subject of a petition’ means an individual asserted to require treatment, asserted not to require treatment, asserted to be legally incompetent and in need of a guardian, asserted not to be legally incompetent and in need of a guardian.” MCL 330.1400(f); MSA 14.800(400X0.

We can reach no other conclusion than that Wag-staff’s petition for discharge pursuant to § 484 makes him "an individual * * * asserted not to require treatment” and thus by definition the "subject of a petition”.

Next, does the disposition of WagstafFs petition require the determination of "whether he requires treatment”, as referred to in § 485? The concept of "person requiring treatment” is at the very heart of involuntary commitment under the Mental Health Code. The statutory definition of the term "person requiring treatment” is found in § 401.

Section 468 provides that upon a hearing conducted under the Code, if the court finds that an individual is not a person requiring treatment, "the court shall enter a finding to that effect and shall order that he be discharged”. Section 476(2) also provides that, without an order of the court,

"[t]he director shall discharge a patient hospitalized by court order when the patient’s mental condition is such that he no longer meets the criteria of a person requiring treatment.” MCL 330.1476(2); MSA 14.800(476X2).

Thus, the state may not hold a person in involuntary hospitalization if he does not meet the § 401 standard of a person requiring treatment. Further, under § 465, the state must establish by clear and convincing evidence that the individual is a person requiring treatment.

The simple progression of the Code which we hold entitles Wagstaff to a jury in this case is as follows. WagstafFs petition for hearing under § 484 demands an answer to the question of whether he is or continues to be a person requiring treatment. Section 451 provides that the conduct of such a hearing is to be governed by §§ 451 to 465. Section 458 provides that the trial of petitioner’s question may be heard by a jury.

We reject the contention that the state may proceed with lower procedural or substantive standards for continuing commitment than for the initial commitment. This issue was considered squarely by the Court in People ex rel Book v Hooker, 83 Mich App 495; 268 NW2d 698 (1978). There, the state sought to employ a lower substantive standard for a 90-day commitment than that applied in seeking the initial 60-day commitment. In Hooker this Court rejected the attempt to employ the undefined lower standard of "a person continuing to require treatment” which could be based on the general opinion of a psychiatrist.

"Such a construction would be contrary to the purpose of the Legislature which, in enacting the statute, intended to provide objective criteria for involuntary commitments and made the process fundamentally judicial rather than medical.” 83 Mich App at 501.

We find the reasoning of Hooker sound, and here too we reject the attempt to apply lower standards to the determination of continuing need for treatment. The lower court reasoned that if the Legislature intended to provide for a jury trial at continuing treatment hearings, it would have been more specific. Under some circumstances this type of narrow statutory construction might be appropriate. However, in light of the infringement of a patient’s constitutional right to liberty imposed by involuntary commitment, no such limited legislative intent should be read into §§ 484 and 458.

The right to a jury trial on the question of continuing need for treatment is an added burden on the Probate Court and militates against the routine handling of continuing treatment cases. This is not inconsistent, however, with the orderly commitment of those who by clear and convincing evidence meet the statutory definition of a person requiring treatment.

For the reasons set forth above, we hold that the lower courts erred in denying WagstafPs petition for trial by jury as to his need for continuing treatment.

Reversed. No costs, a public question being involved.


author: Mackenzie, J.

text:
    SCHIGUR v KECK
    Docket No. 78-3944.
    Submitted June 21, 1979, at Lansing.
    Decided November 20, 1979.
    Victoria Schigur filed a complaint in 1976 alleging that Jimmy Keck was the father of Steven Schigur, who was born to her on December 30, 1970. Plaintiff testified at trial that she and Keck had sexual relations from February of 1969 until April 30, 1970, and that she did not have sexual relations with anyone other than defendant during their relationship. While plaintiff was testifying, Steven Schigur was present in the courtroom. She viewed photographs of her son and of defendant, which were admitted without objection, and remarked that her son’s hair, eyes, hands, jaw, ears, and feet resembled those of defendant. A friend, Tammy Ketko, testified over objection that Steven’s jaw line and facial features resembled those of defendant, his brother and nephew. Another friend, Janet Stewart, testified over objection that Steven resembled defendant in his face and hands and in the manner in which he walks. Judgment for plaintiff and order of filiation and support entered, Macomb Circuit Court, Frank E. Jeanette, J. Defendant filed a motion for a new trial on the ground that Janet Stewart’s testimony regarding the physical resemblance between defendant and Steven was improperly admitted and prejudiced defendant’s right to a fair trial. Motion denied, defendant appeals claiming that the trial court erred in permitting lay witnesses to testify as to physical resemblances between himself and plaintiff’s son. Held:

    1. In a paternity action, a plaintiff’s child may be exhibited to the fact finder for purposes of comparing the child’s features to those of the putative father.
    2. A trial court may permit the admission of lay opinion testimony identifying resemblances between a child and the putative father, limited, however, to individual features and specific traits.
    3. The current evidentiary rule permits the admission of lay testimony in a paternity action where the testimony comparing the specific traits and features of a child and putative father is based on the perception of the witnesses and helpful to the determination of the issue of paternity. Witnesses Ketko and Stewart related their perceptions of resemblance, which were rationally grounded in their personal knowledge of plaintiff, her child, and defendant. Their testimony was helpful to a clear determination of the key issue in the case, paternity. The trial court did not err in permitting lay witnesses to testify as to physical resemblances between defendant and plaintiff’s son.

      References for Points for Headnotes
    [1, 2] 10 Am Jur 2d, Bastards § 41 et seq.

    [3] 31 Am Jur 2d, Expert and Opinion Evidence § 14.

      Aflirmed.
    1. Bastards — Paternity Proceedings — Exhibition of Child — Comparison With Putative Father.
    A plaintiff’s child, in a paternity action brought against the child’s putative father, may be exhibited to the fact finder for purposes of comparing the child’s features to those of the alleged father.
    2. Bastards — Paternity — Evidence — Lay Opinion Testimony —• Comparison With Putative Father — Expert Witnesses — Credibility of Witnesses — Weight of Evidence.
    A trial court in a paternity action may permit the admission of lay opinion testimony identifying resemblances between a child and the putative father, limited, however, to individual features and specific traits; experts are not the only witnesses qualified to inform the jury of notable resemblances between a putative father and the child; therefore, it is for the jury to decide the credibility of the witnesses and the weight to be placed on the different items of evidence presented.
    3. Bastards — Paternity — Evidence — Lay Opinion Testimony — Comparison With Putative Father — Rules of Evidence.
    The testimony of a lay witness in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue; testimony comparing the specific traits and features of a child and putative father, in a paternity action, is based on the issue of paternity; after such testimony is admitted it is for the jury to determine the ability of the witness to observe and draw comparison (MRE 701).

      George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Robert

      John Berlin, Assistant Prosecuting Attorney, for plaintiff.

      Ross, Bruff & Henriksen, for defendant.
    Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

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

   Mackenzie, J.

Defendant appeals as of right from an order of filiation and support issued August 14, 1978, pursuant to a jury finding of paternity in a Macomb County Circuit Court trial.

Plaintiff filed a complaint on May 4, 1976, alleging that defendant is the father of Steven Schigur, who was conceived during March, 1970, and born to plaintiff on December 30, 1970. Plaintiff testified at trial that she began dating defendant in February, 1969. They had frequent sexual relations, and he kept his clothes at her house. She did not have sexual relations with anyone other than defendant during their relationship, which continued until April 30, 1970, when plaintiff returned defendant’s clothes to him and informed him that she was pregnant.

While plaintiff was testifying, her son, Steven Schigur, was present in the courtroom. She viewed plaintiff’s exhibits 1 and 2, photographs of her son and of defendant, which were admitted without defendant’s objection, and remarked that her son’s hair, eyes, hands, jaw, ears, and feet resembled those of defendant.

Tammy Ketko testified that she lived with plaintiff periodically from 1969 to 1971, and was present when defendant visited plaintiff. She stated that plaintiff did not see other men while she was dating defendant. Over defense counsel’s objection, Ketko testified that Steven’s jaw line and facial features resembled those of defendant, defendant’s brother, and defendant’s nephew. In response to defendant’s objection to this testimony, the trial court noted that the defense would have an opportunity to cross-examine Ketko.

Another of plaintiffs friends, Janet Stewart, testified over defense counsel’s objection that Steven resembled defendant in his face and hands and in the manner in which he walks.

Defendant testified that his relationship with plaintiff ended during February of 1970, when he took a vacation. At no time during the seven years between Steven’s conception and trial did plaintiff contact defendant contending that defendant was Steven’s father or requesting support for Steven.

On August 14, 1978, an order of Filiation and Support was entered by the circuit court.

On September 11, 1978, the trial court denied defendant’s motion for a new trial on the ground that Janet Stewart’s testimony regarding the physical resemblance between defendant and Steven was improperly admitted and prejudiced defendant’s right to a fair trial.

Defendant contends on appeal that the trial court erred in permitting lay witnesses to testify as to physical resemblances between himself and plaintiff’s son.

Michigan cases have permitted exhibition of the plaintiff’s child to the fact finder in a paternity action brought against the child’s putative father. In People v White, 53 Mich 537; 19 NW 174 (1884), the Supreme Court noted that plaintiff’s infant child was properly in court, and held that arguments bearing upon the resemblance of the child to the father, although a "little preposterous” considering the age of the infant, were not a source of error.

Adhering to the White holding, the Supreme Court in People v Wing, 115 Mich 698; 74 NW 179 (1898), declined to reverse merely because the jury had been asked by the plaintiffs attorney to compare the physical characteristics of the putative father with those of the child, who was present in the courtroom. Exhibition of an infant was also permitted in People v Haab, 260 Mich 673; 245 NW 545 (1932). Alluding to the White holding, the Supreme Court ruled that:

"The probative value of the exhibit was not dependent upon age, but upon resemblance or want of it as a fact. The age and immaturity of the child affected the weight of the evidence and not its admissibility * * * Exhibition of even so young a child might in some cases furnish the most cogent evidence in favor of an accused.” Haab, supra, pp 676-677.

Generally, the position taken by a court toward exhibition of the child to the jury is the same as the position taken toward admission of lay opinion evidence of resemblance. In Glascock v Anderson, 83 NM 725; 497 P2d 727 (1972), the child was permitted to be exhibited to the jury so long as it was of sufficient age to possess settled features, and so long as the showing was made to point out the specific traits which resemble those of the putative father. Lay opinion testimony was also deemed admissible so long as it also purported to compare specific characteristics. In State v Cabrera, 13 Ariz App 527; 478 P2d 142 (1970), exhibition of an infant was held to be within the trial court’s discretion; objections went to the weight rather than the admissibility. The Court also held that plaintiffs opinion evidence of resemblance could be received and considered by the jury, "for whatever it was worth”.

Jurisdictions taking restrictive positions on exhibition of the child appear to take restrictive positions on admission of lay opinion testimony as well. In People in the Interest of RDS, Child, 183 Colo 89; 514 P2d 772 (1973), where no exhibition was permitted, the Supreme Court of Colorado stated that only expert testimony concerning characteristics bearing on paternity may be received. Similarly, the Supreme Court of Hawaii in Almeida v Correa, 51 Hawaii 594; 465 P2d 564 (1970), found exhibition to be improper and held that only experts may testify as to resemblance, since specialized knowledge is required in a field where both hereditary and nonhereditary factors come into play.

After careful consideration, we hold that a trial court may permit the admission of lay opinion testimony identifying resemblances between the child and the putative father, limited, however, to individual features and specific traits. We agree with the court in Glascock v Anderson, supra, that experts are not the only witnesses qualified to inform the jury of notable resemblances between the putative father and the child. It is for the jury to decide the credibility of the witnesses and the weight to be placed on the different items of evidence presented.

We base our decision in part upon the existence of precedent in Michigan for permitting exhibition of the child to the fact finder for purposes of comparing the child’s features to those of the putative father. People v White, supra, expressly permits "argument” on the resemblance issue. Since a court’s policy on exhibition to the jury is often similar to its position on lay opinion testimony, there is support for the position that Michigan should permit lay testimony on resemblance.

Finally, we find that Michigan Rule of Evidence (MRE) 701, the current evidentiary rule concerning opinion by lay witnesses, permits the admission of such testimony. According to this rule:

"If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”

Testimony comparing the specific traits and features of a child and putative father is based on the perception of the witness and is helpful to the determination of the issue of paternity. The ability of the witness to observe and draw comparisons is, of course, a matter for the jury to determine.

In light of our holding permitting lay testimony of resemblances as to individual features and specific traits, we find no error in the instant case. The lay witnesses related their perceptions of resemblance, which were rationally grounded in their personal knowledge of plaintiff, her child, and defendant. Their testimony was helpful to a clear determination of the key issue in the case, paternity. Even though the child had been viewed by the jury before the witnesses testified, the testimony drew attention to specific features which were similar in both defendant and the child. Thus, the testimony was not superfluous.

Affirmed. Costs to plaintiff-appellee.


text:
    IRVIN v IRVIN
    Docket No. 78-4479.
    Submitted June 22, 1979, at Detroit.
    Decided November 20, 1979.
    In a divorce action between Patricia A. Irvin and Arthur M. Irvin an injunction was issued which prevented Arthur M. Irvin from changing the beneficiaries on a policy of insurance on his life. Arthur violated that injunction by substituting the couple’s children, David A. Irvin and Deborah D. Irvin, as beneficiaries in place of Patricia A. Irvin. Arthur M. Irvin then died. Patricia Irvin brought an action to recover the proceeds of the insurance policy, naming as defendants David Irvin, Deborah Irvin and Metropolitan Life Insurance Company. The Macomb Circuit Court, George R. Deneweth, J., granted summary judgment in favor of the defendants, holding that the plaintiff had failed to state a cause of action upon which relief could be granted. Plaintiff appeals. Held:

    1. The death of the violator of an injunctive order in a pending divorce action is no bar to a court’s power to order a return to the status quo which preceded the violation. The plaintiff did, therefore, state a cause of action upon which relief could be granted, and summary judgment upon that ground was inappropriate.
    2. The trial court had ordered that the insurance proceeds be deposited with the court. Defendants moved to set aside that order and in so doing alleged a number of facts which were not disputed. The motion to set aside the order may be treated as a motion for summary judgment on the basis that except for the amount of damages there was no dispute as to any material fact. Upon that basis, the trial court’s grant of summary judgment was not erroneous.
    3. Plaintiff alleged that a constructive trust should have been imposed for her benefit. However, on the facts of this case, the imposition of a constructive trust was not warranted.
    Affirmed.
    References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation §§ 182, 1010.
    [2] 76 Am Jur 2d, Trusts § 221.

      1. Divorce — Injunctions — Violation of Injunctions — Death of Party.
    A court may order a return to the status quo which preceded a violation of an injunctive order in a divorce action; the subsequent death of the violator is no bar to the exercise of such power.
    2. Equity — Trusts — Constructive Trusts.
    A constructive trust is a remedial equitable device employed to prevent injustice in a particular case, and is to be imposed by a court of equity only if conscience demands it.

      Joseph E. Mihelich, for plaintiff.

      Rock, Roberge, Hennings & Coburn (by Robert L. Coburn and Nelson B. Stieper), for defendants.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   J. X. Theiler, J.

Plaintiff initiated this action to recover the proceeds of an insurance policy issued by defendant Metropolitan Life Insurance Company upon the life of the late Arthur M. Irvin, plaintiffs estranged husband. The proceeds of the policy were paid to defendants David A. Irvin and Deborah D. Irvin, the natural children of plaintiff and the deceased Arthur Irvin, because the deceased had substituted David and Deborah as beneficiaries in place of plaintiff. The substitution of beneficiaries unquestionably violated a preliminary injunctive order issued in a divorce action pending between plaintiff and Arthur Irvin, who died before the divorce proceeded to judgment.

In granting summary judgment in favor of defendants, the trial court ruled that plaintiffs complaint failed to state a cause of action because the divorce proceeding and all orders entered therein had abated as a result of Arthur M. Irvin’s death, thus precluding any remedy in the nature of contempt. The trial court also ruled that the facts of the case would not give rise to the imposition of a constructive trust in favor of plaintiff.

A court may order a return to the status quo which preceded a violation of an injunctive order in a divorce action, and the subsequent death of the violator is no bar to the exercise of such power. Webb v Webb, 375 Mich 624, 627; 134 NW2d 673 (1965). The trial court in the instant case thus had the power to grant plaintiff the relief she sought, and her complaint, on its face, stated a cause of action upon which relief could be granted.

However, while summary judgment under GCR 1963, 117.2(1) was inappropriate, the opinion below indicates that the trial court also ruled that plaintiff was not entitled to relief on the basis of the undisputed facts. In defendants’ motion to set aside the trial court’s order for deposit of funds, defendants alleged that plaintiff had failed to state a claim upon which relief could be granted, because her claim was without a basis in fact. Defendants then alleged numerous facts which plaintiff did not dispute. Defendants’ motion to set aside the order for deposit of funds was supported by affidavits. We find that defendants’ motion to set aside the order for deposit of funds was also a motion for summary judgment within the meaning of GCR 1963, 117.2(3). Therefore, the trial court’s determination that plaintiff was not entitled to relief on the basis of the undisputed facts was a grant of summary judgment under GCR 1963, 117.2(3).

Plaintiff argues that the trial court should have imposed a constructive trust for her benefit upon the insurance proceeds paid to her children, David and Deborah. A constructive trust is a remedial equitable device employed to prevent injustice in a particular case. See Union Guardian Trust Co v Emery, 292 Mich 394, 404-407; 290 NW 841 (1940). A court of equity will impose a constructive trust only if conscience demands it. Id.

In the present case, the preliminary injunctive order, which ordered Arthur M. Irvin not to make changes in his life insurance policy, was entered to preserve the assets for a proper property settlement upon divorce. However, as a result of Arthur M. Irvin’s death, plaintiff became the sole owner of a substantial amount of jointly held property. In all likelihood, she was put in a better position than she would have enjoyed had Arthur M. Irvin obeyed the injunctive order and had the divorce action proceeded to judgment. Although plaintiff would have received the insurance proceeds if Arthur M. Irvin had not removed her name as beneficiary, we do not find, in light of the undisputed facts, that she was thereby deprived of property in a manner warranting the imposition of a constructive trust.

Affirmed. Costs to appellees.