author: N. J. Kaufman, J.

text:
    CIEMIEREK v JIM’S GARAGE
    Docket No. 77-1728.
    Submitted February 22, 1979, at Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Defendant Thomas E. Ciemierek was sold intoxicating liquor by defendant Jim’s Garage, causing him to be visibly intoxicated and to fall, resulting in permanent injury. Plaintiff, Domenica Y. Ciemierek, the wife of the injured defendant, sued defendants under the dramshop act, alleging loss of support, loss of companionship and consortium, mental distress and anxiety. The Argonaut Insurance Company, Mr. Ciemierek’s employer’s workmen’s compensation carrier, made and was making payments to Mr. Ciemierek for medical expenses and compensation and moved to intervene. The Wayne Circuit Court, Peter B. Spivak, J., denied the motion. Argonaut appeals. Held:

    A worker’s disability compensation carrier which has paid and is paying benefits to an employee injured at a bar has no statutory right under the Worker’s Disability Compensation Act to intervene in a suit by the injured employee’s spouse against the bar under the dramshop act.
    Affirmed.
    Workmen’s Compensation — Statutes — Dramshop Act — Carrier’s Right of Intervention.
    A worker’s disability compensation carrier which has paid and is paying benefits to an employee injured at a bar has no statutory right under the Worker’s Disability Compensation Act to intervene in a suit by the injured employee’s spouse against the bar under the dramshop act where she claims damages for loss of support, loss of companionship and consortium, mental distress, anxiety and exemplary damages since the injured employee has no right of action against the bar and the statutory rights of the worker’s compensation carrier are derivative (MCL 418.827[1], 436.22; MSA 17.237[827][1], 18.993).
    Reference for Points in Headnote
    81 Am Jur 2d, Workmen’s Compensation §§ 71, 439.

      Johnson, Campbell & Moesta, for plaintiff.

      Franklin, Petrulis & Lichty, PC. (by James T. Mellon), for Argonaut Insurance Company.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

The parties stipulated to the following facts:

"The Plaintiff, domenica yolande ciemierek, filed this lawsuit in the Circuit Court for the County of Wayne against Defendant jim’s garage and Defendant thomas e. ciemierek, on or about November 21, 1973.
"The Complaint alleges that on November 29, 1972, the Defendant thomas e. ciemierek, was sold intoxicating liquor by the Defendant jim’s garage, causing him to be visibly intoxicated. The Complaint further alleges that as a result of the Defendant thomas e. ciemierek’s intoxication, he fell, striking his head and incurring permanent injury. The Plaintiff seeks in her Complaint loss of support, loss of companionship and consortium, mental distress and anxiety. The original complaint contained allegations that thomas e. ciemierek, Defendant 'lost extensive wages and had large expenditures for hospital and medical treatment.’ This allegation was omitted from the later amended complaint.
"the argonaut insurance company was the Workmen’s Compensation Carrier for Great American Insurance Company, the employer of the defendant, thomas e. ciemierek. The Defendant, thomas e. ciemierek, has received from argonaut insurance company, Ten Thousand Three Hundred Sixty-Eight Dollars and Forty-Nine Cents ($10,368.49) in compensation, and an additional Eighty-Nine ($89.00) Dollars of compensation is paid per week, argonaut insurance company has paid medical expenses of the Defendant, thomas e. ciemierek, , in the amount of Five Thousand Six Hundred Thirty-Five Dollars and Eighty-Five Cents ($5,635.85).
"After a hearing, the Honorable Peter B. Spivak issued an Opinion on July 22, 1976, permitting the argonaut insurance company to intervene as a Plaintiff in the suit.
"On or about October 16, 1976, the Honorable Peter B. Spivak entered an order allowing the Plaintiff to file an Amended Complaint. The Amended Complaint seeks compensation for loss of support, loss of companionship and consortium, mental distress, anxiety and exemplary damages. It omitted allegations of thomas ciemierek losing wages and having large expenditures for hospital and medical treatment, because the court specifically mentioned this language in its Opinion of July 22,1976.
"After rehearing on argonaut insurance company’s Motion to Intervene, the Honorable Peter B. Spivak issued an Opinion on February 9, 1977, denying argonaut insurance company’s request to intervene. An Order was entered on March 10, 1977, denying argonaut insurance company’s Leave to Intervene in this lawsuit.”

This stipulation was signed by the attorneys for the plaintiff, appellant Argonaut Insurance Company and defendant Jim’s Garage.

The narrow issue on appeal is whether or not a worker’s compensation carrier which has paid and is paying benefits to an employee injured at a bar has the right under the Worker’s Disability Compensation Act to intervene in a suit brought by the injured employee’s wife against the bar pursuant to the dramshop act where she claims damages for loss of support, loss of companionship and consortium, mental distress, anxiety and exemplary damages. The question is one of first impression and we find that the worker’s compensation carrier has no such right of intervention.

GCR 1963, 209.1(1) provides:

"Anyone shall be permitted to intervene in an action
"(1) when a statute of this state confers an unconditional right to intervene.”

The Worker’s Disability Compensation Act states in relevant part:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of action by any party under this section, the parties shall notify, by certified mail at their last known address, the bureau, the injured employee, or in the event of his death, his known dependents or personal representative or his known next of kin, his employer and the carrier. Any party in interest shall have a right to join in the action.” MCL 418.827(1); MSA 17.237(827X1). (Emphasis supplied.)

And the dramshop act reads in part:

"Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, and the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who shall by such selling, or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid, and in any action provided for in this section, the plaintiff shall have the right to recover actual damages in such sum not less than $50.00 in each case * * *.” MCL 436.22; MSA 18.993.

The key fact, and one we emphasize at the outset, is that the plaintiff is suing the bar under the dramshop act for her damages alone. She is not suing and could not recover for the injuries suffered by her husband, the injured employee.

If this were an ordinary tort action arising out of the employee’s employment and instituted by the employee, but not involving a motor vehicle, appellant’s claim for intervention would be uncontestable. See Flower v Gensterblum, 86 Mich App 561, 565; 272 NW2d 726 (1978), and cases cited therein; 2A Larson, Workmen’s Compensation Law, § 74.35, p 14-246. But this is not an ordinary tort claim by the injured employee against a third-party tortfeasor. In fact, under the dramshop act, the intoxicated person has no right of action against the bar. Kangas v Suchorski, 372 Mich 396, 399; 126 NW2d 803 (1964), Scholten v Rhoades, 67 Mich App 736, 742; 242 NW2d 509 (1976). The only parties with a claim against the bar are those innocent parties who were injured in some way by the intoxicated person.

In the present case, the injured wife certainly has an action against the bar for her injuries. MCL 436.22; MSA 18.993, Podbielski v Argyle Bowl, Inc, 392 Mich 380; 220 NW2d 397 (1974). Our question is whether or not the intoxicated person’s worker’s compensation carrier can intervene in that action pursuant to MCL 418.827(1); MSA 17.237(827X1).

The statute under consideration is viewed as a statutorily created right of subrogation. Consequently, the rights of the worker’s compensation carrier under MCL 418.827(1) are derivative and require the worker’s compensation carrier to stand in the shoes of the injured employee. As stated in Ayers v Genter, 367 Mich 675, 680; 117 NW2d 38 (1962):

"* * * while statutory provision (CLS 1956, § 413.15 [Stat Ann 1960 Rev § 17.189]) permits an employer to enforce the liability of a third-party tortfeasor, the employer’s rights are no greater than those of his injured employee. The test of liability is whether the employee could have held the tortfeasor liable for his injuries. Utley v Taylor & Gaskin, Inc, 305 Mich 561.”

Additionally, MCL 418.827(1) limits the worker’s compensation carrier’s right to pursue a third-party wrong-doer to those situations in which the compensable injury was caused under circumstances creating a legal liability for that injury in a third party.

In the instant case, the compensable injury occurred when Thomas Ciemierek became intoxicated at defendant bar, fell, struck his head and suffered permanent injury. But since the employee can not recover from the bar for that injury, the compensable injury was not caused under circumstances creating a legal liability in the bar for the injury. Accordingly, the worker’s compensation carrier has no right under MCL 418.827(1) to pursue an action against the bar. See generally, Flower, supra, 570-571.

In any event, we repeat that this case involves a suit by the wife of the injured employee to recover for her injuries alone. She is not suing the bar to recover for her husband’s injuries. Therefore, none of the injuries for which the wife seeks recovery were paid for in any respect by the worker’s compensation carrier and the carrier has no claim to any recovery plaintiff may secure for her own injuries.

Affirmed.


source: Caselaw Access Project

author: D. C. Riley, P.J. M. J. Kelly, J.

license: Public Domain

text:
    PEOPLE v PHILLIP SMITH
    Docket Nos. 77-1928, 77-1929.
    Submitted March 21, 1979, at Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Phillip Smith, also known as Bobby Mack, was convicted, on his plea of guilty, of three separate counts of armed robbery, Recorder’s Court of Detroit, George W. Crockett, Jr., J. The defendant appeals. Held:

    The defendant entered his pleas of guilty in return for the agreement of the prosecutor not to charge the defendant as a habitual offender. However, since the defendant had no prior conviction, he was not subject to being charged under the habitual offender statute. The bargain was, therefore, illusory.
    Reversed.
    M. J. Kelly, J., dissented. He would hold that the defendant entered his pleas of guilty as part of a bargain which reduced his multiple exposure to life maximum sentences to three concurrent sentences of 10 to 15 years and that any reference by the prosecutor to habitual proceedings was not part of any bargain.
    He would affirm.
    Opinion of the Court
    1. Criminal Law — Multiple Offender — Habitual Offender — Felonies — Statutes.
    A first felony conviction must predate the commission of a second felony in order for a defendant to be subject to a supplementary information under the multiple offender recidivist statutes (MCL 769.10 et seq.; MSA 28.1082 et seq.X

    2. Criminal Law —■ Pleas of Guilty — Plea Bargains — Illusory Bargain — Recidivist Proceedings.
    A defendant entering a plea of guilty pursuant to a plea bargain was per se misinformed as to the benefit of his plea and the bargain was hence illusory where the plea was induced by a promise to forego a recidivist proceeding but no such proceeding was warranted.

      References for Points in Headnotes

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 6.

       21 Am Jur 2d, Criminal Law § 485.
    Coercion, compulsion, or duress as defense to criminal prosecution. 40 ALR2d 908.

      Dissent by Kelly, J.
    3. Criminal Law — Pleas op Guilty — Plea Bargains — Sentences.

      A defendant’s pleas of guilty were not in response to an illusory bargain and his plea-based convictions should be affirmed where the plea bargain reached with the prosecution reduced the defendant’s multiple exposure to life maximum sentences to three concurrent sentences of 10 to 15 years and the defendant was sentenced accordingly; therefore, the defendant received the beneñt which he bargained for.

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

      Ruby & Ruby, P.C., for defendant on appeal.
    Before: D. C. Riley, P.J., and M. J. Kelly and Beasley, JJ.
   D. C. Riley, P.J.

On February 11, 1977, defendant Phillip Smith, 15 years old, pled guilty to three separate counts of armed robbery, MCL 750.529; MSA 28.797, pursuant to the following plea bargain:

"The People also would promise that if Your Honor would sentence on sentencing date this defendant to a minimum term of ten years or more, we would not prosecute him as a Habitual. And that’s a promise we made based on sentencing, so that’s a conditional promise that we have made.”

Defendant was sentenced to three concurrent terms of 10 to 15 years imprisonment, appeals two of the convictions by right, and alleges that, as he could not have been prosecuted as a habitual offender, his guilty pleas were involuntary due to the illusory nature of the prosecutor’s bargain. Our careful review of the record persuades us to agree.

Under Michigan’s multiple offender recidivist statutes, MCL 769.10 et seq.; MSA 28.1082 et seq., in order for a defendant to be subject to supplementation, the first felony conviction must predate the commission of the second felony. People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978). The record discloses that at the time defendant committed each offense to which he pled guilty, he had not been convicted of any previous felonies. Nor does the fact that each of defendant’s present felonies to which he pled were committed at different points in time alleviate the infirmity. People v Roderick Johnson, supra, at 79-80.

As defendant’s plea was induced by a promise to forego a recidivist proceeding where no such proceeding was warranted, defendant was per se misinformed as to the benefit of his plea and the bargain was hence illusory. People v Roderick Johnson, supra, at 79. See People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), Hammond v United States, 528 F2d 15 (CA 4, 1975).

Defendant’s convictions are reversed.

Beasley, J., concurred.

M. J. Kelly, J.

(dissenting). In case No. 7608738, defendant was charged with five counts: two counts of criminal sexual conduct in the second degree, two counts of armed robbery and one count of unlawfully driving away a motor vehicle. He was bound over on all five counts. In case No. 7608751, defendant was charged with armed robbery with a starter pistol, and in case No. 7608766, he was charged with armed robbery with a sawed-off shotgun. The consideration for his guilty pleas appears to have been a sentence bargain reducing his multiple exposure to life maximum sentences to three concurrent sentences of 10 to 15 years. The trial judge well knew that defendant was not exposed to supplementation as a habitual offender. At the plea proceeding, the court asked:

"The Court: Have you ever been in a criminal court before?
"The Defendant: No, sir.
"The Court: Have you ever pleaded guilty to anything before?
"The Defendant: No, sir.”

At sentencing, the court summarized the bargain:

"Well, I see from this report that these three offenses are not the limit of your violations. You still have some cases pending over at Juvenile Court. Is that right?
"The Defendant: Yes, sir.
"The Court: One is carrying a concealed weapon. Another one is larceny from a building. And a third one is another charge of armed robbery. Is that right?
"The Defendant: Yes, sir.
"The Court: Prior to your plea in this case, I had some discussions with your lawyers, and I told them that unless I was persuaded otherwise after reading the probation report, I would be disposed to send you to Jackson for not less than ten and not more than fifteen years.”

I think the prosecutor’s reference to habitual offender proceedings was gratuitous and no part of any bargain. As such, I do not find the instant plea bargain illusory.

I would therefore affirm or, at the very most, remand for a hearing in the trial court as to whether the prosecutor’s agreement not to supplement the defendant was any material part of the consideration for the defendant’s pleas.


author: D. C. Riley, P.J.

text:
    BEASLEY v GRAND TRUNK WESTERN RAILROAD COMPANY
    Docket No. 77-2225.
    Submitted January 17, 1979, at Detroit.
    Decided June 6, 1979.
    Jimmy R. Beasley was killed and Eva M. Williams was injured when an automobile driven by Beasley was struck by a train at a point where the driveway/road from the Williams residence crossed the tracks of defendant Grand Trunk Western Railroad Company. The administrator of the estate of Jimmy Beasley brought a wrongful death action and plaintiff Eva M. Williams brought an action for damages for her injuries against defendant railroad, alleging negligence on the part of defendant in failing inter alia, to maintain a safe crossing, failing to give adequate warning of the approach of the train and failing to maintain a clear view of the railroad tracks at the crossing.
    At trial there was conflicting evidence as to whether the train sounded its whistle at the time in question, there being testimony that defendant’s trains had sounded whistles at that crossing on prior occasions. There was conflicting evidence as to the degree of visual obstruction at that crossing, and evidence that personnel of defendant had cleared away brush on prior occasions. Defendant moved for directed verdicts as to both plaintiffs. The Genesee Circuit Court, Donald R. Freeman, J., granted defendant’s motion for directed verdict with respect to plaintiff Beasley, but denied the motion with respect to plaintiff Williams. Over an objection by plaintiffs’ attorney, defendant was permitted to admit into evidence photographs of the scene of the accident. Defendant was also permitted to call and question decedent’s doctor with respect to decedent’s alleged hearing loss.
    While the trial court instructed the jury that defendant was required to use ordinary and due care in the operation of its railroad, the court charged the jury that defendant was not required to take the same precautions at a private crossing that it took at a public crossing, the court previously having ruled that the crossing in question was a private crossing. The court further charged the jury that defendant had no duty to erect warning signs at the crossing, repair or maintain the road as it approached the crossing or sound a whistle as the train approached the crossing, and specifically charged the jury that defendant could not be found negligent for failure to take any of these safeguards.

      References for Points in Headnotes

       65 Am Jur 2d, Railroads § 524.

       65 Am Jur 2d, Railroads §§ 448, 483, 534.

       65 Am Jur 2d, Railroads §§ 91-100, 504.

       29 Am Jur 2d, Evidence §§ 793, 794.

       81 Am Jur 2d, Witnesses § 256.

      The jury returned a verdict of no cause of action with respect to plaintiff Williams, defendant’s motion for a directed verdict with respect to plaintiff Beasley having previously been granted by the court. Both plaintiffs appeal. Held:

    1. Contributory negligence as a matter of law can no longer be premised upon the mere failure to "stop, look and listen” at a railroad crossing. The proper standard is whether the automobile was operated in a manner in which a reasonably prudent person would act in the same or similar circumstances.
    2. It was error to grant the directed verdict in favor of defendant railroad with respect to plaintiff Beasley where there was conflicting evidence with respect to whether the train sounded its whistle and/or whether the view of the train was obstructed. Questions of fact for the jury were thereby created so as to make removal from the jury of those questions improper under the circumstances.
    3. A railroad crossing is a private rather than public crossing where the crossing involves a driveway which has not been used or worked upon by public authorities. The permissive use of the driveway by the general public does not change the nature of the driveway or the crossing.
    4. It was error to charge the jury that defendant railroad was not negligent in failing to sound a whistle and to refuse to give plaintiffs proposed instruction that the jury could consider whether defendant should have maintained a clear view at the crossing. Although the railroad had no statutory duty, there was evidence from which the jury could have found that the railroad had a duty, or assumed the duty, to sound a whistle and/or to maintain an unobstructed view, and that the railroad had breached those duties.
    5. The staged photograph of the accident scene was properly admitted into evidence, since the photographer identified where and how the photographs were taken and testified that they fairly and accurately represented the scene of the accident, there being no allegation that the photographs were inaccurate representations.
    6. It was error to permit questioning of decedent’s doctor relative to decedent’s hearing loss where knowledge of the hearing loss was acquired by the doctor as a result of a physical examination of the decedent required for admission of the decedent to college. Information acquired at such a physical examination is within the scope of the statutory physician-patient privilege.
    Reversed and remanded.
    1. Negligence — Contributory Negligence — Railroads — Automobiles — Railroad Crossings — Standard of Conduct.
    Contributory negligence as a matter of law in the operation of an automobile at a railroad crossing can no longer be premised upon the mere failure to "stop, look and listen” at the crossing; the proper standard is whether the automobile was operated in a manner in which a reasonably prudent person would act in the same or similar circumstances.
    2. Negligence — Directed Verdict — Railroads — Railroad Crossings — Questions of Fact.
    A directed verdict in favor of a defendant railroad in a negligence action arising out of an automobile-train collision was erroneous where there was conflicting evidence with respect to whether the train sounded its whistle and/or whether the view of an oncoming train was obstructed at the railroad crossing; questions of fact for the jury were created.
    3. Railroads — Railroad Crossings — Driveways.
    A railroad crossing is a private crossing rather than a public crossing where the railroad crosses a driveway/road which has not been used or worked upon by public authorities, notwithstanding that there may have been a permissive use of the driveway/road by the general public.
    4. Negligence — Railroads — Private Railroad Crossings —- Jury Instructions — Standard of Care — Reversible Error.
    A charge to a jury that a railroad was not negligent when its locomotive failed to sound a whistle as it approached a railroad crossing, and the failure to charge, as requested, that the jury could consider whether defendant should have maintained a clear view at the crossing, was error where, although the railroad had no statutory duty, there is evidence from which the jury could have found that the railroad had a duty, or assumed the duty, to sound the whistle and to maintain an unobstructed view at the crossing and that the railroad had breached those duties.
    5. Evidence — Photographs — Staged Photographs — Admission.
    A staged photograph of an accident scene was properly admitted into evidence where the photographer identified where and how the photographs were taken and testified that the photographs fairly and accurately represented the scene of the accident and where there were no allegations that the photographs were inaccurate representations.
    6. Evidence — Physicians and Surgeons — Physician-Patient Privilege — Statutes.
    Questioning of the doctor of a plaintiffs decedent at a trial for negligence relative to the decedent’s hearing loss was improperly allowed because such information is within the scope of the statutory physician-patient privilege where knowledge of the hearing loss was acquired by the doctor as a result of a physical examination of the decedent required for admission of the decedent to college.

      Glotta, Adelman, Dinges, Davis, Middleton, Riley & Murphy, P.C., for plaintiff.

      Dennis W. Krakow, for defendant.
    Before: D. C. Riley, P.J., and J. H. Gillis and Mackenzie, JJ.
   D. C. Riley, P.J.

The facts in this automobile-train collision case are as follows:

On January 10, 1973, decedent, Jimmy Ray Beasley, Eva Mae Williams, and Wanda K. Catt, were visiting at plaintiff Williams’ home in Mont-rose Township, Genesee County. At approximately 3:30 p.m., the parties entered into decedent’s 1964 Chevrolet and left the Williams’ premises. In doing so, it was necessary to travel over what plaintiffs characterize and argue is a public road and defendant a private driveway. This road/driveway is the only means of entering and exiting the Williams’ property. It is approximately 12 feet wide and unpaved. At its western end, it terminates in an oval-shaped pattern by the Williams’ home. At its eastern end, it stops where it intersects Orchard Street, which is a regularly maintained and paved street. Just west of and parallel to Orchard Street are railroad tracks owned and maintained by defendant, Grand Trunk Western Railroad Company.

As decedent and his companions were proceeding toward Orchard Street, one of defendant’s trains was proceeding south along the railroad tracks. When the train was about 200 feet north of the intersection, decedent’s car pulled onto the tracks and apparently came to a complete stop. The train, travelling at about 30 miles per hour, was unable to stop within the distance remaining. A collision occurred, with the ensuing wreckage carried some 450 feet from point of impact. Jimmy Ray Beasley, the driver of the vehicle, was killed, and the other two passengers seriously injured.

In October, 1973, Raymond Beasley, administrator of the estate of the decedent, Jimmy Ray Beasley, filed this wrongful death action against defendant, alleging negligence. In February, 1974, Raymond Beasley died and Oleta Beasley, mother of the decedent, was appointed successor administratrix and substituted as a party plaintiff. Plaintiff Eva Williams brings this action on her own behalf for injuries she sustained in the accident. Plaintiffs’ complaint alleges that defendant was negligent, inter alia, in that it failed to: (1) maintain a safe crossing and guard it with reasonable care, (2) give adequate warning of the approach of the train, and (3) maintain a clear view for crossing the railroad tracks. It was plaintiffs’ theory that the vehicle and train arrived simultaneously and that Jimmy Ray Beasley, due to a lack of clear view, the absence of a train signal or whistle, and the icy and rutty condition of the road, found himself in a position of inextricable danger.

Defendant alleges that any injury plaintiffs may have sustained was due solely to, or at least was caused in part by, the negligence of the decedent, particularly decedent’s failure to drive his vehicle at a speed reasonable and proper under the circumstances, heed defendant’s train whistle and bell, make a proper observation for defendant’s train, and, thereby, yield the right-of-way.

At the close of plaintiffs’ proofs, defendant moved for a directed verdict as to both plaintiffs. The motion was denied as to Eva Mae Williams. The court reserved its ruling as to the estate of Jimmy Ray Beasley, subsequently granting the motion following defendant’s case-in-chief.

The jury returned a verdict of no cause of action by plaintiff Williams. Both plaintiffs appeal as of right and raise a plethora of issues. We reverse as to both plaintiffs. The issues unnecessary to our present disposition, yet likely to reoccur upon retrial, are considered seriatim in conjunction with those we deem controlling.

I. Did the lower court err when it granted defendant’s motion for a directed verdict upon finding that the decedent Jimmy Ray Beasley was guilty of contributory negligence as a matter of law?

In granting the defendant’s motion for a directed verdict at the close of the proofs, the lower court found that decedent had crossed the tracks several times on the day of the accident and that he knew the condition of the road and what precautions would be necessary for his safety. The court refused to consider the argument of plaintiffs’ counsel that, because trees and shrubs were in the immediate vicinity of the railroad tracks, the decedent’s automobile would have been only three or four feet from the tracks before decedent would have been in a position to view any oncoming train. The court rejected also plaintiffs’ contention that the jury could reasonably infer from these circumstances that decedent would not have the requisite reaction time and stopping distance to avoid the accident after becoming aware of an oncoming train. The trial judge held that, because there was no direct testimony concerning these questions, they could not be inferred from the evidence presented at trial.

At one time, Michigan courts applied the "stop, look and listen” rule in railroad-automobile and automobile-pedestrian negligence cases. Under this rule, automobile drivers were guilty of contributory negligence as a matter of law if, when approaching a railroad track, they had not driven their automobiles very slowly or had not stopped and looked prior to crossing the railroad track. See Kun v Detroit, J & C R Co, 240 Mich 598, 602; 216 NW 380 (1927), Baader v Detroit, J & C R Co, 228 Mich 104, 105-106; 199 NW 630 (1924). See also Hett v Duffy, 346 Mich 456, 459-460; 78 NW2d 284 (1956) (holding pedestrians guilty of contributory negligence in the absence of proof showing they had stopped and looked for oncoming traffic prior to crossing the street).

In McKinney v Yelavich, 352 Mich 687, 697-698; 90 NW2d 883 (1958), the Michigan Supreme Court criticized this rule and expressly abandoned it, stating that the proper standard for negligence was not some artificial rule like "stop, look and listen”, but, rather was that of a reasonably prudent person acting under the same or similar circumstances. Thus, in the opinion of the Court:

"* * * [T]he question is not what the pedestrian could have seen, as a matter of physical fact, but what he should have seen in the exercise of due chre.”

The Court also considered the danger of crystallizing a general standard of conduct into unbending rules of law:

"We must guard against confusing general standards of care (e.g., the actions of a reasonably prudent man under the same or similar circumstances) with particular rules of conduct, sometimes called 'specific’ standards (stop, look and listen; always watch the traffic light; keep observing the approaching side-road driver, et cetera). Conduct which is the epitome of care in some specific situations, under those specific circumstances, may be the essence of recklessness in others. It depends upon the balance of the circumstances.” (Emphasis in original.) Id., at 699.

Although an automobile-pedestrian case, the McKinney rationale was (and is) equally applicable to collisions at railroad crossings:

"The attainment, or lack of attainment, of the standard of due care can be predicated only upon the existence of certain facts.
"For example, under some circumstances a jury may be permitted to find, under proper instructions, that a failure to 'stop, look and listen’ before crossing a railroad track amounted to a failure to exercise due care under the circumstances. If this finding is permitted to petrify into a hard and fast 'rule’ (i.e., it is negligence per se to fail to stop, look and listen under all circumstances before crossing a railroad track), absurd and unjust results will inevitably follow.” Id., at 692.

To these comments we add that directed verdicts, particularly in negligence actions, are viewed with disfavor. Cody v Marcel Electric Co, 71 Mich App 714, 717; 248 NW2d 663 (1976), lv den 399 Mich 851 (1977). In considering a motion for directed verdict, the trial court is bound to view the evidence in a light most favorable to the nonmovant. Armstrong v LeBlanc, 395 Mich 526, 532; 236 NW2d 419 (1975), Johnson v Grand Trunk W R Co, 58 Mich App 708, 713; 228 NW2d 795 (1975). If, when viewed in this light, the facts are such that reasonable persons could honestly come to different conclusions, then the question is for the jury. Johnson, supra, at 713. In Kujawski v Cohen, 56 Mich App 533, 535; 224 NW2d 908 (1974), lv den 394 Mich 772 (1975), we stated that a directed verdict would be improper where there was any evidence competent and sufficient to support a jury verdict for the nonmovant party:

"The right to have a jury pass on questions of fact must be protected even when only 'scant’ evidence is presented. McKinch v Dixon, 391 Mich 282; 215 NW2d 689 (1974).”

Bearing these points in mind, we then turn to the question of decedent’s due care and the evidence presented in its support. In this regard, the following two questions became pertinent at trial: did defendant’s train sound a whistle to warn of its approach to the crossing and was decedent’s view of the railroad track so obstructed that he could not have seen the approach of the train?

Five witnesses testified on behalf of defendant that they, in fact, heard a train whistle. Six witnesses asserted that they heard no whistle nor any other advance warning prior to the accident. However, mere testimony that a sound was not heard, by itself, does not present an issue of fact as to whether or not the sound existed. Williams v Grand Trunk W R Co, 344 Mich 84, 88; 73 NW2d 455 (1955). Such "negative evidence” must be preceded by a showing that the witness had been in a position to hear the sound if it occurred. Dalton v Grand Trunk W R Co, 350 Mich 479, 485-486; 87 NW2d 145 (1957). In the case at bar, at least one witness, whose house was situated immediately beside the railroad tracks, testified that he was "positive” the train did not sound its whistle. However, the strongest indication that the sounding of the whistle was a question of fact came from the lower court, which, in denying the motion for directed verdict as to plaintiff Eva Mae Williams, ruled:

"7 am going to allow that to be a factual issue, as to whether it was rung, whether there was an obligation, whether there was due care; all of these factors I think are properly argueable [sic] before a jury, and I’m going to deny the motion.” (Emphasis supplied.)

As to whether decedent’s view of any oncoming train was obstructed, the following pertinent evidence was adduced at trial. According to a land surveyor, trees and bushes were growing within ten feet of the railroad track. The distance between decedent’s front bumper to the place where he sat as driver was approximately seven feet. Therefore, it was possible for decedent to have been within about three feet from the railroad tracks before he had an unobstructed view of any oncoming train. The driveway/road upon which the decedent was traveling was a rutty gravel one that became icy in bad weather. The only witness testifying as to the speed of the decedent’s automobile was Thomas Soper, an employee of defendant who was working as a fireman on the train involved in the accident. He estimated the speed of the decedent’s automobile to be at a "good walking speed”. Considering this evidence in a light most favorable to the plaintiff, one cannot say that reasonable men could not disagree on the question of whether decedent was contributorily negligent. Contrary to the position of the trial court, the fact that the decedent necessarily had a certain reaction time to the danger and required a certain stopping distance is one that can be legitimately inferred from the evidence. In McClure v Dukes, 61 Mich App 339, 342; 232 NW2d 704 (1975), lv den 394 Mich 844 (1975), the Court stated that reasonable and legitimate inferences from the evidence must be considered when ruling on a motion for directed verdict. See also Michigan Mutual Liability Co v Staal Buick, Inc, 41 Mich App 625; 200 NW2d 726 (1972), MacKay v Island of Bob-Lo Co, 39 Mich App 64; 197 NW2d 151 (1972).

In sum, the evidence presented by plaintiff estate of Beasley at trial, when considered in a light most favorable to that plaintiff, would have permitted the jury to find that the decedent acted with due care, i.e., that the train did not signal its coming and give the decedent advance warning and that the decedent’s view of the oncoming train was so obstructed by the bushes and trees near the railroad tracks that he could not have extricated himself from the situation in time to avoid the accident. Therefore, the lower court’s directed verdict for defendant was erroneous.

II. Did the lower court err when it found that, as a matter of law, the railroad crossing in question was a private, and not a public crossing?

The significance of this issue lies in the instructions of the trial court to the jury that the defendant railroad was not required to take the same safeguards or adhere to the same standard of conduct at a private crossing as it would at a public crossing.

In Michigan, railroads (and highway authorities) are required by statute to undertake certain precautions at railroad crossings for the care and protection of the public (i.e., erection of warning signs, repair and maintenance of a safe crossing, stationing of guards or watchmen, sounding of a whistle, etc.). See MCL 466.1 et seq.; MSA 22.260 et seq., MCL 469.1 et seq.; MSA 22.761 et seq. These statutory duties are mandated only at intersections involving public highways. Despite plaintiffs’ attempt to so characterize the crossing in question, it is evident that it does not fit the definition of "public highway” as that term is used by the Legislature. MCL 221.20; MSA 9.21 defines a public highway as:

"All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act.”

In Comstock v Wheelock, 63 Mich App 195, 198-199; 234 NW2d 448 (1975), cited by plaintiffs, this Court reviewed the elements necessary to qualify under the statute: See also, Pearl v Torch Lake Twp, 71 Mich App 298, 305-307; 248 NW2d 242 (1976), lv den 399 Mich 844 (1977), St Ignace v McFarlane, 45 Mich App 81, 84-85; 206 NW2d 226 (1973). Of the testimony adduced at trial, plaintiffs offered insufficient proofs to show that the driveway/road was "used and worked upon” by public authorities. Plaintiffs’ claim that this requirement was satisfied because of periodic house checks by the Mont-rose police is without merit; in addition, their assertion that Mr. Williams was gratuitously acting in place of the public authorities when he, on an intermittent basis, would repair that portion of the way east of the railroad tracks is equally untenable. Although there was testimony to indicate that children, teenagers and adults would cross the area in question to enter an orchard area which included a swimming pool, and that it was also sometimes used by snowmobilers, it is axiomatic that permissive use of an otherwise private road by the general public, however long, will not make it a public highway. Leelanau County Board of Road Comm’rs v Bunek, 344 Mich 605, 613; 75 NW2d 51 (1956), Maghielse v Crawford County Road Comm, 47 Mich App 96, 98; 209 NW2d 330 (1973), lv den 390 Mich 796 (1973), Village of Bellaire v Pankop, 37 Mich App 50, 55; 194 NW2d 379 (1971), lv den 386 Mich 786 (1972). We hold, therefore, that the lower court properly held that the crossing in the present case was a private one.

"The elements of the cause of action are these: there must be a defined line used and worked upon by public authorities, traveled by the public for 10 consecutive years without interruption and [it must] be public, open, notorious and exclusive.” (Emphasis supplied.)

III. Did the lower court correctly instruct the jury with respect to the present status of the law in Michigan regarding a railroad’s duty at a private railroad crossing?

In its charge to the jury, the lower court instructed that the defendant was required to use ordinary and due care in the operation of its

railroad. In addition, the jury was advised that the defendant was not required to take the same precautions at a private crossing that it was at a public one. From this premise the court further charged that the defendant had no duty to erect warning signs at the crossing, repair and maintain the road as it approached the tracks, station guards or watchmen, or sound a whistle when one of its trains approached the intersection. The trial judge specifically informed the jury that they could not find the defendant negligent for failure to take any of these safeguards.

We agree with plaintiffs’ assertion that the court failed to sufficiently distinguish between the statutory and common-law duties which may have been imposed upon the defendant at the crossing in question and, for this reason, hold that, under the facts of this case, it erroneously misled the jury by its instructions that a railroad is not required to take the same precautions at a private crossing that it is at a public one, and that defendant could not be held negligent for failure to give an advance warning.

The trial judge relied on Thomas v New York C R Co, 267 Mich 396, 399; 255 NW 214 (1934), a "stop, look and listen” case, to support his statement of the law:

"The duties of persons approaching a railroad track to stop, look and listen are recognized. Plaintiff, however, contends there was no safe place in which his decedent could have stopped before reaching the tracks and she was under no legal obligation to stop on or between the tracks. Nichols v Railway Co., 203 Mich. 372 [168 NW 1046 (1978)]. In that case the accident was at a crossing of a highway, where more cautious handling of trains may be anticipated than at private road crossings.”

However, Thomas was decided within the boundaries of a driver’s contributory negligence. Read in this context, it seems clear that what a driver may reasonably expect to anticipate and what the railroad’s duty of due care is under the circumstances at the same crossing may be two dissimilar considerations. But, Thomas does not suggest that a railroad may exercise less care at a private crossing than is reasonably required.

A jury charge that less care is required at a private crossing, as opposed to a public one, may or may not be true under the specific facts of a given case. Above all, the question of what precautions should be taken in the exercise of due care under all the circumstances is one for the jury. McKinney v Yelavich, supra, at 691-692. In this regard, the decision in Bauman v Grand Trunk W R Co, 376 Mich 675, 684, 687-688; 138 NW2d (1965) is instructive. There the question was whether defendant had a common-law duty, under all the circumstances, to provide crossing protection over and above those duties already required of it by statute. The trial judge instructed that if the jury did not find "special circumstances” regarding the nature of the intersection as a country or business crossing, they could not find the railroad negligent for the omission of safeguards other than those mandated by the Legislature. The. Supreme Court reversed and stated that:

"[B]y his quoted instruction the trial judge effectively took from the jury its exclusive right to determine whether, in light of all the facts and circumstances surrounding this business district grade crossing, reasonable prudence required the railroad to maintain devices warning motorists of its approaching trains in addition to the wooden crossbuck sign required by law and present at the crossing.
"We know of no case where the common-law duty of railroads as to crossing protection is, as a matter of law, solely dependent upon whether the crossing is in a business or residence district or in the open country. Certainly, facts and circumstances will vary between crossings in a business or residence district as they will vary in the open country. Thus, unless no reasonable minds can disagree, it remains a jury question, in view of all the facts and circumstances, whether crossing protection, in addition to that provided by statute, is reasonably required. The quest remains constant. Thus while we found in Baldinger [v Ann Arbor R Co, 372 Mich 685; 127 NW2d 837 (1964)], supra, that plaintiff’s view was not so obstructed that she could not see defendant’s train approaching an open country crossing, we drew no distinction between an unobstructed crossing in open country and an unobstructed crossing in a city, nor was a distinction otherwise drawn between country and city crossings in Emery [v Chesapeake & O R Co, 372 Mich 663; 127 NW2d 826 (1964)], a city crossing case. Neither in Barnum [v Grand Trunk W R Co, 148 Mich 370; 111 NW 1036 (1907)], supra, a city crossing case, nor in any other of the principal cases cited, is there any suggestion that the variable common-law duty, which depends upon all relevant factual circumstances, is altered one whit merely by the fact that the crossing is in a residence or business district or in open country. There being no support for it in either reason or authority, we are constrained to hold that the charge as given constituted reversible error.” (Footnote omitted.)

There can be no quarrel with the conclusion that, since the crossing here was private, defendant was relieved of its statutory duties. This would not, however, eradicate those duties dependent upon the facts which may be imposed by application of common-law negligence. The omission of a statutory duty to sound a whistle (due to the absence of a highway) does not mean there might not be a common-law duty to do so if the surrounding circumstances would mandate such a precaution.

Defendant alleges that it was not required to give an advance signal at the crossing in question, citing Burt v Detroit, G H & M R Co, 262 Mich 204; 247 NW 157 (1933), and Wavle v Michigan U R Co, 170 Mich 81; 135 NW 914 (1912). In Burt it was held that:

"As the path across the tracks was not a public crossing, the statute (2 Comp. Laws 1929, § 11181), requiring signals for public crossings, is not applicable. Lepard v Railroad Co., 166 Mich. 373 [130 NW 668 (1911)] (40 L.R.A. [N.S.] 1105); note: 66 A.L.R. 819.” 262 Mich at 207.

The Court did not address the question whether there still may be a common-law duty to signal, but merely held that application of the statute was unwarranted. Wavle, supra, at 90-91, opined that:

"The duty of one traveling upon the highway to look and listen before attempting to cross the tracks of an interurban railroad was declared, with references to numerous cases in which steam railroads were parties.

"In the operation of steam railroads, the whistle is not usually sounded upon the approach of a train to a private or farm crossing; and a failure to sound it is not usually regarded as evidence of negligence. We see no reason for holding that the duty is greater when an electric interurban car is operated through the country, and the approach of the car to the crossing can be seen by those using the crossing.” As is readily apparent, the cited language was fashioned in the context of the now discredited rule of "stop, look and listen”. Moreover, the Court did not state that the failure to sound a whistle at a private crossing is never evidence of negligence, but left open the possibility that certain circumstances may make it prudent to do so.

In the case at bar, various witnesses in the neighborhood testified that defendant’s trains would often blow their whistles before reaching the crossing. In addition, Thomas Soper, the fireman on defendant’s train on the day of the fatal mishap, indicated that, at least on the trains in which he was riding, the practice was to always sound the whistle 1/4 mile prior to reaching the crossing where the accident took place. In view of such evidence, there is no doubt that a jury question was created whether, separate from any statutory mandate, defendant had a duty (or assumed a duty) to give an advanced signal on the day in question. By instructing the jury that defendant was under a duty to exercise reasonable care, but could not be found negligent for failing to sound its whistle, the court effectively removed from their consideration the facts and circumstances surrounding an alleged negligent act and, in doing so, invaded the jury’s province.

We also hold that the lower court erred in refusing to give plaintiffs’ proposed instruction that the jury could consider whether defendant was negligent in failing to sound an advance whistle or siren before reaching the crossing. In addition, the trial judge erroneously failed to charge the jury, as requested by plaintiffs, that they could consider whether defendant should have maintained a clear view for motorists in the northwest quadrant of the crossing in question. The evidence presented at trial as to the extent of view obstruction as one approached the crossing from the Williams’ premises was conflicting. Significantly, the transcript reveals testimony that, for the first two or three years after the Williams’ move to Montrose Township, personnel for the railroad would, from time to time, come out and clear away the brush. Thus, it would have been proper for the jury to consider, in deciding if defendant transgressed its duty to maintain a safe crossing, whether it assumed a duty (and perhaps breached its duty) to maintain a clear view. Under the particular facts of this case, this question also was properly one for the jury. Richman v City of Berkley 84 Mich App 258, 264; 269 NW2d 555 (1978), AAMCO Automatic Transmissions, Inc v Motor Trans, Inc, 45 Mich App 539, 543; 207 NW2d 156 (1973), lv den 389 Mich 817 (1973), Nowicki v Suddeth, 7 Mich App 503, 511; 152 NW2d 33 (1967).

IV. Did the trial court abuse its discretion when it admitted into evidence certain photographs offered by defendant?

At trial defendant offered into evidence photographs purporting to represent the scene of the accident, which photos included an oncoming train. The photographer identified the pictures as to when and how they were taken. He further testified that they fairly and accurately represented the scene of the accident. Plaintiffs’ attorney objected to their admission into evidence on the grounds that plaintiffs themselves lacked opportunity to take any photos.

Contrary to plaintiffs’ contention on appeal, staged or posed photographs are admissible at trial if they reasonably represent the scene of the accident. Kaminski v Wayne County Road Comm’rs, 370 Mich 389; 121 NW2d 830 (1963). See also Dennis v Jakeway, 53 Mich App 68, 73; 218 NW2d 389 (1974), lv den 392 Mich 801 (1974), Birkhill v Todd, 20 Mich App 356, 363-364; 174 NW2d 56 (1969). In light of the photographer’s foundational testimony and counsel’s failure to allege that the photos were inaccurate representations, the trial judge properly ruled the photographs admissible.

V. Did the trial court abuse its discretion when it permitted defendant to offer into evidence the testimony of decedent’s physician with respect to a condition of impaired hearing suffered by decedent?

In order to refute decedent’s mother’s testimony that she was unaware of any hearing loss Jimmy Ray Beasley may have suffered, defendant brought decedent’s family physician to the stand. He asserted that, in connection with a physical examination, decedent had indicated on a form that he was being treated at a Veterans Administration hospital for a 50 percent loss of hearing in his left ear. Although the doctor could not state whether he was told of this fact directly, records indicated that the relevant information was communicated to, and recorded by, someone in the office.

MCL 600.2157; MSA 27A.2157 provides in pertinent part:

"No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”

A physician-patient privilege was unrecognized by the common law; this statute, therefore, controls the scope of the privilege in Michigan. Eberle v Savon Food Stores, Inc, 30 Mich App 496, 500; 186 NW2d 837 (1971). The purpose of the statute is clearly to protect the confidential nature of the physician-patient relationship. Gaertner v Michigan, 385 Mich 49, 53; 187 NW2d 429 (1971). The privilege belongs to the patient and can only be waived by him. Gaertner, supra, Storrs v Scougale, 48 Mich 387; 12 NW 502 (1882).

Defendant argues on appeal that the doctor’s testimony was admissible as it was used to impeach the assertions of the decedent’s mother. However, this contention has been previously rejected by our Court. Cartwright v Maccabees Mutual Life Ins Co, 65 Mich App 670, 679; 238 NW2d 368 (1975), rev’d on other grounds 398 Mich 238; 247 NW2d 298 (1976), People v Bland, 52 Mich App 649; 218 NW2d 56 (1974).

A review of the record indicates that Jimmy Ray Beasley had seen his doctor in order to obtain a physical examination required for admittance into college. The doctor had never before treated him for hearing problems. Thus, the question becomes whether the information received by the doctor and used by him for completing the college entrance form was "information * * * necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon”. We answer in the affirmative.

Conceding that the witness never treated the decedent for any problem related to a loss of hearing, the fact remains that decedent was required to have a physical exam in order to attend college, and only a physician could give him that examination. The information at issue was necessary to effect a fruitful and complete examination. By requesting that his physician transmit to the university the results, the decedent waived, at least to the university, his right of confidentiality. Nevertheless, decedent did not thereby relinquish the right to control the introduction of those results into evidence at trial. In Briesenmeister v Supreme Lodge Knights of Pythias of the World, 81 Mich 525, 535; 45 NW 977 (1890), the Supreme Court, in construing a nearly identical statute, recognized the dual nature of the privilege conferred:

"Privilege includes both the security against publication, and the right to control the introduction in evidence, of such information or knowledge communicated to or possessed by the physician. The latter right exists although the former has ceased to be of any benefit. The public may know; but shall the jury be permitted to receive and weigh testimony derived from a source which the law has put the seal of silence upon, unless released by the party who alone has the right to say whether that particular witness shall be the medium of conveying such knowledge to the jury? For instance, the party may have disclosed to a third person all that he has to his physician. Now, while his admissions may be proved in a proper manner by such third person, they cannot be proved by the physician against the objection of the party.”

See also Polish Roman Catholic Union of America v Palen, 302 Mich 557; 5 NW2d 463 (1942) (repudiating the theory that once confidential information has been published, the privilege of objecting to its repetition has been waived), Cartwright v Maccabees Mutual Life Ins Co, supra (holding that the signing of a waiver of the physician-patient privilege when applying for a life insurance policy, would not, subsequently, waive the privilege at trial.)

Defendant reads the statute too literally when it maintains that the information must be used in "treating” the patient. If, for example, a patient sees a physician for a yearly physical and the physician finds the patient in good health, i.e., needing no "treatment”, the health information received by the doctor would not be outside the privilege merely because the patient has no ailment requiring attention.

In sum, we are of the opinion that the information as to decedent’s hearing loss received by his physician was within the scope of the physician-patient privilege and was, therefore, improperly admitted into evidence.

Reversed and remanded. No costs, neither party having prevailed in full.

       For purposes of the Michigan Vehicle Code, MCL 257.20; MSA 9.1820 defines a "highway or street” as:
      "[T]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” (Emphasis supplied.)

       We find no merit in plaintiffs’ other claims of instructional error, in part due to the lack of evidence presented at trial, and in part by reason of considerations of proximate causation.

       "No person duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient, in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.” How Stat (1882) § 7516.


text:
    PEOPLE v POINDEXTER
    Docket No. 77-3045.
    Submitted February 22, 1979, at Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Rudolph Poindexter was charged with unlawful possession of heroin and was arraigned and bound over for trial. The defendant moved to suppress evidence obtained in a search of his house, claiming that the warrant for the search was invalid on its face. The motion was denied. Later, the defendant made an oral motion to require the prosecution to produce the informant relied upon by a police officer in the affidavit in support of the warrant to search the defendant’s house. The Recorder’s Court of Detroit, Samuel H. Olsen, J., ordered the prosecution to produce the informant for an in camera examination from which the defendant and defense counsel would be excluded. The prosecution refused to produce the informant and Judge Olsen dismissed the case without prejudice. The prosecution appeals. Held:

    The trial judge had the discretion to order the production of the informant and the prosecution should have either complied with the order or sought immediate appellate review. However, under the circumstances of this case, dismissal of the charges against the defendant was too severe a penalty. The trial court’s order of dismissal is reversed but the defendant is to be permitted to renew his attack on the veracity of the search warrant affidavit pursuant to the appropriate procedures for such a challenge.
    Reversed and remanded for further proceedings.
    1. Searches and Seizures — Search Warrants — Affidavits — Validity of Affidavit — Hearings.
    There is a presumption of validity with respect to an affidavit supporting a search warrant; to mandate a hearing on the validity of the affidavit, the following is required: 1) a challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross examine, 2) there must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof, 3) the allegations should point out specifically the portion of the warrant affidavit that is claimed to be false, and they should be accompanied by a statement of supporting reasons, 4) affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained, allegations of negligence or innocent mistake are insufficient, 5) the deliberate falsity or reckless disregard whose impeachment is permitted is only that of the affiant, not of any nongovernmental informant, and 6) if the preceding requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, the remaining content of the affidavit is insufficient to support a finding of probable cause, the defendant is entitled to a hearing, however, if there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

      References for Points in Headnotes
    [1, 4, 5] 68 Am Jur 2d, Searches and Seizures §§ 64, 66, 66.5 (supp.) Search warrants: disputing matters stated in supporting affidavit. 5 ALR2d 394.

       21 Am Jur 2d, Criminal Law § 332.
    68 Am Jur 2d, Searches and Seizures § 65.
    Accused’s right to, and prosecution’s privilege against, disclosure of identity of informer. 76 ALR2d 262.

      2. Searches and Seizures — Search Warrants — Informants — Identity of Informant — Disclosure of Identity of Informant.
    Disclosure of the identity of an informant on whose information an affiant for a search warrant relies is required where that disclosure is essential to a fair determination of a cause.
    3. Searches and Seizures — Search Warrants •— Informants — Production of Informant — Discretion.
    A trial judge has the discretion to require the production of an informant who allegedly supplied police with information which led to the issuance of a search warrant where a defendant claims that the informant does not exist.
    4. Searches and Seizures — Search Warrants — Affidavits — Informants —• Disputed Existence of Informant.
    The procedure to be followed in resolving a defendant’s claim of the nonexistence of an informant who allegedly supplied information to an affiant who presented a sworn affidavit for a search warrant, based on information from the informant, is the same procedure as that used in determining the validity of the affidavit in support of a search warrant.

      5. Searches and Seizures — Search Warrants — Informants — Production of Informants — Closed Hearing — Protective Measures.
    Once a trial judge decides to order the production of an informant who furnished information on the basis of which an affidavit for the issuance of a search warrant was made, he should conduct a closed hearing to protect the informant’s identity; the trial judge is also free to take any other protective measures deemed necessary.

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

      Benjamin Roth (Alvin C. Sallen, of counsel), for defendant.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Defendant was charged with unlawful possession of narcotics, to wit: heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), arraigned and bound over for trial. The case was dismissed without prejudice on June 1, 1977, when the plaintiff refused to produce a confidential informant for an in camera examination. Plaintiff appeals by right.

On March 24, 1976, Officer James Wood of the Detroit Police Department presented a sworn affidavit to Recorder’s Court Judge John Patrick O’Brien in support of a warrant to search defendant’s house. The affidavit relied heavily on information received from an allegedly reliable informant. A warrant was issued on the basis of the affidavit. Pursuant to the warrant, police searched defendant’s house and found guns, money, narcotics paraphernalia and heroin.

Prior to the date set for trial, defendant moved to suppress the evidence, claiming the search warrant was invalid on its face. Defendant’s motion was denied. On May 6, 1977, defendant made an oral motion to require plaintiff to produce the informant relied upon by Officer Wood in his affidavit requesting a search warrant. Defendant claimed that no informant existed and that the informant was a figment of Officer Wood’s imagination. Trial Judge Samuel H. Olsen ordered the plaintiff to produce the informant at an in camera examination from which the defendant and defense counsel would be excluded. At one point he stated:

"THE COURT: They [defendant and defense counsel] claim perjury and these cases [primarily, People v Stander, 73 Mich App 617; 251 NW2d 258 (1976)] clearly indicate where there’s a contention of perjury, they are entitled to an in camera hearing. That’s very clear from the case. I don’t agree with the cases but I am constrained to follow the law and I think your office should perfect an immediate appeal to the Michigan Supreme Court.”

When plaintiff refused to produce the informant, Judge Olsen dismissed the case without prejudice. Plaintiff now appeals.

The questions here are: Can a defendant in a criminal proceeding, subsequent to the issuance of a search warrant, challenge the veracity of factual statements made in the affidavit supporting the warrant? If so, under what circumstances, if any, must an informant (on whose representations rests the underlying validity of the warrant) be produced when the defendant claims that no informant exists?

Historically, courts did not permit defendants to challenge the veracity of allegations in the search warrant affidavit by proof aliunde. During prohibition, the Michigan Supreme Court followed the rule that defendants could not challenge the truth of the facts alleged in the affidavit in support of the search warrant that did not go to the jurisdiction of the issuing magistrate. See discussion and cases cited in People v Staffney, 70 Mich App 737, 739-740; 246 NW2d 364 (1976). In the last 10 years, however, the issue has received increased attention. See e.g., Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv L Rev 825 (1971).

In People v Broilo, 58 Mich App 547, 551-552; 228 NW2d 456 (1975), this Court relied on United States v Morris, 477 F2d 657 (CA 5, 1973), and ruled that a search warrant affidavit could be challenged where testimony inadvertently revealed that the affidavit contained inaccurate statements material to a finding of probable cause. But if there was enough substance remaining to support a finding of probable cause after striking the inaccurate statements, the warrant was still valid. Accord, People v Price, 86 Mich App 641, 644-645; 273 NW2d 97 (1978), Staffney, supra, 740-742, and see 1 George, Michigan Criminal Procedure, § 2.00(D).

Most recently, the United States Supreme Court addressed and resolved this issue in Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978). In Franks, defendant was charged with rape and related crimes in Delaware. Prior to trial he sought to suppress various items of evidence obtained by the police pursuant to a search warrant. Defendant originally claimed that the warrant on its face did not show probable cause. But, at the hearing on the motion, defendant also attacked the veracity of the warrant affidavit and requested that he be permitted to call certain witnesses to establish the alleged untruthful matters. The motions were denied, the defendant was convicted, and the Supreme Court of Delaware affirmed, holding that a defendant under no circumstances could challenge, subsequent to the ex parte issuance of a search warrant, the veracity of a sworn statement used by police to procure the warrant.

The United States Supreme Court reversed and remanded, holding as follows, 438 US at 171-172:

"In sum, and to repeat with some embellishment what we stated at the beginning of this opinion: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.” (Footnote omitted.)

In light of Franks, then, the defendant could have challenged Officer Wood’s statement in the search warrant affidavit that an informant existed by following the procedure outlined by the United States Supreme Court. However, since defendant’s attempt to impeach the affidavit was not accompanied by an offer of proof and defendant did not reasonably explain the absence of supporting reliable statements of witnesses, defendant’s claim was a mere assertion. Accordingly, the defendant did not meet Franks’ threshold requirement for an evidentiary hearing, and, at that point, he certainly was not entitled to production of the informant.

But the instant case was handled by the trial court before Franks and it is not surprising that the procedure outlined in Franks was not applied here. Even under Broilo, however, the trial court should have rejected defendant’s attempt to impeach the affidavit. This was not a situation were testimony inadvertently revealed that the affidavit contained inaccurate statements material to a finding of probable cause. Consequently, the trial court’s order directing the prosecutor to produce the informant was error even under Broilo.

We now come to the question of under what circumstances, if any, must an informant (on whose representations rests the underlying validity of the warrant) be produced when the defendant claims that no informant exists? This issue has not been addressed by Michigan Courts and the United States Supreme Court in Franks specifically avoided "the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made”. 438 US at 170.

The primary case relied on by the trial judge, People v Stander, 73 Mich App 617; 251 NW2d 258 (1976), involved a claim by the defendant at trial that the informant who tipped off the police to defendant’s alleged intent to steal a car should be produced. The trial judge denied the request and defendant appealed. He argued that the informant should have been produced because the informant was a res gestae witness and secondly, because the requirement of "fundamental fairness” as set forth in Roviaro v United States, 353 US 53; 77 S Ct 623; 1 L Ed 2d 639 (1957), required production.

The Roviaro decision involved a government informer who played a key role in a heroin transfer scheme and who was instrumental in setting up the transaction. The Supreme Court there found that the informant was a "material witness” who might have been able to offer testimony favorable to the defendant in the areas of guilty knowledge or a possible entrapment defense. Defendant’s "vital need for access to any material witness” outweighed the government interest in concealing the informant’s identity and, under those particular facts, principles of fundamental fairness required disclosure. Roviaro, supra, 353 US at 63.

This Court addressed the Roviaro part of defendant’s contention as follows, 73 Mich App at 621-623:

"The purpose for the 'informant’s privilege’, as it is sometimes called, is to encourage citizens to communicate information regarding criminal activity to law enforcement agencies by preserving their anonymity. However, the court in Roviaro did recognize a limitation on the applicability of the privilege arising from the 'fundamental requirements of fairness’. We adopt the following edited passage from Justice Burton’s majority opinion:
" 'Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.
" 'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ Roviaro v United States, 353 US at 60-62; 77 S Ct at 628-629; 1 L Ed 2d at 645-646 (fn omitted).
"The procedural vehicle generally recognized as being the most useful for helping a trial judge to strike the appropriate balance between these competing interests is the in camera hearing. * * *
"Thus where the government invokes the privilege in the face of a defense request for disclosure, and where the accused is able to demonstrate a possible need for the informant’s testimony, the trial judge should require production of the informant and conduct a hearing in chambers, and out of the presence of the defendant. At this hearing the court will have an opportunity to examine the informant in order to determine whether he could offer any testimony helpful to the defense. A record should be made of the in camera session and its contents sealed so that only an appellate court will have access thereto.
"Other appropriate measures may be taken by the trial court so that the identity of the informant will remain undisclosed in the event the court determines that fundamental fairness does not require that the informant be produced as a witness at trial.” (Citations omitted.)

Stander was remanded to the trial court with directions to conduct a hearing consistent with the opinion.

It is apparent that Roviaro and Stander do not fit the facts of the present case and do not directly address the issue under consideration here. However, they do require disclosure of an informant’s identity where disclosure is "essential to a fair determination of a cause”. In the instant case, a fair determination of the cause includes consideration of the validity of the search warrant. And if the defendant’s allegations regarding the lack of an informant are true, they strike at the very heart of the affidavit relied on in this case and bring into question the validity of the warrant. Consequently, we conclude that a trial judge may exercise his discretion to require production of an informant who allegedly supplied police with information which led to the issuance of a search warrant where a defendant claims that the informant does not exist.

The procedure to be followed in resolving claims such as that in the instant case must parallel the procedure outlined in Franks, supra To begin with, there is a presumption of validity with respect to the affidavit supporting the search warrant and this presumption applies throughout the procedure.

To mandate an evidentiary hearing, defendant’s attack must be more than conclusory, if possible, and must be supported by more than a mere desire to determine who the informant was. There must be specific allegations of deliberate falsehood or of reckless disregard for the truth. Those allegations must be accompanied by an offer of proof and should be accompanied by a statement of supporting reasons. Also, the defendant should furnish reliable statements of witnesses to support his claim, or satisfactorily explain their absence. If these requirements are met to the trial court’s satisfaction and the statements challenged by the defendant are set aside but sufficient content still remains in the affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient to support a finding of probable cause, the defendant is entitled to an evidentiary hearing.

At the hearing, the trial judge should question the officer involved and consider any other relevant evidence offered by the prosecutor or the defendant. If the judge is convinced that the officer is being truthful regarding the existence of the informant, he should deny defendant’s request for production. However, if the judge determines that there is some doubt as to the officer’s credibility, he may require production of the informant.

Once a trial judge decides to order production of an informant, he should conduct a closed hearing to protect the informant’s identity. The trial judge is also free to take any other protective measures deemed necessary. See Stander, supra, 622-623.

If the prosecutor believes the trial judge abused his discretion in ordering production of the informant, the prosecutor should seek immediate appellate review of the court order. See People v Davis, 72 Mich App 21, 27; 248 NW2d 690 (1976).

We repeat that it is not mandatory to produce the informant whenever a defendant makes a bald statement that no informant exists. Such a statement is a challenge to the veracity of the search warrant affidavit and those challenges must be evaluated in light of Franks, supra. We know that requiring the production of such informants based on mere allegation would devastate much of the effectiveness of the informant as a law enforcement tool, but we believe, that the procedure outlined here protects the interests of society as well as the rights of its criminal defendants.

We recognize that Judge Olsen’s order should have been followed or the prosecutor should have sought immediate appellate review. However, under the circumstances of this case, dismissal was too severe a penalty. We also recognize that the defendant may have some proof that the officer was wrong regarding the existence of an informant. In fairness to both parties, therefore, we reverse the trial court’s dismissal but permit the defendant to renew his attack on the veracity of the search warrant affidavit. The trial judge will address the claim and exercise his discretion in accordance with Franks, supra, and this opinion.

Reversed and remanded for proceedings consistent with this opinion.

       The trial judge apparently thought he had no discretion in this matter. He was mistaken. Even assuming Stander directly applied to this case (it does not, see our discussion, infra), there is no strict rule with respect to disclosure. Before ordering production of the informant under Stander, the judge should have balanced " 'the public interest in protecting the flow of information against the individual’s right to prepare his defense * * * taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony and other relevant factors’ ”. Stander, supra, 622, quoting from Roviaro v United States, 353 US 53, 62; 77 S Ct 623; 1 L Ed 2d 639 (1957).
      This error alone would require reversal. See People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). However, we base our decision on slightly different grounds.

       Previously, some Michigan cases have indicated that an informant need be produced only when he is a material witness on the question of guilt or innocence. People v Phelps, 57 Mich App 300, 305; 225 NW2d 738 (1975), People v Wenrich, 31 Mich App 644, 648; 188 NW2d 102 (Í971). That blanket rule is suspect, however, in light of
        Roviaro, supra, Stander, supra, and McCray v Illinois, 386 US 300; 87 S Ct 1056; 18 L Ed 2d 62 (1967), which expressly noted the possibility that production might be required by the United States Constitution in some cases, e.g., where the trial judge suspects that the police officers may be committing perjury. See People v Kinnebrew, 75 Mich App 81, 86-87; 254 NW2d 662 (1977).
      We also note that the holding of the instant case does not impinge on the rule drawn from Kinnebrew, supra, and People v Davis, 72 Mich App 21; 248 NW2d 690 (1976), and enunciated in People v Johnson, 83 Mich App 1, 11; 268 NW2d 259 (1978), which states that an informant need not he produced where defendant’s sole reason for requesting production is to challenge the truth of the information supplied to the police and used to obtain the search warrant.

       The Franks procedure was anticipated in part in People v Johnson, 83 Mich App 1, 11, fn 7; 268 NW2d 259 (1978).

       We realize that the threshold requirements for an evidentiary hearing may be difficult to reach in cases such as the present. Proving a negative (here, that no informant existed) is virtually impossible. However, we have phrased our requirements to allow trial judges wide discretion in determining whether or not to grant an evidentiary hearing. Thus, if a trial judge recognizes his or her discretion, considers the tests outlined above, and is convinced that a defendant has raised a legitimate question regarding the existence of an informant, the judge is free to order an evidentiary hearing.

       At oral argument, the assistant prosecutor, as an officer of the court, stated that there was an informant and offered to give the appellate Court his name. On the other hand, the trial attorney was also an officer of the court and he stated that there was no informant. We feel this matter is best handled by the trial judge, who understands the circumstances of the case and is better equipped to make the necessary determinations of credibility.