author: Mackenzie, J. M. F. Cavanagh, J.

text:
    PEOPLE v THANGAVELU
    Docket No. 78-2309.
    Submitted April 5, 1979, at Detroit.
    Decided April 1, 1980.
    Leave to appeal applied for.
    Chelliah Thangavelu, a medical doctor, was convicted in Wayne Circuit Court, Irwin H. Burdick, J., of first-degree criminal sexual conduct. The charge was brought under that portion of the criminal sexual conduct statute which provides that the element of force or coercion may be proven by showing that the accused engaged in a medical treatment or examination in a manner or for a purpose which is medically recognized as unethical or unacceptable. The complainant testified that the defendant, while examining her pubic area for lice, performed cunnilingus upon her. While the defendant admitted examining the complainant’s pubic area for lice on the day in question and making a pelvic examination of the complainant on a previous occasion, the defendant denied performing cunnilingus upon the complainant. The prosecution presented no medical testimony as to whether cunnilingus was an unethical or unacceptable medical practice or as to whether the nature of the defendant’s examination was an acceptable medical practice.
    During his closing and rebuttal arguments, the prosecutor indicated that the defendant’s manual examination of the complainant’s vagina constituted the necessary act of penetration needed to establish the crime. The prosecutor’s argument also made reference to rapes in the street, incestual rapes and rapes by doctors of their patients and questioned why defendant chooses to get "his kicks from his patients”, which suggested that defendant was an habitual sex offender despite the absence of any evidence of similar charges or accusation against the defendant. The trial court instructed the jury that the sexual penetration charged in the information was cunnilingus; however, the court did not caution the jury that they must find that cunnilingus had occurred in order to find the defendant guilty of first-degree criminal sexual conduct. Defendant appeals. Held:

      References for Points in Headnotes
    [1, 2, 5] 31 Am Jur 2d, Expert and Opinion Evidence § 19.
    61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 49, 50, 73.
    70 Am Jur 2d, Sodomy § 19.
    [2] 75 Am Jur 2d, Trial §§ 573-575.
    [3, 6]75 Am Jur 2d, Trial §§ 192, 193, 218, 219.
    [4, 6]75 Am Jur 2d, Trial § 624.

      1. While generally medical testimony will be necessary to establish the element of force or coercion in prosecutions brought pursuant to the unethical or unacceptable treatment or examination provision of the first-degree criminal sexual conduct statute, the act of cunnilingus is so obviously unethical or unacceptable that no medical testimony is needed to establish that fact. If, however, the basis for finding the element of force or coercion is the act of cunnilingus alone, it is necessary that, in the absence of medical testimony to the acceptability of any other acts, the jury’s consideration be limited to the act of cunnilingus.
    2. The failure of the trial court to specifically instruct the jury that they must find that defendant performed cunnilingus upon the complainant, coupled with the prosecutor’s argument that the manual examination of the complainant established the element of penetration, denied defendant a fair trial. Under these circumstances, the jury may have considered the manual examination of the complainant in determining defendant’s guilt. Since there was no medical testimony that the type of manual examination constituted an unacceptable or unethical medical practice, and given the fact that the purpose and propriety of such examination might be misunderstood by the jury in the absence of such medical testimony, consideration by the jury of any acts of the defendant other than the alleged act of cunnilingus would deny the defendant a fair trial.
    3. The comments of the prosecutor in his closing and rebuttal arguments relative to rapes, coupled with his comments suggesting that defendant was an habitual sex offender, served to deny defendant a fair trial. Defendant’s failure to object to those arguments by the prosecutor does not preclude review by the Court of Appeals, since the nature of those comments was such that an instruction to the jury could not have eliminated the prejudice created by the prosecutor’s remarks.
    Reversed and remanded.
    M. F. Cavanagh, J., dissented. He would hold that not only is there no need to establish the unethical and unacceptable nature of cunnilingus by medical testimony but, also, that neither the closing arguments of counsel nor the instructions by the court resulted in a denial of a fair trial to the defendant. He would affirm.
    Opinion of the Court
    1. Criminal Law — Criminal Sexual Conduct — Evidence — Medical Testimony — Necessity of Medical Testimony — Statutes.
    Medical testimony is generally required to establish the element of force or coercion in prosecutions brought pursuant to the unethical or unacceptable medical examination or treatment provision of the statute on first-degree criminal sexual conduct; however, the act of cunnilingus is so obviously unethical and unacceptable that no medical testimony need be presented to establish its unethical or unacceptable nature (MCL 750.520b[l][f)[iv]; MSA 28.788[2][l][f][iv]).
    2. Criminal Law — Criminal Sexual Conduct — Medical Testimony — Limiting Instruction to Jury — Fair Trial.
    A failure in a first-degree criminal sexual conduct trial of a doctor accused of committing cunnilingus to present medical testimony relative to whether the treatment or examination of the victim was conducted for a purpose or in a manner which is medically recognized as unethical or unacceptable, coupled with a failure to limit the jury’s consideration to the alleged act of cunnilingus by the defendant doctor, deprives the defendant of a fair trial, since, while the jury could properly find that cunnilingus is medically recognized as unethical or unacceptable without the need for medical testimony, the jury would need medical testimony to determine whether acts by a doctor other than cunnilingus were medically recognized as unethical or unacceptable.
    3. Criminal Law — Criminal Sexual Conduct — Arguments by Prosecutor — Fair Trial.
    A defendant who is a medical doctor is denied a fair trial where, in a trial for criminal sexual conduct for medically unethical or unacceptable examination or treatment, the prosecutor, in his closing statement, makes references to rapes in the street, rapes by fathers of daughters and rapes of patients by doctors, states that he did not know why the defendant chose to get his kicks from his patients and made statements which would let the jury speculate that the defendant was an habitual sex offender even though there was no evidence presented of any similar charges or accusations against the defendant.

      4. Appeal — Arguments by Prosecutor — Failure to Object — Prejudice — Miscarriage of Justice.
    The lack of an objection at trial to unwarranted prosecutorial comments will not preclude review on appeal where an instruction to the jury would not have eliminated the prejudice created by the prosecutor’s remarks; a defendant should not be bound by his attorney’s failure to object where the cumulative effect of the prosecutor’s conduct constitutes a miscarriage of justice.
    Dissent by M. F. Cavanagh, J.
    5. Criminal Law — Criminal Sexual Conduct — Evidence — Medical Testimony — Jury Instructions.

      There is no need for medical testimony in a trial of a doctor charged, under the unethical or unacceptable examination or treatment portion of the ñrst-degree criminal sexual conduct statute, with committing cunnilingus upon a patient where the trial court limits the consideration of the jury to that charge, since persons of ordinary intelligence could determine that cunnilingus is an unethical or unacceptable medical practice without the need of medical testimony as to that fact.

    6. Criminal Law — Arguments by Prosecutor — Responsive Arguments — Failure to Object.

      Allegedly prejudicial prosecutorial comments do not result in a denial of a fair trial where the comments are in response to defense arguments and are not objected to by defense counsel at trial.

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

      Carl Ziemba, for defendant on appeal.
    Before: T. M. Burns, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Mackenzie, J.

Defendant was convicted by a Wayne County Circuit Court jury of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), on October 24, 1977, and was sentenced to a term of three to ten years. His motion for a new trial was denied, and he appeals as of right.

The complainant alleged that defendant physician conducted a pelvic examination in the course of which he performed cunnilingus on her while she was being examined by him for lice.

At trial, defendant admitted examining the complainant’s pubic area for lice after an examination of complainant’s two children revealed that they Were infested with lice. The examination was performed, according to defendant, because the complaihant complained of itchiness. However, he denied that he performed oral sex upon her and contended that the charges Were brought as part of an attempt by the complainant to extort money from him. According to his testimony, the night of the alleged offense he received a threatening telephone call from the complainant’s húsband. Later that evening, the complainant’s husband called defendant at his home and offered to drop the Whole thing if defendant would pay $5,000 in cash by the next morning. Defendant sáid he Would consult his attorney and hung up the telephone. Complainant admitted on cfoSs-examihatión that at ohe time she would have dropped the charges for $10,000,

At the time the act allegedly took place, complainant’s father was in the defendant physician’s waiting room, and complainant’s mother was in another examining room; in addition, the complainant’s children, defendant’s brother-in-law, and defendant’s physician-wife were also on the premises in other areas of the defendant’s office suite.

Defendant contends that the trial judge erred in the giving of the instructions on the elements of first-degree criminal sexual conduct and its lesser included offenses. First-degree criminal sexual conduct is defined in MCL 750.520b; MSA 28.788(2) as follows:

"Sec. 520b.(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exist:

(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:

(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.”

To find criminal sexual conduct in the first degree here, the necessary element of force or coercion had to be established by proof that the medical treatment or examination was conducted in a manner or for purposes medically recognized as unethical or unacceptable.

Defendant asserts that there was no expert evidence explaining the type of conduct that is medically unethical or unacceptable and that the trial court’s instructions did not provide the jury with any guidance or standard in order to determine whether the defendant’s conduct was proscribed.

Despite the requirement that the treatment or examination be medically recognized as unethical or unacceptable, the prosecution produced no medical testimony. It was argued by the prosecutor that the act of cunnilingus is so obviously unethical and unacceptable that no medical testimony need be presented to so inform the jury. While this approach disregards a strict reading of the statutory language, we could subscribe to it if the trial of this case had been limited to the act of cunnilingus. We find, however, that this defendant was deprived of a fair trial because the jury was not limited to consideration of the specific act of cunnilingus charged; rather, the jury was allowed to speculate both about the propriety of making any examination of the pubic area and about the propriety of the nature of a pelvic examination which defendant admitted performing on a date other than the date of the alleged offense. This pelvic examination included insertion of fingers into the complainant’s vagina and rectum while she was on her hands and knees on the examination table.

That the prosecutor and the court both regarded the propriety of the pubic examination was at issue is shown by the record. In his opening statement, the prosecutor told the jury that the element of force or coercion was met by "false examination”. When defense attorney moved to exclude any jury instruction on first-degree criminal sexual conduct under MCL 750.520b(l)(f)(iv) because there had been no medical testimony, the court denied that motion, stating:

"Now, if we take the testimony of the complainant in the case to the effect that she had no complaint, with respect to her genitals, as far as they were concerned, and there was no need on the part of the doctor to make any examination on that part, maybe the jury will believe it, maybe it won’t. It will be up to the jury. That part of the motion will be denied.” (Emphasis added.)

In his closing argument, the prosecutor deliberately invited the jury not to be limited to considering whether or not the defendant committed the act of cunnilingus, indicating that the examination was unethical medical conduct and that aspects of the examination involved penetration:

"What crime has been committed? She testified that the doctor, under the guise of examining her to see if down there she had any nits or any louse, asked her to drop her pants and she did. And then she later got up on the examination table. It was obviously done, using medical examination as a pretext. That’s force, and that’s the first element that is required. The second element is penetration, okay? We know, of course, she testified that he put his finger in her rectum. She also testified that he put his hand in her vagina and what felt to her to be his whole hand. In other words, she testified after the incident in which he licked her clitoris, he told her to get down on all fours on the examination table. He pushed her head down and at that point she felt — in her testimony — what felt like his whole hand go up her vagina and then he asked her repeatedly how does that feel? How does that feel; how does that feel? And her testimony was, 'It feels like you’re hitting a bone’, that’s her testimony regarding penetration. In addition, she testified that at one point he licked her clitoris.” (Emphasis added.)

The court instructed the jury that the information charged that the sexual penetration with which defendant was charged was cunnilingus, but the court did not caution the jury that they must find that cunnilingus occurred in order to find the necessary element of penetration for first-degree criminal sexual conduct. Neither was the jury instructed to disregard touchings and "penetrations” other than cunnilingus in determining whether defendant was guilty. The lack of medical testimony and the prosecutor’s inference that all of the physician’s actions were prohibited allowed the jury to conclude that all of defendant’s acts were bad acts and, therefore, he probably performed the act charged. We thus conclude that defendant was deprived of a fair trial.

While no one would argue that medical testimony is necessary to prove that cunnilingus is not acceptable and ethical medical treatment, we believe the better view is to require medical testimony in prosecuting violations under MCL 750.520b(1)(f)(iv). Touchings which are ordinarily prohibited are often necessary for medical examination and treatment. The patient may not be aware of what is medically necessary or acceptable and what is not. Criminal statutes must be strictly construed in favor of the defendant where his substantial rights are concerned. Dimmers v Hillsdale Circuit Judge, 289 Mich 482; 286 NW 798 (1939). The statute, directed at the physician who may seek to take improper advantage of the close professional relationship between physician and patient, is clear and unambiguous in requiring that the conduct be medically unethical or unacceptable.

Defendant also contends that he was denied a fair trial by different remarks of the prosecutor which appealed to the emotions and prejudices of the jury. A review of the record reveals the following prejudicial comments:

"And the Defense Attorney’s statement that all of this allegedly happened out of the clear blue sky doesn’t happen that way. There’s always some buildup where the man asks for sex. Well, it doesn’t happen that way. Maybe in a normal man it doesn’t, but it does happen that way. Women are raped on the street, they are raped in their own house. Daughters are raped by fathers. It happens and it happens that doctors rape patients. It does happen or else why would we be in law? Or why is there a special section in law exactly for this crime? If you don’t know from your own common knowledge that that happens, I’m shocked, but it does happen.

"Now, why would he take that risk? I don’t know. Thank heavens I’m not called upon to prove beyond a reasonable doubt an answer beyond a reasonable doubt. Every question you have in your mind, that question is in my mind, too. But the reason why he chooses to do this for excitement, the reason he chooses to get his kicks from his patients and the answer to that question is not an element of this crime. It’s not something I have to prove. There’s no way I could. There is no way I could fathom what goes on in this man’s mind, much less prove it to you. The elements that I have to prove are penetration, injury and force and that’s it. Those have to be proved beyond a reasonable doubt. And let’s understand this, presumption of innocence and beyond a reasonable doubt.”

The prosecutor’s reference to women being raped on the street, daughters being raped by their fathers, and patients being raped by their doctors was unnecessary and highly prejudicial. Of even greater prejudice was the prosecutor’s statement that he did not know why the defendant chose to "get his kicks from his patients”. There was no testimony of any similar charges or accusations against defendant, yet the prosecutor’s use of the plural let the jury speculate that defendant is an habitual sex offender.

The remarks at issue were not met with an objection. However, if prosecutorial comments nonetheless result in the denial of a fair trial, they may be cause for reversal. People v Knolton, 86 Mich App 424, 428; 272 NW2d 669 (1978). We conclude that the remarks, having the effect of arousing the passions of the jury and diverting its attention from the proper issues, resulted in a miscarriage of justice.

We additionally note that the prosecutor’s remarks concerning the credibility of witnesses strayed dangerously close to constituting an expression of personal opinion. See People v Couch, 49 Mich App 69; 211 NW2d 250 (1973). Particularly inappropriate were the remarks that defendant’s nurse would "say anything”, that she "wasn’t worth cross-examining” and that she would "make it up as she went along”.

Repeated expressions in closing argument conveyed the prosecutor’s opinion that defendant was lying. This Court in People v Tarpley, 41 Mich App 227, 237; 199 NW2d 839 (1972), on a similar record of multiple inflammatory and prejudicial remarks reversed despite the failure of defense counsel to object, stating:

"In the instant case the goal of an objection by the defendant would have been a cautionary instruction by the trial judge. In our opinion an instruction would not have eliminated the prejudice created by the prosecutor’s inflammatory and prejudicial remarks especially in the light of the cumulative effect of their number and frequency during the course of the argument. Defendant’s failure to object will not, therefore, bar this Court from affording the appropriate relief. People v Montevecchio, [32 Mich App 132 (1971)] supra, 166. Defendant need not be bound by his attorney’s failure to object since the cumulative effect of the prosecutor’s conduct constitutes a miscarriage of justice requiring reversal of his conviction. People v Brocato, 17 Mich App 277 (1969).”

Reversed and remanded for a new trial.

T. M. Burns, J., concurred.

M. F. Cavanagh, J.

(dissenting). I cannot agree with my sister’s conclusion that the trial court’s instructions did not provide the jury with any guidance or standard by which they could determine whether the defendant’s conduct was proscribed. The trial court clearly instructed on first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and clearly instructed the jury on the definition of cunnilingus. I can conceive of no instance when cunnilingus could be medically recognized as an ethical or acceptable practice. The average lay person or juror would not need expert medical testimony to come to this same conclusion. The meaning of the language here involved is understandable to a person of ordinary intelligence and, for this reason, I feel the jury was competent to make this determination. People v Cabassa, 249 Mich 543, 549; 229 NW 442 (1930). This is not to say that medical testimony is unnecessary in most conceivable prosecutions under this section of the statute. It is only because this particular practice is readily understandable by a juror as being medically unethical or unacceptable.

A reading of the closing arguments of counsel and instructions by the court in their entirety persuades me that this defendant was not denied a fair trial. The portion of the transcript quoted by the majority to indicate that the trial court placed the question of the propriety of the entire examination before the jury occurred outside the presence of the jury and was never again mentioned or referred to in the court’s instructions. The portion of the prosecutor’s argument cited by the majority occurred on rebuttal and clearly was in response to matters propounded by a defense counsel during his closing argument. The prosecutor’s comments in closing and rebuttal when read in their entirety did not exceed the bounds of permissible advocacy. I also take note of the fact that neither the instructions given by the trial court nor any of the comments of the prosecuting attorney were objected to by defense counsel.

This was a close case. It basically resolved itself down to a matter of credibility between the complainant and the defendant. The defendant through cross-examination of the complainant, by his own testimony, and by defense counsel’s argument clearly presented to the jury defendant’s theory of the case. The fact that the jury chose to disbelieve the defendant’s version does not mean that he was denied a fair trial. I Would affirm the conviction.


source: Caselaw Access Project

author: Mackenzie, P.J.

license: Public Domain

text:
    THE HARTFORD INSURANCE GROUP v MILE HIGH DRILLING COMPANY
    Docket No. 78-3586.
    Submitted December 4, 1979, at Detroit.
    Decided April 1, 1980.
    Mile High Drilling Company leased a crane from Contractors Machinery Company for use at a construction site. Mile High’s supervisor requested the loan of a crane operator from another contractor at the site, Greenfield and Associates. While Greenfield’s operator was performing a loading operation the crane tipped over and was damaged. Contractors Machinery repaired the crane and sought reimbursement from the Hartford Insurance Group, Contractors’ insurer. Hartford, as subrogee of Contractors Machinery, brought an action for damages against Mile High and Greenfield, each of which subsequently brought cross-claims against the other. The Wayne Circuit Court, John D. O’Hair, J., found that Greenfield was not liable and that Mile High was liable for damages in the amount of $15,500. Hartford appeals, alleging that Greenfield should also have been found liable, that the trial court was compelled by defendants’ failure to answer Hartford’s request for admissions to award damages of $26,244.89 and that the trial court erred in finding that plaintiff sustained damages of only $15,500. Held:

    1. The crane operator was a borrowed servant for purposes of the doctrine of respondeat superior. Therefore, the proper test for determination of liability is that of control. A review of the evidence indicates that the trial court’s finding that Greenfield had relinquished control over the crane operator and thus was not liable under the doctrine of respondeat superior was not clearly erroneous.
    2. The plaintiff failed to preserve for review the issue of a defect in the defendants’ answer to a request for admissions as to the amount of damages.
    3. The trial court’s finding on the amount of damages was not clearly erroneous.
    Affirmed.
    References for Points in Headnotes
    [1, 4] 53 Am Jur 2d, Master and Servant §§ 2, 26, 417.
    [2] 53 Am Jur 2d, Master and Servant § 2.
    [3] 5 Am Jur 2d, Appeal and Error § 839 et seq.

    [5] 5 Am Jur 2d, Appeal and Error §§ 600-602.

      1. Master and Servant — Respondeat Superior — Control.
    The test for determining liability in the case of a negligent borrowed servant is not the economic reality test as applied in cases involving the Worker’s Disability Compensation Act; rather, it is the control test, under which the determination of which master is liable for the negligence of a borrowed servant under the doctrine of respondeat superior depends upon which master had complete control over the servant at the time of the negligent act.
    2. Master and Servant — Economic Reality Test.
    The economic reality test for determination of whether a worker is an employee of a particular employer examines four factors: (1) control of the worker’s duties, (2) the payment of wages, (3) the right to hire, fire, and discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.
    3. Appeal — Findings of Fact — Clear Error.
    Findings of fact made by a trial judge at a bench trial will not be set aside on appeal unless they are clearly erroneous; they are clearly erroneous where, although there is evidence to support them, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been made.
    4. Master and Servant — Respondeat Superior — Control Test.
    The control test for determination of liability of an employer for the negligence of a borrowed employee under the doctrine of respondeat superior is whether in the particular service in which he is engaged the employee continues liable to the direction and control of his original employer or becomes subject to that of the employer to whom he is lent or hired; to escape liability the original employer must resign full control of the employee for the time in question.
    5. Pleading — Request for Admissions — Defect in Answer — Preserving Issue — Court Rules.
    A plaintiff wishing to take advantage of a defect in a defendant’s answer to a request for admissions must raise the issue prior to the end of trial (GCR 1963, 312.2).

      Davies, Rudzki & Bremer (by A. Ross MacEwen), for plaintiff.

      Fischer, Franklin, Ford, Simon & Hogg (by
      Ralph H. Houghton, Jr., and Lee T. Hoffman, Jr.), for defendant Greenfield and Associates.
    Before: Mackenzie, P.J., and V. J. Brennan and D. F. Walsh, JJ.
   Mackenzie, P.J.

On September 11, 1975, plaintiff Hartford Insurance Group filed a complaint in Wayne County ^Circuit Court for damages against defendants Mile High Drilling Company and Greenfield and Associates. Defendants subsequently filed cross-claims against. each other. Plaintiff now appeals the lower court judgment that defendant Greenfield was without liability and that defendant Mile High was liable for damages only in the amount of $15,500.

Mile High leased a crane from plaintiff’s subrogor, Contractors Machinery Company, for use at the Port Huron Tunnel project. On December 19, 1973, Mile High agreed to let Greenfield, another contractor at the tunnel site, use the crane for Greenfield’s own purposes. The crane was used by Greenfield until December 20, 1973. On December 28, 1973, Mile High’s supervisor asked Greenfield’s supervisor if he would loan his crane operator to him. Other than to instruct the crane operator, Mr. Edwards, to do as the Mile High supervisor requested, Greenfield did not supervise him. While Mr. Edwards was loading some buggies owned by Mile High onto a trailer, the crane tipped over and sustained damage.

The owner of the machine, Contractors Machinery, repaired the crane itself and sought reimbursement from plaintiff, its insurer. An appraiser of construction equipment examined the damaged crane several weeks after the accident, and testified that the total cost of repair was $31,830.41 including profit, and $26,494.49 without profit. The appraiser, however, testified that he did not possess expertise on the cause of damages and, consequently, had no opinion on how the crane was damaged.

Plaintiff first contends that the trial court erred in finding that the crane operator, Mr. Edwards, Was a borrowed servant of Mile High, thus relieving Greenfield from respondeat superior liability. We disagree.

The trial court found that Greenfield’s supervisor, Mr. Loy, made the crane operator’s services available to Mile High. In doing so, he did not retain control and supervisory duties over the crane operator for the service he was to perform for Mile High. Thus, the crane operator was a borrowed employee under Janik v Ford Motor Co, 180 Mich 557, 562; 147 NW 510 (1914). In that case, the Michigan Supreme Court held that the determination of which master is liable under the doctrine of respondeat superior in a borrowed servant situation depends upon which master had complete control over the servant at the time of the accident. Since Greenfield lacked control, it was not liable under the respondeat superior doctrine for the negligence of Mr. Edwards in performing the service.

In Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979), the Michigan Supreme Court was confronted with a situation involving the issue of whether the control test or the economic reality test is the proper test to employ. The economic reality test examines the following four factors: (1) control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal. Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976).

In Nichol, the plaintiffs decedent had been killed while working on an excavation project for a trailer park when a trench collapsed. The plaintiffs decedent was hired by the trailer park’s owner, and, consequently, the plaintiff received workmen’s compensation benefits from the owner. The owner had hired the defendant, an excavation contractor, to dig the trench. The defendant was also sued for negligence by the plaintiff, who contended that the defendant was an independent contractor and thus subject to suit. The defendant, however, contended it was an employee of the trailer park’s owner and thus immune from liability under the provision of the Worker’s Disability Compensation Act that bars suits by employees against co-employees, MCL 418.827(1); MSA 17.237(827X1).

The Court rejected use of the control test for determining whether the defendant was an employee of the trailer park owner or an independent contractor. The Court stated that the control test has been typically applied to cases involving the vicarious liability of a master for the acts of his servant vis-á-vis a third party. Stating that it was a misuse of the test to use it for purposes other than that for which it was originally intended, the Court limited it to cases involving the issue of liability under the doctrine of respondeat superior.

Upon rejecting the control test, the Court decided to apply the economic reality test. Noting that an independent contractor is a third party subject to suit under § 827(1) of the Worker’s Disability Compensation Act, the Court stated that the economic reality test was the appropriate test to determine which persons are not given immunity under the provision as well as those who are.

Taking into consideration the Supreme Court’s discussion of the control test and the economic reality test in Nichol, we conclude that employment of the control test was appropriate in this case, which involves a question of respondeat superior liability. Unlike Nichol, the workmen’s compensation statute is not involved here. Although the actual payment of workmen’s compensation benefits was not at issue in Nichol, the Supreme Court found it significant that important objectives of the workmen’s compensation statute were involved. The Court noted:

"Although workmen’s compensation benefits are not at issue here, the policies behind the act are involved through the invocation of § 827(1). We think that as the economic reality test is the appropriate test to determine which persons are intended to be included within the act, it is also the appropriate test to determine which persons should not be subject to the act’s bar against common-law remedies. Because the act is concerned with the correction of economic evils through remedies unknown to the common law, the control test, a creature of common law, is not responsive to the provisions of the statute. We deem it appropriate to apply the principle which accomplishes the purpose of the social legislation involved here, which is to afford maximum benefit to injured parties. As it is defendant who relies on the worker’s compensation act to support his defense, he should not be heard to complain that a rule utilized to construe the act’s provisions is to be employed.” Nichol v Billot, supra, at 298-299.

Having decided that employment of the control test was appropriate, we must next determine whether the trial court erred in concluding that Greenfield was not in control of the crane operator and thus not liable under the respondeat superior doctrine.

The findings of fact by a trial judge after a bench trial will not be set aside unless clearly erroneous. GCR 1963, 517.1. Findings are clearly erroneous when, although there is evidence to support them, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been made. People v Goss, 89 Mich App 598; 280 NW2d 608 (1979).

The control test was set forth in Janik v Ford Motor Co, supra, at 562:

• " 'The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services. It is not so much the actual exercise of control which is regarded, as the right to exercise such control. To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under control of- a third person.’ ”

Greenfield’s supervisor, Mr. Loy, testified that he lent the operator to Mile High, pursuant to a request by its supervisor, Mr. Eddy. He stated that he did not know what Mr. Eddy wanted him for at that time, and that he had no involvement in the task, except to tell the operator to report to Mr. Eddy for a job. He also stated that the movement of the buggies onto the trailer did not affect Greenfield’s operations one way or another.

Consequently, evidence was presented that Greenfield resigned full control over the crane operator once he was loaned to Mile High, and that the crane operator became a borrowed servant of Mile High. Our review of the remaining evidence does not convince us that a different conclusion is warranted. We therefore conclude that the trial court did not err in holding that Greenfield was not liable under the doctrine of respondeat superior.

Plaintiff next contends that the failure of defendants to answer plaintiff’s request for admissions concerning the amount of damages constituted an admission of the correctness of the damage figure set forth by plaintiff. Consequently, the trial court was compelled to award $26,244.89, the damage amount alleged by plaintiff. We disagree.

GCR 1963, 312, the court rule dealing with requests for admissions, is based upon Federal Rule of Civil Procedure (FRCP) 36. See Committee Notes, 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 216. In Hartley & Parker, Inc v Flordia Beverage Corp, 348 F2d 161 (CA 5, 1965), the defendant failed to verify answers to requests for admissions as required by FRCP 36. Nonetheless, the requests for admissions and their answers were offered by plaintiff at trial and were admitted into evidence. Defendant did not claim that because of the lack of verification the requests stood admitted until after the close of the evidence. The Court, interpreting FRCP 36, held that the duty rested on the plaintiff, if it wished to take advantage of a defect in defendant’s answer to requests for admissions, to raise the issue prior to the end of trial. The Court noted that the plaintiff’s failure to raise the issue at trial prevented the trial court from exercising its discretion to determine whether to allow the defendant to cure the defect prior to the end of trial.

Noting that GCR 1963, 312 is based upon FRCP 36, we conclude that the rule set forth in Hartley is likewise applicable to GCR 1963, 312. Such a rule facilitates the use of the court’s discretion under GCR 1963, 312.2 to permit a party to withdraw or amend any admissions for good cause shown. Plaintiff failed to raise this issue at the trial court level and, consequently, we conclude that it is without merit.

Plaintiff lastly contends that the trial court erred in finding that plaintiff sustained damages of only $15,500 in repairing the crane. We also disagree with this contention.

In awarding $15,500 in damages, the court stated that it could not conclude that some of the repair charges listed by plaintiff were causally related to the negligence of Mr. Edwards and Mr. Eddy. Further, the court stated that plaintiff’s subrogor generally received a 25% discount on parts from its supplier and it was unclear whether the charges as listed took this discount into consideration. The trial court noted that evidence as to the reasonable cost of repairing the damage ranged from $10,000 to $31,830. Thus, the court concluded that $15,500 was an amount that was reasonably incurred in repairing the crane.

As noted previously, the fact findings of a trial court will not be reversed unless clearly erroneous. Our review of the record reveals that evidence on the amount of damages is inconclusive. Consequently, we do not have a definite and firm conviction that a mistake was committed by the trial court.

Affirmed. Costs to defendant-appellee.

       In light of the Supreme Court’s discussion in Nichol v Billot, we disagree with plaintiffs condition that this Court’s opinion in Smith v Martindale, 81 Mich App 682; 266 NW2d 49 (1978), mandates application of the economic reality test.


author: N. J. Lambros, J. M. J. Kelly, J.

text:
    ZIMMERMAN v MICHIGAN HOSPITAL SERVICE
    Docket No. 78-3876.
    Submitted November 19, 1979, at Detroit.
    Decided April 1, 1980.
    Plaintiffs, Gerald Zimmerman and his wife, Janet, were subscribers of defendant, Michigan Hospital Service, also known as Michigan Blue Cross. The plaintiffs incurred hospital expenses of $5,194.25 as a result of the birth of triplets. The defendant paid a portion of the hospital expenses, but twice refused to pay the balance of $3,408.55 owed to the hospital for care given to Mrs. Zimmerman. The hospital brought an action against the Zimmermans which resulted in a judgment for the hospital. The plaintiffs then brought an action against defendant in Wayne Circuit Court for breach of contract and requested relief for the actual hospital expenses, costs and attorney fees and for $200,000 for mental anguish and emotional distress suffered as a result of defendant’s alleged wrongful failure to pay according to the insurance policy. A judgment was entered in plaintiffs’ favor, Richard R. Robinson, J. The defendant appeals from that portion of the judgment which pertains to plaintiffs’ recovery of exemplary damages for mental anguish and emotional distress caused by the failure of the defendant to pay benefits due under the hospitalization contract. Held:

    Compensation for actual injury done to feelings or state of mind has been allowed, in limited circumstances, under the label of exemplary damages. However, such damages are generally not allowed in actions for breach of contract. In the instant case, exemplary damages for mental anguish were not a foreseeable consequence of the defendant’s breach of the insurance contract. That portion of the lower court judgment awarding exemplary damages for mental anguish and humiliation for breach of the insurance contract is reversed.

      References for Points in Headnotes
    [1-3] 22 Am Jur 2d, Damages §§ 195, 245.
    [2, 3] 22 Am Jur 2d, Damages § 56.
    44 Am Jur 2d, Insurance § 1797.
    Damages recoverable from insurer for failure or delay in making payments due under contract. 37 ALR2d 538.
    Insurer’s liability for consequential or punitive damages for wrongful delay or refusal to make payments due under contracts. 47 ALR3d 314.

      Reversed in part.
    M. J. Kelly, J., dissented. He would hold that since the plaintiffs paid the policy premiums not for the purpose of protecting a commercial investment but rather for the peace of mind that one derives from knowledge that one will receive necessary medical care without concern for ability to pay, the plaintiffs suffered more than monetary damages. He would affirm the award of exemplary damages for mental anguish.
    Opinion of the Court
    1. Contracts — Breach of Contract — Exemplary Damages — Mental Anguish.
    Compensation for actual injury done to feelings or state of mind caused by a breach of contract has been allowed in limited circumstances under the label of exemplary damages; there are instances in which the very nature of the contract is such that "rights we cherish, dignities we respect, emotions recognized by all as both sacred and personal” are involved and injury to feelings or state of mind may readily be understood to be the natural and probable consequence of a breach of contract in such instances.
    2. Contracts — Insurance — Medical Insurance — Breach of Contract — Damages.
    The essence of a hospital insurance contract is pecuniary and an insured can be fully compensated for the insurer’s breach for refusing to pay the full amount of the insured’s hospital expenses without resort to an award of exemplary damages for the insured’s mental anguish; it cannot be reasonably supposed that the parties contracted with reference to payment of damages for mental anguish in the event of a breach.
    Dissent by M. J. Kelly, J.
    3. Contracts — Insurance — Medical Insurance — Breach of Contract — Damages — Mental Anguish.

      The consideration for payments made under a medical insurance policy is the peace of mind that one derives from knowledge that one will receive necessary medical care without concern for ability to pay; therefore, a plaintiff who has suffered mental anguish due to an insurer’s improper failure to pay a claim under a medical insurance contract should be permitted to recover damages for the mental anguish suffered because of the breach of contract.

      Cicinelli, Mossner, Majoros & Alexander, P.C. (by Eugene D. Mossner and William S. Pearson), for plaintiffs.

      McClintock, Donovan, Carson & Roach, for defendant.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   N. J. Lambros, J.

Plaintiffs Gerald Zimmerman and his wife, Janet, were subscribers of defendant, Michigan Hospital Service, also known as Michigan Blue Cross. Hospital expenses in the amount of $5,194.25 were incurred by the plaintiffs as a result of the birth of triplets to Mrs. Zimmerman. Defendant paid a portion of the hospital expenses, but twice refused to pay the balance of $3,408.55 owed to the hospital for care given to Mrs. Zimmerman.

The hospital then contacted the plaintiffs concerning payment. Plaintiffs refused payment because they believed the defendant to be liable. Legal proceedings were instituted by the hospital, resulting in a judgment against the plaintiffs for $3,484.69.

Plaintiffs initiated this suit against the defendant for breach of contract and requested relief for the actual hospital expenses, costs and attorneys fees and for $200,000 for mental anguish and emotional distress suffered as a result of defendant’s alleged wrongful failure to pay according to the insurance policy.

After a three-day trial, the jury returned a verdict for the plaintiffs for $104,213.55. Defendant’s motion for a new trial (remittitur) was denied by the trial court.

Defendant does not appeal from that portion of the verdict concerning plaintiffs’ recovery for insurance benefits, attorneys fees, and costs. The sole issue before this Court is whether plaintiffs may recover exemplary damages for mental anguish and emotional distress caused by the failure of defendant Blue Cross to pay benefits due under the hospitalization contract.

In Michigan, compensation for actual injury done to feelings or state of mind has been allowed in limited circumstances under the label of exemplary damages. However, as noted in Stewart v Rudner, 349 Mich 459, 469; 84 NW2d 816 (1957), such damages are generally not allowed in breach of contract actions:

"It is true, in the ordinary commercial contract, damages are not recoverable for disappointment, even amounting to alleged anguish, because of breach. Such damages are, in the words of defendant’s requested charge, 'too remote.’ But these are contracts entered into for the accomplishment of a commercial purpose. Pecuniary interests are paramount. In such cases breach of contract may cause worry and anxiety varying in degree and kind from contract to contract, depending upon the urgencies thereof, the state of mind of the contracting parties, and other elements, but it has long been settled that recovery therefor was not contemplated by the parties as the 'natural and probable’ result of the breach.”

But the Court in Stewart recognized that there are instances in which the very nature of the contract is such that "rights we cherish, dignities we respect, emotions recognized by all as both sacred and personal” are involved. Stewart, at 469. In these situations, injury to feelings or state of mind may be readily understood to be the natural and probable consequence of a breach of the contract:

"When we have a contract concerned not with trade and commerce but with life and death, not with profit but with elements of personality, not with pecuniary aggrandizement but with matters of mental concern and solicitude, then a breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering. In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.” Stewart, supra, at 471.

Examples of such contracts are breaches of a promise to deliver a baby by caesarian section, thereby causing the death of the fetus, Stewart, supra; breach of promise to marry, Vanderpool v Richardson, 52 Mich 336; 17 NW 936 (1883); breach of a contract to care for the plaintiffs elderly mother and notify the plaintiff in the event of her illness, Avery v Arnold Home, Inc, 17 Mich App 240; 169 NW2d 135 (1969); and breach of a contract to insure, resulting in the arrest and confinement of the plaintiff on a body execution, a then-lawful process, Miholevich v Mid-West Mutual Auto Ins Co, 261 Mich 495; 246 NW 202 (1933).

Applying the above analysis to the facts of this case, we find that this is not such a case as falls within the exception of Stewart. Here, the contractual breach involves only the nonpayment of money. The plaintiffs claim one amount of insurance coverage; Blue Cross a lesser amount. The defendant’s breach only caused the plaintiffs a monetary disadvantage, which inconvenience has been cured by their prevailing in the circuit court action below. The essence of the insurance contract being pecuniary, the plaintiffs have been fully compensated without resort to damages for mental anguish. As stated in Jankowski v Mazzotta, 7 Mich App 483, 487; 152 NW2d 49 (1967), "In every case of a contract breach, there is bound to be vexation and annoyance to one or both of the contracting parties. Whether such disappointment is real or imaginary, it is the natural result of a breach of contract.” See Riggs v Fremont Mutual Ins Co, 85 Mich App 203, 206; 270 NW2d 654 (1978). Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439, 444-445; 264 NW2d 19 (1978). The plaintiffs’ injured pride is not alone sufficient to justify recovery beyond actual damages in this instance.

We conclude that exemplary damages for mental anguish were not a foreseeable consequence of defendant’s breach of this insurance contract. It cannot be reasonably supposed that the parties contracted with reference to payment of damages for mental anguish in the event of a breach. That portion of the lower court judgment awarding exemplary damages for mental anguish and humiliation for breach of the insurance contract, therefore, is reversed.

Reversed in part. No costs are awarded.

Allen, P.J., concurred.

M. J. Kelly, J.

(dissenting). Contrary to the position taken by the majority, I believe we are presented here with precisely the type of exception contemplated by the Court in Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957). Plaintiffs contract with Michigan Hospital Service, also known as Michigan Blue Cross, was not for the purpose of protecting a commercial investment; pecuniary aggrandizement is not anticipated by parties to a health insurance contract. The consideration for payments made under the policy is, rather, the peace of mind that derives from knowledge that one will receive necessary medical care without concern for ability to pay. The majority concludes that plaintiffs suffered only monetary disadvantage as a result of defendant’s breach and are therefore not entitled to damages for mental anguish. I cannot equate the mental disquietude plaintiffs herein experienced with the usual vexation and annoyance accompanying a breach of contract involving trade and commerce. Health preservation concerns, common to all, are far more fundamental. Plaintiffs’ contract with Michigan Blue Cross was designed to insure against the very anxiety they were forced to endure by defendant’s nonpayment.

Furthermore, there is ample legal support for plaintiffs’ claim of damages for mental anguish. This Court, in Kewin v Massachusetts Mutual Life Ins Co, 79 Mich App 639; 263 NW2d 258 (1977), lv gtd 402 Mich 940 (1978), noted that a variety of insurance contracts have been accepted as involving "mental concern and solicitude”:

"That phrase now encompasses health insurance (McCune v Grimaldi Buick [45 Mich App 472; 206 NW2d 742 (1973)]), fire and casualty insurance (Krajenke v Preferred Mutual Insurance Co [68 Mich App 211; 242 NW2d 70 (1976)]), professional malpractice insurance (Palmer v Pacific Indemnity Insurance [sic] Co [74 Mich App 259; 254 NW2d 52 (1977)]), and life insurance (Seaton v State Farm Life Insurance Co [75 Mich App 252; 254 NW2d 858 (1977)]). No Michigan court has considered whether disability insurance should be placed in the same classification. In Bolden v John Hancock Mutual Insurance Co [422 F Supp 28 (ED Mich, 1976)], a Federal district judge held that disability insurance did not qualify for the Stewart exception. However, that decision was made without the benefit of McCune, Krajenke, Palmer, and Seaton. Given the clear consensus of this Court established by those four decisions, we must reject Bolden, and hold that disability insurance contracts are also concerned with matters of mental concern and solicitude.” 79 Mich App at 649.

The Kewin Court made it clear that in the absence of plaintiff’s pleading deficiency, defendant’s failure to pay the claim under the disability insurance contract would have permitted recovery for mental anguish damages. The issue in Kewin was framed in terms of defendant’s "bad faith” failure to pay. The instant case raises a similar question regarding whether defendant acted in bad faith in persisting in refusal in the face of Mrs. Zimmerman’s physician’s correspondence with defendant emphasizing that plaintiff’s hospitalization was not simply for purposes of rest or convalescence, but was absolutely necessary to ensure the safe birth of the triplets.

I would affirm the lower court judgment awarding damages for mental anguish.


author: J. C. Daner, J.

text:
    NEUMANN v TRANSIT CASUALTY COMPANY
    Docket No. 78-4196.
    Submitted June 18, 1979, at Detroit.
    Decided April 1, 1980.
    Shirley Neumann was injured on a bus insured by defendant Transit Casualty Company. Plaintiff sought medical benefits from defendant Transit under the no-fault insurance policy issued by Transit. Defendant Transit, through its Michigan agent, defendant Michigan Claims Service, Inc., denied payment of medical benefits on the basis of the provision of the no-fault insurance act which provides that no-fault benefits shall be reduced by any benefits required to be provided under the laws of any state or the Federal government. Defendants took the position that the supplemental medical insurance benefits payable under the Federal Social Security Act which were received by plaintiff fell within the reduction of benefits provision of the no-fault insurance act. Plaintiff brought an action for declaratory judgment. The Oakland Circuit Court, Robert L. Templin, J., entered a judgment requiring defendant Transit Casualty Company to pay the medical benefits under its no-fault insurance policy without a reduction for the supplemental medical insurance benefits received by plaintiff and dismissed plaintiff’s cause of action against defendant Michigan Claims Service, Inc. Defendant Transit Casualty Company appeals. Held:

    1. Supplemental medical insurance benefits under the Federal Social Security Act, being benefits provided under Federal law, are benefits within the scope of the language of the reduction of benefits provision of the Michigan no-fault insurance act. The inclusion of those benefits within that provision is violative of the constitutional right to equal protection of the laws to the extent that such benefits result from the private payment of a premium by a subscriber to the program. To hold otherwise would place an additional burden upon a person purchasing coverage from the governmentally created system relative to those persons purchasing coverage from a private insurer under circumstances in which such a distinction cannot be shown to be rationally related to a legitimate governmental interest. Since under Federal law the premiums of those enrolled in the supplemental medical insurance benefits program are calculated to pay for one half of the costs of the program, one half of the benefits received under that program are constitutionally exempt from the operation of the benefit reduction provision of the no-fault act, while the other one half of the benefits are subject to the operation of that provision of the no-fault act.

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d (Rev), Automobile Insurance § 368.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.
    [2] 7 Am Jur 2d (Rev), Automobile Insurance §§ 25, 27.

      Affirmed in part, reversed in part and remanded.
    1. Insurance — No-Fault Insurance — Reduction of Benefits — Social Security — Supplemental Medical Insurance — Statutes.
    Supplemental medical insurance benefits under the Federal Social Security Act, being benefits provided under Federal law, are benefits, with certain limitations, within the scope of the reduction of benefits provision of the Michigan no-fault insurance act, notwithstanding the fact that the right to the Federal benefits is not dependent upon the need for such benefits arising out of an automobile related injury (42 USC 1395 et seq., MCL 500.3109[1]; MSA 24.13109[1]).
    2. Constitutional Law — No-Fault Insurance — Reduction of Benefits — Social Security — Supplemental Medical Insurance — Equal Protection — Statutes.
    The reduction of benefits provision of the Michigan no-fault insurance act violates the constitutional right to equal protection of the law when applied to benefits payable under the supplemental medical insurance benefits provisions of the Federal Social Security Act to the extent that such Federal benefits arise out of the private payment of a premium; distinguishing between persons paying premiums for coverage under a federally sponsored medical insurance program and persons paying for premiums for coverage under private medical insurance policies is not rationally related to a legitimate governmental interest and thus violates the constitutional right to equal protection of the law (42 USC 1395j et seq., MCL 500.3109[1]; MSA 24.13109[1]).

      Bushnell', Gage, Reizen & Byington (by David D. Kohl), for plaintiff.

      David C. Hertler, for defendants.
    Before: Bashara, P.J., and V. J. Brennan and J. C. Daner, JJ.

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

   J. C. Daner, J.

The defendant Transit Casualty Company appeals from a declaratory judgment which ordered the defendant casualty company to make payment of no-fault insurance benefits without a deduction for the supplementary medical insurance benefits which were payable to plaintiff pursuant to 42 USC 1395j et seq. At issue is the scope of the Michigan Supreme Court’s holding in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979).

The defendant casualty company, citing O’Donnell, claims that the mandatory deduction of government benefits from no-fault insurance benefits, which is required by § 3109(1) of the Michigan no-fault insurance act, does not violate the constitutional guarantees of due process or equal protection. The plaintiff contends that, because the government benefit at issue in this case results from her voluntary payment of premiums, the Court’s holding in O’Donnell does not apply. We hold that, to the extent that a government benefit accrues from the voluntary payment of premiums, the mandatory setoff of no-fault insurance benefits based on such a government benefit violates the constitutional guarantee of equal protection.

Section 3109 of the Michigan no-fault insurance act provides that:

"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”

In O’Donnell, supra, 544, the Court found that:

"The history of § 3109(1) indicates that the Legislature’s intent was to require a set-off of those government benefits that duplicated the no-fault benefits payable because of the accident and thereby reduce or contain the cost of basic insurance.”

We shall first discuss whether or not the government benefit at issue is subject to the setoff provisions of § 3109 and then discuss whether or not the provision violates the constitutional guarantees of due process or equal protection.

Concerning whether or not the supplementary medical insurance benefits at issue fall within the language of the setoff provision, the plaintiff argues that, because the right to the government benefit is not dependent upon an automobile accident, the setoff provision does not apply. This argument is without merit. The fact that the conditions precedent to the government benefit in this case and the no-fault insurance benefit are not identical does not preclude a finding that both benefits compensate the recipient for injuries arising out of an automobile accident. It is uncontested that the plaintiff’s supplementary medical insurance benefit is paying for injuries arising out of the same motor vehicle accident for which the no-fault insurance benefits are claimed. The government benefit in this case is one which duplicates the no-fault benefits payable because of the accident. The benefits provided by the supplementary medical insurance are provided by operation of Federal law and are, therefore, within the language of the statutory setoff.

Concerning whether or not the setoff provision provided by § 3109 of the no-fault insurance act violates the guarantee of either due process or equal protection, the defendant contends that, in accordance with O'Donnell, § 3109 was held not to violate those guarantees when it was applied to social security benefits. It is argued that, because the supplementary medical insurance benefit is one of the many benefits provided by the Social Security Act, the no-fault insurance benefits may be set off with respect to the government benefit at issue in this case.

In O'Donnell, the Michigan Supreme Court held that Federal social security survivors’ benefits required a setoff of no-fault insurance benefits by operation of § 3109, and that, because the distinction between governmental and private benefits was neither arbitrary nor irrational, the setoff did not violate the constitutional guarantees of due process or equal protection. The Court then stated:

"This opinion is confined to the facts before the Court and does not purport to encompass other possible government benefits.” O'Donnell, supra, 538.

The standards of review concerning claimed violation of due process and equal protection are adequately outlined in O'Donnell, supra, 540-543, and do not warrant repetition.

The only fact distinguishing ODonnell from the present case is that in O'Donnell the governmental benefit was provided ex gratia, whereas, in the present case, the benefit at issue required the payment of insurance premiums by the plaintiff.

In O'Donnell, supra 547-550, the Supreme Court stated that it found a rational basis to support the distinction between private and governmental benefits in the legislative desire to minimize the cost of no-fault insurance by providing a setoff for overlapping governmental benefits while allowing those who desired additional benefits to purchase such additional benefits. The rationale basis upon which the setoff provision rests supports a distinction between private benefits and ex gratia governmental benefits. The basis upon which the Supreme Court rested its holding in O’Donnell', however, does not justify a distinction between public benefits and purchased governmental benefits. The Supreme Court’s majority opinion, when read as a whole, supports this conclusion.

The majority opinion stated that the distinction between governmental benefits and private benefits was that those receiving benefits from private insurance companies pay directly for those benefits whereas those who receive governmental benefits do not. See O’Donnell, supra, 548. It is clear, therefore, that when the Court discussed the distinction between governmental benefits and private benefits in O’Donnell, it did not consider governmental benefits for which the recipient had paid premiums.

We are aware that, in LeBlanc v State Farm Mutual Automobile Ins Co, 87 Mich App 555; 274 NW2d 69 (1978), this Court, over the dissent of Judge D. E. Holbrook, did not find the failure to distinguish between purchased governmental benefits and ex gratia governmental benefits to be significant. In LeBlanc, this Court required the application of the setoff provision to Medicare payments for which the plaintiff had paid a fee. LeBlanc, however, was decided prior to the Supreme Court’s decision in O’Donnell. Considering that the Supreme Court’s more recent opinion stressed that payment for private duplicative benefits was that which distinguished them from governmental benefits, we now find that the distinction between purchased governmental benefits and ex gratia governmental benefits is significant.

The traditional equal protection analysis seeks to determine whether or not a legislative classification is rationally related to a legitimate governmental interest. Shavers v Attorney General, 402 Mich 554, 614, fn 38; 267 NW2d 72 (1978). Because the state cannot arguably have an interest in promoting private insurance companies at the expense of identical Federal risk-spreading systems, any distinction between a premium-funded governmental benefit and a private benefit violates the guarantee of equal protection.

Although the language of § 3109 does not distinguish between governmental benefits which are funded by the recipients and governmental benefits which are funded by the public as a whole, the presumption that the Legislature intended a constitutional result and the history of § 3109 as outlined in O’Donnell, supra, 544-550, lead us to conclude that the Legislature intended the setoff to apply only to the extent that the recipient did not pay for the governmental benefit.

In the present case, the supplementary governmental insurance benefit program is funded by both premium payments by the enrollees and funds appropriated by the Federal government. 42 USC 1395j. The amount of the premiums paid by the enrollees is calculated to pay for one half of the costs of the program. 42 USC 1395r(b)(2). The setoff required by § 3109, therefore, applies only to one half of the governmental benefits received by the plaintiff. Accordingly, the judgment of the circuit court is affirmed in part and reversed in part and this case is remanded for proceedings not inconsistent with this opinion.

       MCL 500.3109(1); MSA 24.13109(1).

       42 USC 1395j-1395w.

       42 USC Chapter 7.

       A distinction between a premium-funded governmental insurance system and private insurance systems would appear to violate not only the equal protection clause but also the supremacy clause of the US Constitution by discouraging participation in the Federal program. The remedy afforded herein cures this particular defect. We decline .to address the issue of whether or not the setoff provision of § 3109 violates the supremacy clause by defeating the purpose of the Federal legislation because that issue has not been raised on appeal.

       See People v Bandy, 35 Mich App 53, 57; 192 NW2d 115 (1971), and Osborn v Charlevoix Circuit Judge, 114 Mich 655, 660; 72 NW 982 (1897), holding that the presumption of constitutionality justifies a construction contrary to the natural interpretation of the statutory language if necessary to sustain the law.


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

text:
    GRAHAM v RYERSON
    Docket No. 78-4621.
    Submitted January 15, 1980, at Detroit.
    Decided April 1, 1980.
    Leave to appeal applied for.
    David Graham was a diesel mechanic for Kinnie Annex Cartage Company (Kinnie) which leased and serviced trucks. Kinnie received a call from one of its customers, Joseph T. Ryerson & Sons (Ryerson), concerning a flat tire on one of its leased trucks. Graham was sent to replace the flat tire. While he was inflating the flat tire so he could use a jack, the pressure caused the side ring of the truck wheel to blow off causing severe injuries to his arms and legs. The side ring was part of an RH5° multi-piece wheel assembly manufactured by Firestone Tire and Rubber Company (Firestone). Graham, his wife Estella, and Reliance Insurance Company, Kinnie’s workmen’s compensation insurer, brought an action for damages against Ryerson and Firestone. Count I of the complaint alleged negligence on the part of Ryerson for failing to warn Graham that the truck had been run with a flat tire and that it had been overloaded. Count II sounded in negligence against Firestone. It charged breach of a duty to warn of the hazards of the RH5° wheel and negligence in the design of the wheel. Count III alleged breach of implied warranty in the product design. Ryerson’s motion for a directed verdict was granted. A jury found no cause of action against Firestone. Wayne Circuit Court, Thomas Roumell, J., ruled as a matter of law that defendant Firestone had no duty to warn plaintiff of the danger involved in inflating a tire that had been run while flat because of his status as an expert in changing truck tires. Plaintiffs appeal the ruling. They also claim the trial court erred in refusing to submit to the jury the question of Firestone’s duty to warn and the court’s refusal to admit a National Highway Transportation Safety Administration (NHTSA) report into evidence. The jury verdict of no cause of action is challenged as being against the great weight of the evidence and plaintiffs allege that the trial court erred in directing a verdict in favor of Ryerson. Held:

      References fok Points in Headnotes
    [1, 3] 63 Am Jur 2d, Products Liability §§ 48, 57.
    Manufacturer’s or seller’s duty to give warning regarding product as affecting his liability for product-caused injury. 76 ALR2d 9.
    [2] 57 Am Jur 2d, Negligence § 34.
    [3] 63 Am Jur 2d, Products Liability § 51.
    [4] 4 Am Jur 2d, Appeal and Error § 519.
    [5] 63 Am Jur 2d, Products Liability § 63.
    Manufacturer’s or' seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.
    [6] 4 Am Jur 2d, Appeal and Error § 397 et seq.

    5 Am Jur 2d, Appeal and Error § 886.

      1. If members of a particular trade or profession commonly engage in a dangerous practice, the manufacturer’s knowledge of this conduct may give rise to a duty to warn that special dangers can arise from the use or misuse of its product. Trial testimony discloses that it was the common practice of diesel mechanics like Graham to inflate flat tires in order to elevate vehicles. Defendant Firestone should have known this since it had been informed of 40 similar blowout incidents. Therefore, a question exists as to Firestone’s duty to warn even tire repairmen of the special danger involved. The question of Firestone’s duty to warn was not a question of law for the court but a question for the jury to consider because the facts adduced at trial were in dispute, giving rise to a reasonable difference of opinion as to the foreseeability of the particular risk and the reasonableness of Firestone’s conduct in regard to it. Furthermore, even if Graham was conscious of some vague danger, he certainly did not appreciate the seriousness of the consequences of his action. Plaintiffs raised a jury submissible issue which the trial court improperly removed from its consideration.
    2. The trial court’s refusal to admit a report of the National Highway Transportation Safety Administration into evidence on grounds of its highly prejudicial character is upheld because plaintiffs have failed to make the report available for review.
    3. The jury verdict of no cause of action, limited to the question of design defect, on the record, was not against the great weight of the evidence,
    4. Plaintiffs failed to provide a transcript dealing with the court’s ruling on defendant Ryerson’s motion for a directed verdict. In the absence of the transcript to review, the court’s ruling will be affirmed. Other issues raised by plaintiffs were not properly preserved for appellate review.
    Affirmed in part, reversed in part and remanded.
    1. Products Liability — Manufacturers — Duty to Warn — Tradesmen — Dangerous Practices — Special Dangers.
    A manufacturer’s knowledge that members of a particular trade or profession commonly engage in dangerous practices may give rise to a duty to warn of special dangers that can arise from the use of its product.
    2. Negligence — Duty of Care — Question of Law — Question of Fact — Foreseeability — Disputed Evidence.
    The question of duty, in a negligence action, is generally decided by the court as a matter of law; however, a jury, properly instructed by the court, should examine the issue of whether a duty exists where the facts adduced at trial are in dispute and give rise to a reasonable difference of opinion as to the foreseeability of a particular risk and the reasonableness of a defendant’s conduct in regard to it.
    3. Products Liability — Duty to Warn — Vague Danger.
    A manufacturer may be required to provide a warning to cover the possibility of injury .from the use of its product where a user may have a consciousness of a vague danger without an appreciation of the seriousness of the consequences that the danger could cause.
    4. Evidence — Documentary Evidence — Admissibility — Discretion — Prejudice — Appeal.
    The Court of Appeals cannot find an abuse of trial court discretion in refusing to admit a report of the National Highway Transportation Safety Administration into evidence on grounds of its highly prejudicial character where the report has not been made available to the Court of Appeals.
    5. Products Liability — Reasonable Fitness — Implied Warranty — Use and Misuse of Product — Negligence.
    Manufacturers are duty bound to design products that are safe for their intended or reasonably anticipated use and this duty also includes reasonably anticipated misuse; the rule applies to theories of both implied warranty and negligence.
    6. Appeal — Motions — Inadequate Record — Directed Verdict — Trial Court Ruling — Affirmed on Appeal — Court Rules.
    The grant of a defendant’s motion for a directed verdict will be upheld on appeal where plaintiffs have failed to provide a transcript dealing with the trial court’s ruling on the motion (GCR 1963, 812.2).

      George A. Jones & Associates, for David and Estella Graham.

      Butzel, Long, Gust, Klein & Van Zile (by Delmer C. Gowing, III), for Firestone Tire & Rubber Company.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   M. J. Kelly, P.J.

Plaintiff David Graham claims damages resulting from injuries sustained when the side ring of a truck wheel blew off and struck him while he was inflating a flat tire. The side ring was part of an "RH5°” multi-piece wheel assembly manufactured by defendant Firestone Tire and Rubber Company (Firestone). Graham was a diesel mechanic in the employ of Kinnie Annex Cartage Company (Kinnie) which leased and serviced trucks. On May 1, 1973, Kinnie received a call from one of its customers, defendant Joseph T. Ryerson & Sons, a/k/a Ryerson Steel Company (Ryerson), concerning a flat tire on one of its leased trucks. The Ryerson driver was directed by Kinnie to complete his deliveries and then park the truck at the Ryerson garage. During the early morning hours of May 2, 1973, Kinnie dispatched Graham to replace the flat tire. In order to properly place the jack under the truck, Graham attempted to elevate the vehicle about 3/8” by inflating the flat tire. In response to the inflation pressure the side ring explosively disengaged from the rim base and struck plaintiff, causing severe injuries to his arms and legs.

Graham filed his complaint in February, 1974, the final amended complaint being filed in November, 1977. Graham’s wife, Estella, and Kinnie’s workmen’s compensation insurer, Reliance Insurance Company, joined Graham as plaintiffs, their rights being completely derivative. The complaint was in three counts. Count I alleged negligence on the part of Ryerson in failing to warn Graham that the truck had been run with a flat tire and that it had been overloaded. It further alleged negligence by a Ryerson employee who moved Graham’s leg after the accident and aggravated his injuries. Count II sounded in negligence against Firestone. It charged breach of a duty to warn of the hazards of the RH5° wheel and negligence in the design of that wheel. Count III alleged breach of implied warranty in the product design.

Ryerson denied the material allegations of negligence against it. Ryerson pled as affirmative defenses contributory negligence on the part of Graham and that the truck was owned and controlled by Kinnie. Firestone also denied the material allegations against it, pled contributory negligence, and pled the intervening negligence of third parties.

The trial court granted Ryerson’s motion for a directed verdict. The jury found no cause of action against Firestone. The plaintiffs moved for a new trial, which the court denied in a written opinion dated October 5, 1978. The plaintiffs appeal by right.

The trial court ruled as a matter of law that defendant Firestone, manufacturer of the side ring, had no duty to warn plaintiff of the danger involved in inflating a tire that had been run while flat because of Graham’s status as an "expert” in changing truck tires. Plaintiffs claim error in the trial court’s refusal to submit to the jury the question of Firestone’s duty to warn. An examination of the cases cited by defendant Firestone and relied upon by the trial court does not support the proposition that there is no duty to warn experts.

The trial court’s reliance on Parsonson v Construction Equipment Co, 386 Mich 61; 191 NW2d 465 (1971), and its progeny is misplaced. Based upon a latent/patent defect analysis, the Parson-son Court found that a gasoline engine need not be designed to safeguard against the possibility that someone might fill the gas tank of the engine without first stopping the heater blower or engine, both obvious heat sources in very close proximity to the tank. "Here the danger of fire or explosion by the careless use of gasoline was visible and patent rather than concealed or latent”. 386 Mich at 76. The Court concluded that plaintiffs own conduct, in the face of an obvious danger known to all adults of reasonable intelligence, was the proximate cause of injury. The duty to warn issue was not raised or discussed; however, the reasoning of the Parsonson Court was adopted in Crews v General Motors Corp, 400 Mich 208; 253 NW2d 617 (1977), and Holbrook v Koehring Co, 75 Mich App 592; 255 NW2d 698 (1977), both of which deal, at least tangentially, with the warning question.

The evenly divided Crews Court upheld this Court’s decision affirming a directed verdict for the defendant on the grounds that " 'even if the evidence sufficed to show a defect in the engine, there was absolutely no showing that this defect caused the fire’ ”. 400 Mich at 214. Plaintiff in Crews did not plead failure to warn. Justice Coleman opined that this was most likely due to his full awareness of the specific danger that could, and, in fact, did result from his conduct. Plaintiffs trial testimony, included within Justice Coleman’s opinion, indicated that Mr. Crews, an experienced mechanic, knew that turning the ignition key without first disconnecting the ignition from the wires in the coil might produce sparks. Mr. Crews was working with a fuel line at the time; a spark ignited the gasoline and he was severely burned.

This Court reached a similar conclusion in Holbrook, supra, where plaintiff was an experienced crane operator who was injured when lifting an object 19,000 pounds heavier than the crane’s maximum capacity. In response to plaintiff’s failure to warn argument the Court stated:

"We find plaintiffs argument on defendant’s failure to warn irrelevant because plaintiff was an experienced operator of this crane and had experienced difficulties with it similar to those here complained of.” 75 Mich App at 595. (Emphasis added.)

We do not find the above cases supportive of the "expert” rule advanced by defendant and adopted by the trial court. Rather, these cases stand for the proposition that there is no duty to warn of dangers obvious to all users of the product or of specific dangers fully known to the complainant at the time the injury occurred.

The strongest support for defendant’s position concerning the duty to warn "experts” is found in those cases which hold that the duty does not extend to members of a particular trade or profession where the danger involved is a matter of common knowledge. Eyster v Borg-Warner Corp, 131 Ga App 702; 206 SE2d 668 (1974), Parker v State, 201 Misc 416; 105 NYS2d 735 (1951), aff'd 280 App Div 157; 112 NYS2d 695 (1952), Lockett v General Electric Co, 376 F Supp 1201 (ED Pa, 1974). These cases, however,, do not establish an across-the-board rule eliminating the duty to warn tradespeople and professionals. The Eyster court noted:

"[P]laintifFs evidence demonstrated that those who are franchised to install this Borg-Warner product should, in the ordinary course of events, have been aware of the danger of the questionable connection, since such peril was a matter of common knowledge to those in the trade. More importantly, plaintiffs’ evidence showed that it was contrary to the generally accepted practice to connect aluminum and copper wiring.” 131 Ga App 704. (Emphasis added.)

If members of the particular trade or profession commonly engage in a dangerous practice, the manufacturer’s knowledge of this conduct may give rise to a duty to warn. In Casetta v United States Rubber Co, 260 Cal App 2d 792; 67 Cal Rptr 645 (1968), the court held that the issue of failure to warn was erroneously withdrawn from the jury. Plaintiff, a tire repairman, was injured when a tire he was mounting for a customer exploded. In performing this task plaintiff used a "safety” or "hump-type” rim which called for the use of a lubricant during mounting to lessen or eliminate the danger of explosion. The defendant manufacturer provided mounting instructions, including a direction to use a lubricant, but failed to warn of the danger presented by failure to follow this direction. The court stated:

"Questions of fact were presented with respect to the issue of whether, the manufacturer should have known that the general instructions to use a lubricant were more respected in the breach than by observance, and, if so, whether special warning should have been given of the particular hazard from safety rims.” 260 Cal App 2d at 817.

In the instant case there was ample testimony that it was the common practice of diesel mechanics, Graham and others, to inflate tires in order to elevate the vehicle. We must assume that defendant was aware of this practice since it had been informed of about 40 similar blowout incidents. In light of this knowledge in particular, as well as common knowledge that vehicles with flat tires are likely to be run in that condition for varying distances and causes, we find a question exists as to the duty to warn even tire repairmen of the special danger involved. In the absence of any general rule eliminating the duty to warn "experts” we find that the trial court erred in excluding this issue from jury consideration on that basis. Although Michigan courts have found no duty or have excused failure to warn when the danger involved is obvious or specifically known to the user of the product, the extent of the risk and the appreciation of the danger are more subtle factors. Since we are not presented with the question of obvious danger, we proceed to consider whether the trial court could properly have removed the issue of duty to warn from the jury on the basis of plaintiff’s knowledge of the particular risk. Although the question of duty is generally for determination by the trial court as a matter of law, the jury should examine the issue pursuant to proper instructions, when the facts adduced at trial are in dispute, giving rise to a reasonable difference of opinion as to the foreseeability of the particular risk and the reasonableness of defendant’s conduct in that regard. Robertson v Swindell-Dressler Co, 82 Mich App 382; 267 NW2d 131 (1978), lv den 403 Mich 812 (1978), relying on Prosser, Torts (4th ed), § 37, p 206 and § 45, p 290.

Plaintiff herein testified that, though he had never been warned, he knew that it was dangerous to inflate a tire that had been run while flat because the wheel or rim could be damaged. He further testified that he did not know if this tire had been run flat, but that, as far as he could tell, the rim appeared concentric. The record is devoid of evidence of his awareness of the nature or degree of the risk. Even if he was aware that the side ring might disengage in response to inflation pressure, did he realize that the amount of pressure he exerted would result in such explosive thrust and consequential life threatening hazard? Consciousness of a vague danger, without appreciation of the seriousness of the consequences, may require the manufacturer to provide warning; presentation of credible evidence results in a jury question. Hardy v Proctor & Gamble Manufacturing Co, 209 F2d 124 (Ca 5, 1954), Hopkins v E I du Pont De Nemours & Co, 199 F2d 930 (CA 3, 1952), West v Broderick & Bascom Rope Co, 197 NW2d 202 (Iowa, 1971), cf. Coger v Mackinaw Products Co, 48 Mich App 113; 210 NW2d 124 (1973), Simonetti v Rinshed-Mason Co, 41 Mich App 446; 200 NW2d 354 (1972), lv den 388 Mich 784 (1972).

In addition, evidence was presented that the rim base and side ring were affected by varying degrees of rust corrosion and that this condition deteriorated the bonding of the rim and ring. This defective condition was not readily observable and there was no evidence that defendant was aware of internal rust in the wheel or the implications of this condition. Firestone blamed any accident related fault for this condition on Titan Tire Company which was responsible for maintenance. Titan Tire Company is not a party to this suit. Even accepting defendant’s position on this matter does not eliminate the possible need to warn of the dangers involved.

We conclude that plaintiff raised a jury submissible issue which the trial court improperly removed from its consideration.

Plaintiff next claims error in the trial court’s refusal to admit into evidence a report prepared by the National Highway Transportation Safety Administration (NHTSA) which purportedly detailed an investigation of RH5° wheel accidents. Firestone opposed the exhibit on the grounds that it was hearsay since it was not prepared "pursuant to duty imposed by law” as required by MRE 803(8)(B) and on the additional ground that its untrustworthiness rendered it more prejudicial than probative. The NHTSA was established pursuant to the National Traffic and Motor Vehicle Safety Act of 1966, 15 USC 1381 et seq. It is empowered to study, report, and remedy noncompliance with Federal motor vehicle safety standards and defects which relate to motor vehicle safety. 15 USC 1411-1418. Although the report concluded that the RH5° wheel was defective, the agency ultimately disagreed and therefore the report was never issued. The agency’s final treatment of the report does not negate the fact that the study and report related to "matters observed pursuant to duty imposed by law”.

Although we disagree with defendant’s position regarding admissibility of the report under MRE 803(8)(B), we cannot find an abuse of discretion in the trial court’s refusal to admit this documentary evidence on grounds of highly prejudicial character since plaintiffs have not made the report available to this Court. The agency’s newsletter released April 12, 1974, stated that "a national poster campaign and public advisory was employed to advise service personnel of safe procedures in handling this type of wheel”. Obviously, the agency was in full agreement with that portion of the report pertaining to warnings for safe use of the wheel. The trial court found that subject area irrelevant, consistent with its earlier decision to exclude all evidence of defendant’s duty to warn. In light of our disposition of the warning issue, we suggest reconsideration on retrial of the admissibility of at least that portion of the NHTSA report.

The jury verdict of no cause of action is challenged as being against the great weight of the evidence. Once the warning issue was excluded, plaintiffs were left to proceed on a design defect theory. Firestone presented reliable evidence that the product conformed with industry design standards and that it was fit for its intended use. See Owens v Allis-Chalmers Corp, 83 Mich App 74; 268 NW2d 291 (1978), lv gtd 405 Mich 827 (1979), Piercefield v Remington Arms Co, 375 Mich 85, 96; 133 NW2d 129 (1965). Firestone argued that the real cause of the injury was plaintiff’s improper use of the wheel. Manufacturers are duty bound to design products that are safe for their intended or reasonably anticipated use, which may include reasonably anticipated misuse. Byrnes v Economic Machinery Co, 41 Mich App 192; 200 NW2d 104 (1972). This is true under both implied warranty and negligence theories. Elsasser v American Motors Corp, 81 Mich App 379, 385; 265 NW2d 339 (1978). We cannot conclude that, limited to the question of design defect, the jury returned a verdict against the great weight of the evidence.

The final issue which merits consideration here is whether the trial court erred in directing a verdict in favor of defendant Ryerson. Plaintiffs failed to provide an adequate record on this issue since they did not supply us with the transcript dealing with the court’s ruling on Ryerson’s motion for directed verdict. See GCR 1963, 812.2. We affirm the verdict as to defendant Ryerson.

The remaining issues raised by plaintiffs were not properly preserved for appellate review. Hill v Husky Briquetting, Inc, 78 Mich App 452, 456-458; 260 NW2d 131 (1977), lv den 402 Mich 893 (1978), Koepel v St Joseph Hospital, 381 Mich 440, 442-443; 163 NW2d 222 (1968).

Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion

        For the demise of this analysis see the discussion in Casey v Gifford Wood Co, 61 Mich App 208, 213-214; 232 NW2d 360 (1975). The Supreme Court granted leave to consider the viability of the latent/patent distinction in Owens v Allis-Chalmers Corp, 83 Mich App 74; 268 NW2d 291 (1978), lv gtd 405 Mich 827 (1979).


author: M. J. Kelly, J.

text:
    PEOPLE v WEBB
    Docket No. 78-4802.
    Submitted February 15, 1980, at Lansing.
    Decided April 1, 1980.
    Leave to appeal applied for.
    Lee A. Webb, Jr., was convicted of carrying a concealed weapon, Kent Circuit Court, George R. Cook, J. In a hearing to determine the disposition of defendant’s child, the defendant became hostile and angry and left the courtroom. LaVella Bolden, hearing coordinator with a duty to insure order in the courtroom, became suspicious of defendant’s actions and had been informed that defendant had a history of carrying a concealed weapon. She searched his briefcase without his consent. A gun was found and confiscated by the police. This gun became the basis for the charges in the criminal information. Defendant appeals. On appeal, defendant contends that the trial court should have refused to admit the gun into evidence at trial because it was seized as the result of an illegal search. Held: The trial court properly admitted the gun at the trial. Defendant’s behavior and the knowledge that defendant had a history of carrying a concealed weapon created a reasonable suspicion. Searches under these circumstances are not governed by the probable cause standard of the Fourth Amendment but by the less restrictive reasonable suspicion standard. Ms. Bolden’s search of defendant’s briefcase was based upon reasonable suspicion.
    Affirmed.
    1. Constitutional Law — Government Officials — Arbitrary . Invasions of Privacy.
    The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.
    2. Searches and Seizures — Government Employees — Probable Cause — Reasonable Suspicion.
    A juvenile hearing coordinator in her capacity as a non-law enforcement government employee with a duty to insure order in a courtroom may search a person’s personal belongings upon reasonable suspicion that they contain a threat to discipline and security in the courtroom; the reasonableness of the search, under these circumstances, is not governed by the probable cause standard but by the less restrictive reasonable suspicion standard.

      References for Points in Headnotes
    [1] 16A Am Jur 2d, Constitutional Law § 601.
    68 Am Jur 2d, Searches and Seizures § 4.
    [2] 68 Am Jur 2d, Searches and Seizures § 41 et seq.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

      Logan & McWilliams, for defendant.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   M. J. Kelly, J.

Lee Andrew Webb, Jr., appeals of right from his July 11, 1978, bench trial conviction of carrying a concealed weapon, contrary to MCL 750.227; MSA 28.424. Defendant was ordered to pay a fine of $250 and $250 court costs or spend 60 days in the county jail.

The present charge arises out of an incident that occurred during a dispositional hearing in the Kent County Juvenile Court to determine whether the daughter of defendant, who had been adjudicated a ward of the court, should be returned to her parents or remain in foster care. At one point during the hearing defendant became hostile and angry and left the courtroom, making sure that he took his briefcase with him. Ms. LaVella Bolden, the neglect hearing coordinator employed by the juvenile court, watched defendant and became suspicious. Ms. Bolden’s duties, in addition to coordinating the hearings between all the appropriate parties, included keeping order in the courtroom by seeking help in case anyone became unruly. Ms. Bolden found out that defendant had a history of carrying a concealed weapon, and she subsequently searched defendant’s briefcase without his consent. Ms. Bolden found an envelope which contained something that felt like a gun. Attorney Robert Relph, representing defendant’s daughter, later opened the envelope, found a gun inside, and called the law enforcement officers who confiscated the gun. Defendant argues that the trial court should have refused to admit the gun into evidence at trial since it was seized as the result of an illegal search.

In Michigan v Tyler, 436 US 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978), the Supreme Court stated, at 504 and 505:

"* * * As this Court stated in Camara v Municipal Court, 387 US 523, 528, 18 L Ed 2d 930, 87 S Ct 1727, the 'basic purpose of this Amendment * * * is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ The officials may be health, fire or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection. * * * These deviations from the typical police search are thus clearly within the protection of the Fourth Amendment.”

In People v Ward, 62 Mich App 46; 233 NW2d 180 (1975), lv den 395 Mich 767 (1975), the Michigan Court of Appeals found that a public high school principal was a government official for purposes of the Fourth Amendment, and thus his search of a student for drugs must be reasonably based on suspicion. The Court stated, at 51, that because of "the public interest in maintaining an effective system of education and the more immediate interest of a school official in protecting the well-being of the students entrusted to his supervision against the omnipresent dangers of drug abuse”, the reasonableness of the search was governed not by the probable cause standard, but by the less restrictive reasonable suspicion standard.

In the present case, Ms. Bolden searched defendant’s briefcase in her capacity as a non-law enforcement government employee whose duty it was to insure order in the courtroom, if not personally, then at least by calling for assistance. Her duty to maintain order can be analogized to the duties of the principal in People v Ward, supra. In both cases the need to search was compelling. Here defendant’s briefcase was reasonably thought to contain a threat to discipline and security in the courtroom essential to the integrity of the judicial system. Therefore, the reasonableness of the search of defendant’s briefcase should be tested under the reasonable suspicion standard.

In the present case, defendant’s behavior during the hearing aroused Ms. Bolden’s suspicions. In addition she was informed that defendant had a history of carrying a concealed weapon. Ms. Bolden’s suspicion that defendant was carrying a concealed weapon on that particular occasion was at least as reasonable as the suspicion of the principal in People v Ward, supra. Thus the search of defendant’s briefcase satisfied the reasonable suspicion test adopted in People v Ward; therefore, the trial court did not err by refusing to exclude the evidence of the gun from the trial.

Affirmed.